June 21, 2011
Supreme Court to consider Jerusalem passport question, ‘ministerial exception’ cases
Among the issues the U.S. Supreme Court will consider when it reconvenes next October is whether an American born in Jerusalem may list his birthplace as Israel in his passport.
That case probably will garner the most Jewish attention in a fall docket that includes several cases of interest to the Jewish community, court watchers say.
Another is a case involving church-state issues that already have divided Jewish organizations.
In Hosanna-Tabor Evangelical Lutheran Church and School v. the Equal Employment Opportunity Commission (EEOC) the court will consider the breadth of how religious institutions apply the “ministerial exception” from discrimination laws in hiring decisions.
A federal appeals court ruled that a teacher dismissed from the Michigan school was not subject to the exception, which allows institutions deciding whether to hire or fire ministers to ignore laws like those protecting the disabled, for instance.
So far, a wide array of different Jewish groups are split three different ways already are preparing briefs, although the case will not be heard until October at the earliest. The Orthodox Union is joining Mormon, Roman Catholic and Episcopalian bodies in a brief that argues “the right of religious institutions to select their ‘ministers’ extends to all who perform religious functions, and this right is not limited to those who exercise purely or primarily religious duties.”
The teacher in the Hosana-Tabor case was able to show that her secular instruction occupied a majority of her work time.
“This is a crucial issue for the liberty and autonomy of religious institutions—including synagogues and parochial schools—in the United States,” Nathan Diament, the OU’s Washington director, said in a statement. “Religious institutions must be able to determine and abide by their religious principles and be able to select who will lead and teach their members without second guessing or interference by secular courts. “
A similar brief filed on behalf of Agudath Israel of America and a number of other Orthodox groups cites Jewish law in arguing that Jewish religious courts are the proper venue for considering employment-related disputes in Jewish religious institutions.
The Religious Action Center of Reform Judaism and the American Jewish Committee are joining in a brief that upholds the EEOC’s determination of whether some employees are subject to the ministerial exception but objects to the quantitative standard applied in the Hosanna-Tabor case. Instead, the AJC and the RAC want the EEOC to consider whether religious duties are essential to the job, however minimal they may be in terms of time consumed.
“We’ve taken the position that the quantitative test is wrong,” said Marc Stern, the associate general counsel to the AJC. “The important issue is whether it is integral to the job.”
The Anti-Defamation League is not taking a position on the underlying case but is instead arguing that the burden of proof should be on the employer, not the employee, in assessing the ministerial exception, said Richard Freeman, ADL’s director of legal affairs. “The question is whether she gets to make her case, or whether she gets thrown out the door,” he said.
The Supreme Court has not yet announced all the cases it will hear when it reconvenes, but two other church-state cases considered recently by appellate courts may make it in, according to Stern. Both involve crosses as symbols of service—one involving a cross that dominates a war memorial in San Diego and another involving Utah’s practice of memorializing state troopers killed in the line of duty with massive roadside crosses.
The lead litigant in the San Diego case is the group Jewish War Veterans of the United States of America.
Aside from the church-state issues involved, Jewish groups will be paying close attention because such cases will test what has become an overarching theme of the John Roberts court: denying standing to those not directly involved in an issue. The court routinely has dismissed cases that once were considered simply because a litigant’s clam to standing in a case was as a taxpayer.
The denial of standing favored by the court’s conservative majority allowed Arizona, in a landmark case last year, to continue to offer tax breaks to parochial schools because the litigants were not directly affected by the practice. In the Utah case, for example, the atheists group that is objecting to the crosses would not have standing unless it represented the family of a memorialized trooper—an extremely unlikely eventuality, because the state checks first with the late trooper’s family.
Simply taking offense because one drives by the cross may not be sufficient, under this standard—and it is an issue Jewish organizations are watching closely because it would negate much of their work.
“Even on Establishment Clause issues where the Jewish community is not united, groups agree you should have easy access to the courts,” Stern noted.
The case on the docket likeliest to attract the greatest Jewish attention is that of 9-year-old Menachem Zivotofsky, whose parents Ari and Naomi want his birth country listed as Israel on his passport—a right according to a law passed by Congress in 2002. Zivotofsky was born in Jerusalem, which the United States has not recognized as sovereign to Israel.
The State Department has objected because it says Congress has no role in what is a foreign policy matter. A case pitting Congress against the executive branch, the State Department said in one of its briefs, is not a matter for the courts, “particularly where, as here, the case involves an exceedingly sensitive foreign policy concern.”
The case has been bouncing back and forth between the courts for years. In May, the Supreme Court said it wanted to consider whether Congress has the authority to pass such a law.
That has set off a panic among some Jewish organizational officials who are worried that a broad ruling by the Supreme Court against congressional authority effectively would nix the pro-Israel community’s most effective leverage: Passing laws in Congress that push back against White House policies seen as unfavorable to Israel. In recent years, such laws have helped stiffen sanctions against Iran and have required greater controls over how Arab recipients of U.S. aid spend their money.
Alyza Lewin, Zivotofsky’s lawyer, told JTA that such fears are misplaced.
“I believe we will win, but if we don’t, it will be on narrow grounds,” she said, having strictly to do with which branch of government authorizes what appears in passports. “This is not going to prevent AIPAC from passing whatever.”
In a brief, the ADL will argue that the law, narrowly defined, does not impinge on executive branch privilege because it applies only at the request of the petitioner, Freeman said. It will further argue that the court should not consider Jerusalem’s status in its decision.