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Jewish Journal

Court May Tackle

by Matthew E. Berger

September 30, 2004 | 8:00 pm

The U.S. Supreme Court may tackle questions regarding the legal rights of religious prisoners this session, as well as whether the public display of the Ten Commandments violates the separation of church and state.

In what may be the last year of the current makeup of the court, legal experts at several American Jewish organizations are expecting the court to again debate the balance between allowing free expression of religion and preventing governmental establishment of religion. The court will likely not announce its schedule for the year until next week, when it officially opens on the first Monday in October.

The fact that lower courts have had contradictory rulings on religious issues increases the chances that they will be heard by the high court.

"The circuits are all over the place," said Jeffrey Sinensky, general counsel for the American Jewish Committee. "When you have a break in the case, it's more likely the court will take it."

The most-watched case in the Jewish community challenges the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000. The bill passed in 2000 requires a compelling governmental interest to prevent religious groups from using land or to prevent free practice of religion by the imprisoned.

It is a more closely tailored version of the Religious Freedom Restoration Act, which the Supreme Court struck down in 1997, claiming Congress did not have the authority to enact such a law infringing on states' rights. Jewish groups were instrumental in lobbying for Congress to pass both acts.

The Religious Land Use law "is a shield against religious discrimination," said Michael Lieberman, general counsel for the Anti-Defamation League. "It will be important for the court to uphold it."

The case before the court centers around Ira Madison, a Virginia prison inmate who was denied the right to be served kosher food. Lower courts questioned the sincerity of Madison's claim that he was a member of the "Hebrew Israelites" and suggested that by granting special provisions to the religious, government was encouraging prisoners to become religious.

Jewish groups counter, however, that religious practices should be tolerated unless there is an express, compelling governmental interest in denying them.

Also being watched this year are four cases regarding the public display of religious symbols, including the Ten Commandments, any of which could be taken to the high court.

"There's not much new in the way of law to be made in these cases," said Marc Stern, counsel for the American Jewish Congress. "These are symbolic cases."

The court has a strong record against stand-alone images of religion in the public square, such as the Ten Commandments or nativity scenes.

One of the best-known cases the court could hear this year revolves around Roy Moore, the former chief justice of the Alabama Supreme Court, who was ousted last year, because he would not remove a monument to the Ten Commandments from his courthouse. However, his case focuses on the legality of his removal from the bench.

Other cases the court could decide to hear focus on the express display of the Ten Commandments. It is unclear whether the court will take the Moore case, or other cases, because the justices are divided on the issue.

While Jewish groups have closely watched the Ten Commandments cases, concerned about the display of religious items and the separation of church and state, they have not focused much energy on the issue. Like the question of the phrase "under God" in the Pledge of Allegiance, some Jewish legal authorities have determined the erection of Judeo-Christian symbols is not a grave offense.

"If it comes up, we will be there urging the unconstitutionality of many or all of these symbols," Stern said. "Is it our druthers about what we should be fighting about in 2004? Not really."

The Orthodox would likely oppose striking down displays of the Ten Commandments if it meant public displays of menorahs and other Jewish symbols would also be forbidden, say officials at Orthodox groups.

Jewish groups are also watching to see if the court takes any additional cases on the restitution of money and property of Holocaust survivors. The court ruled in June that foreign governments can be sued in U.S. courts over looted art, stolen property and war crimes from the Holocaust era.

Some analysts are hoping the court this session will hear cases on the constitutionality of some of President Bush's faith-based initiatives, but others believe it may take more time for the challenges to reach the high court. Specifically, some Jewish groups believe the programs challenge the separation of church and state, because of the potential for proselytizing at government-funded religious social service programs, and because these programs could discriminate against the hiring of people of other faiths.

Much of the court's work this year will be mired in the politics of the day, and the fact that the court is expected to see a change in justices by the end of the term. The nine members of the court have served together for 10 years, a stretch not seen since the 1820s, and several aging justices have reportedly been mulling retirement. Many court analysts were surprised when no justice retired at the end of the 2003 session.

With vacancies come the opportunity for the next president to choose justices who might tip the balance of the court in either direction.

"This court has been less than receptive to challenges we've brought," Sinensky said. "We're looking for justices that would look with a closer eye toward bolstering the concerns we have on how the establishment clause has been interpreted."

Lieberman added that because of the political split within the current court, many of the arguments Jewish groups and other civil rights organizations have made were based on swaying one or two moderate court members, rather than the whole panel.

Any changes on the court could affect rulings on a wide range of issues that have been decided in recent years by narrow majorities.

Several significant cases of interest to the Jewish community are in the pipeline and could come before a new court in the next few years. They include cases on the legality of so-called partial-birth abortion, gay marriage and federal criminal sentencing guidelines.

The future makeup of the court has become an issue this political season beyond the presidential race. Bush has had problems pushing through his federal court nominees, and any new justices selected by the next president would likely face a tough challenge for Senate confirmation, if the Senate remains as closely divided as it is today. n

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