web analytics
April 23, 2014 / 23 Nisan, 5774
At a Glance
InDepth
Sponsored Post
Spa 1.2 Combining Modern Living in Traditional Jerusalem

A unique and prestigious residential project in now being built in Mekor Haim Street in Jerusalem.



Playing For A Higher Authority: The Inside Story Of Beren Hoopsters’ Kiddush Hashem

Front-Page-030912

Share Button

Fletcher Yarbrough was a Texan who is now a senior partner at Carrington Coleman, a top Dallas law firm. I e-mailed and spoke on the phone with Yarbrough, who agreed that the firm would take on this potential litigation pro bono. He enlisted, as the Carrington firm’s lead attorney in preparation for trial, Richard Rohan, a Jewish partner who is the son of Holocaust survivors and has many ties in the Texas Jewish community, including its day schools.

I discovered later from a conversation with a member of the Beren board that the local ACLU chapter and the ADL had been consulted about possible legal proceedings. They had advised that since TAPPS was a private organization, its decision was not constitutionally vulnerable, and that TAPPS was legally entitled to implement its private prejudices. Although it believed there was no legal recourse, ADL wrote a strong letter to Burleson urging him to reconsider voluntarily. The letter failed to move him.

What these legal advisers had overlooked, however, was that the private organization had arranged to conduct its semifinal and final games on the public facilities of a public-school district.

The 2009 struggle for Shemirat Shabbat on behalf of the Mock Trial team of Boston’s Maimonides School (which I described in the May 15, 2009 issue of The Jewish Press) ended when a Georgia state court judge learned from a letter sent (at our request) by the U.S. Department of Justice that federal funding was jeopardized by the local court’s participation in religiously discriminatory conduct. The judge said the courts could no longer be used for the mock trial finals unless a religious accommodation was made for the Maimonides team. This forced the Mock Trial group to move up Maimonides’ competition to avoid Chilul Shabbat.

In the Texas case, there was not enough time to seek the assistance of the Department of Justice, but the participation of the public school gave us grounds for asserting that the TAPPS decision was an unconstitutional preferment of religions that observe Sunday as Sabbath over religions such as Judaism and Christian denominations such as Seventh-Day Adventism.

Texas is also one of 12 states that adopted a local “Religious Freedom Restoration Act” after the Supreme Court declared unconstitutional a similar federal law protecting religious observance notwithstanding an unexpected hostile 1990 ruling by the Supreme Court. That law protects religious “exercise” against governmental restriction unless the government has a “compelling government interest” to support a burden on religious observance that results from government conduct.

There was obviously no “compelling” interest to maintain a Friday night and Saturday afternoon schedule for the concluding round of the Texas tournament. And the TAPPS rule permitting rescheduling could be viewed by a court as a binding contractual agreement between TAPPS and its members, including Beren, with the Beren students being “third-party beneficiaries.”

One refrain I heard time and again (and continue to hear) in discussions regarding the case is that the Beren Academy agreed to live by the TAPPS schedule for the final four competition when it joined the organization, and that it should not, on that account, be permitted later to challenge the schedule. Even if the facts were true (and they are not because the TAPPS rules authorize rescheduling), initial admission when an illegal practice is in effect does not foreclose a later legal challenge to the illegal rule.

For example, the military’s uniform regulation requiring soldiers to be bareheaded indoors was in effect when my erstwhile client Simcha Goldman joined the Air Force. Nonetheless, Dr. Goldman was permitted to challenge that regulation by wearing a yarmulke in an Air Force hospital after joining the service. Indeed, only by joining when an unlawful rule is in effect does one obtain the necessary “standing” to contest the rule in an American court.

While Richard Rohan and lawyers in his office quickly summarized the factual allegations for a complaint to be filed in federal court, I drafted the legal grounds for our case against TAPPS and the legal memo to be submitted to the judge who would be assigned our case. I was traveling to New York from Washington and, thanks to Amtrak’s Acela, was able to do research and draft portions of the complaint while the train made its way north.

I was reminded of what my grandfather, Rabbi Aaron Lewin, zt”l, the chief rabbi of Rzeszow (“Reisha”), wrote in the introduction to the first volume of his classic work on Torah called HaDrash V’HaIyun. He thanked the Polish government for having given him, as an elected member of the Sejm (the Polish parliament), first-class carriage each week from Rzeszow to Warsaw for meetings of the Sejm. This facilitated composition of his chidushei Torah, written in a comfortable train. By the same token, I was grateful to Columbia Law School – where I give a seminar on “Religious Minorities in Supreme Court Litigation” each spring semester – for sponsoring my agreeable working commute from Washington to New York.

Share Button

About the Author: Nathan Lewin is a Washington, D.C. lawyer who has argued numerous cases in the U.S. Supreme Court and teaches a seminar in Supreme Court litigation at Columbia Law School.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

No Responses to “Playing For A Higher Authority: The Inside Story Of Beren Hoopsters’ Kiddush Hashem”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Arrival of self-declared mayor of Slaviansk at town's administrative offices in eastern Ukraine.
Israeli-American Journalist Held Hostage in Ukraine
Latest Indepth Stories
Al-Aksa Mosque was claimed to be the site from which Mohammed ascended to Heaven, but it was built nearly 50 years after Mohammed died.

Jerusalem only seems important in the Islamic world when non-Muslims control or capture the city.

Israeli police enter the Al-Aqsa mosque compound in Jerusalem's Old City to disperse stone-throwing Palestinian protesters.

Jordan’s king is adding fuel to the fire on the Temple Mount, blaming Israel for violence by Muslim Arab rioters.

Imam Suhail Webb who boasted his Muslim community persuaded Brandeis President Fred Lawrence to withdraw an invitation to Ayaan Hirsi Ali.

At Brandeis, much of what counts as Western civilization got cold feet and won’t stand with Hirsi Ali.

Text of anti-Semitic flyer distributed to Jews in Donetsk, Ukraine on Passover 2014.

But the lesson from this meditation is that hidden behind the anti-semitic act is the greatest light.

As support of their messianic dream, Halevi and Antepli approve dishonoring Hirsi Ali as a ‘renegade.’

If itis a mitzva to eat matza all Pesach, then why is there no berakha attached to it?

When we are united with unconditional love, no stone will be raised against us by our enemies.

The reporter simply reports the news, but it is greater to be inspired to better the situation.

The Big Bang theory marked the scientific community’s first sense of the universe having a beginning.

Freeing convicted murderers returns the status of Jewish existence to something less than sanctified.

“The bigger they are the harder they fall” describes what God had in mind for Olmert.

We, soldiers of the IDF, who stand guard over the people and the land, fulfill the hopes of the millions of Jewish people across the generations who sought freedom.

How much is the human mind able to grasp of the Divine?

Jews have brought the baggage of the galut (exile) mentality to the modern state of Israel.

The Haggadah is an instruction manual on how to survive as strangers in strange lands.

More Articles from Nathan Lewin
Pesach matza cover

Federal and local laws protect your right to workplace accommodations for your religious observance.

pope

The inauguration of an American president has, since 1937, always begun with an invocation by a clergyman

The late Israeli Supreme Court judge Menachem Elon, was a pioneer of Jewish and Israeli law.

On Tuesday, February 28, it was widely reported that the basketball team of Houston’s Robert M. Beren Academy had “forfeited” its place in the semi-finals of the tournament conducted by the Texas Association of Private and Parochial Schools (TAPPS) because it would not play on Friday night and Saturday. But a headline in Friday’s New York Times read: “In Reversal, a Jewish School Gets to Play.”

On August 9, 2001, Ahlam Tamimi, a member of Hamas, drove a suicide bomber to the Sbarro restaurant in the heart of Jerusalem, where the bomber blew himself up, killing 15 people including Judy Greenbaum, an American citizen from New Jersey.

Editor’s Note: On July 30, the firm of Lewin & Lewin, LLP, filed in the Supreme Court its brief in Zivotofsky v. Clinton, No. 10-699, on which the Supreme Court will hear oral argument in early November. The constitutional issue in the case is whether Congress had the authority to enact a law in 2002 that directs the Secretary of State to permit U.S. citizens born in Jerusalem to record their place of birth in their passports as “Israel.” Because the State Department has consistently refused to recognize any part of Jerusalem as being in Israel, the government has refused to implement the 2002 law, claiming it violates the President’s constitutional authority to “recognize foreign sovereigns.” This is the Introduction to the Zivotofsky brief written by Nathan Lewin, followed by a Summary of Argument.

Congress has never seen a better friend of the observant Jewish community than Stephen Solarz, who died of esophageal cancer on the 22nd of Kislev. Yonoson Rosenblum’s recently published biography of Rabbi Moshe Sherer describes Solarz as an “invaluable ally” for many Agudath Israel projects and there are 20 references to Solarz in the book’s index.

A front-page story in The New York Timesof July 10 reported that federal immigration authorities in the Obama administration have adopted a “new strategy” to replace the military-style raids that were conducted in the Bush years to find and arrest illegal aliens.

    Latest Poll

    Now that Kerry's "Peace Talks" are apparently over, are you...?







    View Results

    Loading ... Loading ...

Printed from: http://www.jewishpress.com/indepth/front-page/playing-for-a-higher-authority-the-inside-story-of-beren-hoopsters-kiddush-hashem/2012/03/07/

Scan this QR code to visit this page online: