With the U.S. Supreme Court set to begin its new term, Jewish legal observers are shifting their focus from their traditional purview of church-state issues to the contentious question of congressional redistricting.
The shift comes after the court itself concluded a term filled with several important church-state cases.
Now for the third consecutive year, the Supreme Court, which reconvenes Oct. 2, will consider the divisive issue of redistricting, this time focusing on cases from North Carolina and Texas.
At the center of the bitter debate over redistricting is whether racial demographics can be the basis for redrawing congressional district boundaries.
Several state legislatures have used race as a criterion in approving redistricting plans in an effort to maximize the voting power of minority group members who believe they are underrepresented in elected office.
Although many in the Jewish community have expressed support for increasing the number of minority elected officials, they oppose drawing congressional districts based upon the racial composition of the district.
“There is no consensus on race-based redistricting,” said Samuel Rabinove, legal director of the American Jewish Committee.” Sometimes it’s a matter of doing justice for blacks who have been deliberately shut by deliberately designed districting,” he said. “But redistricting could have an adverse impact on Jewish voters.”
Some fear that creating new districts for the purpose of shifting power to minorities could diminish the impact of the Jewish vote.
In addition, it could affect Jewish lawmakers. As an example, Rabinove cited the case of former Rep. Stephen Solarz (D-N.Y.), who many believe lost his last race in 1992 when the composition of his district was altered to include a majority of Hispanic voters.
The court’s consideration of a district in North Carolina will mark the second time the court is hearing the same case. Last year, the high court ruled in Shaw v. Reno that race was a predominant factor when the state legislature created a black majority congressional district. The high court also accused the state legislature of drawing a bizarre district to protect white incumbents.
A three-judge district court in North Carolina was instructed by the high court to reconsider the case. But the lower court, citing past discrimination against blacks in the state, upheld the district, thereby clearing the way for the Supreme Court to revisit the issue this year in the renamed case of Shaw v. Hunt.
A similar case, Bush, Lawson and the United States v. Vera focuses on a district in Texas. The case is an appeal of a federal court decision striking down the creation of race-based districting. “There is a conservative majority that will look with a very jaundiced eye when race is a factor in redistricting,” said Rabinove, of the AJCommittee.
Apart from the redistricting cases, little is expected to emerge from the Supreme Court affecting the Jewish community.
No church-state decisions are expected such as last year’s ruling that the Ku Klux Klan can erect a cross in an Ohio state park or that the University of Virginia must fund a student’s Christian magazine.
“So far this is shaping up to be a quiet term,” said Nathan Lewin, an Washington attorney who has argued dozens of cases for the Orthodox and Lubavitch Jewish community.
“But you can only see a small part of the term now,” he cautioned.
Marc Stern, co-editor of the American Jewish Congress’ Commission on Law and Social Action, agreed. “The term could turn around but at the moment does not portend to be huge for the Jewish community,” he said.
The court may agree to hear more than 30 other cases in the coming months, Jewish legal observers say.
While the Supreme Court does not plan to hear any church-state cases, Jewish observers are watching the lower courts carefully. Some cases challenging the high court’s ban on prayer at school graduations are “lurking and looming” before lower courts, Stern said.
Other cases challenging the constitutionality of the Religious Freedom Restoration Act “will certainly reach the Supreme Court,” Stern said, although he said it is unlikely to happen this year.
Enacted in 1993, RFRA requires local, state and federal governments to show a compelling interest before interfering with the practice of religion, whether inadvertently of intentionally.
In addition, some Jewish observers are watching a case challenging the constitutionality of an amendment to the Colorado constitution that virtually allows discrimination against homosexuals. Passed by voters in the 1992 election, the amendment forbids the state or local governments from passing any laws protecting the rights of homosexuals, according to Steven Freeman, director of legal affairs for the Anti-Defamation League.
Proponents of the law “are promoting it for religious reasons,” he said.
ADL has argued in a friend of the court brief in the case, Evans v. Roemer, that the high court should uphold the Supreme Court of Colorado’s decision to strike the law down. Oral arguments are scheduled for October.