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Two Court Decisions Of Note

Two federal court decisions of major significance to our community were handed down on Monday. In one case, the United States Supreme Court ruled that the First Amendment does not bar localities from beginning legislative sessions (such as city council meetings) with plainly religious prayer, even when clergy members presenting the prayers are invariably Christian and the prayers invoked are Christian in nature.

In the second case, a Manhattan federal district judge dismissed a complaint filed by Palestinians (including several American citizens) residing in the West bank against Ateret Cohanim, the One Israel Fund (to be distinguished from the New Israel Fund), and three other organizations that support Israeli settlers – the Hebron Fund, the Central Fund of Israel and the Christian Friends of Israeli Communities. All were sued under federal terrorism statutes over their providing financial support to settlers and settlements (which the plaintiffs claimed were terrorist groups).

In the 5-4 ruling in the first case, Justice Anthony Kennedy wrote in his majority opinion:

Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government…. Legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of “God save the United States and this honorable Court” at the opening of this Court’s sessions….

As to the lack of participation by non-Christian clergy, Justice Kennedy noted there was no claim that any effort was made to exclude anyone. Rather, he said, there was simply no outreach to non-Christians.

Of particular interest to us is the friend-of- the-court brief submitted by the noted constitutional lawyer Nathan Lewin in support of allowing the opening prayers. The brief cited a 1963 responsum of Rav Moshe Feinstein regarding Christian prayer, as well as the opinion expressed by the Lubavitcher Rebbe when the Supreme Court invalidated the New York State Regents prayer in 1962.

Significantly, in his concurring opinion, Justice Samuel Alito cited and relied on Mr. Lewin’s presentation.

As Mr. Lewin notes in the brief, “Contrary to common misconception, Jewish Law does not condemn Christian prayer.” Indeed, when filing the brief he had said, “The Supreme Court must be informed this time that America’s Jewish community is not unanimous in objecting to Christian prayer or in the suppression of pleas for Divine blessings at governmental sessions.”

We couldn’t agree more.

In the second case, Mr. Lewin represented the above-named organizations that had been sued because of their support for settlements. It is a somewhat involved story, but essentially consists of the following:

The federal Anti-terrorism Act provides that “[a]ny national of the United States injured…by reason of an act of international terrorism…may sue…in any appropriate district court of the United States and shall recover threefold the damages he or she sustains.” The Alien Tort Statute provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Other laws prohibit giving financial support to terrorists.

In the context of these laws, the plaintiffs charged that “The Settlers” are Israeli citizens who live in the settlements and perpetrated attacks on Palestinian residents in the territories which are intended to “coerce, intimidate and influence the Israeli government and public and thereby ultimately bring the ultimate expulsion of the Palestinian residents from Occupied Palestine.”

The defendant organizations are identified as “purported charities” that collect donations totaling “millions of dollars” that they wire “directly to the Settlers and the Illegal Settlements.” The funds are used to “build and maintain the Illegal Settlements, illegally take land in Occupied Palestine, to support the attacks by the Settlers on Palestinians living in Occupied Palestine, and to support the terrorist acts of the Settlers against Palestinians and other persons in Occupied Palestine.”

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