Will the Law Protect Jewish Places of Worship From Antisemitic Mobs?

Violence generated by an anti-Israel protest outside the Adas Torah synagogue in Los Angeles on June 23 has produced cries for more protection of places of worship. A piece by Forward senior columnist Rob Eshman has suggested that protests “in front of houses of worship” be restricted, if not prohibited. Sen. Tom Cotton and Congressman Steve Scalise have demanded investigations of the protesters by the Department of Justice’s Civil Rights Division. CNN pundit Van Jones has declared that the protesters were “trying to start a fight,” and noted Israeli writer Hen Mazzig has tweeted that he hasn’t “seen any Jewish people in America running up on mosques with Israeli flags.”

None of these learned and influential commentators mentions that a federal court recently penalized a member of an Ann Arbor, Michigan, synagogue $158,721.75 for trying in litigation to protect access to a synagogue from comparable deliberate antisemitic harassment. Professing dedication to “free speech,” the nation’s foremost defenders of religious rights chose to be silent when the congregant asked the federal Court of Appeals and the Supreme Court to overrule this patent injustice.

In September 2003 a cadre of antisemites had devised an ingenious style of harassing Jews who came on Saturday mornings to worship at Ann Arbor’s Beth Israel Synagogue. They chose to gather only at the hours of Sabbath services on the grassy sidewalk sections in front of the synagogue and brandish signs with mottoes like “Jewish Power Corrupts,” “Resist Jewish Power,” “Stop Funding Israel,” and “End the Palestinian Holocaust.”

Civil libertarian synagogue members opined that this was only free speech and that the harassment would have to be tolerated. So the synagogue never went to court, and the Ann Arbor government, including its police, coddled the once-a-week demonstrators.

After many years, two of the congregation’s members, represented by a volunteer attorney, filed a lawsuit requesting that the protest be moved at least 1,000 feet from the synagogue. The federal trial judge assigned the case dismissed it because the congregants could assert no greater personal harm than “extreme emotional distress.” This, said the judge, was inadequate “standing” to initiate a federal lawsuit.

The congregants’ lawyer appealed this decision to the Sixth Circuit Court of Appeals, whose chief judge is Jeffrey Sutton. He is a visiting lecturer at the Harvard Law School who clerked on the Supreme Court and argued many cases there. One of his wins was the 1997 decision that invalidated the Religious Freedom Restoration Act.

Sutton, who was born in Saudi Arabia, wrote the decision that reversed the lower-court judge’s decision on the adequacy of the congregants’ legal interest. Instead of then remanding the case for additional proceedings, Sutton went on to reject the legal claim altogether and directed that the complaint be dismissed (Gerber v. Herskovitz, 14 F.4th 500). He said that “the content and form of the protests demonstrate that they concern public matters: American-Israeli relations.” He failed to explain how “Resist Jewish Power” and “Jewish Power Corrupts” expressed an opinion on “American-Israeli relations.”

Fearing that this ruling endangered all American synagogues, I wrote a piece dated Sept. 20, 2021, for the Jewish News Syndicate titled “The Court Decision That Is a Clear and Present Danger to America’s Jews.” I observed that the Sixth Circuit had 16 active circuit judges, six of whom were Trump appointees, and that they could request a rehearing of the appeal by the full court. None did so.

Not only did the Court of Appeals reject, with not a single dissent, the congregants’ plea for full-court rehearing, but it granted the protesters’ request that the court’s mandate be issued instantly, without waiting to see whether the Supreme Court would consider the case, so that the trial judge could award attorneys’ fees to the protesters. (By this time, I had joined the litigation as counsel for one Beth Israel congregant, and my request to Supreme Court Justice Kavanaugh to defer issuance of the mandate—ordinarily a routine measure—was summarily denied.)

I turned to the allies who had supported religious-rights claims I had made in earlier litigations in the Supreme Court and lower federal and state courts. I was confident that the Becket Fund, whose founder had invited me to join its initial board, would see the threat to religious worship of permitting this form of harassment and recognize it as an invitation to violence impeding access to a house of worship. The Becket Fund’s president rebuffed me in telephone conferences and at a public dialogue because, he said, challenging the right to protest near a synagogue conflicted with the Becket Fund’s more crucial legal position protecting anti-abortion protests near the entrance of an abortion clinic.

The requests for Supreme Court review of Judge Sutton’s ruling filed by the Beth Israel congregants had meager support from the defenders of religious rights. Without even asking the protesters to file responses to our petitions, the Supreme Court rejected both cases (Gerber v. Herskovitz, 142 S.Ct. 1369, 2714).

Although I was supremely confident that no fair and impartial federal court would ever penalize an individual congregant for seeking a court order that signs accusing Jews of corruption and committing a holocaust be distanced from once-a-week synagogue attendees, the trial judge directed payment of the defendants’ enormous attorneys’ fees. On appeal, Judge Sutton approved the penalty, finding that the congregants’ federal complaint was “vexatious” and “frivolous.”

By this time—August 2023—one of the two congregants who filed the lawsuit had died. A brief I filed supporting the request that the Supreme Court review the extraordinary assessment of attorneys’ fees began: “Jewish Americans are living in perilous times. They must turn to the courts to respond to unprecedented antisemitism.”

The Supreme Court denied the petition on Oct. 2, 2023, just days before the Hamas Black Sabbath massacre.