In general, the messages protested the tradition of kaparot — sometimes spelled kapparot or kapparos — in which Orthodox Jews take live chickens, swing them over their heads as a means of symbolically transferring sins to the chickens, and then slaughter them on the eve of Yom Kippur, the Jewish day of atonement.
Sometimes the chicken is used for food, and sometimes it is not. This ritual may sound grisly (I have never participated in it), but no more so than the sacrifices at issue in Church of the Lukumi.
As reported on the Religion Clause blog, on September 28, 2016, United Poultry Concerns (an animal rights group) sought a temporary retraining order in the Central District of California. The suit, brought against Chabad of Irvine and Rabbi Alter Tenenbaum, requested injunctive relief to prohibit the temple’s practice of Kaparot in the period before Yom Kippur.
Plaintiffs charged that because Kaparot amounts to an “’intentional and malicious’” killing of an animal” (in violation of California Penal Code Section 597(a)), it is also an “unlawful” business practice (under California’s Unfair Competition Law (“UCL”), Business & Professions Code (“BPC”) section 17200, et seq).
On October 6, the District Court asked the plaintiffs to show cause why the case should not be dismissed for lack of standing:
Plaintiff(s) are ORDERED to show cause why this case should not be dismissed, for lack of statutory standing under California’s Unfair Competition Law (“UCL”), Business and Professions Code section 17200. Standing under the UCL extends to “a person who has suffered injury in fact and has lost money or property as a result of the unfair competition[.]” Cal. Bus. & Prof. Code § 17204. In order to show standing under the UCL a party must: “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322, (Cal. 2011).
The following day, plaintiffs filed a reply arguing that they have standing “based on its diversion of organizational resources spent addressing Defendants’ unlawful activity and attempting to convince authorities to take action.” Section 17204 provides that a party has standing if he “has suffered injury in fact and has lost money or property as a result of such unfair competition.”
The leading federal court decision on point is Southern California Housing Rights Center v. Los Feliz Towers Homeowners Association, 426 F.Supp.2d 1061, 1069 (C.D.Cal.2005). Here is the primary analysis:
Even if this amendment were retrospectively applied to the present case, the Housing Rights Center has standing because it presents evidence of actual injury based on loss of financial resources in investigating this claim and diversion of staff time from other cases to investigate the allegations here. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (finding that a fair housing organization suffered injury to confer standing to sue under the Fair Housing Act where it devoted significant resources to identifying and counteracting discriminatory policies); El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742 (9th Cir.1991) (holding that “the allegation that the EOIR’s policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing”); Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir.2002)(finding that a fair housing organization has standing to sue under the Fair Housing Act where its resources were diverted to investigating and other efforts to combat defendant’s discrimination).
The precedents cited do not support the district court’s conclusion. First, in Havens Realty, Justice Brennan held for a unanimous Court that so-called “testers” had standing to challenge housing discrimination because “Congress has thus conferred on all ‘persons’ a legal right to truthful information about available housing.” Focusing on “congressional intention,” Brennan noted that the provision “establishes an enforceable right to truthful information concerning the availability of housing” and thus “A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury.”
Second, in El Rescate, individuals and legal services organizations challenged a policy of the federal government not to provide full translations of deportation hearings. The court held (correctly) that the legal services group have organizational standing, as the failure to provide translations directly impacts those subject to removal. The panel’s citation for Havens simply bolstered the case for organizational standing, and did not consider whether the organization would have standing by itself. There is no doubt that aliens subject to removal, who do not receive translations, suffer an Article III injury. (That question is separate from whether translations must be provided–not all injuries yield remedies).
Third, in Combs nonprofits sued an apartment complex owner for housing discrimination. Citing Havens, the court held that plaintiff “has direct standing to sue” under the Fair Housing Act “because it showed a drain on its resources from both a diversion of its resources and frustration of its mission.” Nothing new was added here.
The Los Feliz Towers court analogized the Fair Housing Act to the California Unfair Competition Law, but I don’t think this analogy holds up. The text and “congressional intention” of the FHA reveals that “Congress has thus conferred on all ‘persons’ a legal right to truthful information about available housing.” No similar analysis was made about the text and history of the UCL. This disjunction is even greater when there is no suggestion that the relevant unfair business practice–animal cruelty–creates an enforceable right by plaintiffs. This bootstrapped argument stretches Los Feliz Towers (a dubious precedent) beyond its limits.
Frankly, this reasoning seems to allow any party to manufacture standing, merely by investigating something that bothers them. Although this may fly in state court, this seems to extend beyond the bounds of Article III. Without any clear indication that the legislature had intended such suits to be brought, this line of precedent provides a boundless font of jurisdiction.
Nonetheless, Los Feliz Towers, and its progeny, have been cited by several other district courts with no further elaboration, as noted in Animal Legal Defense Fund v. Great Bull Run, LLC, No. 14-cv-01171-MEJ, 2014 WL 2568685 (N.D. Cal. June 6, 2014):
Organizational plaintiffs have standing under the UCL where they divert resources as a result of a defendant’s alleged unlawful business practices. See S. Cal. Hous. Rights Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F.Supp.2d 1061, 1069 (C.D.Cal.2005) (“the Housing Rights Center has standing because it presents evidence of actual injury based on loss of financial resources in investigating this claim and diversion of staff time from other cases to investigate the allegations here”); Animal Legal Def. Fund v. HVFG LLC, 2013 WL 3242244, at *3 (N.D. Cal. June 25, 2013) (“a public advocacy firm such as ALDF can have standing under [the UCL] to challenge a business practice inimical to its purpose and against which the firm expends its resources, thus reducing the money and property it would otherwise have for other projects”)
Following these precedents, on October 7, the district court issued the TRO barring the practice of Kaparot:
IT IS HEREBY ORDERED that, pending a hearing for determination of an Order to Show Cause Why a Preliminary Injunction Should Not Issue, Defendant Chabad of Irvine and all of its respective agents, employees, or attorneys, shall be and hereby are RESTRAINED AND ENJOINED from killing chickens or other animals in exchange for a fee or donation in violation of California Penal Code section 597(a) until this matter can be heard on regular notice.
A brief in opposition is due on October 11 at 8:00 am (a few hours before the Yom Kippur holiday starts). Oral arguments are set for October 13 a 10:00 am (the morning after Yom Kippur concludes).
The timing of this suit is worth discussing for a moment. According to the TRO, United Poultry Concerns has been investigating the practice of Kaparot at the Chabad of Irvine since 2014. Yet, they only saw fit to seek a TRO five days before Rosh Hashanah. A complaint, or even a motion for a preliminary injunction, filed earlier in the year could have resolved this question without ex parte proceedings. This tradition is performed each year, at the same time, and was entirely foreseeable. Instead, the case was only filed on the eve of the holiday–and at a time when observant Jews have other priorities rather than dealing with a federal law suit. Based on my review of the docket, no notice of appearance was even made by the defendants, as the issue was resolved entirely ex parte. This tardy filing took advantage of the ex parte nature of a TRO–where no response is filed–during a period when Chabad had no time to mount any meaningful defense.
Perhaps the only redeeming quality of this hasty TRO is that it is extremely narrow, and strikingly simple to evade. The order only prevents defendants “from killing chickens or other animals in exchange for a fee or donation.” If the defendants perform the ritual without a cost, they cannot be held in contempt. And in light of Church of the Lukumi, I find it highly unlikely the state would ever enforce this criminal provision against them. But who knows. It’s California!
I will write about the free exercise issues attendant with this case later this week. (And lest you forget, California does not have a RFRA–the so-called “license to discriminate”–so defendants can only raise arguments under Employment Division v. Smith).