Linda Greenhouse speech: Cheesecake, anyone?

Linda Greenhouse (Photo by Ingrid Laas)
Linda Greenhouse holds her Clarence Darrow Award, given to her at FFRF’s national convention in Boston on Nov. 19, 2021.

Journalist and author Linda Greenhouse was introduced on stage by FFRF Co-President Annie Laurie Gaylor during FFRF’s convention on Nov. 19:

“Veteran Supreme Court observer and commentator Linda Greenhouse has earned this year’s Clarence Darrow Award. You know her for her Pulitzer Prize-winning coverage of the Supreme Court for 30 years and for her continuing and important biweekly column on the court for The New York Times.  

“A fierce defender of reproductive rights, her books include Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court. 

“Linda finds deft and effective ways to question the role of religion in the political or judicial agenda. Linda, you are FFRF’s legal touchstone and we are so grateful to you for your acumen, your empathy, for sharing wise, frank expertise and warnings about the evolving state of the Supreme Court, especially your writings on the Establishment Clause.”

Linda Greenhouse gave this speech (slightly edited) at FFRF’s national convention on Nov. 19. 

By Linda Greenhouse

My brief talk has a title: “Cheesecake, anyone?” I will explain that title soon. But first, I want to mention something that occurred to me as I heard other convention presentations today. Justice Ruth Bader Ginsburg received several shout-outs — well-deserved, because by the end of her time on the Supreme Court, she was the most committed separationist among the justices. But I want to remember another distinguished woman who served on the Supreme Court: Justice Sandra Day O’Connor, who left the court in early 2006. She is still alive at 90, living with dementia.

In the summer of 2005, Justice O’Connor wrote an opinion concurring with the majority in a case called McCreary County that invalidated a Ten Commandments display on the wall of a Kentucky courthouse. Justice David Souter’s majority opinion found the display to be a violation of the Establishment Clause. Justice O’Connor agreed. This is what she wrote:

“At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

FFRF asks people to ask this question. It could be an FFRF motto.

And now to my talk.

Even were I not receiving this wonderful award, it would be an honor and a pleasure simply to be here, among people who are not shy about challenging the surge in religiosity that is sweeping across our supposedly secular country. In my new book and in my opinion columns, I look at this growing problem with a focus on the Supreme Court’s role. But of course, the court is a reflection, not a source of the problem. Supreme Court justices don’t fall from the sky, and the makeup of the current court is a reflection of our domestic politics.

I don’t mean to let the court off the hook for its series of decisions that have placed religion in a position of privilege that would have astounded our Constitution’s Framers, to whom conservative judges and justices purport to pay so much homage. I’m only suggesting that “We the People” paved the way to the Supreme Court we have today, either by active participation in or by passive acquiescence to the wave of religiosity that deposited the most recent justices onto the court’s bench. 

What distinguishes FFRF is its refusal to stand silently by. To stand silent, as most people do, even those who are troubled by what they see, is to enable. Religion, as I’ve written, is the last taboo in American society. Unlike when most of us grew up, we can now talk unabashedly about sexual identity, gender nonconformity, money, race, social class — anything but religion. To comment on the fact that the last three Republican presidents have placed a total of five conservative Catholics on the court — and I mean doctrinally conservative, not simply politically conservative — and you risk being considered rude or even bigoted. But to remain silent in the face of this astonishing fact is to become an enabler. What I admire about FFRF is that you refuse to be enablers.

Now, what could I possibly mean by the title for my talk? Last month, one of our great federal appeals courts declared that Jewish prison inmates had a legal right to be served cheesecake on the Jewish holiday of Shavous.

Yes, you heard that right. It’s the 6th Circuit U.S. Court of Appeals, which covers Ohio, Kentucky and Michigan, which is where the case of Ackerman v. Washington arose. I’m guessing that some in this audience have some acquaintance with Jewish tradition and practice, as I do. For those from Christian backgrounds, Shavous is Revelation, the handing down of the Ten Commandments.  What on heaven or Earth does this have to do with cheesecake? This is the story.

The Michigan Department of Corrections makes vegan kosher meals available to any prisoner with a religious objection to the standard prison diet. This is a universal meal for prisoners with any religious objection, whether based on Jewish, Muslim or other religious dietary requirements. Two Jewish inmates challenged the prison’s practice, claiming that, based on their religious beliefs, they were entitled to kosher meat on the Sabbath and to a dairy meal on Shavous — not just a generic dairy meal but, according to one of the inmates, cheesecake. 

Testifying at trial, one of the inmates, who claimed familiarity with Jewish law, first said that “Shavous is generally associated with cheesecake in the Jewish community,” but later amplified that remark to say that eating cheesecake was, in fact, required. The district court ordered the prison system to provide kosher meat to prisoners requesting it on the Jewish Sabbath and to provide cheesecake on Shavous. 

The prison system appealed, challenging the sincerity of the prisoner’s claims. The 6th Circuit affirmed, crediting the inmates’ sincerity and noting that both had grown up eating kosher food at home. Two of the three judges on the appellate panel were appointed by Donald Trump, but, in fact, that’s largely irrelevant, as I will explain. Writing for the panel, one of those two judges, John Nalbandian, said that while the kosher meat claim for the Sabbath was an easy question, the cheesecake claim was “trickier.” The judge observed that “religious texts don’t say that cheesecake is mandatory.” He cited a note in the Code of Jewish Law that “some have a custom to just eat some dairy” on the holiday of Shavous. 

Why didn’t that end the judges’ inquiry? Why didn’t a finding of “no religious requirement” equate to a finding of “no entitlement”? Aha, and I quote: “But there’s also evidence suggesting that these prisoners do, in fact, sincerely believe that cheesecake is required on Shavout” [a more modern spelling of the name of the holiday]. Noting that the District Court judge had accepted the prisoners’ sincerity on this point, Judge Nalbandian said: “That’s all that is required. Even if we may have come out differently on this issue if we were sitting as district judges, we affirm under the applicable standard of review.” 

Theoretically, Michigan might have rebutted this finding by showing that the state had a compelling interest in not yielding to the inmates’ request. The state offered a financial interest: meeting the dietary demand would cost $10,000 a year. The 6th Circuit rejected that effort, noting that the prison system’s annual food budget was $39 million, and that an addition $10,000 represented “just a tiny 0.02 percent in that multi-million-dollar-food-budget bucket.”

Now, I’m no expert on Jewish law. But I was married in an Orthodox synagogue, and I’m here to tell you that Jews no more require cheesecake on Shavous than Christians require colored eggs on Easter. Fun to have, in both cases, but how did we come to a point where a federal appeals court issues a 23-page opinion addressing a matter that to a person without a stake in the outcome would appear frivolous, even ridiculous?

The fact of the matter is that when it comes to religious claims, nothing is frivolous or ridiculous. And given where the Supreme Court has driven the law, the chain of reasoning that produced the outcome in this case was completely plausible and even predictable. The case was litigated under a 20-year-old federal law, the Religious Land Use and Institutionalized Persons Act, or RLUIPA. The law provides that the government must show a “compelling interest” to justify imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution.” “Religious exercise” is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Given that statutory language, it’s hardly surprising that the Supreme Court has interpreted the law as triggered by any “sincere” belief, no matter how unfounded. And if all that matters is “sincerity,” who, after all, is to judge?

The law essentially enables judges, if so inclined, to take themselves out of the role of judging. To this effect, it mirrors a companion federal law, the Religious Freedom Restoration Act, which was the law at issue in the Hobby Lobby case that the Supreme Court decided in 2014. This was the case about whether a corporation with a religious owner could exempt itself from the Affordable Care Act’s mandate to provide birth control as part of the employee health insurance plan. The owner of Hobby Lobby claimed that he couldn’t possibly abide by this mandate because certain forms of birth control cause abortion. This does not happen to be true. But it was, ostensibly, the man’s belief. So, the court credited it and ruled in Hobby Lobby’s favor, to the detriment of thousands of women all over the country who work for such employers and as a result have been deprived of an employment benefit contemplated by Congress and enjoyed by women who are lucky enough to work for companies that obey the law.

My point in telling you the cheesecake story, then, is really about a lot more than cheesecake. In context, the 6th Circuit opinion was not crazy. It was, as I said, completely predictable. It’s the law itself that has gone off the rails in full view of anyone who cared to watch. Prisoners can be denied decent medical care, can be abused by guards, of course forfeit their right to vote — but, by God, let them eat cheesecake. 

Something is seriously out of balance, and by the end of the current Supreme Court term it is highly likely to become even more so. The situation urgently requires our attention. I’m comforted by the knowledge that FFRF will keep doing its part.