No American should be forced to choose between two precious constitutional rights: whether to violate his faith or to attend his own trial. Yet that is the unconstitutional choice that a Philadelphia court forced upon Dr. Peter Gross.
Dr. Gross is an observant Jew whose faith is central to his life. After he was sued for medical malpractice, the Philadelphia County Court of Common Pleas scheduled his jury trial on Yom Kippur—the holiest day of the Jewish calendar. The court refused to move the trial one day, and it removed a Jewish juror because she could not attend either.
This was an egregious violation of the Doctor’s First Amendment rights. That’s why the Jewish Coalition for Religious Liberty and the Coalition for Jewish Values, represented by First Liberty Institute and Lauren Gailey of Winston & Strawn LLP, recently filed an amicus brief to support the Doctor.
This could only happen to a religious minority, because courts would never schedule a trial on Christmas or Easter. Yet after the Doctor’s attorney explained why he could not attend trial on Yom Kippur, the judge shut him down. There would be “no discussion or argument” because the plaintiffs’ expert was not available the next day. The Doctor’s attorney had to choose: either disclose his client’s faith, opening him up to more hostility, or leave jurors to think he didn’t care enough to attend his own trial.
The jury’s high verdict of $3.5 million in non-economic damages reflects the resulting hostility toward the Doctor. Now, Dr. Gross is asking the Pennsylvania Superior Court to set aside the verdict and grant him a new trial unblemished by anti-Semitism.
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To help the Pennsylvania Superior Court evaluate the appeal, the brief explains the religious significance of Yom Kippur for observant Jews, and the Free Exercise Clause violations from the court’s refusal to accommodate the Doctor’s faith.
In Jewish law, Yom Kippur, translated as “Day of Atonement,” is the holiest day of the year. All Sabbath restrictions apply to Yom Kippur—no travel by car, no electronic devices, no participation in commerce or business, no writing notes, and no attending trials. The day requires five additional afflictions, including a complete fast from eating and drinking.
Observant Jews have long honored Yom Kippur as the most significant day for seeking forgiveness and reconciliation with God and other people. Yet Yom Kippur also merits active devotion and significant time investment, requiring a full day of prayer in the synagogue. Jewish men must attend five prayer services in person, lasting 14–15 hours.
For observant Jews like Dr. Gross, none of these actions is a choice. Observant Jews around the world are compelled by their faith to worship on Yom Kippur in these very specific ways. To violate its prohibitions would carry the threat of spiritual separation from God and the Jewish Nation.
If the Doctor chose to attend his jury trial rather than observe Yom Kippur, he would have violated his religious beliefs in multiple ways, including by traveling to the courthouse, using electricity, and missing 14–15 hours of prayer and worship at his synagogue. He would have thumbed his nose at his God on the very day he was expected to seek reconciliation. This would be unthinkable for any observant Jew—and it was for the Doctor, which is why he chose to miss his own trial rather than violate his faith.
The court’s actions violated Dr. Gross’s civil rights under the Free Exercise Clause. First, under Fulton v. City of Philadelphia, the court’s discretion to grant scheduling accommodations means that it needs to show a compelling interest in refusing to the move the trial one day – and it can’t. Second, the court’s willingness to grant secular scheduling request while denying the Doctor’s religious request is unequal treatment that violates the law under Tandon v. Newsom. Third, the court’s hostility toward the Doctor’s faith violates the law under Church of Lukumi Babalu Aye v. City of Hialeah and Masterpiece Cakeshop v. Colorado Civil Rights Commission.
In an era where the poison of anti-Semitism continues to spread, we must remain committed to defending our Jewish friends who face religious discrimination. There is a powerful scene in The Hiding Place by Corrie ten Boom when she describes a Christian pastor’s refusal to help a young mother and her newborn. Corrie’s father cradles the baby and tells the pastor, “You say we could lose our lives for this child. I would consider that the greatest honor that could come to my family.”
May we aspire to this level of sacrificial courage as we consider it an honor to defend our Jewish neighbors, so that no one has to choose between faith and justice.
Kayla Toney is Associate Counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org.
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