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entries tagged with: Marc Stern


Old legal issues linger, says AJCongress rep

Lois GoldrichLocal | World
Published: 18 December 2009

If the Jewish community has overcome many of the legal obstacles it faced in the past, there are new ones to replace them, says Marc Stern, acting co-executive director and longtime legal director of the American Jewish Congress.

Stern — who has served AJCongress for more than three decades and who was scheduled to speak at a meeting of the group’s Fair Lawn chapter on Thursday — said that “what is interesting is that some of these problems are still what you would call ‘first-generation’ problems. They’ve been around for 60 years.”

He cited a case heard by the Supreme Court this year on whether a cross could be placed on a war memorial on public land.

“We fought that 50 to 55 years ago,” he said. Noting that some issues “linger, though in modern garb,” he also mentioned a New Jersey case, still pending, about whether school assemblies are required to include religious music.

While some of these old issues are still around, said Stern, “they’re not as sociologically important as they were 50 to 60 years ago.” For example, he added, “fewer places today are prepared to put up exclusively Christian symbols.”

Stern said the Jewish community also faces what he called “second-generation” problems. As an example, he noted that the Supreme Court last week took on a case involving student clubs at a law school. At issue: whether these clubs must admit everyone as a voting member.

“It doesn’t make sense,” he said. “It would be saying they can’t be what they are.” For example, he said, a pro-choice group would be required to admit pro-lifers as voting members.

AJCongress, he said, is “inclined to support the private group part of the way” but will make a final decision this week. The question to be asked, however, is: “Is the Jewish community best protected by rigorous insistence that anything touching on government be non-discriminative?” Or, he added, “do we need a place we can call our own, [including] only people who share our commitment?”

“This represents the debate about where the safety and well-being of the Jewish community lie,” he said. In earlier days, he noted, Jews had fought to exclude religious clubs from school. “Now, having lost that battle, we’re picking up the pieces.”

Stern said there is a third group of legal issues that touch directly on the Jewish community.

“There is the globalization of everything, including law,” he said. Issues arising in the area of international law “touch directly on the well-being of Israel and the Jewish people.”

He said that, bias aside, Richard Goldstone, author of a United Nations report on the Gaza conflict, “did a terrible job on the law” in compiling his report, “denigrating the rights of states to defend themselves and placing the right of individuals above all else.”

In days past, he said, there was no need to pay such close attention to U.N. resolutions or the laws of war. Today, he said, he’s had to teach himself to argue in that arena.

“The globalization of law has put new issues on the table of the Jewish community,” said Stern, citing the case of Samantar v. Yousef, brought in Virginia and pending in the Supreme Court.

It involves “a sordid set of facts,” he said, raising the issue of whether someone who committed torture in Somalia while in government office has immunity from a suit brought in the United States.

AJCongress contends that the applicable U.S. statute “was intended to incorporate international law on the rules of sovereign nations” and therefore a suit cannot be brought here. Were it to be permitted, he said, “we could have Israelis tried in Venezuelan courts.”

“Sovereign immunity does protect officers of the state,” he said. He noted, however, that a separate statute covers torture, and that might still be applicable in the Samantar case.

The AJCongress position “comes at a price,” said Stern. “There’s a certain emotional satisfaction in letting those who tortured be sued, but the problem is that the international criminal court is now looking at NATO troops for acts in Afghanistan. Germans bombed a Taliban fuel tank and civilians got killed. Iran could now try German troops,” were a precedent to be set in Samantar.

Similarly, “The Goldstone Report would become a complaint and Israelis coming here could be sued. It would be chaotic, a disaster.”

Stern noted that the success of the Jewish community in breaking down barriers “raises the question, ‘Do you need to leave any barriers in place to develop your own community?’”

He noted, for example the fight over charitable choice during the Bush administration and asked what it would mean if Jewish agencies that receive any federal money were subject to absolute laws of nondiscrimination.

“Could a federation be made to hire a non-Jew as executive director, since it accepts some [government] funds?” he asked.

“Different questions arise from the openness of our society, which require rethinking our positions,” he said. For example, New York City is requiring large buildings to do energy audits and then to bring their facilities into conformity with certain regulations. Some of these structures are older synagogues.

“What if these synagogues can’t afford the audits?” he asked, pointing out that some old congregations certainly would not be able to deal with energy-efficiency requirements. If the government is not permitted to help them out — because of concerns over separation of church and state — what will happen?

Circumstances change, he said. “We have to figure out how to negotiate these new problems for our institutions.”

Stern said he “backed into international law some 10 years ago” when it became clear that the issue was ongoing and important. In effect, he said, “the battle between Israel and the Palestinians has taken on a legal form” and he needed to know how to respond.

“You don’t respond by name-calling,” he said.

Another issue that has taken on new dimensions — and to which the Jewish community will have to respond — is same-sex marriage. In addition, he suggested, we have to take the sensibilities of nonbelievers into account.

“This was not predictable 25 years ago,” he said. “People who say they know what the Jewish community will need in the future are mistaken.”

The need is for the Jewish community “to remain flexible and hard-headed in its evaluation of its current situation and where the current trajectory leads it. We can’t be guided by slogans and policies adopted 50 years ago. We need to be skeptical enough to look at each thing again.”

“Who would have known 25 years ago that we would have needed an expert on the laws of war?” he asked.


AJCongress demise a tale of money, shifting priorities

After a death watch lasting nearly two years, news that the end of the American Jewish Congress was imminent set off a flurry of e-mails in the Jewish organizational world wondering if the nine-decade-old advocacy group indeed was shutting its doors.

News of the demise was posted last Friday by, a Website focused on Jewish nonprofits.

“We have suspended most of our operations,” the organization’s co-executive director, Marc Stern, told JTA by phone last Friday, confirming that an organization that had been devastated by the Madoff scheme in December 2008 had laid off nearly all its remaining employees.

“Some things are continuing to go on because they are in process, and there are future activities a couple of months down the road,” Stern said, citing cash flow problems. “There are some other things floating around that can be done with minimal costs. I hope things will become very clear and we can discuss it in public.”

Marc Stern, the legal counsel of the American Jewish Congress.

The AJCongress’ demise is a story not just about cash-flow problems but about the changing priorities of the American Jewish community, organizational insiders said.

While the fulcrum was certainly the organization’s losses in the Madoff scandal — $21 million of its $24 million endowment disappeared in the scheme — the money woes laid bare the longstanding weaknesses that for years had made the AJCongress a junior sibling to larger Jewish advocacy organizations such as the American Jewish Committee and Anti-Defamation League.

“I think we had to find our voice in the community and in the arenas that were important; I don’t know that we did that very effectively,” AJCongress Chairman Jack Rosen told JTA.

Others say privately that while the AJCongress was doing important work, focusing on issues of religious freedom in the United States, free speech, and women’s rights, those simply did not resonate with donors who time and again have shown more interest in Israel and anti-Semitism.

Officially launched in 1922 by prominent Jews including Rabbi Stephen Wise and Supreme Court Justice Louis Brandeis, the AJCongress was established to be a democratic body that spoke for American Jews on a wide range of issues. At the time the AJCommittee, which had a similar mission, was seen as an elite bastion of German Jewish immigrants that was unresponsive to the broader Jewish community.

By the 1940s, the AJCongress was pioneering the model of using legal action to better Jews’ lives in America. In the 1960s, it took the lead role on behalf of the Jewish community in the legal fight for civil rights. In recent years it focused on securing the church-state divide in the United States, along with international issues such as helping refine Israel’s relationship with NATO and leading the legal fight against terrorists’ use of human shields.

The organization’s president, Richard Gordon, attributed the AJCongress’ fund-raising woes to a changing of priorities in the Jewish community that many organizations are feeling.

“The number of people who give to organizations like ours is dwindling,” Gordon said. “There is not a group of younger people who see these organizations as vital to American Jews.”

As the deepening recession prompted increased calls for the organized Jewish world to eliminate duplication and unnecessary bureaucracy by merging and contracting, the AJCongress became a prime example for the chopping block. Many suggested it be taken in either by the ADL or the AJC.

Those calls became louder in recent months as news surfaced that the AJCongress was considering merging with the AJC. Gordon says those talks continue and take place nearly every day. The AJC refused to comment.

Mission duplication aside, a shortage of cash was the precipitating event that led to the AJCongress closure. The Madoff losses erased the sum total of a bequest left to the organization by philanthropists Martin and Lillian Steinberg in 2001 — they were close with Madoff, according to the Forward. The losses also wiped out half of the remaining proceeds from the 2004 sale of the organization’s building on East 84th Street in Manhattan.

Until the middle of the 2000s, the AJCongress still was managing to raise between $3 million and $4 million per year from bequests and living donors. About a quarter of its budget came from endowments. But the pool simply dried up with the recession.

“There are some people who gave a lot of money, but over the last number of years that has not been very robust at all, even before Madoff,” Gordon said.

Immediately following the Madoff scandal, board member Jay Umansky issued a challenge to other board members to each contribute a low four-figure gift to help the AJCongress get back on its feet, according to several sources. But with a board composed more of intellectual heavyweights than financial heavyweights, only a handful accepted the challenge.

It didn’t help that after the departure of the previous executive director, Neil Goldstein, in 2008, the board failed to hire a new CEO and instead had Stern and Matt Horn — the organization’s legal counsel and policy director, respectively — become co-executive directors while keeping their old roles. The two were meant to serve in their new executive positions on an interim basis, but the board never found a successor to Goldstein.

“This is about a vacuum of leadership,” one insider said. “That is what you are missing over here. It is about no cohesion that brought together contributors, programming, and mission statement.”

While the AJCongress appears dormant for now, Stern and others are not closing the book completely. Several employees are still working, though it’s unclear if they are being paid. (See related story.)

“Maybe if money comes available, then we will pick up as resources pick up,” Stern said. “We have been wrestling with these problems for several months now and reached a point where we had to make a decision. At some point you just can’t continue with the resources available.”


For more about this issue, see AJCongress shutters quickly, pays debts slowly.


Westboro case poses dilemma for Jewish groups

Members of the Westboro Baptist Church protested against The Jewish Standard, standing at a nearby corner, a year ago this month. Josh Lipowsky

WASHINGTON – Jewish defense organizations long — and proudly — have upheld a delicate principle in defending the First Amendment: Hate the speech, defend the speaker.

But a Supreme Court case whose arguments were scheduled for Wednesday have put that precept to the test: A Maryland family is suing the Westboro Baptist Church for picketing the funeral of its son, Matthew Snyder, a soldier killed in a noncombat accident in Iraq.

Jewish organizations that routinely have defended free speech that others might find abusive are sitting this one out. The American Jewish Committee has not filed a brief; the Anti-Defamation League filed a brief arguing that the case has no merit.

The case pits the Snyder family’s right to privacy and protection from defamation against the rights of Westboro church, which is well known for its message that America’s woes derive from its tolerance for homosexuality. The tiny Kansas-based church also has a long record of anti-Semitic activity and regularly pickets Jewish institutions throughout the United States. [Editor’s note: The Jewish Standard was among Westboro’s targets last year.]

“Free speech encompasses hate speech,” said Marc Stern, the associate legal counsel at the American Jewish Committee, “but this church is off the wall. They’re not just saying things, they’re shoving it down people’s throats.”

The Snyders sued Westboro after church founder Fred Phelps picketed the Catholic church where Snyder’s funeral was held, protesting against U.S. soldiers for not rising up and overthrowing the “sinful” U.S. government.

Ultimately the family won $5 million, but an appeals court threw out the award. The Snyders brought the matter to the U.S. Supreme Court.

On the side of the Snyders is a coalition of state attorneys general who argue for the family’s right to privacy. Civil rights groups, led by the American Civil Liberties Union, are defending the Westboro church’s right to political and religious expression.

In its brief, the ADL argues that the court should not have taken the case because there was no actual conflict. Police had separated the protesters from the service to the extent that the Snyders were not aware of the event until afterward, when Matthew’s father read about it online.

“ADL unequivocally condemns the anti-Semitic and homophobic rhetoric of the Westboro Baptist Church and its funeral protests,” said a statement by Deborah Lauter, ADL’s civil rights director. “However, the Supreme Court need not and should not address the constitutionality of their conduct in the absence of a real conflict.”

The key danger, said Steven Freeman, the ADL’s director of legal affairs, is that by addressing a theoretical confrontation instead of an actual one, the court risks ruling in an advisory capacity, expanding the judicial branch’s powers.

“That would set them down a path of issuing advisory opinions, giving advice as opposed to resolving people’s disputes,” he said. “It’s a bad path.”

Westboro increased its anti-Jewish profile about a year ago, picketing outside federations and synagogues, drawing publicity in the process. The anti-Semitic rhetoric in its published materials dates back at least to the 1990s, when the church compared its own tribulations to the persecution of Jews in the Holocaust.

In 2004, writing about Gen. Wesley Clark’s decision to drop out of the Democratic primaries and endorse John Kerry, a Westboro church statement said, “His Christ-rejecting, God-hating Jew blood bubbled to the surface. Yes, like his boss Kerry, Clark is a Jew.”

Clark and Kerry had fathers whose Jewishness was revealed to them only in adulthood.

Freeman said it was clear for a long time that the ADL would be presented eventually with a dilemma about whether to defend virulent anti-Semites and homophobes. In recent years, the ADL has condemned the explosion of hate speech on the Internet but maintained that it is constitutionally protected.

“This isn’t the right case to address this thorny issue,” Freeman said. “We’ve been reporting on Westboro for a long time — by the same token we have a long tradition of defending First Amendment rights.”

Stern, who left the American Jewish Congress and joined the AJCommittee after the decision was made not to file a brief in the case, said the Supreme Court ruling could have broader — and worrisome — repercussions should the court uphold the ruling for the Snyders, who sued the church both for violation of privacy and defamation.

Should the court rule solely on the issue of privacy, the free speech ramifications would be minimal. However, should it emulate foreign courts that have banned certain forms of hate speech, it would amount to a major change in interpretation of the First Amendment.

Stern noted the appeal of such a ruling to otherwise incompatible bedfellows: conservatives who are repulsed by the Westboro church’s targeting of the bereaved, and leftists who in recent years have held that hate language is an instrument of oppression, citing laws in countries such as France, Germany and Israel.

“There are strong free speech arguments for the church,” Stern said. “If the court rules that certain kinds of speech are not protected at all or of such little utility as to deserve protection, that would be a really radical change in American law.”


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