Does the Supreme Court Truly Respect Free Exercise of Religion? | Opinion

It was a remarkable demonstration that the American legal system respects the religious rights of all—rich or poor, virtuous or wicked. By an 8-to-1 vote, the Supreme Court agreed in Ramirez v. Collier that a convicted murderer was legally entitled to have his pastor pray in the death chamber and lay his hands on the person being executed.

The bottom line—a fourth delay in punishment for a July 2004 killing during a robbery spree—is not as significant as the resources the Court and the legal system expended to vindicate the religious observance of a brutal killer in his final moments. The Supreme Court gave his case highly expedited treatment, granting him a stay of execution, speeding up briefing, spending a full hour hearing lawyers (including a representative of President Joe Biden's Department of Justice) present legal argument and issuing a 22-page opinion by Chief Justice John Roberts, with 10 pages of concurring opinions by Justices Sonia Sotomayor and Brett Kavanaugh and a 23-page dissent by Justice Clarence Thomas (who is a fervent supporter of religious liberty, but called the attempt to delay the execution an "abusive and insincere claim").

The final plea of a doomed man has great emotional force. That may be why the justices of the Supreme Court and those who submitted legal briefs supporting Ramirez made their extraordinary effort. But will the Court give the same attention to the more mundane religious observance of law-abiding Jewish citizens who gather for prayer every Saturday morning at their synagogue in Ann Arbor, Michigan?

For the past 18 years, a cadre of six to twelve activists meets near the synagogue only on Saturday mornings, when Sabbath services are being held. They display hateful and bigoted signs such as "Jewish Power Corrupts," "No More Holocaust Movies," "Israel: No Right To Exist" and "Zionism Is Racism." They claim, with support from the ACLU, that they are exercising free speech.

Two congregants finally sued in federal court. They assert that under the post-Civil War Civil Rights Acts, the constitutionally guaranteed right of Jews to worship is secured even against wholly private conspiracies. This legal argument has support in many precedents, but the district judge presiding over the case nonetheless ruled the Jewish litigants had no legal "standing" because all they suffered was emotional distress. They appealed. The court of appeals reversed the district court's decision and ruled that the plaintiffs' extreme emotional distress gave them the right to sue.

The Supreme Court has previously told appellate judges that if they reverse a lower-court decision, they should not go on to decide issues the lower court has not first considered. Nonetheless, the appellate judges in the Ann Arbor synagogue case decided to finish off the case by summarily ruling that the Jewish plaintiffs had no legal right affected. This case, they said, is simply a case that "concern[s] public matters" (i.e., "American-Israeli relations") and is, therefore, "squarely within First Amendment protections of public discourse in public fora."

The US Supreme Court is seen in
The US Supreme Court is seen in Washington, DC, on January 31, 2017. SAUL LOEB/AFP via Getty Images

That was plainly wrong. The signs are patently antisemitic and are not limited to criticism of Israeli government policies. They are abusive taunts made to Jews who come together once a week to recite, as the holders of the signs well knew, prayers with multiple references to Jerusalem and to the land sanctified as a Jewish homeland by biblical account. A belated resolution of the Ann Arbor City Council condemned the displays as antisemitic.

The court of appeals' formal mandate was issued speedily, even though the congregants said they intended to seek review at the U.S. Supreme Court. The district judge held no oral hearing but promptly ordered the plaintiffs to pay the group of sign-bearers $158,721.75 for attorneys' fees. So the group that harassed Jews solely when they gathered at the synagogue to pray has been rewarded for their bigotry. This is perverse.

And when one of the plaintiffs filed a request for Supreme Court review, the defendants waived their right to respond. The tactic worked. The Court issued an order denying the plaintiffs' petition.

The court of appeals' decision should be vacated. It denies the core liberty guaranteed by the constitutional protection for free exercise of religion—the right to worship. The "first freedom" enumerated in the Bill of Rights is the subject of an explicit provision of law (18 U.S.C. § 248(a)(2)) that makes it a federal crime "to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship." This must include deliberate repeated harassment and intimidation of those gathering to pray at a church or synagogue.

The other plaintiff has now filed a petition for Supreme Court review making the religious-freedom claim. The defendants have again filed a notice that waives their right to reply. There are, to be sure, technical legal distinctions between the case of the Ann Arbor congregants who are claiming religious freedom from what looks like protected free speech, and the case of the Texas murderer who is making a claim under a federal law that grants legal rights to "institutionalized persons"—prisoners, in common parlance—and is not encroaching on any interest other than perfunctory prison administration. But a fundamental attitude of respect for religious conviction is common to both.

Will a Court that has shown such extreme deference to conscientious belief in Ramirez v. Collier accept the suppression of the most basic religious right—prayer at a house of worship—in the Ann Arbor case?

Nathan Lewin is a Washington lawyer who has argued 28 cases in the Supreme Court and taught at Harvard, Columbia, Georgetown and the University of Chicago Law Schools. He has filed the pending Supreme Court petition for the Ann Arbor synagogue congregant.

The views expressed in this article are the writer's own.