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The U.S. Supreme Court

In a 31-page opinion issued last week, seven justices of the United States Supreme Court confirmed a view of religious crosses maintained by leading rabbinic scholars from the thirteenth century to our day.

The American Humanist Association and nine “friend-of-the-court” briefs argued that a huge government-financed Latin cross erected as a World War I memorial along a highway in Bladensburg, Maryland, constituted an endorsement of Christianity, which violates the First Amendment’s prohibition against the “establishment” of a religion.


The Supreme Court disagreed. Writing for the majority, Justice Samuel Alito argued that the memorial is constitutional because the cross in this case also symbolizes “a symbolic resting place for ancestors who never returned home,” and “a place for the community to gather and honor all veterans and their sacrifices for our nation.”

I helped draft, and filed, a friend-of-the-court brief that supported the constitutionality of the memorial. The brief, which was approved and authorized by five national Orthodox Jewish organizations – the Agudas Harabbonim of the United States and Canada, Agudath Israel of America, the Rabbinical Alliance of America, the Rabbinical Council of America, and the Orthodox Jewish Chamber of Commerce – began with the following observation:

“The cross has, over many centuries, been a symbol that may be emblematic of hostility to, and persecution of, Jews. But a distinction is clearly drawn in Jewish law and tradition between the cross as a religious object and its use for secular commemorations and awards.”

My brief then explained that Jewish scholars have ruled, over a span of more than 750 years, that halacha distinguishes between a cross created and used in a Christian religious ceremony and a cross that is ornamental or secularly ceremonial. Never in the history of the Supreme Court has so much halachic authority been presented in a brief.

The review began with Rabbi Mordechai ben Hillel (known to Talmudists as “the Mordechai”) who, in elaborating on a passage in the Tractate Avodah Zarah, distinguished between a cross worn by Christian clergy and a cross used in a Christian religious service.

The distinction drawn by the Mordechai was approved by the Ritva (1260-1328) and by the Meiri (1249-1316) in their analysis of Avodah Zarah 42b. And when the Rema wrote his notes on the Shulchan Aruch in the 16th century, he cited the Mordechai approvingly and ruled like him.

So did a leading 19th century authority on Jewish law, Rabbi Yosef Shaul Nathanson, the chief rabbi of Lvov, Poland (1810-1875). In volume three (response 71) of his six-volume Shoel U’Meyshiv, Rabbi Nathanson ruled that it was permissible for a Jewish recipient of a cross-shaped medal to wear it publicly, citing the Mordechai and others.

In a radio lecture (which was published in Yechave Daat), Rav Ovadiah Yosef (Sefardi chief rabbi of Israel, 1972-1983) also distinguished between a decorative cross and a religious cross, citing many authorities beginning with the Mordechai. He observed that Rabbi Jacob Meir (1856-1939), appointed in 1921 as the first Sefardi chief rabbi of what was then Palestine, was photographed wearing a cross-shaped medal awarded to him.

This array of Jewish law authorities was paraded before the Court in a short brief. It supported a constitutional stance that is beneficial for America’s Orthodox Jewish community – limited application of the First Amendment’s prohibition against “an establishment of religion” so that Jewish day schools and other religious institutions can receive direct financial assistance from the government.

Justice Alito opinion did not explicitly write that the distinction the Supreme Court drew between Bladensburg’s cross as “a Christian symbol” and “everything else” that that the Bladensburg cross “has come to represent” was foreshadowed by Jewish legal historians. That fact may, however, become a footnote for Supreme Court historians.


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Nathan Lewin is a Washington lawyer who specializes in white-collar criminal defense and in Supreme Court litigation.