The Sound of Silence

This evening, I attended a panel discussion at one of the local synagogues on the topic of religion and government.  It was sponsored by the very liberal National Council of Jewish Women, and featured four attorneys: Melissa Hart, Assoc. Prof. of Law and Director of the Byron White Center for the Study of Constitutional Law at CU, Ed Kahn, Special Counsel for the Colorado Center on Law and Policy, Dan F. Lynch, Attorney, Teacher and Author, and Rebecca T. Wallace, Staff Attorney, ACLU of Colorado.  (In case you’re wondering whether Mr. Lynch was there for balance, I can assure you he was not; his primary concern seemed to be the imminent threat of Christian Zionists manipulating our government into starting WWIII to hasten the Apocalypse, or something like that.)

The panel was somewhat interesting, as these things go.  The audience was mostly liberal, and the panelists were never really challenged.  Most of what they said would be pretty unremarkable to anyone familiar with the leftist cant about religion in the public schools, public square, and private hospitals.

Until the last question, submitted by yours truly.  It’s a question that was inspired by a Spengler column a couple of months back, at the height of the HHS Mandate controversy, and let me hasten to assure you that except for cropping out Mr Kahn’s basically non-responsive answer at the end, and bumping up the volume, I have not edited this clip at all:

The silence – finally ended by Mr. Kahn wishing aloud that someone else would take the question – is 9 seconds long. 

Nine seconds long.

That’s roughly an eternity, when you have four lawyers on a panel.  There is no charitable interpretation of this silence, the only explanation being that they simply hadn’t considered the question before.  (Ms. Hart’s answer, that kosher slaughter is central to the Jewish religion, at least relieves us of the fear that they don’t really care about kashrut; like most Conservative or Reform Jews, they’re happy to have it around, even if they don’t practice.)

Ms. Hart’s response, that she has “faith” that the legal system would never do such a thing will be of slight comfort to conservatives who’ve seen the courts do many previously unthinkable things in the last half-century, but I will admit that I was only partially successful in hiding a wry smirk.

Like so many who inhabit the lefty echo chamber for a living, the panelists simply fail to consider that the results of their activism might one day be turned against something they care about, and have no good answers when their assumptions are challenged in a constructive, rather than confrontational, way.

Maybe they should have just stayed silent.

UPDATE: I’ve filtered out some of the noise from the sound clip, and attached the following transcript:

Moderator:  OK, I have maybe a technical question.  Assuming the HHS Mandate – and if you answer this question you can tell us what that is – is allowed to stand, suppose that a government office were to decide that kosher slaughter violated the relevant animal cruelty statues.  How would you persuade them, or persuade the judge, to continue to permit kosher slaughter?

[9 seconds of silence]

Mr. Kahn: I hope someone else will take this.

Moderator: Now we see which of them has studied the Talmud.

Ms. Hart: So, one of the things that gets harder when politics gets stranger, as it is right now, but one of the things that I say to all of my first-year Civil Procedure students is that I have a very deep faith in law.  I believe that to practice law and to love law, as I do – civil law – you have to have a great deal of faith in law and in the (unintelligible) practice in law, including the courts.

HHS is Health and Human Services, and I assume the question is referring to the provision – to the question about the abortion and contraception provision.

I – (2 second pause)  have faith that no court would find that a state could outlaw rules of kosher under animal cruelty provisions, that the centrality of the kosher rules to the Jewish faith, and the lack of any kind of question of that is so clear, that even a law that seemed to be neutral, and animal cruelty law, would not pass (unintelligible) as a way of forbidding the laws of kosher.  I don’t believe that because of any precedent that tells me that that’s definitely true.  I believe that because I have faith in the courts not to go to that extreme.

If if you’re looking for precedent and the arguments you would make from precedent, I would go back to the law that I talked about briefly in the beginning, the Lukumi Babalu Aye case, that actually was the state’s, the community’s ban on animal sacrifice was an animal cruelty provision.  And the courts were willing to look behind it and say there are other ways to prevent cruelty to animals than this kind of prohibition.  So I think that courts have addressed animal cruelty provisions in the context of religious laws before – this is a quite different kind of religious law – and have found that they’re able to separate these things out and should separate these things out and I believe that they will continue to do that.


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