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entries tagged with: Supreme Court

 

Campaign finance decision may hurt Jewish influence

In the rarefied arena of ideas, the American Jewish community has done quite well over the years in making the case for Israel, civil rights, and the environment, among other issues.

These ideas may now be tested in the blood sport of politics.

Last week, a U.S. Supreme Court ruling upended a ban of more than a century on direct corporate involvement in elections. Politics watchers are still trying to understand the implications of the 5-4 ruling by the court’s conservative majority in Citizens United v. Federal Election Commission.

The decision could have a profound effect on how Jewish groups operate in the public sphere.

Most pro-Israel and Jewish civil liberties groups still operate under the tax code as 501(c)3 organizations — religious, educational, and charitable groups. This classification allows donors to write off contributions as a tax deduction but bans direct participation in the political process.

Groups with this classification are limited to pronouncements on issues and ideas: They may, for instance, speak generally about care for the environment or about energy conservations, but they cannot endorse or oppose specific candidates.

Last week’s Supreme Court ruling opens the way for corporations to directly attack candidates.

“It does shift the balance of power in the free marketplace of ideas, said Rabbi David Saperstein, the director of the Reform movement’s activist arm, the Religious Action Center — itself a 501(c)3. “It shifts it dramatically towards corporations, which can now get involved in debate around elections.”

The question for 501(c)3 groups is whether it becomes worthwhile to forego the tax exemption to enter the political fray more forcefully. They could do so as 501(c)4 organizations — the classification for lobbying groups.

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Reform leader Rabbi David Saperstein, shown being arrested outside the Sudanese Embassy in April 2009, is concerned that the issues-based advocacy he practices will be diminished by the Supreme Court decision allowing direct corporate involvement in political campaigns. Save Darfur Coalition

“People will say, why should I give to a Jewish agency that has abstract policy positions when I can give to a 501(c)4 and have a direct role?” said Marc Stern, the legal counsel and acting director of the American Jewish Congress.

JTA contacted an array of groups to discuss the decision, but most declined to comment, saying they were waiting to see how the decision would bear out.

Some major pro-Israel groups, including the American Israel Public Affairs Committee, already have 501(c)4 status. Under the new ruling, they now have the freedom to weigh in on political battles; the question is whether it’s in their best interests to do so.

One reason they might want to hold back from explicitly backing particular candidates, Stern said, is because “they know their prediction might be wrong, and then there’s a disadvantage if the other guy wins.”

That would place groups such as AIPAC, which values its bipartisan reach, at a disadvantage against 501(c)4 groups that are partisan and do not care about alienating one side or the other.

Another collection of pro-Israel groups facing key questions is political action committees, or PACs, which may have been rendered superfluous by the ruling.

Corporations are still prohibited from directly funding campaigns, while PACs may directly contribute. However, under the new rules, corporations may spend as much as they want running attack ads against candidates they don’t like, while donors may contribute only up to $5,000 to PACs.

Also, PACs can contribute only $5,000 to a candidate, although there are loopholes that allow PACs to funnel bundles of the maximum individual donation of $2,500 to a candidate.

In the 1970s, support for candidates by individual pro-Israel donors helped protect Israel from Ford administration threats of estrangement backed by the oil industry. In the 1990s, these donors and pro-Israel groups helped the push for Iran sanctions against the interests of big oil.

Were those battles to be replicated under the new rules, oil companies could marshal astronomical funds well out of the reach of pro-Israel donors to depict candidates as harming U.S. interests overseas.

Some observers believe the anxieties are overstated.

“It’s very clear that the majority of voters are very supportive of Israel,” said Jennifer Laszlo Mizrahi, a founder of The Israel Project, a pro-Israel group that also tracks public opinion on Israel. “While there were times in history when that might have been a problem, this is not one of those times.”

Some Conservatives have shrugged off concerns about the new ruling. Just because corporations are now able to weigh in directly on elections does not mean they will do so, Marc Ambinder wrote on his Atlantic Monthly blog.

“Corporate boards are risk averse,” Ambinder wrote. “Smart CEOs don’t want to risk internal conflict on boards when deciding which political candidates to back directly.”

“It dramatizes the need for the Jewish community to get involved in [Supreme Court] nomination fights,” Saperstein said, “to make sure that people who don’t abandon 100 years of precedent that served the common good, as happened in this case, are appointed to the court.”

JTA

 
 

Elena Kagan and the rule of law

 

Elena Kagan seen as brilliant and affable — and a mystery

WASHINGTON – Rabbi David Saperstein runs through a shopping list of superlatives on Elena Kagan — “self-evidently brilliant” and “steady, strategic, and tactical” — before acknowledging that he doesn’t have much of a handle on what President Obama’s choice to fill a U.S. Supreme Court seat actually believes.

In the Jewish community Saperstein, the head of the Reform movement’s Religious Action Center, apparently is not alone.

Community reaction to Obama’s selection of Kagan, the U.S. solicitor general, is enthusiastic until officials consider what it is, exactly, she stands for.

Kagan, 50, has never been a judge — she would be the first Supreme Court justice without bench experience since 1974. It’s a biography the White House touts as refreshing, but also has the convenience of lacking a paper trail of opinions that could embarrass a nominee in Senate hearings.

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President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office last month. Official White House Photo by Pete Souza

“When someone’s a solicitor general, it is really difficult to know what is their own position and what is the position of the state they are charged to represent,” Saperstein said.

A similar murkiness haunts how Kagan handles her Jewishness — she has alluded to it, but has not explicitly stated it since her nomination.

Her interlocutors in the Jewish community say Kagan is Jewish-savvy, but they are hard pressed to come up with her own beliefs.

The White House strategy going into Senate hearings appears to be blame whatever controversy trails her on her employer, on her client — on anyone but Kagan herself.

The first such controversy to emerge since Obama announced the nomination Monday was Kagan’s defense, as dean of Harvard University’s Law School, of the campus practice of banning military recruitment through the main career office (veterans were allowed to recruit independently) because of the military’s discriminatory hiring policies on gays.

Kagan inherited the policy when she became dean in 2003, but she was not shy about agreeing with it. When the Bush administration in 2004 threatened to withdraw funding, she rescinded the ban, but wrote to the student body, according to the authoritative SCOTUS Blog, of “how much I regret making this exception to our anti-discrimination policy. I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”

Such stirring defenses are absent from White House materials that have emerged on the matter. Instead, the Obama administration is distributing an opinion piece that appeared Tuesday in the conservative Wall Street Journal by her predecessor at Harvard Law, Robert Clark.

“As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place,” Clark wrote, not mentioning her stated ideological investment in the matter.

Another debate pertains more closely to an issue that divides the Jewish community: federal funding for faith-based initiatives.

Kagan clerked for Thurgood Marshall in the late 1980s, and in a memorandum to the Supreme Court justice, she said there was no place for such funding.

In her Senate hearings last year for the solicitor general post, Kagan outright repudiated the position she had forcefully advanced in 1987.

It was “the dumbest thing I ever read,” she said. “I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who — let us be frank — had very strong jurisprudential and legal views.”

Her defense was convenient — Marshall, of course, is long dead and unable to defend himself — and troubling to Saperstein, whose group joins the majority of Jewish organizations in opposing such funding.

“People aren’t quite sure what to make of that,” he said.

The Orthodox Union’s Washington director, Nathan Diament, on the other hand, knows just what to make of it — hay.

“As strong proponents of the ‘faith-based initiative,’ and appropriate government support for the work of religious organizations, we at the Orthodox Union find Ms. Kagan’s review and revision of her views encouraging,” he wrote on his blog Tuesday.

Saperstein noted that the Religious Action Center — along with other Jewish civil liberties groups, like the Anti-Defamation League and the American Jewish Committee — is preparing questions for Kagan to be submitted to the Senate Judiciary Committee. RAC is soliciting questions from the public as well at a Website, AskElenaKagan.com.

These groups have welcomed the nomination; the National Council of Jewish Women has endorsed it. NCJW President Nancy Ratzan cited Kagan’s affirmation during her solicitor general confirmation hearings of Roe v. Wade as established law protecting a woman’s right to an abortion, and her defense of federal campaign funding restrictions as solicitor general before the Supreme Court — a case the government lost.

“She gave us clarity as a champion for civil rights,” Ratzan said of Kagan. “We think she’s going to be a stellar justice.”

Other groups say that whatever she argued as solicitor general — or whatever she said in seeking the job representing the U.S. government before the high court — might be seen more as reflecting the will of her boss, Obama, and is not necessarily a sign of how she would function as one of the nine most unfettered deciders in the land.

“There’s a lot we have to learn,” said Richard Foltin, the AJC’s director of national and legislative affairs, even after 15 years of interacting with Kagan dating to her days as a Clinton White House counsel on domestic policy.

Foltin and others who have dealt with Kagan say she is affable and easy to get along with, simultaneously self-deprecating and brimming with confidence. She accepts with equanimity the nickname “Shorty” that Marshall conferred upon her, and charmed her Senate interlocutors at her solicitor general confirmation hearings when she said that her strengths include “the communications skills that have made me — I’m just going to say it — a famously excellent teacher.”

In addition to his interactions with Kagan during her Clinton years, Foltin — a Harvard Law alumnus — was impressed as well by her ability as dean of the school to bring conservatives and liberals together.

“This is an incredibly smart attorney who is able to reach out to people, take in diverse perspectives, and bring people together,” he said.

Obama cited Kagan’s outreach in announcing her nomination.

“At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus,” he said.

Saperstein, who also recalls Kagan from her Clinton White House days, says she brings the same deep understanding of all sides of a debate to the Jewish community.

“She was quite aware of where there were differences — aid to education, government funding of religious institutions,” he said.

Kagan, whose nomination is believed to be secure — Republicans have said they are not likely to filibuster over it — would bring the number of Jews and women on the highest bench in the United States to three. That’s unprecedented in both cases. She would join Ruth Bader Ginsburg and Stephen Breyer as Jewish justices. Sonia Sotomayor, like Kagan a native New Yorker, is the third female justice.

Stephen Pease, whose book “The Golden Age of Jewish Achievement” chronicles disproportionate Jewish representation in the law, in academe, and in the arts, said a third Jewish justice was not remarkable. Kagan would be seen as getting the job on her merits: clerking to two famous judges, teaching at the University of Chicago, advising the Clinton White House, heading Harvard Law, and then as the administration’s second most important lawyer, all by the age of 50.

“She’s done some pretty incredible stuff fairly quickly in her career,” Pease said.

Despite Kagan’s familiarity with the Jewish community, there are few clues as to her Jewish preferences. Her late father was on the board of West End Synagogue, a Reconstructionist shul in Manhattan, where she grew up on the Upper West Side. She had a bat mitzvah at the synagogue and, according to a New York Times profile, argued with the rabbi — over what it’s not clear.

Like Obama, she is close to Abner Mikva, a former federal judge and a law professor at the University of Chicago. It’s not clear, however, whether she shared Mikva’s deep involvement in the Jewish community. During her years as a lecturer at the University of Chicago, from 1991 to 1995, she was not involved with the local federation.

The White House did not shy away from Kagan’s Jewishness in making the announcement, nor did it make her faith explicit. Invitees to the announcement included the usual array of representatives from Washington offices of national Jewish groups: the AJC, ADL, NCJW, and RAC, along with the National Jewish Democratic Council and the Jewish Council for Public Affairs.

“Elena is the granddaughter of immigrants whose mother was, for 20 years, a beloved public schoolteacher — as are her two brothers, who are here today,” Obama said.

Kagan added that “My parents’ lives and their memory remind me every day of the impact public service can have, and I pray every day that I live up to the example they set.”

JTA

 
 

The court on free and bought speech

 

Stopping torture needs unswerving commitment

 

With school controversy, secular-haredi tensions reach boiling point

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Haredi children protest opposite the Ramle prison, where a group of haredi parents were jailed June 18 for defying a court order to send their daughters to a school in Emanuel. Yossi Zeliger/Flash 90/JTA

The showdown between Israel’s Supreme Court and the parents of students at a haredi Orthodox school found guilty of discriminatory practices against Sephardic girls has brought already strained secular-religious relations in Israel to a fever pitch.

A remark by Supreme Court Justice Edmond Levy that the court’s decisions are not subject to rabbinical approval went straight to the heart of the matter, with irate haredi demonstrators declaring that if they had to choose between the court and their rabbis, the rabbis always would come first.

The fundamental argument over whether the courts or the rabbis have the ultimate authority reflects a long-standing clash between Theodor Herzl’s vision of a secular democratic state for the Jews and haredi notions of a Jewish state subject to rabbinical law.

For secular Israelis, impugning the authority of the courts means anarchy. For the haredim, overriding rabbinical rulings means perverting God’s will. At issue is a test of the capacity of the Zionist, secular state to impose its will on a large group of haredim who often are derisive of its democratic, secular institutions.

The latest angry confrontation between the state and the haredim began with a ruling by the Israeli Supreme Court in April ordering a school run by Ashkenazi Slonim chasidim in the west bank settlement of Emanuel to stop excluding Sephardic girls from their regular classes.

In the state’s view, the practice constituted a form of intolerable segregation and violated basic principles of equality and human dignity. The offending Beit Yaakov school agreed to more mixed classes.

But rather than comply, the Ashkenazi parents started their own school next door. They argued that the segregation wasn’t ethnic but religious. The Sephardic girls, they said, came from homes less strictly observant than their Ashkenazi daughters — for example, homes with television sets and Internet connections — and they didn’t want their daughters influenced by those who were less religious. They said Sephardic girls were welcome at the Ashkenazi-dominated school if they met the standards for stricter religious observance.

The court ordered the parents to send their children back to Beit Yaakov or face fines. The parents ignored the court order and didn’t pay the fines. The court found them guilty of contempt and ordered that they be sent to jail for an initial two-week period to reconsider their position.

Amid defiant singing and dancing, 35 of the 38 fathers went to jail last week. The mothers failed to report for their prison terms on the grounds that they needed to be home to look after their younger children.

There are conflicting accounts over what caused the brouhaha and what it means.

The Slonim chasidim say that in a true democracy, they should have the right to educate their children in any way they please. They say the Israeli state, like the Romans and Greeks before them, is interfering in matters of religious principle. Just like their ancestors, they say, they’d rather face punishment than compromise their religious beliefs. In the chasidic account, the parents’ going to jail was presented as a form of martyrdom, showing up the inhumanity, lack of values, and wanton persecution of the haredi Orthodox by the secular Israeli state.

Secular Israelis see things quite differently. Many regard the Emanuel school case as a reflection of a much wider phenomenon, that of the haredim milking the state for funds without accepting its authority or performing the ultimate duty of Israeli citizenship: army service.

Haredi schools are largely state-funded but do not teach the country’s core curriculum. The secular press in Israel has been inundated with articles blasting the haredim for defying the state’s authority while tapping into its budgets for health, education, and welfare. Nowhere else in the world would haredi Jews have the temerity to behave this way, the secularists say; nowhere else would they defy state law or mock the Supreme Court.

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Before a father’s incarceration for defying a court order to send his daughter to a school in Emanuel, he tries to console his crying child. Abir Sultan/Flash90 /JTA

Many see the standoff as a test of strength the liberal democratic state cannot afford to lose.

“Don’t give in to Emanuel,” the liberal daily Haaretz exhorted in an editorial.

“We must not surrender,” echoed journalist Yair Lapid, who reportedly is on the brink of launching an anti-clerical successor party to Shinui, the party once led by his late father, Yosef “Tommy” Lapid.

The Orthodox-Sephardic Shas Party was more ambivalent. Shas was created in the mid-1980s to combat Ashkenazi discrimination against Sephardim, so it might have been expected to take up the cause of the Sephardic students and families. But to do so would have seemed like siding with the Supreme Court, which is anathema for Shas. Its spiritual leader, Rabbi Ovadiah Yosef, resolved the dilemma by coming out against discrimination, but more strongly against taking the case to the Supreme Court.

“Anyone who appeals to the secular courts will have no share in the world to come,” Yosef declared.

Other recent rulings by the Supreme Court have compounded the strains between the haredim and the state, as well as a string of violent clashes between haredi demonstrators and police. In mid-June, the Supreme Court ruled against state stipends for married yeshiva students on the grounds that similar stipends for married university students were abolished in 2000. A seven-member panel ruled that this constituted a violation of the principle of equality in the distribution of public funds. Either all married students should get the stipend or none, the court ruled.

Shas leader Eli Yishai has vowed to introduce legislation to overrule the Supreme Court decision.

The ruling was seen as a major blow to the haredim, many of whom choose to study Torah rather than work for a living. This exempts them from mandatory army service.

The haredim also clashed recently with police during demonstrations against building on sites where ancient bones are believed to be buried. These often violent protests were led by a small radical group in the haredi camp known as the Atra Kadisha. In May there were clashes over the removal of bones — believed to be pagan — from the site of a new rocket-proof emergency room at Barzilai Hospital in Ashkelon; in June there were protests in Jaffa over bones at the construction site of a boutique hotel.

For its part, the Israel Defense Forces is considering launching a new plan that would allow more yeshiva students to enlist and more yet to join the labor force. At present, yeshiva students must remain in school until middle age in order to stay out of the army.

Meanwhile, with the basis of Prime Minister Benjamin Netanyahu’s government a strategic alliance between Likud and Shas, government ministers have had very little to say on the Emanuel school brouhaha for fear of upsetting their haredi coalition partners. But it also means that Shas is unlikely to do anything that could topple the government.

If tensions remain high, it could strengthen secular parties in the Knesset willing to take a stand against the haredim. That’s what happened in 2003, when Shinui won 15 seats. But three years later it lost the seats when members defected to other parties.

Whether the current haredi-secular tensions will translate into a political shift, and whether that could be sustained, remains to be seen.

JTA

 
 

Women of the Wall head arrested at Kotel

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Anat Hoffman

JERUSALEM – The leader of the Women of the Wall was banned from the Western Wall for 30 days after being arrested for holding a Torah scroll at the site.

Jerusalem police arrested Anat Hoffman on Monday morning following the monthly women’s Rosh Chodesh prayer service. She was taken in for questioning and held for five hours before she was released, the organization said.

Women of the Wall said Hoffman was ordered to stay away from the Kotel for the next 30 days.

A Supreme Court ruling prohibits women from reading the Torah at the wall; the group said in a statement issued Monday that she was just holding the scroll.

According to the organization’s account, Hoffman, holding the Torah scroll, was leading about 150 women from the women’s section of the Western Wall in a procession toward Robinson’s Arch, where they are permitted to use the Torah scroll. Police tried to remove the Torah scroll from Hoffman’s arms and arrested her for not praying according to the traditional customs of the Western Wall.

“The arrest of a woman on the first day of the month of Av is a harsh reminder of the price that Israeli society may pay for its religious intolerance and fanaticism,” Hoffman’s group said in a statement.

Police have not commented on the case.

JTA

 
 

For first time, Supreme Court opens with 3 Jews

WASHINGTON – For the first time in history, a U.S. Supreme Court convened this week with three Jewish justices.

And Jewish defense organizations had their eyes on Arizona.

Two of the three cases on the docket this session attracting special attention from Jewish groups come from the Grand Canyon State. One addresses tax credits for religious schools; another looks at whether state immigration laws outweigh the U.S. government. The third case, out of Maryland, deals with free speech protections.

Along with a docket for the first time having three Jewish justices, it will include three women — all appointed by Democrats.

Two of the three Jewish justices are female: Ruth Bader Ginsburg and Elena Kagan, whose nomination by President Obama was approved over the summer. The third Jewish justice is Stephen Breyer; the third woman is Sonia Sotomayor.

The first major case, Albert Snyder v. Westboro Church, will determine whether free speech protections extend to a tiny anti-gay church that has made a routine of protesting the funerals of soldiers. The court scheduled that argument for Wednesday.

The church, also known for its anti-Semitic broadsides, has successfully appealed in lower courts a $5 million award in a defamation and privacy lawsuit brought by the family of Matthew Snyder, a soldier who died in Iraq and was buried in Maryland in 2006.

Jewish defense organizations effectively are sitting this one out, in part because of the difficulties of reconciling the principle of defending free speech with the excesses of the church’s hate speech. Only the Anti-Defamation League has filed a brief, calling on the court not to hear the case. The ADL argues that it would be improper to decide such a momentous issue based on this case because the Snyders did not know in real time about the protest.

In coming weeks, the court also will consider Garriott v. Winn and Arizona Christian School Tuition Organization v. Winn, a challenge to the state’s practice of granting tax credits for tuition to religious schools. Lower courts have found that most of the credits are granted for religious school tuitions.

The Orthodox Union has filed an amicus brief favoring the defendants. The American Jewish Committee and the ADL have joined Americans United for Separation of Church and State in a brief that defends the right of taxpayers to bring the case to the courts, anticipating a defense argument that because the case involves credits and not expenditures, taxpayers lack standing. The brief does not otherwise address the substance of the case.

The other case out of Arizona has to do with its controversial immigration law. The ADL filed a brief joining the Chamber of Commerce and the Obama administration in challenging a law that would force businesses to use a federal database to check the backgrounds of prospective employees. Federal policy now makes the database available on a voluntary basis.

Challengers to the Arizona law say the danger is that favoring Arizona would allow states to usurp federal immigration law.

 
 

Westboro case poses dilemma for Jewish groups

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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.”

JTA

 
 
 
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