Before the law with Nathan Lewin

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Story by Rachel Kohn
Photos by David Stuck

Nathan Lewin has argued hundreds of cases in his 60-year law career —nearly 30 of them before the U.S. Supreme Court. He made headlines again last month when he agreed to take the case of an Ann Arbor, Mich., synagogue plagued by protesters outside its Shabbat services for the past 18 years to the highest court in the land.

“The real problem is that it’s [previously] been presented to the court as a free speech case when it’s really a freedom of religion case,” said Lewin, 86, in a Zoom interview from his home in Potomac. He will argue to the Supreme Court that the focus should be on the fact that the protesters, with their antisemitic and anti-Israel signs, intimidate congregants and deter them from attending religious services.

Born in Lodz, Poland, five years before his parents immigrated to the U.S. in 1941, Lewin is not the first nor the last in his family to take on the interests of the Jewish community in the public arena. His grandfather was the chief rabbi of Rzeszow and served twice as a member of the Polish legislature; and his father served on the Lodz City Council before moving to the United States, where he then wrote for the Yiddish-language press before finding work as a professor at Yeshiva University and then as principal of a Hebrew high school for girls.

Despite the family’s modest means, Lewin witnessed his father dedicate a great deal of his time to pro bono efforts on behalf of the Jewish community. It made an impression that led him to take advantage of opportunities to do the same when he went into private practice after his time in the Department of Justice.

For the last 20 years, he has worked in partnership with his daughter Alyza in their firm Lewin & Lewin. Alyza is also the president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law, a non-profit organization established to advance the civil and human rights of the Jewish people and promote justice for all.

Experienced in criminal defense, civil litigation and religious liberty litigation, Nathan Lewin’s fervor is not limited to protecting the rights of the Jewish community but all individuals under the law as well. What people get wrong about the separation between church and state in America, he said, is thinking that “acquiescence in and accommodation for religious observance is the same as [the] government supporting religion. That is simply not true.”

He referenced the popularly cited case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a baker refused to bake a wedding cake for a same-sex wedding due to “personal religious convictions.” In these cases, “people think the right to same-gender marriage has in some way been infringed,” he said. “That’s just wrong — they can simply go somewhere else and [buy a wedding cake]. They have the option of taking their business elsewhere in this situation as they would in any situation when they are making decisions about a service provider.”

Hypothetically, what if there was a Christian or Muslim store owner who didn’t want to serve Jews because, according to his understanding of his own religion, he perceived serving Jews as problematic? Would that store owner be protected based on the concept that a Jewish customer could just go somewhere else?

“I think a total exclusion based on religion presents a very different question than saying ‘Look, your non-religious practice infringes on my religious conviction, and therefore I personally don’t have to participate in it,’” Lewin said.

Friend of the Court

In addition to arguing cases before every appellate court in the land, district courts in D.C. and New York, and the Supreme Court itself, Lewin has submitted hundreds of amicus briefs. Shorthand for briefs filed by a “friend of the court” (amicus curiae in Latin), amicus briefs come from people who aren’t a party in a case but want to provide data and perspective in support of one of the sides involved. Lewin incorporates Jewish content on the advice of a man he was “proud to consider a friend,” he said: Menachem Elon, a former justice of the Supreme Court of Israel and head of the Jewish Law Institute of the Hebrew University of Jerusalem.

The two would spend time together during Lewin’s visits to Israel, Lewin said. “When I told Elon what I was doing, filing friend of the court briefs, he said, ‘Why don’t you put in Jewish law references? I think the justices would be interested and maybe would be affected by what Jewish law says.’ I said, ‘Hey, that’s a brilliant idea.’ The next case that came up was a capital punishment case, and I put in Jewish talmudic law on having executions be by the most humane means possible.”

More recently, Lewin filed an amicus brief with “an overwhelming, large number of Jewish references” for a Supreme Court case examining whether the towering Peace Cross at the World War I memorial in Bladensburg, Md., is a violation of the Establishment Clause.

“I cited a whole line of Jewish authorities over the ages who said that crosses or religious symbols of that kind, which are purely for decoration, are very different from crosses used in religious worship; therefore, a memorial which has a cross is not the same as a cross that’s used in a church for religious worship,” said Lewin. His amicus brief quoted a string of Jewish authorities analyzing the meaning and the prohibition or permissibility of a cross. He also cited the example of an early chief rabbi of Israel who was given a cross by the French government, which he would wear publicly when he would meet the French ambassador to show respect for the French government.

In its June 2019 ruling, the Supreme Court allowed the cross to remain.

Nine smart people

When it comes to recent calls for term limits for Supreme Court justices or an increase in the number of justices on the bench, Lewin thinks “they’re all wrong.”

First of all, adding term limits would require a constitutional amendment. In the absence of an amendment, the change would be “not only unconstitutional but foolish,” he said. “You’d be astounded at the important opinions justices wrote after 18 years on the court. The great dissent on Plessy v. Ferguson that Justice John Harlan wrote was in his 25th year on the court . . . After 18 years, a lot of the justices are at their best and have written historic opinions.”

“Increasing membership of the court would make it extraordinarily unwieldy,” he continued. Citing the example of Israel’s Supreme Court, which has 15 judges, Lewin pointed out that all 15 never sit on a case together. “They usually sit on panels of three, sometimes five, sometimes nine,” he said.

“I think we have what is a good operating system and I don’t think anyone should be tinkering. I think it is definitely doing what it was intended to do. There was a period in the court’s history in the 1970s, and certainly under Earl Warren and somewhat under Warren Burger, where I disagreed very substantially with lots of opinions that the court came down with. But, I recognized all the time that this was nine smart people . . . trying to weigh the considerations that really good lawyers ought to weigh.” Even after losing cases or feeling shocked by certain decisions of the justices over the years, “I’m willing to assign that function to nine very good lawyers who were selected by the proper means and are given life tenure,” he said. “I think it’s a good system, and I think that the court has done, during all of the years I’ve been practicing, what the court should do, whether I agreed with it or disagreed with it.”

Rachel Kohn is a freelance writer. Follow her on Twitter
at @RachelKTweets and see more of her work at
authory.com/rachelkohn.

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