Legal, Jewish News July 16, 2018

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Legal Matters

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Supplement to Jewish News July 16, 2018 | July 16, 2018 | Legal | Jewish News | 15

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How Supreme Court nominee Brett Kavanaugh could affect issues that matter to Jews Josefin Dolsten

( JTA)—President Donald Trump’s Supreme Court nomination of Brett Kavanaugh, a Republican establishment favorite who has worked in the George W. Bush administration, has triggered reactions from Jewish groups ranging from furious to relieved. Progressive groups raised flags about the pick, saying Kavanaugh’s record

shows he would be a threat to reproductive rights and separation of church and state, while an Orthodox group said it was happy about his record on religious liberty. Trump announced on Monday, July 9 that he was nominating Kavanaugh, a federal appeals court judge in Washington, D.C., to replace Justice Anthony Kennedy upon his retirement at the end of July. Within an hour of the announcement, the National Council of Jewish Women released a statement saying it was “incensed” by the choice and helped organize an opposition rally in front of the Supreme Court.

“The assumption based on his record and his ruling is that he would further push the court in the direction of using religion as an excuse to discriminate, not to mention the incredible horrors that could be, should he end up on the court, around reproductive health rights and justice,” Rabhan says. Many on the left are concerned that a Trump appointee could join a conservative majority in taking away abortion rights and overturn Roe v. Wade, which Trump made a campaign promise. CNN legal analyst Jeffrey Toobin has said that there is “just no doubt” that abortion

Other progressive groups, such as the Workmen’s Circle, a Jewish organization with roots in the labor movement, denounced Trump’s pick, while the centrist Anti-Defamation League said it was wary that the nominee’s judicial record “does not reflect the demonstrated independence and commitment to fair treatment for all that is necessary to merit a seat on our nation’s highest court.” Jody Rabhan, who directs NCJW’s Washington operations, says that Kavanaugh, like the other candidates considered by Trump, was “terrible on the issues that we care about.”

continued on page 18

The centrist AntiDefamation League said it was wary that the nominee’s judicial record “does not reflect the demonstrated independence and commitment to fair treatment for all that is necessary to merit a seat on our nation’s highest court.

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would be illegal in a significant part of the United States within a year-and-ahalf of the confirmation of whomever Trump picked to fill Kennedy’s seat. In 2006, Kavanaugh said he would respect Roe v. Wade, but Rabhan says that did not assuage her concern. “Trump has said that overturning Roe v. Wade is a litmus test for anybody on his shortlist for the Supreme Court, and he has made anti-abortion [views] a litmus test for folks he’s nominated to lower courts,” she says. “We’ve seen it, so we believe him.” Rabhan and others cited a case, Garza v. Hagan, in which Kavanaugh opposed a detained undocumented immigrant minor’s right to obtain an abortion. In that 2017 case, the government had mandated that the teen could leave her detention center to have an abortion. Kavanaugh vacated the order, postponing the abortion for another week-and-a-half, until a court ultimately ruled in her favor. Kavanaugh dissented, writing that the government had betrayed its “interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” Marc Stern, the general counsel of the American Jewish Committee, says most of Kavanaugh’s legal record was “unremarkable,” but that his opinion in the Garza case was “disturbing” and raised questions. “It’s not clear to us what that means exactly,” Stern says. “Does he believe that immigrants have lesser constitutional rights than everybody else? Does he think that teenagers don’t have a right [to an abortion]?…Does he mean only that the government has a right not to participate and you’re sort of on your own?” The AJC has not taken a position on the nomination, and Stern says it was studying Kavanaugh’s record, specifically with regard to issues of immigration law, religious liberty, separation of church and state, and reproductive freedom. He says that Kavanaugh’s opinion in Newdow v. Roberts, a case presenting a challenge to prayers at the presidential inauguration and the phrase “so help me God” in the presidential oath, offered “some glimmer

LEGAL MATTERS of hope” for those supporting separation of church and state. Though the challenge by the plaintiff, an atheist opposing the prayers, was dismissed, Kavanaugh said he did have standing to sue. Stern does not think Kavanaugh would radically shift the court. Although Kennedy was a swing vote on issues like abortion and same-sex marriage, he often was reliably conservative. “On separation [of church and state] issues, he will read the principle more narrowly than AJC would like,” Stern says. “But from what little he’s written, it doesn’t appear that he’s going to be writing in a whole different vein than where the court as a whole has been—but that’s a guess.” Agudath Israel of America, a haredi Orthodox organization, has not yet taken an official position on the nomination, but its Washington director, Rabbi Abba Cohen, called Kavanaugh “ a very impressive candidate.” Cohen was

happy about Kavanaugh’s rulings related to religious freedom based on an initial overview of the judge’s record. Agudah and other Orthodox groups favor rulings that would exempt religious groups and individuals from generally applicable laws that clash with their beliefs. “We’re gratified that he’s given due deference to religious liberty and that he has been supportive of a greater involvement of religious organizations and institutions in society,” Cohen says. Cohen cited Kavanaugh’s opinion in a case relating to contraceptive care exemptions for religious groups, Priests for Life v. HHS. The appeals court agreed that religious employers did not have to provide contraceptives, but had to file a form telling the government they were not doing so. Kavanaugh in his dissent argued that the filing requirement violated the plaintiffs’ religious freedom. “We support that position, we think that’s giving proper deference to religious

rights, and we don’t think that’s in any way a retreat from the rights of others, so that’s one area where we are pleased about,” Cohen says. During his time in private practice, Kavanaugh took on pro bono cases, including that of a Reconstructionist synagogue, Adat Shalom in Bethesda, Maryland, which was facing challenges from its neighbors in constructing a building. In 2000, a U.S. District Court sided with the synagogue, saying a permit issued to the congregation was consistent with the Establishment Clause. The synagogue confirmed to JTA that it was represented by Kavanaugh but did not return a request for further comment in time for publication. The Reform movement and the Orthodox Union both say that they were studying Kavanaugh’s record before deciding whether to take a position on his nomination.

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An all-female Orthodox ambulance corps gets a film of their own Attorney is behind the plan Curt Schleier

(JTA)—Like many heavily Orthodox sections of Brooklyn, Borough Park has been served for decades by an all-male volunteer ambulance corps called Hatzalah. The corps caters to a religious Jewish community with particular needs and customs—including one custom that can increase the tension for patients in already stressful emergency situations. The strict boundaries between men and women are familiar to anyone who has attended an Orthodox synagogue or has read the stories of airplane flights being delayed because haredi Orthodox men refuse to sit next to women.

In the event of a medical emergency, the male Hatzalah volunteers may touch women—if, for example, a woman needs to be moved to a stretcher or requires assistance while giving birth. But while Jewish law has its exemptions, women concerned about the rules of modesty have plenty of reasons to prefer treatment by a female EMT. 93Queen, Orthodox filmmaker Paula Eiselt’s big-screen debut, documents one woman’s attempt to create an all-female version of Hatzalah with only strictly observant Orthodox members. In a statement, Eiselt explains that over four years of filming, she essentially operates as a one-woman crew.

20 | Jewish News | Legal | July 16, 2018 |

The film opens July 25 in theaters in New York City and Aug. 14 in Los Angeles, with a wider release to follow. The woman behind the female corps is Rachel “Ruchie” Freier, a lawyer and Borough Park native. She assembles a group of volunteers who are tentative at the start. And, not surprisingly, her plan sets up a clash with the establishment Hatzalah and its supporters. Opponents threaten to boycott the hospital that is training the women and the companies that sell them medical supplies. They also post nasty comments on Twitter, such as “God have mercy if you wait for them to get their make-up and the right dress on.” But Freier’s leadership and inner

strength help the members of what they call Ezras Nashim (“helping women”) persevere. “The worst thing you can tell me is that I can’t do something because I‘m a woman, a religious woman,” she says. Part of Freier’s fortitude manifests itself in a my-way-or-the-highway manner. When she insists that only married women can join the team, some members object—including an experienced EMT who recently became religious —and others resign. “There’s a whole host of issues that come up in a marriage that will give you that level of maturity,” she says. Though the film is gripping, the viewer

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LEGAL MATTERS is never entirely sure how it all works. The women on call respond from wherever they are to the scene of the emergency. However, it does not appear that Ezras Nashim owns its own ambulance. It contracts with a private company to provide patient transport. Who staffs that ambulance? Men? Do the women EMTs accompany patients in the ambulance?


In 2016 Freier was elected as a judge in New York City’s 5th Civil Court District, becoming what is believed to be the first Hasidic women elected to public office in the United States

There are other questions. At one point Freier says she refuses to let the project fail because that might blemish her image and hurt her plans to run for a judgeship. Was the ambulance fight just a way to build a political base, to get her name out there? Does it matter? In the end, Freier must be doing something right: Last year, Ezras Nashim won the New York Basic Life Support Agency of the Year award, a high honor. And in 2016 Freier was elected as a judge in New York City’s 5th Civil Court District, becoming what is believed to be the first Hasidic women elected to public office in the United States. Eiselt calls her film a story of “proud Hasidic women challenging the status quo of their own community and refusing to take no for an answer from the all-powerful patriarchy.” Regardless of your background—religious or atheist, feminist or nonpolitical—93Queen is a film that will get your juices boiling.

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Michael Cohen cites ‘wrenching’ Trump child separation policy and Holocaust survivor parent in quitting RNC WASHINGTON (JTA) Michael Cohen, the lawyer for President Donald Trump who has become a focus of a federal investigation into improprieties in Trump’s campaign and presidency, quit a senior position in the Republican Party, citing his opposition to Trump’s immigration policies and invoking the experience of his Holocaust survivor father. “As the son of a Polish Holocaust survivor, the images and sounds of this family separation policy is heart wrenching,” Cohen wrote in a letter to the Republican National Committee, ABC News reported. “While I strongly support measures that will secure our porous borders, children should never be used as bargaining chips.” Cohen was deputy chairman of the RNC’s finance committee. Trump has separated migrant children from their parents as part of a broader policy of deterring illegal migration, spurring outrage from

Democrats and also some Republicans. Cohen reportedly feels betrayed by Trump, who has not reached out to him while federal authorities have raided his properties for information related to allegations that he paid off at least one woman to keep silent about her alleged affair with Trump ahead of his 2016 election, as well as other business Cohen conducted on his own behalf and for Trump. Reports have suggested that Cohen is ready to cooperate with the federal investigation. He is the third high-ranking Jewish RNC official to resign this year because of scandals. The body’s chairman, Steve Wynn, a casino magnate, quit because of allegations of sexual impropriety, and Elliott Broidy resigned as deputy finance chairman after revelations that he used Cohen to pay an alleged mistress to keep silent.

Chuck Schumer asked Trump to nominate Merrick Garland to Supreme Court, Washington Post reports

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NEW YORK ( JTA)—Senate Minority Leader Charles Schumer urged President Donald Trump to nominate Merrick Garland to the Supreme Court, according to a report in the Washington Post. Schumer, a Jewish Democrat from New York, made the request in a phone call, the Post reported. Garland, who also is Jewish, was President Barack Obama’s nominee in 2016 following the death of Justice Antonin Scalia. Senate Republicans, however, would not consider the nomination in March, saying it had to wait until after the presidential election in November. Trump chose Neal Gorsuch to fill Scalia’s position, and Gorsuch was confirmed. With Justice Anthony Kennedy

announcing last month that he is retiring, Trump gets to pick another justice to serve on the court. Schumer knew that getting Trump to even consider putting Garland on the court was highly unlikely. The conversation “seemed more like a check the box call than meaningful conversation” because Trump already had a shortlist of conservative nominees, a source told The Hill. Many Jewish groups, such as the National Council of Jewish Women, along with Democrats are concerned that his pick will shift the court deeply to the right and potentially undo abortion rights and same-sex marriage.

LEGAL MATTERS In Jerusalem, Ruth Bader Ginsburg celebrates her commitment to tikkun olam Sam Sokol

JERUSALEM (JTA)— Supreme Court Justice Ruth Bader Ginsburg described how grateful she was for her Jewish heritage during a screening of a new Ruth Bader Ginsburg. documentary film about her life and career at the Jerusalem Cinematheque. “The demand for justice, peace and enlightenment runs through Jewish history and tradition,” she said Thursday, July 5, describing how she is reminded of this fact every day when she enters her judicial chambers and is confronted with a poster proclaiming the biblical verse “Justice, justice thou shalt pursue.” “My room has the only mezuzah in the U.S. Supreme Court,” she said, noting that “growing up Jewish, the concept of tikkun olam, repairing tears in the community and making things better for people less fortunate, was part of my heritage. The Jews are the people of the book and learning is prized above all else. I am lucky to have that heritage.” In Jerusalem to receive a lifetime achievement award from the Genesis Prize Foundation, Ginsburg—who is equally well known for her scathing dissenting opinions as for her lifetime commitment to gender equality—was feted by the Jewish state’s political and judicial elites. In a speech honoring her American coreligionist at the award ceremony on Wednesday, July 4, Israeli Supreme Court President Esther Hayut praised Ginsburg as a spokeswoman for the marginalized and ignored. “Law is about justice, and the experience of injustice gives one profound insight as to what justice should look like,” Hayut said, The Jerusalem Post reported. “Through her decisions, Justice Bader Ginsburg upholds the values without which democracy would be an empty vessel.” Former Israeli Supreme Court

President Aharon Barak made a similar statement, calling Ginsburg “one of the great legal minds of our time; an outstanding Jewish jurist whose fearless pursuit of human rights, equality and justice for all stems from her Jewish values.” Speaking at the ceremony, Ginsburg evoked the memory of Anne Frank, who questioned common gender roles in her famous diary. “When I became active in the movement to open doors to women, enabling them to enter occupations once closed to them—lawyering and judging, bartending, policing and, firefighting, for example—I was heartened by the words of a girl of my generation,” said Ginsburg, 85. “I am a judge, born, raised, and proud of being a Jew. The demand for justice, for peace and for enlightenment runs through the entirety of Jewish history and Jewish tradition. I hope, in all the years I have the good fortune to continue serving on the bench of the Supreme Court of the United States, I will have the strength and courage to remain steadfast in the service of that demand.” Initially offered the Genesis Foundation’s annual Genesis Prize, which comes with a cash grant, Ginsburg said she demurred, worried that the presence of Israeli politicians on the selection committee would run afoul of the Constitution’s emoluments clause prohibiting government officials from receiving gifts from foreign powers. She said it was only after the foundation agreed to create a new lifetime achievement award whose selection committee was apolitical that she relented and agreed to be honored. The award later went to actress Natalie Portman, who declined to attend the award ceremony because of her political differences with Prime Minister Benjamin Netanyahu. Addressing the crowded theater after the screening of RBG, Ginsburg made two pleas. The first was a call for renewed bipartisanship in Washington, D.C., specifically when it comes to confirming federal judges—a process that has become deeply politicized in the

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years since her ascension to the Supreme Court. The announcement that Anthony Kennedy will be retiring as the high court’s frequent swing vote, and the nomination battle ahead, did not come up in her onstage interview with Benjamin Freidenberg, an Israeli filmmaker. Ginsburg also reiterated her longstanding support for the adoption of an equal rights amendment to the Constitution. Holding up a pocket copy of American’s foundational legal text, the justice said that she would like to be able to show it

to her great-granddaughter and tell her “your equality is a fundamental tenet of the United States.” Asked what she would do if she weren’t a judge, Ginsburg, who is well known for her love of opera, replied that if she could choose any other career, she would be “a great diva.” “But, sadly for me I’m a monotone,” she said, “so I can be [a diva] only in my dreams and occasionally in the shower when I sing.” | July 16, 2018 | Legal | Jewish News | 23

LEGAL MATTERS Reduce your taxes with an IRA Gift in 2018 Scott Kaplan


tarting this year, the standard deduction has doubled, which will significantly reduce the number of taxpayers who itemize their deductions. If you are 70½ or older (or know someone who is), here is an easy way to help the Jewish community. Rather than simply take your withdrawal this year, you can direct your IRA administrator to distribute a gift from your IRA to benefit the Jewish community. Any transferred amount counts against your required minimum distribution (RMD), and you can direct up to $100,000 to your favorite causes this year. There is no charitable deduction for the IRA distribution; however, not paying tax on otherwise taxable income is the equivalent of a charitable deduction. Qualified Charitable Distributions (QCDs) from IRAs satisfy the Required Minimum Distribution (RMD) and can be made tax-free.

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Here are the simple steps toward making an IRA Rollover Gift: 1. Contact your IRA administrator. Because of the popularity of the rollover, most administrators provide forms and a procedure to help you make an IRA rollover gift. 2. Direct a transfer of up to $100,000 from your IRA to the Tidewater Jewish Foundation (TJF). This gift can be designated to benefit any charitable organization or to establish a permanent fund for the benefit of one or more organizations (such as pre-funding your legacy gift). 3. You will pay no income taxes on the amount transferred. Note: Because you are not claiming the transferred amount as income, you will not receive an income tax deduction for your gift. 4. Contact Scott Kaplan at 965-6109 or email to let TJF know how you would like your gift designated. Caution: The check from your IRA must be made out to a charity (such as TJF), not to you. Call the financial institution that holds your IRA and ask about its charitable rollover procedures. You will likely need to fill out a simple distribution form, naming

TJF or a preferred charity as the recip- Scott Kaplan ient and specifying the dollar amount. Tax-free distributions may only be made from traditional and Roth IRAs. Distributions from employer-sponsored retirement plans, including SIMPLE IRAS, Keoghs, 403(b), 401(k), or profit sharing plans do not qualify. You may roll over a non-qualified pension plan into a qualified IRA (generally tax free to do so) and then the qualified IRA can make a distribution directly to TJF or the designated charity. Note: IRA distributions cannot go into a donor advised fund, but may go into an endowment or permanent fund for the benefit of one or more agencies. Advantages of IRA/Charitable Distributions for those 70½ or older: • Distributions from your IRA directly to charity may count as a Qualified Charitable Distribution (QCD) and toward your Required Minimum Distribution (RMD) of up to $100,000 each year. • Married spouses can combine their gifts and can contribute up to $200,00 per year. • Your gift will NOT be counted as income and the IRS will consider your Required Minimum Distribution (RMD) fulfilled, which may save thousands of dollars in taxes. • Many more taxpayers will take the new higher standard deduction and therefore can’t deduct their charitable gifts. By making gifts directly from their IRAs to qualified charities, the donor can get the equivalent of a deduction by not being taxed on the income. • For those who still itemize, donors can use distributions from IRAs to make additional gifts because they won’t be taxed on the distributions (equivalent additional charitable deduction). This information is not intended as tax, legal, or financial advice. Gift results may vary. Consult your personal financial advisor for information specific to your situation. Scott Kaplan is the president & CEO of the Tidewater Jewish Foundation.


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