Represented by famed constitutional lawyer Nathan Lewin, Marvin Gerber, a congregant in his late 80s at Ann Arbor Synagogue has petitioned the U.S. Supreme Court to declare that demonstrators have no free speech right to harass and intimidate their congregants entering the synagogue to worship. Rather, Gerber claims, they have a superior constitutionally and statutorily protected right to freedom of worship. However a federal district court and a federal appeals court agreed with the demonstrators.
According to the appeals court opinion the facts are these:
Every Saturday morning since September 2003, protesters have picketed the Beth Israel Synagogue. Their group typically comprises six to twelve people, and they display signs on the grassy sections by the sidewalk in front of the synagogue and across the street from it. The signs carry inflammatory messages, with statements such as “Resist Jewish Power,” “Jewish Power Corrupts,” ”Stop Funding Israel,” “End the Palestinian Holocaust,” and “No More Holocaust Movies.“ The protests apparently target the members of the Beth Israel Congregation, as they coincide with the arrival of the congregants to their worship service on Saturday morning. The congregants and their children can see the signs as they enter their worship service. But the protesters have never prevented them from entering their house of worship, have never trespassed on synagogue property, and have never disrupted their services.
The appeals court went on to say that the congregants “have credibly pleaded an injury – extreme emotional distress – that ‘has stamped a plaintiff’s ticket into court for centuries.’” But it nevertheless concluded that the gathering and display of signs was “squarely within the First Amendment protections of public discourse in public fora because “the content and form of the protests demonstrate that they concern public matters: American-Israeli relations.”
Lewin, however, wrote in the petition that,
The decision of the Court of Appeals impairs and undermines the constitutional and statutory right of Jews and religious observers of other faiths to exercise their religious freedom by collective worship at a site designated for sacred observance. The Court of Appeals mistakenly characterized the [protesters’] antisemitic harassment as “public discourse” on “American-Israeli relation” and erroneously [summarily] rejected… alleged violations of federal law…”
He went on to argue that the Supreme Court should grant the synagogues’ petition and review the holdings of the lower courts in order to “clarify that the freedom to worship guaranteed by the First Amendment and by federal law may not be impaired by individuals who surround a house of worship to harass and intimidate its congregants even if they claim that they are engaged in nothing more than free expression.”
This is an obviously important case, especially in the light of the current spike in the targeting of things Jewish. And happily, major Jewish organizations have rallied in support of Beth Israel’s seeking Supreme Court review and joined in an amicus curiae brief filed by Agudath Israel of America and written by Joshua Klarfeld of the law firm Ulmer & Berne, LLP. Organizations signing on to the brief include COLPA National Jewish Commission on Law and Public Affairs), Agudas Harabbanim of the United States and Canada, Coalition for Jewish Values, National Council of Young Israel Orthodox Jewish Chamber of Commerce, Orthodox Union (Union of Orthodox Jewish Congregations of America), Rabbinical Alliance of America, Rabbinical Council of America and Torah Umesorah (National Society of Hebrew Day Schools),