Washington — For the first time in history, a U.S. Supreme Court convened this week with three Jewish justices.
And Jewish defense organizations had their eyes on … Arizona.
Two of the three cases on the docket this session attracting special attention from Jewish groups come from the Grand Canyon State. One addresses tax credits for religious schools; another looks at whether state immigration laws outweigh the U.S. government. The third case, out of Maryland, deals with free speech protections.
Along with a docket for the first time having three Jewish justices, it will include three women – all appointed by Democrats.
Two of the three Jewish justices are female: Ruth Bader Ginsburg and Elena Kagan, whose nomination by President Obama was approved over the summer. The third Jewish justice is Stephen Breyer; the third woman is Sonia Sotomayor.
The first major case, Albert Snyder v. Westboro Church, will determine whether free speech protections extend to a tiny anti-gay church that has made a routine of protesting the funerals of soldiers. The court scheduled that argument for Wednesday.
The church, also known for its anti-Semitic broadsides, has successfully appealed in lower courts a $5 million award in a defamation and privacy lawsuit brought by the family of Matthew Snyder, a soldier who died in Iraq and was buried in Maryland in 2006.
Jewish defense organizations effectively are sitting this one out, in part because of the difficulties of reconciling the principle of defending free speech with the excesses of the church’s hate speech. Only the Anti-Defamation League has filed a brief, calling on the court not to hear the case. The ADL argues that it would be improper to decide such a momentous issue based on this case because the Snyders did not know in real time about the protest.
In coming weeks, the court also will consider Garriott v. Winn and Arizona Christian School Tuition Organization v. Winn, a challenge to the state’s practice of granting tax credits for tuition to religious schools. Lower courts have found that most of the credits are granted for religious school tuitions.
The Orthodox Union has filed an amicus brief favoring the defendants. The American Jewish Committee and the ADL have joined Americans United for Separation of Church and State in a brief that defends the right of taxpayers to bring the case to the courts, anticipating a defense argument that because the case involves credits and not expenditures, taxpayers lack standing. The brief does not otherwise address the substance of the case.
The other case out of Arizona has to do with its controversial immigration law. The ADL filed a brief joining the Chamber of Commerce and the Obama administration in challenging a law that would force businesses to use a federal database to check the backgrounds of prospective employees. Federal policy now makes the database available on a voluntary basis.
Challengers to the Arizona law say the danger is that favoring Arizona would allow states to usurp federal immigration law.