I guess it isn’t surprising that it’s hard to find a minyan — a quorum of 10 Jews — in a North Carolina prison. I just didn’t think that was something I’d ever be learning from the Supreme Court.
But that’s precisely what Supreme Court Justice Alito told us in one of his recent dissenting opinions. As described by Alito, a North Carolina inmate, Israel Ben-Levi, requested to have a group Jewish Bible study. But the prison denied his request because it concluded that “Jewish study group requires a quorum of 10 adult Jews (also referred to as a minyan)” and Ben-Levi couldn’t pull together a group large enough to satisfy that standard; indeed, “Ben-Levi’s proposed group… had only three members.” Both federal courts to hear the case held that the prison’s decision did not violate Ben-Levi’s religious-liberty rights. And despite Alito’s dissent, , leaving that denial in place.
You may find yourself scratching your head. First, why can’t a prison let an inmate just study some Torah with a few of his friends? And second, why on earth did the prison and the courts seem to think you need 10 people to study Torah? Sure, you may need a minyan for prayer, but where on earth did the prison get the idea that you also need it for Torah study? As it turns out, the prison’s strange views about the minyan also explain why the courts did a bad job in protecting Ben-Levi’s religious liberty.
To deal with religious issues, the North Carolina Department of Correction Division of Prisons has a Religious Practices Reference Manual, which is supposed to provide the 411 on all major religions so that correctional officials can better “face situations in which religious questions arise.” The manual does note, in what turns out to be an epic understatement, “[t]his manual is intended only as a resource. It does not confer theological expertise.”
On that last point, there certainly is no disagreement. Consider the following two excerpts from the 2004 version of the manual describing Jewish practice: “The ‘Shema’ is recited three times a day every morning and evening by the devout Jew” (correct answer: twice a day unless you plan on engaging in some creative and peculiar methods of counting). Also, according to the 2004 manual, the “Prayer Shawl (Tallis) … [is] Worn during morning prayers by females” (correct answer: in some Jewish denominations it is solely worn by men and in others by both men and women — the North Carolina denomination of Judaism, where only women where the Tallis, is obviously quite progressive).
But beyond these moderately amusing errors — some of which have thankfully been corrected in subsequent versions — the manual contains the following provision, which was of particular importance to Ben-Levi: “A quorum (minyan) of ten adults is usually required to hold a formal Jewish worship service, but this requirement may be waived in a prison setting when led by a Rabbi.” Now, one hopes the “one-rabbi-equals-ten-adults” rule isn’t yet another bungled attempt at restating Jewish law; it may simply have been, as the prison indicated in some of its briefs, a willingness to allow Jewish prisoners to gather so long as there was a religious leader present to keep order.
Of additional importance to Ben-Levi was the prison’s bizarre extension of the minyan requirement beyond just prayer services, to any form a Jewish study. In denying Ben-Levi’s request, the director of chaplaincy, Betty Brown, wrote, “our subject matter experts who assisted us in framing the Jewish Policy was very direct in advising us that a quorum (minyan) of 10 adult Jews is usually required to hold formal Jewish Worship Services.” And although Brown also added that this requirement could be waived when the service is “led by a Rabbi,” no rabbi was available; therefore, “without an Orthodox volunteer to supervise a study group, no formal authorization can be given” — and here’s the kicker — “even though you say that requirements are relaxed for an orthodox Jewish bible study.”
In other words, silly Ben-Levi, where did you get this idea that Jewish law’s strict quorum requirement doesn’t apply when it comes to Torah study. I mean, who would think such a thing?
The answer is Rabbi Gary Friedman of the Jewish Prisoner Services International — the very expert that the prison hired and who, according to Brown’s affidavit submitted to the federal district court, expressly told her, “A minyan is required for formal worship service… A minyan is not required for Torah/Talmud study.” Somehow this distinction, which was not only conveyed to the prison via its own expert, but was subsequently included in the documents submitted by the prison to the federal district court, failed to have any impact on the case’s outcome.
When Ben-Levi sued the prison for violating his religious liberty, the district court rejected his claim, reciting the garbled rule that “a Jewish Bible Study generally requires a quorum of ten adult Jews. This requirement may be waived when the study is led by a volunteer Rabbi.” In turn, the court concluded that the prison’s denial of Ben-Levi’s request for group Torah study could not have “substantially burden[ed]” his religion because the prison merely “enforced DPS policy requiring that a study with fewer than ten participants be led by a Rabbi.” How could denying this request prevent Ben-Levi from engaging in Jewish practice if everyone knows that you aren’t allowed to study Torah without ten adults — or, you know, a rabbi?
Amazingly, the federal court of appeals simply affirmed the district court’s decision. And the Supreme Court refused to hear the case. You can hardly blame the Supreme Court for refusing to take the case. It typically only takes cases of extraordinary importance and you’ve got to hope that there isn’t a rash of prisons around the United States evaluating the requests of inmates on the basis of their own imaginary renditions of Jewish law.
But Alito, who dissented from the Supreme Court’s decision not to hear Ben-Levi’s appeal, presumably had this one right: Courts have no business trying to evaluate “the validity of [Ben-Levi’s] interpretations” of Jewish law. That conclusion is true as a matter of constitutional law; to do otherwise would constitute a dangerous and impermissible mixing of church and state. But as it turns out, prohibiting a court from allocating benefits and burdens on the basis of its own theological interpretations isn’t just a sound constitutional principle. In some cases, it’s also a really good way to prevent government from making a fool of itself.
Michael A. Helfand is an associate professor at Pepperdine University School of Law and associate director of the Diane and Guilford Glazer Institute for Jewish Studies.