Litigation

UK Lawyers Taking Action Against Palestinian Terrorism

Daniella Hovsha : January 20, 2017 3:38 pm : Litigation

Earlier this week, the UK Lawyers for Israel (UKLFI) submitted a complaint to the UK National Contact Point for the Organization for Economic Cooperation and Development (OECD) regarding the conduct of a multinational service network’s providing audit reports from which the Palestinian Authority (PA) has funded the payment of salaries to terrorists.

UKLFI

 

UKLFI, a non-governmental organization which seeks to promote the proper and just application of laws in relation to Israel, is taking the Pricewaterhouse Coopers (PwC) Global Network to account for enabling the PA to provide financial aid to terrorists, in violation of OECD Guidelines concerning Multi-National entities.

The report contends that PwC – which handles the financials for the millions of dollars in donations the PA receives annually – has failed to inform donors and the public that some of these funds go directly to the incitement of terrorism, nor have they acted to deter the PA from this abhorrent practice.

The submission claims that many donors “have relied on the fact that the PA is audited by PwC to argue that no further scrutiny is needed of the aid directed to the PA. In consequence the PA continues to be able to fund the incitement of terrorism.”

It is thus the objective of the UKLFI to “prevent the further violations of the human rights of…victims of terror, Palestinian citizens and taxpayers who contribute to international aid donations made to the Palestinian Authority”.

The report asserts that the UKLFI is ensuring  that PwC conforms to OECD guidelines as well as to what the UKLFI identifies as values of integrity and humanity pledged to on the PwC website. The PwC Global Network has refused to provide information, and they are appealing to the UK National Contact Point to facilitate a non-adversarial dialogue with PwC to discuss how to bring its operations into line with the Guidelines.

This report will thus expedite the process to safeguard against such exploitations of humanitarian aid, as well as of human rights.

 

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Michigan Governor Signs Anti-BDS Bills into Law

Katherine Hung : January 13, 2017 5:12 pm : Anti-Semitism, Litigation

Snyderheadshot_342394_7

Michigan Governor Rick Snyder

On New Year’s Eve, Michigan Governor Rick Snyder signed two anti-BDS bills into law. The bipartisan legislation—previously bill HB 5821 sponsored by Reps. Al Pscholka, Mike Calton, Jeremy Moss, and Andy Schor, and bill HB 5822 sponsored by Rep. Robert Wittenberg—prohibits the state from hiring businesses that boycott individuals or public entities of a foreign nation.

The new law states that the Department of Management and Budget and all state agencies “may not enter into a contract with a person to acquire or dispose of supplies, services, or information technology unless the contract includes a representation that the person is not currently engaged in, and an agreement that the person will not engage in, the boycott of a person based in or doing business with a strategic partner.”

These measures, which are now Public Acts 526 and 527 of 2016, condemn national origin discrimination and thus the efforts of the anti-Israel boycott, divestment, and sanctions movement (BDS). In effect, the new legislation outlaws business relations between public entities of the state of Michigan and companies that practice BDS policies.

The Public Acts protect Michigan’s economy from the devastating effects of boycotting Israel. Michigan benefits from tens of millions of dollars in annual economic trade with Israeli entities and partners with commercial interests in Israel. Their trade encompasses some of the state’s most important economic sectors—namely, technology research and development, defense, and health sciences. The BDS effort to restrict trade with Israel would threaten the future prosperity of both Michigan and Israel, a danger which Public Acts 526-527 effectively mitigate.

The recent legislation sends a strong message that Michigan will not support the anti-Semitism and intolerance of campaigns like the BDS movement. It is not only an anti-BDS victory, but also a triumph against prejudice and the practice of holding Israel to a double standard.

Michigan’s efforts come in the wake of similar action from other states in recent months. Ohio passed an anti-BDS law in December, following legislation in Pennsylvania in November, California in September, New Jersey in August, and Rhode Island in June. Michigan joins awcwnrwwn other states in opposing BDS. This new legislation marks the rising tide of state governmental efforts against BDS and points to continued success of the anti-BDS movement.

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The Beginning of the End for BDS in Spain

Daniella Hovsha : January 12, 2017 5:07 pm : Anti-Israelism, Litigation

The Boycott, Divestment, and Sanctions (BDS) movement is being defeated and in perhaps the most surprising of nations – Spain. A country that topped the Anti-Defamation League’s 2015 anti-Semitism index in Western Europe, and the very place where a Catalan lawmaker demanded the head of Barcelona’s Jewish community be removed from the local government’s parliament for being “a foreign agent,” Spain has long been considered a BDS foothold.

BDS demonstration Spain

That is, until about 15 months ago when Ignacio Wenley Palacios Iglesias came onto the scene. A Jesuit lawyer specializing in nautical law, Mr. Iglesias first became involved by happenstance. Iglesias’s daughter was attending the Rototom Sun-Splash Music Festival, infamous for its initial banning of Jewish American singer/ songwriter Matisyahu in 2015. Matisyahu was asked to denounce Israel before being allowed to take part in the Festival, a demand not extended to any of the other artists performing. Matisyahu adamantly refused.  After massive international outcry, Matisyahu did perform, amongst a hostile crowd.

This event was given great attention at the time, and raised questions globally about the motives of BDS operatives and their deep entrenchment in the Spanish political system. For Iglesias, it was the catalyst which involved him in the fight against BDS.

Speaking to the Brandeis Center, Mr. Iglesias adamantly declared that he believes all boycotts of this nature to be unconstitutional. An expert in the Spanish constitution, Iglesias argues that such boycotts as have been imposed by state houses, city councils and universities around the country contradict the need for public offices to stay neutral and breach the civil liberties of various citizens, Jewish or not.

Supported by the The Lawfare Project’s legal fund as well as by ACOM in Spain, Iglesias has been fighting back through the very structures which first allowed this to take place, emphasizing and correcting the contradictions of the BDS through the court. At the time of our interview, Iglesias had spearheaded more than 40 legal rulings, injunctions and opinions against the Boycott Israel movements in Spain.

By fast tracking proceedings for the protection of civil liberties, Iglesias and his colleagues have won more than eight cases in which BDS has been declared illegal, three reversed judgements against previous BDS victories, and 11 injunctions against BDS whilst proceedings continue, something Iglesias categorizes as unprecedented.

This strategy, using the courts to uphold the law and constitution, has been widely successful across Spain, leading to the reimbursement of $107,000 to the Israeli University of Ariel, which had been boycotted by certain Spanish tertiary level institutions. Iglesias’s strategy has also led to a statement made by Spain’s Ministerio Fiscal (the Attorney General), who declared that the anti-Israel boycott of Gijon violates “the constitution as well as the European Convention for the Protection of Human Rights.”

Certainly, the past week saw another of these victories,: the city of Santa Eulalia nullified the pro-BDS position it had taken up only moths before.

Iglesias is confident that this common sense approach, which underscores the illegality of BDS, and will and must work across Europe and the globe.

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New Jersey’s Anti-BDS Legislation

Michelle Yabes : July 27, 2016 10:06 am : Anti-Israelism, Anti-Semitism, General, Litigation

Photo: State.NJ.US

Photo: State.NJ.US

Last month, the New Jersey General Assembly in an overwhelming 69-3 vote passed legislation prohibiting the investment of state pension and annuity funds in to companies that boycott Israel or Israeli businesses. A similar bill had passed through the state Senate in a unanimous 39-0 vote in May.

According to the legislation, the state’s $71 billion pension fund provides coverage for about 800,000 current and retired public employees. Under the bill, the state would have 120 days after its passage to identify companies that violate the new prohibition. It would then have an additional 24 months to withdraw investment or divest. However, according to the Philadelphia Inquirer, the state Treasury Department is not aware of any companies that the pension fund is invested in that would violate the legislation.

The bill also stated that Israel and New Jersey annually trade more than $1.3 billion in goods.

The legislation noted that, “It is important to the economic well-being of New Jersey that persons or entities conducting commercial trade and doing business in the State do not engage in boycotts of a legitimate and viable partner with whom New Jersey can enjoy open trade contracting,” and went on to say, “Therefore, it is in the best interest of this State that a statutory prohibition be enacted to prohibit the investment of public employee retirement funds in companies boycotting Israel.”

One of the bipartisan bill’s primary sponsors, Assemblywoman Valerie Vainieri Huttle (D., Bergen), also noted that the legislation aimed to maintain and strengthen New Jersey’s existing relationship with Israel.

Another one of the bill’s primary sponsors, Assemblyman Chris Brown, (R-Atlantic) commented, “We have no greater ally in the Middle East than Israel, and it’s in America’s economic and security interest to make sure Israel remains strong and stable.”

Brown, who participated in a Federation Mission to Israel for legislators earlier this year, went on to state, “From what I‘ve learned, the BDS movement is rooted in hate, and not truly motivated to help the peace effort,” noting that, “An economically strong Israel is the only way to ensure stability and peace for both Israelis and Palestinians.”

Senator James Beach (D-Camden), who also visited Israel earlier this year with 14 fellow lawmakers on a study mission that was sponsored by the New Jersey State Association of Jewish Federations, sponsored the bill in the Senate. He commented, “New Jersey has a long history of friendship with Israel, and any efforts to boycott Israeli goods, products and businesses are not only contrary to our values but are discriminatory and ill-intentioned.” He went on to say “We remain committed to standing against these practices, and banning investments in companies that engage in these activities is the right course of action.”

Governor Chris Christie is expected to sign the bill into law.

With the additions of New Jersey and Rhode Island this summer, at least other 12 states have passed anti-BDS legislation. It was reported that, in total, about 21 other states have taken up anti-BDS legislation.

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Another Anti-BDS Lawsuit Filed

Aviva Vogelstein : July 21, 2016 1:35 pm : Anti-Israelism, Anti-Semitism, Litigation

It’s been a rough year for the American Studies Association (“ASA”), legally speaking.

Earlier this week, a lawsuit was filed in New York State Court against the New York Metro chapter of the ASA, alleging “unlawful discrimination under the New York City and State Human Rights Laws,” in relation to the ASA’s boycott of Israeli academic institutions.

(Source: en.wikipedia.org)

(Source: en.wikipedia.org)

In 2013, the ASA issued a boycott of Israeli academic institutions. The complaint was filed by New York attorney David Abrams, on behalf of plaintiff, Athenaeum Blue & White (“Athaneum”), a not-for-profit Israeli education organization with a principle place of business in New York. The complaint alleges that the plaintiff is barred from joining the ASA as an institutional member based on its Israeli national origin. Athaneum, according to the complaint, “is an organization which would [be] eligible for membership in the [ASA] but for their anti-Israel boycott.” The ASA is hence violating the New York City and State Human Rights Laws, as it is discriminating against the Plaintiff on the grounds of national origin.

This is the second lawsuit filed against the ASA in a matter of months.

In April, the Brandeis Center, along with prominent litigators at Marcus & Auerbach and Barnes & Thornburg, filed suit against the ASA for its unlawful boycott of Israel, on behalf of four distinguished American Studies professors.

The Brandeis Center’s clients, well-known academics in the field of American Studies, filed suit “to restore the ASA to its stated mission.” The professors wrote about how, over the past few years, the ASA “has been diverted from its scholarly mission —promoting the study of American culture—to a political one, by leaders seeking to turn the ASA into an organization that advocates for social change far beyond American borders, and with an unwavering focus on delegitimizing Israel.”

As LDB President Kenneth L. Marcus explained in Newsweek, “At the time the boycott was initiated, ASA’s constitution clearly stated that ‘[t]he object of the association [is] the promotion of the study of American culture through the encouragement of research, teaching, publication…about American culture in all its diversity and complexity.’ According to the American Studies professors, for 60 years, ASA has been an association focused on American Studies. It is not a social justice organization, nor is it a foreign policy organization. Indeed, according to the professors, boycotting a foreign nation has absolutely nothing to do with ASA’s mission and is therefore illegal.”

Although the Brandeis Center’s lawsuit is still in the early phases, it has already been credited in part with the dramatic defeat of a resolution calling for the American Anthropological Association (AAA) to boycott Israeli academic institutions, suggesting that the case will have a profound impact in future BDS decisions.

As demonstrated by these two recent lawsuits against the ASA, significant potential legal options aside from legislation that can be utilized to combat BDS, and unlawfully boycotting Israel can lead to repercussions.

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AAA Boycott Fails; LDB Lawsuit Credited

Aviva Vogelstein : June 10, 2016 3:32 pm : Anti-Israelism, Anti-Semitism, Litigation

The Boycotts, Divestment, and Sanctions (BDS) Movement against Israel took a big blow earlier this week when the American Anthropological Association (AAA) narrowly rejected a resolution calling for a boycott of Israeli academic institutions (2,423 against; 2,384 in favor). This BDS failure was remarkable in light of the overwhelming support that it had enjoyed just a few months before – at the AAA’s annual meeting last November, 88% of the membership in attendance approved the decision to bring the resolution.

(Source: www.americananthro.org)

(Source: www.americananthro.org)

The BDS movement attributes this dramatic defeat in part to LDB’s lawsuit against the American Studies Association (ASA) for passing the same type of resolution. Some AAA members apparently understood that their anti-Semitic resolution would likely be unlawful and could subject the association to costly litigation and humiliating defeat.

(Source: en.wikipedia.org)

(Source: en.wikipedia.org)

In April, the Brandeis Center, along with prominent litigators at Marcus & Auerbach and Barnes & Thornburg, filed suit on behalf of four distinguished American Studies professors, against the ASA, for its unlawful boycott of Israel.

The Brandeis Center’s clients, well-known academics in the field of American Studies, filed suit “to restore the ASA to its stated mission – the promotion of the study of American culture – so that the members of the ASA can once again faithfully exercise their membership.” Our clients wrote about how, over the past few years, the ASA “has been diverted from its scholarly mission —promoting the study of American culture—to a political one, by leaders seeking to turn the ASA into an organization that advocates for social change far beyond American borders, and with an unwavering focus on delegitimizing Israel.”

As LDB President Kenneth L. Marcus explained, when the boycott was initiated, the ASA’s Constitution stated that, “[t]he object of the association [is] the promotion of the study of American culture….” Similar to the ASA, the AAA’s stated purpose is to further its scholarly purpose, and would not authorize a boycott of Israel.

“‘This is not just about the American Studies Association,’” said LDB President Kenneth L. Marcus to Inside Higher Ed. “‘It’s about any association officer or director who is thinking about using their association as a tool to advance their own ideological agenda. This should send a signal that if association activists are not concerned that BDS resolutions are anti-Semitic and may be a violation of academic freedom they should certainly be concerned that they may violate corporations law.’” Additionally, in his op-ed in Newsweek, Marcus discussed the potential illegality of the AAA’s impending vote in the context of the Brandeis Center’s ASA litigation.

In addition to media coverage, at least two major anti-BDS reports were sent directly to the AAA. In one of these reports, posted on the LDB blog – Selective, Biased and Discriminatory: The American Anthropological Association Task Force Report on Israel Palestine – Elihu Richter, a founder of the Jerusalem Center for Genocide Prevention, addressed the selective, biased and discriminatory nature of the AAA’s Task Force Report (TFR) in respect to Public Health, the ethics of Operation Protective Edge and the effects of cradle-to-grave incitement in Palestinian society, and recommended retraction of the TFR. Further, a whole website was created – Against Anthro Boycott – for anthropologists to discuss, post news, and sign a statement against the boycott. more »

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Invitation to ‘Protecting and Offending Jews: Speech, Law and Policy’ Symposium in London

Michelle Yabes : May 31, 2016 11:15 am : Anti-Israelism, Anti-Semitism, Freedom of Speech, Litigation, Religious Freedom

image001 (1)Our friends at the Pears Institute for the study of Antisemitism – Birkbeck, in partnership with the All-Party Parliamentary Group Against Antisemitism, will host a symposium entitled  ‘Protecting and Offending Jews: Speech, Law and Policy’ on June 28. The event take place from noon to 4 pm in the Jubilee Room, Westminster Hall, House of Commons, London.

The symposium aims to consider the aspects of discourse which offend Jews. It will address the questions, “Is offensive discourse necessarily antisemitic? Do people take offense too readily and endanger free debate? At what point does criticism of Israel become offensive?” Secondly, the symposium will ask whether, in view of growing concern over antisemitism, the law should be augmented or amended to protect Jews further or whether current laws that target discrimination and prejudice give adequate protection. The presentations will be short and will allow for plenty of time for discussion. more »

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The Institute for Law and Policy Summer Program for Lawyers and Law Students

Michelle Yabes : May 23, 2016 4:48 pm : Anti-Israelism, Anti-Semitism, Freedom of Speech, General, Litigation, Religious Freedom

Summer ProgramLDB is pleased to once again partner with our friends at The Israel Forever Foundation in co-sponsoring the upcoming Institute for Law and Policy Summer Program for International Students and Attorneys, hosted by The Hebrew University at Mt. Scopus, Jerusalem. The program will span three weeks from June 27 to July 14, and will offer timely and informative courses on topics such as International Economic Law, International Criminal Court, Israel’s Human Rights Challenges, and the Legal aspects of the Middle East Conflict.

For more information about this program, or to apply, please click HERE. Or visit the Institute for Law and Policy at their website.

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Lawfare Project Announces Victory: LP Legal Actions Force Shutdown of ALL Kuwait Airways Inter-European Flights

Michelle Yabes : May 4, 2016 2:38 pm : Anti-Israelism, Anti-Semitism, General, Litigation, Religious Freedom

The Lawfare Project (LP) recently announced a major victory against Kuwait Airways Corporation (KAC) and the Arab League boycott of Israel. LP’s Swiss Counsel Philippe Grumbach filed civil and criminal complaints against KAC in Geneva, for refusing service to Israeli nationals, in violation of anti-discrimination laws.

The complaints against the airline were filed on behalf of an Israeli national living in Switzerland, after being denied a ticket on a KAC flight from Geneva to Frankfurt, Germany. The criminal complaint against KAC was filed with the Prosecutor General, and is based on the “airline’s violation of the Swiss Penal Code as well as Swiss constitutional provisions that protect individuals facing discrimination based on race, religion or ethnicity.” The civil complaint, filed with the Swiss Federal Office of Civil Aviation (FOCA), argues that the KAC “is violating the fundamental rights of Swiss residents and those traveling through Switzerland,” and also “asks that the FOCA demand an end to KAC’s discrimination and withdraw the airline’s operating license until such time as the airline comes into compliance with Swiss law.”

Kuwait’s law prohibits “all domestic companies from conducting business with Israeli citizens,” including “KAC flights between third countries.”

KAC flights between the United States and Europe have been terminated since last December, following U.S. Department of Transportation’s investigation of airline’s policies and practices. Their findings lead them to determine that the airline “was unequivocally operating in violation of federal anti-discrimination laws.”

The Lawfare Project stated, “[b]y cancelling these lucrative flight paths rather than admitting Israelis on KAC flights, the airline–a wholly owned instrumentality of the Kuwaiti government–is demonstrating its commitment to discrimination even while exposing itself to enormous pecuniary loss… National origin discrimination has no place in global commerce, and these practices will be prosecuted and penalized whenever and wherever they are attempted in the Western world.”

This victory sets an important precedent in halting illegal attempts to boycott the Jewish state.

 

To read the original article, please click here

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In Praise of Justice Alito’s Statement in Ben-Levi v. Brown

Dawinder Sidhu : March 21, 2016 11:29 am : Litigation, Religious Freedom

The government’s relationship with religion, if anything, means that the government may not categorically subject a particular religious group to heightened requirements for religious exercise, may not endorse and codify a particular interpretation of religious doctrine, and may not limit the religious exercise of an individual because the government disagrees with the individual’s interpretation of his faith.

In Ben-Levi v. Brown, each of these first principles was violated.  A federal district court and federal appeals court determined nonetheless that the plaintiff’s constitutional and statutory challenges could not go before a jury.  For its part, the Supreme Court of the United States declined review.  Only Associate Justice Samuel Alito, writing for himself, identified the fundamental problems in this case.  In what follows, I will comment on why this case warrants serious concern and Justice Alito significant credit.

Associate Justice Samuel A. Alito (By: Art Lien)

Associate Justice Samuel A. Alito (By: Art Lien)

 

The “Ben-Levi” in the case is Israel Ben-Levi, a Jewish inmate housed by the North Carolina Department of Public Safety (DPS).  According to the DPS, inmates may not hold group meetings without prior approval.  In 2012, Ben-Levi sought permission to hold a minyan, or Jewish study group.  The request was submitted to Betty Brown, the DPS Director of Chaplaincy Services.  Brown in turn consulted with a local rabbi by email and, based on this correspondence, determined that a minyan requires at least ten adult Jews or the presence of a rabbi.  As Ben-Levi’s proposed group consisted only of three members and as a volunteer rabbi was not available, Brown denied Ben-Levi’s request.

In general, the First Amendment prevents a prison from substantially burdening the religious exercise of an inmate, unless the prison can demonstrate that the relevant prison policy is “reasonably related to legitimate penological interests.”  The district court ruled that the DPS minyan policy did not infringe upon Ben-Levi’s religious exercise because DPS merely enforced its policy.

That policy, however, embodies DPS’s interpretation of Jewish doctrine.  DPS admitted as such, writing that its “position was based upon its understanding of the basic tenets of the Jewish faith[.]”  But evaluating and determining religious tenets is a solemn function reserved to the individual.  Government is not to arbitrate among, or have veto power over, differing religious perspectives considered by the individual.

Even if DPS believes that its policy contains the correct interpretation of a minyan, the Supreme Court has never insisted upon accuracy or consensus, or otherwise indicated that only a single interpretation may give rise to protected religious exercise.  Rather, the Court has permitted religious exercise to spring forth from a range of religious interpretations, provided that the individual’s interpretation is sincerely held.

Here, there is no basis to dispute the sincerity of Ben-Levi’s view that it would be better to have a Jewish study group of three than no group at all.  As Justice Alito stated, “Ben-Levi believes that relaxing the minyan requirement promotes his faith more than sacrificing group Torah study altogether.”   Similarly, in Holt v. Hobbs, the Supreme Court, in an opinion written by Justice Alito, unanimously recognized the sincerity of a Muslim inmate’s belief that, while Islam required he be completely unshaven, it is preferable to grow a 1/2-inch beard than to have no beard as mandated by the prison’s grooming policies.  For Ben-Levi, the district court wrongly focused on the DPS policy and not, as Justice Alito pointed out, whether the DPS “policy imposed a substantial burden on Ben-Levi’s ability to exercise his religious beliefs, as he understands them.”

In this case, the denial of the request to hold a Jewish study group prevented Ben-Levi from exercising his faith as he sincerely interpreted it.

The district court also concluded that, in the absence of a minyan, Ben-Levi could have engaged in private or corporate worship.   It is no answer that Ben-Levi may have had other ways to practice his faith; the law does not give the government an “alternative means” safe harbor or permit the government to cherry-pick how an inmate can pursue his religion.  The relevant question is whether DPS burdened this particular means of religious expression.  Brown’s denial of Ben-Levi’s request settles this threshold question.

Next, DPS stated that, assuming that it substantially burdened Ben-Levi’s faith, that the policy was nonetheless supported by several interests.  Brown herself declared that group gatherings “can compromise order, security, operation, safety, and inmate relationships in the prison system,” and can operate as a cover for “gang activity.”  But, as courts nationwide and the Supreme Court in Holt have pointed out, prisons may not rely on generalized, conclusory justifications for their policies.  Instead, courts are to assess whether the inmate has given rise to penological concerns justifying the relevant policy.

Here, there is nothing to suggest that Ben-Levi has undermined prison security or is affiliated with a gang. “Nor is there any indication that a Jewish study group is more likely… to impede order, compromise inmate relationships, or absorb personnel resources,” Justice Alito noted.  Accordingly, there is no basis for holding Ben-Levi or Jewish inmates as a whole to a standard — ten members or a volunteer religious leader present — that is not imposed on other religious groups seeking group study.

In the end, Ben-Levi’s case is troubling because the DPS strayed from corrections to theology.  In doing so, DPS deprived Ben-Levi of his religious rights and, more broadly, breached otherwise central principles concerning the role of government in religious affairs, principles that still exist within prison walls.  The injury to Ben-Levi and these principles is doubled by the fact that the lower courts did not permit a jury to weigh the parties’ assertions; the courts found the issues too clear to warrant jury involvement.  Justice Alito should be commended for being the lone Justice to recognize the problematic conclusions reached by the courts below and for signaling to future judges that such deprivations of religious freedom in the prison context will not go unnoticed.

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