By Nathan Lewin
Try painting a swastika on the wall of a synagogue, and you’ll be arrested and charged with vandalism and probably serve jail time for a hate crime. But a federal appellate court has just gone out of its way to grant constitutional protection to signs bellowing “Resist Jewish Power” and “Jewish Power Corrupts” at Jews attending synagogue services every Sabbath morning for the past 18 years in Ann Arbor, Mich. The judges didn’t bother to explain why menacing Jewish Americans coming together to worship is less intimidating than cross-burnings were to church attendees in African-American churches in the South. The Supreme Court said in 2003 (Virginia v. Black) that “cross burning carried out with the intent to intimidate is … proscribable under the First Amendment.” No sane American thinks otherwise today.
A decision rendered by three federal judges on the eve of Yom Kippur should send shivers down the collective spines of the American Jewish community. Since September 2003, a group of Ann Arbor residents has been harassing Jewish attendees at Saturday-morning services in Beth Israel Synagogue, a Conservative congregation, by gathering between 9:30 and 11:30 a.m., and posting 18 to 20 aggressive signs on grass near and opposite the synagogue. The signs challenge “Jewish Power,” and attack Israel as “apartheid” and as responsible for a “Palestinian holocaust.” They demand a boycott of Israel and an end to U.S. aid to Israel. But their timing and location demonstrate that they address Jews coming for religious observance, whether or not they support Israel. It takes only a rudimentary knowledge of history to recall that the Third Reich began a program that murdered millions with similar harangues against the Jewish religion by hostile hordes at the doors of Jewish synagogues.
Beth Israel’s members suffered these meticulously timed taunts and the city’s refusal to prevent them for years, but finally took their tormentors to federal court with a complaint alleging 13 violations of federal law and 10 violations of state law. They encountered a district court judge who, they later alleged, should have been disqualified because she “had pre-determined the outcome of the lawsuit.” The judge brusquely dismissed the congregants’ lawsuit on the ground that they experienced only “intangible injury,” such as “extreme emotional distress.” This harm, she said, was not “concrete” enough to give them “standing” to file a lawsuit in a federal court.
The Jews took their case to the Court of Appeals for the Sixth Circuit. The only issue for appeal was the trial judge’s ruling aborting their claims at birth because they had no “standing.” They also asked that the district judge be disqualified from the case if the appellate court agreed that they had “standing” to pursue their claims. The American Civil Liberties Union entered as an amicus curiae (“friend of the court”) to teach the judges that gathering when the Jews came to worship on Saturday mornings and posting hostile signs while the worshipers were arriving and during their religious services was protected as Free Speech by the First Amendment to the U.S. Constitution.
The three judges assigned to hear the appeal included the Sixth Circuit’s chief judge, Jeffrey Sutton, a former law clerk to Justice Antonin Scalia and visiting lecturer at Harvard Law School. Sutton is widely respected among lawyers. He was a frequent oral advocate in the Supreme Court before assuming judicial robes. Among his most successful presentations to the High Court was his winning argument that the Religious Freedom Restoration Act — enacted by an almost unanimous Congress to protect religious liberty — was unconstitutional.
The first seven pages of a 13-page majority opinion written by Sutton and joined by a retired circuit judge conclude persuasively that the Jewish congregants have “standing” to pursue their claim. That should have ended the appeal in the congregants’ favor. But rather than sending the case back for a trial before an impartial judge, Sutton proceeds in the last five pages of his opinion to throw out all claims on the ground that “the content and form of the protests demonstrate that they concern public matters: American-Israeli relations.” The Saturday-morning gatherings and the aggressive posters are, in his opinion, “squarely within First Amendment protections of public discourse in public fora” and are shielded by “the robust protections that the First Amendment affords to nonviolent protests on matters of public concern.” He then dispatches the arguments to the contrary with blinding speed.
This is a frightening phenomenon in today’s America. The voracious wolf of rank Jew-hatred is cloaked in the sheep’s fleece of “American-Israeli relations.” Why do Ann Arbor’s anti-Israel zealots find it most meaningful to express their “public discourse in public fora” on Saturday mornings between 9:30 and 11:30 adjacent to a synagogue? Is this truly “public discourse” on “matters of public concern?” Are those who gather for two hours on Saturday mornings really trying to persuade the Jewish congregants with their placards? Or are they harassing and intimidating a religious minority that has suffered centuries of intolerance and hatred?
With all respect to Chief Judge Sutton’s legal acumen, there are solid reasons in federal and Michigan law to sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution. Even Sutton acknowledges in his cursory review of the complaint that the claims cannot be called “frivolous.”
Federal law gave the Jewish congregants only until Sept. 29, when Jews around the world were celebrating Simchat Torah, to file a request with the Sixth Circuit to have the appeal considered anew by the full court of 16 active circuit judges (along with the senior judge who agreed with Sutton and is entitled under federal law to sit on a rehearing). Six of the Sixth Circuit’s current judges were appointed by President Donald Trump and four by President George W. Bush. They, along with the court’s only active Jewish judge, may disagree with Sutton’s summary rejection of the plaintiffs’ 23 legal claims. If the appeal is reheard, the court may hear and learn from many more friends of the court than the ACLU, which was the only amicus curiae in the argument before three judges that looked like only a technical legal dispute over “standing.”
Nathan Lewin, a Silver Spring resident, is a criminal defense attorney with a Supreme Court practice who has taught at Georgetown, Harvard, University of Chicago, George Washington and Columbia law schools.