In an uncertain legal climate created by a rightward shift on the Supreme Court, Jewish groups are grappling with how hard to push back against decisions favoring a lower wall between church and state.
In a friend-of-the-court brief filed April 17, a coalition of advocates is fighting back against a Detroit program that distributed beautification funds to city churches. But while two Jewish organizations — the American Jewish Committee and Hadassah — joined the alliance, officials at another major Jewish church-state watchdog, the American Jewish Congress, are staying on the sidelines.
At issue in the Detroit case, American Atheists, Inc. v. City of Detroit Downtown Development Authority, is whether the city violated the Establishment Clause when it included three local churches in a 2006 program aimed at sprucing up downtown areas prior to the Super Bowl. The program, which also included secular institutions, provided money for the churches to make cosmetic improvements, a purpose the city has argued is secular in nature. A federal district court agreed, ruling that the aid did not advance religion.
In response, several Jewish groups and their allies — including the church-state watchdog Americans United for Separation of Church and State, as well as Baptist and Hindu groups — have objected to the ruling in a brief sent last week to the 6th U.S. Circuit Court of Appeals. Kara Stein, associate director of domestic policy and legal affairs for the AJCommittee, said that her organization decided to weigh in on the Detroit program — which was intended to provide money for lighting and landscaping but not to overtly religious infrastructure, such as stained-glass windows — because it required the city to make determinations about what constitutes a “religious purpose,” creating an unconstitutional entanglement between church and state.
But another Jewish organization was conspicuously absent.
“We have become more pragmatic and hard-nosed,” said Marc Stern, who, as general counsel for the AJCongress, opted not to contest the Detroit decision because he believes that an appeal will be unsuccessful.
The split between the Jewish groups reflects conflicting notions about how the Jewish community should respond to a series of recent court decisions that has cast a more favorable light on increased interaction between the government and religious institutions, including the provision of funding for religious groups. Advocates trace the shift back to a 2000 Supreme Court decision, Mitchell v. Helms, in which the court ruled that officials in Jefferson Parish, La., did not violate the First Amendment’s Establishment Clause when they lent computers and other education materials to parochial schools and to other secular private schools. With the addition of two conservative justices, Chief Justice John Roberts and Justice Samuel Alito, to the Supreme Court, and a series of appointments of more conservative judges to lower courts under the Bush administration, Jewish officials say they are wrestling with how to respond to a potentially long-term and far-reaching shift on church-state issues.
The AJCommittee, according to Stein, does not believe that the “ship has sailed completely” on lowering the wall between church and state, but she agreed with Stern that Jewish church-state watchdogs are operating in a period of retrenchment. “We are wary and cautious, and it’s almost like we’re in the position of trying to limit negative opinions,” Stein said. “We’re in constant conversation about whether it’s smart to bring certain cases, given the climate of the court.”
Stern said he saw a potentially portentous subtext in a much heralded decision issued last month in New Jersey, which held that a football coach at the center of a long-standing controversy in East Brunswick could not lead or join his players in prayer. While church-state advocates have hailed the appelate ruling as a major victory, Stern said he remains concerned because the court’s decision to forbid the coach to bow his head and “take a knee” during player-initiated pre-game prayers was based, in part, on the coach’s long history of leading prayers with students for more than two decades. Even if the ruling stands on appeal, Stern said, it could be interpreted to suggest that a school official without such a history of leading prayers could lawfully pray with students.
“Twenty years ago, the coach would have been laughed out of court,” Stern said, before adding, “and the Detroit churches would have been laughed out of court.”