B"H Sunday, 4 Tishrey 5778 | September 24 2017
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Photograph: Shturem Archive/ Boruch Ezagui
A Great Victory for all Americans
The Jewish Press
US District Court judge André Birotte, Jr. on Friday granted a legal victory to the Chabad of Irvine, dismissing a lawsuit brought against the Chabad House by animal rights activists, who sought to end the group’s practice of Kapparot.

According to court papaers, “the Plaintiff’s complaint alleges the following: Defendant conducts an annual ceremony known Kapparot or Kaporos. Kapparot usually occurs in September or October between the Jewish High Holidays of Rosh Hashanah and Yom Kippur. Kapparot is a ritual which involves killing a chicken as atonement for a participant’s sins. Plaintiff alleges that Defendant orders and receives hundreds of chickens for the Kapparot ceremony and charges a fee of $27 to ritually kill and discard each chicken. Plaintiff alleges that United Poultry Concerns is categorically opposed to the killing and discarding of chickens solely for the purpose of a religious ritual. Plaintiff also alleges that Defendant’s act of killing and discarding chickens is a violation of California Penal Code §597 (a). Finally, Plaintiff asserts that UPC suffered economic damages in the form of diversion of resources incurred in combating Defendant’s activities.”

The court noted that “Defendant argues that Plaintiff’s revenue estimates are incorrect and thus asserts a factual attack against the Court’s jurisdiction over this matter. […] Defendant mounted a factual attack by submitting the affidavit of Rabbi Tenenbaum and an attached log that purports to show all money received and spent by Chabad of Irvine in connection with Kapparot in 2014. Defendant asserts that the log shows that Chabad of Irvine only used 95 chickens and lost $24 in connection with the Kapparot Ceremony in 2014.”

Also: “The Court cannot find, and Plaintiff does not cite a single case in which the acceptance of a donation in connection with the performance of religious ritual has been treated as a ‘business act’ under the UCL. Moreover, the Court finds that Defendant Chabad of Irvine does not participate nor compete as a business in the commercial market by performing a religious atonement ritual that involves donations.”

“For these reasons, the Court finds that Plaintiff fails to state a claim against Chabad of Irvine for a violation of the Unfair Competition Law,” and, “Plaintiff does not have standing to enforce animal cruelty laws in the absence of a UCL Claim, therefore the Court declines to address the parties’ arguments regarding the applicability of California Penal Code 597(a) in the instant case. […] Likewise, the Court declines to address the merits of the parties’ arguments regarding the Constitutionality of California Penal Code 597(a).”

In conclusion: “Based on the foregoing, the Court hereby GRANTS Defendant’s Motion to Dismiss Plaintiff’s complaint. Because the Court finds that any further amendment would be futile, Plaintiff’s claim is DISMISSED WITH PREJUDICE.”

“We are overjoyed that the judge saw the wisdom of protecting our ability to practice a cherished tradition of our faith,” Rabbi Alter Tenenbaum, Rabbi of the Chabad of Irvine, said in a statement, adding, “We hope this victory will encourage everyone to live in peace and tolerance of everyone’s religious beliefs.”

The Chabad House was represented by international law firm WilmerHale and national religious freedom law firm First Liberty Institute.

“The court’s ruling sends a clear message – the law protects the rights of all Americans to practice their religious traditions in peace,” Matthew Martens, partner with WilmerHale and lead counsel for the synagogue, said in a statement.

“No one should attack a synagogue for peacefully practicing a tradition they’ve observed for over 1000 years,” Hiram Sasser, Deputy Chief Counsel for First Liberty Institute and co-counsel for the synagogue, said in a statement, noting that “this is a great victory, not only for the synagogue, but for all Americans who value our constitutional freedoms.”

20 Iyar 5777