When the U.S. Supreme Court begins its new term next week, all eyes will be on Associate Justice Sonia Sotomayor, who is starting her tenure on the bench.
But right off the bat, there will be far more to watch than the court's newest member. One early case involves what many see as the court's most crucial examination of church-state separation since John Roberts was appointed chief justice four years ago.
On Oct. 7, the third day of oral arguments for the new term, the court is expected to hearSalazar v. Buono, which a number of Jewish organizations — including one based in Philadelphia — say could be a watershed in interpreting the First Amendment and the previously sacrosanct notion that government not endorse a particular religion.
The decade-long dispute revolves around an 8-foot-tall cross, erected in the 1930s as a World War I memorial, in the Mojave National Preserve in San Bernardino County, Calif. Currently, the cross is covered by a wooden box to comply with lower court rulings that the display of a religious symbol on federal land is unconstitutional.
A host of national Jewish organizations have filed amicus briefs, in which a party not directly involved in the case calls attention to a particular point of law that sheds light on the issue.
Refocusing the Focus
Weighing in along with the Anti-Defamation League, the American Jewish Committee and others is a relative upstart — the Jewish Social Policy Action Network. The Philadelphia group was formed in 2003 to focus on a host of domestic issues of concern to the Jewish community.
JSPAN has about 2,000 subscribers to its weekly electronic newsletter and, to raise its profile, has just hired Lynn Gottlieb — recently, director of synagogue life at Temple Adath Israel in Merion Station — as its first full-time executive director.
The group lobbies and sponsors programs on issues ranging from gun violence to election law, but it has perhaps become best known for its legal work concerning church-state separation.
Theodore Mann, a retired local attorney who's held numerous national Jewish-communal positions, including president of the Conference of Presidents of Major American Jewish Organizations and the American Jewish Congress, is a founder of the group. He and several of the group's core members had previously been involved with the local AJCongress, but had become disenchanted when it shifted rightward. AJCongress closed its Philadelphia office earlier this decade.
Mann said that he felt that the plethora of established Jewish organizations had shifted their energies to Israel and internal matters at the expense of the liberal domestic agenda with which Jews had been engaged for so long.
"We were obsessed with arguing within the community over Mideast policies. That limited the amount of time and resources to devote to domestic-policy questions," he said.
Many of the nine church-state briefs the group has filed were for state cases before the Pennsylvania Supreme Court or federal cases before the 3rd U.S. Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware. The Buono case is only its second Supreme Court brief.
In this case, a group of attorneys affiliated with JSPAN — including Mann and Jeffrey Pasek — sifted through legal transcripts to craft an argument they believe is missing from the debate.
Pasek and Mann argued that the central legal principle at stake is who has the standing to legally challenge the presence of a religious symbol on government property. In this case, can a believing Catholic voice an objection to the placement of a cross on park land?
The case dates back to 1999, when Frank Buono, a U.S. Park Service employee, denied an application from a Buddhist to build a shrine near the cross. Buono also told his boss that the cross should be removed.
Both the courts and Congress have weighed in; the legislature, favoring the site, declared it a memorial and transferred a small parcel of land to the Veterans of Foreign Wars to maintain it. Many feel that just skirted around a deeper issue.
The U.S. government, with Ken Salazar, the Secretary of the Interior, as the appellate — a position the Obama administration is pursuing in line with the Bush administration — is arguing that Buono, a practicing Catholic, shouldn't have standing to challenge the cross's placement because it isn't religiously offensive to him.
"If believing Christians are not able to challenge government use of Christian symbols, then they would be helpless to preserve the purity of those symbols or to prevent their faith from being used to offend non-believers," Pasek e-mailed.
"If standing were broadly cut back, then parts of the country with few religious minorities could become religious enclaves by legally erecting religious symbols designed to communicate that those of other faiths are not welcome," he added.
Mann and Pasek, who chair JSPAN's church-state committee, plan to travel to Washington next week to hear oral arguments; both men have argued before the high court and say that this is a pivotal case — one Jews should follow closely.
"If you can't sue, you can't stop it," said Mann. "The interconnected constitutional principles of judicial review, checks and balances, separation of powers and the Establishment Clause would all be weakened were there no standing to challenge violations."