Religious Liberty on Trial: JSPAN's Far-Reaching Legal Briefs in Support Both Free Exercise and Establishment Clause Principles

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by Ted Mann, JSPAN Board member Blowing your horn, patting yourself on the back, is not an admirable trait. But I hope the reader will agree with me that every once in a long while it is permissible, even admirable -- especially if it is not my horn that’s blown, but JSPAN’s. So here goes.. Two weeks ago, for the fourth time in a year and a half, JSPAN became an amicus, a ”friend of the court”, in religious liberty litigation. Count them: Opposing inclusion of “intelligent design” theory as an alternative to evolution in high school biology courses, opposing the Redevelopment Authority’s attempt to transfer property valued at more than $800,000 to a religious institution for the construction of a “faith based” elementary school, supporting a school district in New Jersey in its effort to stop a high school football coach from kneeling and bowing his head as the team prays before a game, and most recently, opposing home-schooling parents in their claim that it violates their religious beliefs to allow the Department of Education to determine whether they are meeting the state’s secular educational requirements. In addition to the other superb work JSPAN is doing (see the article in the Philadelphia Jewish Voice, republished in this newsletter) it’s important, I think, that our readership know that a group of volunteer lawyers are devoting a great deal of their time to the preparation and submission of “friend of the court” briefs in religious liberty cases. Here is what we typically tell the court about JSPAN’s interest in the matter before it: JSPAN is an organization of American Jews who seek to protect the constitutional liberties and civil rights of all Americans. JSPAN believes that the First Amendment’s religion clauses are the bedrock of American freedom, and without the separation of church and state neither religious freedom nor any other basic freedoms can endure. While we share that belief with most Americans, the 1500 year Jewish experience of living as Jews in Christendom and in Islamic societies accounts for the uncommon depth and unanimity with which that belief is held by American Jews. Religious minorities in America would regard themselves, in the words of Justice O’Connor, as “outsiders, not full members of the political community”, were it not for the separation principle first enunciated by the founding fathers and then re-emphasized in many Supreme Court rulings from mid-20th century until today. That American Jews today are full members of the community, indeed are the freest Jewish community in our two millennia Diaspora history, is the result of this nation’s adherence to the constitutional principle of separation of church and state. JSPAN’s interest in this matter is in preventing any erosion of that principle. Kitzmiller v. Dover Area School District was an attempt by a school board, with the help of the Discovery Institute and the Thomas More Law Center (which describes itself as the “sword and shield for people of faith”), to inject into the science curriculum “intelligent design”, a loosely veiled form of “scientific creationism”, which the Supreme Court 20 years ago had already prohibited from being taught in the public schools. Thankfully, following a lengthy trial, the complaining parents prevailed over the school district. However, religious liberty issues never really go away. They submerge for a while but you may be sure that in 15 or 20 years, or sooner if there is a further lurching to the right by the Supreme Court, they will surely return again. Religious liberty and church/state separation are battles that must be fought anew in every generation. Whenever there is time, we urge other Jewish organizations to join in our brief. For example in Kitzmiller, the JCPA joined us on behalf of 125 Jewish communities and 13 national Jewish organizations, as did Boston based JALSA (Jewish Alliance for Law and Social Action). In Appeal of Redevelopment Authority of the City of Pennsylvania a number of properties in North Philadelphia were condemned because they were in an area that had long been declared “blighted”, and with the approval of City Council the Redevelopment Authority proposed to convey the properties, for a nominal consideration, to Hope Partnership, an avowedly religious organization, for the construction of an admittedly “faith based” elementary school. The aggregate value of the properties condemned was $860,250.00. The trial court agreed with the Redevelopment Authority, the Commonwealth Court in a 4-3 decision reversed the trial court, and the matter is now pending before the Pennsylvania Supreme Court. The Anti-Defamation League (ADL) joined in our brief. In the case involving prayer by the high school football coach, Marcus Borden v. East Brunswick School District, JSPAN didn’t file its own brief; rather, we studied two proposed amicus briefs and concluded that one of them, prepared by Marc Stern, counsel for the American Jewish Congress, could hardly be improved upon. The brief was filed in the Third Circuit Court of Appeals on behalf of both AJ Congress and JSPAN. The coach claimed the school district’s insistence that he refrain from kneeling and bowing, a form of symbolic speech, violated his constitutional right to freedom of speech and that he was only trying to express unity with the team and to build team spirit. But his symbolic speech was “spoken” in the course of his official duties as a public employee. The First Amendment’s free speech clause offers no protection for public employees’ official speech – or so we argued in our friend of the court brief. We shall see how the case will be decided. In the home-schooling cases, Combs v. School District, the most surprising thing about the case was that the ACLU was supporting the home-schooling parents. But we concluded that no one should have the right to be entirely free of the constraints of the law; that is the road to anarchy. If the state claimed the right of oversight in regard to the religious education of home-schooled children, that would be an entirely different case. But the state was making no such claim. The only real issue for us was whether we had anything in particular to offer by entering the case as amicus curiae, anything that would add to the trial court’s decision from which the home-schooling parents were appealing. We concluded that there was a much simpler path to the conclusion he had reached, and we believe that we have made a contribution that the court of appeals may appreciate. Again, we will see how it turns out.