Behind the Headlines: Jewish Groups Take Opposing Stands on Many Issues Before Supreme Court
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Behind the Headlines: Jewish Groups Take Opposing Stands on Many Issues Before Supreme Court

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American Jewish groups will find themselves in disagreement on a number of come before the U.S. Supreme Court in the new term that began Monday.

But while Jewish groups may have opposing views on such issues as abortion rights, religion in the public schools and a patient’s so-called “right to die,” few of these disagreements will manifest themselves in courtroom confrontations or even in competing legal briefs.

For example, while Orthodox and non-Orthodox groups continue to disagree on the costs and benefits of a strict separation of church and state, their conflict will not be apparent in the legal briefs filed in cases dealing with that subject.

In one such case, Board of Education vs. Mergens, the court will consider whether an Omaha public school should extend official recognition to a student Bible-study club that wishes to meet on school grounds, against the school board’s wishes.

Groups that support a strong separation of church and state are using the case to try to overturn the 1984 Equal Access Act, which requires public schools to grant religious clubs the same access to school facilities enjoyed by other extracurricular organizations.

The American Jewish Congress is directly involved in the case, acting as counsel to the lawyers for the school board.

The American Jewish Committee and the Anti-Defamation League of B’nai B’rith have filed friend-of-the-court briefs supporting the school board’s position.

Orthodox groups have not filed briefs in the case, but will be monitoring it closely for signs of a shift in the court’s position on church-state separation. Several Orthodox groups have urged that the court take a less “absolutist” position on this issue.


Orthodox groups admit to mixed emotions on the case. On the one hand, they fear the Equal Access Act would allow fundamentalist Christians to use the public schools as a base for proselytizing. Yet they are concerned that placing limitations in this area will erode the free exercise of religion.

On another issue, Agudath Israel of America is so far the only Jewish group planning to file a friend-of-the-court brief in the “right-to-die” case, Cruzan vs. Harmon.

The Orthodox group supports the state of Missouri’s right to maintain the life of a comatose patient over the objections of the patient’s family and against the expressed wishes of the patient herself.

In the case of 32-year-old Nancy Beth Cruzan of Carterville, Mo., members of her family say the implicit consitutional right to privacy allows them to decide when to pull the feeding tube that keeps the comatose woman alive.

The Missouri Supreme Court, however, ruled that the state retains an “unqualified interest” in preserving life.

For Agudath Israel, the case has implications for health-care providers whose religious beliefs may proscribe them from terminating life. Its brief will argue that the right of privacy is not absolute and, taken to an extreme, could be used to justify suicide.

In another case with direct religious implications, AJCongress is filing a brief in support of the Oregon Supreme Court, which ruled that American Indians who use the illegal drug peyote in religious ceremonies are constitutionally immune from prosecution.


Marc Stern, co-director of legal affairs at AJCongress, acknowledges that drug abuse is a major national problem.

But he said his brief would urge the court not to restrict the right to free exercise of religion with too broad a determination on the use of illegal substances or practices.

The National Jewish Commission on Law and Public Affairs, which represents Orthodox interests, is monitoring the Oregon case, although it has not yet prepared a brief.

Another religion case that bears watching, although no Jewish group currently intends to intervene, is Jimmy Swaggert vs. Board of Equalization.

In it, the television evangelist will argue that his constitutional right to free exercise of religion prevents California from imposing a sales tax on the religious items he sells in the state.

While Jewish groups would not want to see any erosion of free exercise of religion, some are concerned that a ruling in the evangelist’s favor could be tantamount to government endorsement of religion, which is prohibited by the Constitution.

In three abortion cases to come before the high court, Jews will not be as divided as they were during last term’s Webster vs. Reproductive Health Services debate, when the court broadened the ability of individual states to regulate abortion.


Non-Orthodox Jewish groups are lining up on behalf of abortion rights advocates in the cases, two of which review a teen-ager’s right to have an abortion without notifying her parents and one of which requires abortion clinics to be equipped with advanced medical equipment.

In signing onto a brief initiated by the Center for Population Options, the National Council of Jewish Women will argue that parental notification and consent requirements mandated in Minnesota and Ohio threaten the mental and physical health of pregnant teen-agers.

Other Jewish groups joining various legal briefs supporting the pro-choice side include AJCommittee, AJCongress, ADL, B’nai B’rith Women, the Union of American Hebrew Congregations and Women’s American ORT.

Unlike Webster, the abortion cases currently before the court do not directly address religious issues, such as the definition of life, nor the landmark Roe vs. Wade decision, which established abortion as a constitutionally protected right.

As a result, Orthodox groups that Support an overturn of Roe are not expected to become as actively involved in the case as they were in Webster.

In general, Jewish groups will watch this court term for further evidence of the court’s shift to the right and its implications for Jewish affairs.

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