On Friday, August 2, Nathan Lewin, well-known Supreme Court advocate for Jewish religious rights, filed an amicus curiae (“friend of the court”) brief on his own behalf supporting the position of a town in New York State that has been opening Town Board meetings with prayers by Christian clergymen. A lower court held that the town’s practice was unconstitutional because “the prayer practice impermissibly affiliated the town with a single creed, Christianity.” The town’s request for Supreme Court review of the decision was supported by 49 Congressmen who said that the ruling endangered the Congressional practice of inviting clergymen of various faiths to give opening prayers and by 18 States that also expressed concern that their practice of legislative prayer was endangered. The Supreme Court agreed in June that it would review the case.
Lewin’s brief was not submitted on behalf of any organization but by him personally as an authority on church-state law who has argued important religious liberty cases in the Supreme Court and teaches a seminar at Columbia Law School on the subject of “Religious Minorities in Supreme Court Litigation.” Lewin also represented Chabad of Pittsburgh in a successful 1989 case that upheld the inclusion of a Chanukah menorah in Pittsburgh’s Holiday Display. That case figures very prominently in the current controversy before the Supreme Court. In recent years, the Supreme Court has been accepting friend-of-the-court briefs submitted on behalf of individual law professors and other individual authorities.
“Lewin said, “It is important that, in evaluating the constitutionality of ceremonial public prayer by Christians, the Supreme Court have before it the published opinions of Torah authorities and the Halachic consensus regarding Christian prayer.” Lewin’s brief cites a 1963 responsum of Rabbi Moshe Feinstein regarding Christian prayer, as well as the opinion expressed by the Lubavitcher Rebbe, Rabbi Menachem Mendel Schneerson, when the Supreme Court invalidated the New York State Regents prayer in 1962. Lewin’s brief says, “Contrary to common misconception, Jewish Law does not condemn Christian prayer.”
The friend-of-the-court brief also noted that many rabbis have been invited to give opening prayers in Congress and that their prayers have frequently been distinctly Jewish and therefore “sectarian.” The brief reproduces the prayer given in 1860 by the first rabbi invited by Congress and notes that, according to historian Jonathan Sarna, he appeared “bedecked in a white tallit and a large velvet skullcap.”
When the Supreme Court last considered the constitutionality of legislative prayer 30 years ago in a case concerning a Nebraska Christian clergyman, all Jewish amicus curiae briefs challenged the constitutionality of the Nebraska practice. The Supreme Court, however, found the Nebraska program constitutional. “The Supreme Court must be informed this time,” said Lewin, “that America’s Jewish population is not unanimous in objecting to Christian prayer or in seeking the suppression of pleas for Divine blessings at governmental sessions.”
The Supreme Court will probably hear the case (Town of Greece v. Galloway, No. 12-696) in November and issue a decision before the end of June 2014.
