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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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