Behind the Headlines: Justice Brennan’s Legal Legacy Provided ‘more Rights’ for Jews

Former Supreme Court Justice William Brennan will long be remembered as a towering figure of American law and a champion of individual rights who dramatically influenced American life.

Less well-known is that he is the only justice ever to wear a camouflage yarmulke in chambers.

It was 1986. The high court, ruling in an important religious liberty case, had just held that the military — in accordance with its dress code — could bar an Orthodox Jew from wearing a yarmulke while performing his duties in the Air Force.

Brennan wrote a characteristically eloquent dissenting opinion. Shortly thereafter, Congress adopted legislation effectively overturning the court’s decision.

Lawmakers who worked for the bill’s passage sent Brennan a thank-you note, along with a camouflage yarmulke used in efforts to enact the measure.

Brennan, as Washington lawyer Nathan Lewin tells it, happily put the yarmulke on his head and promptly forgot about it.

His clerks and secretaries were too timid to say anything, and it wasn’t until he arrived home that his wife asked him what that thing was on his head.

“It was very comfortable,” Brennan later recalled to Lewin.

Brennan, who died last week at the age of 91, had a unique kinship with the Jewish community.

During his 34-year court tenure, which ended in 1990 and spanned eight administrations, Brennan was the architect of pivotal rulings that strengthened both religious freedom and the principle of church-state separation, enhanced free-speech and free-press protections and expanded the rights of women and minorities.

Throughout his years on the courts presided over by Chief Justices Earl Warren and Warren Burger, he was also a consistent supporter of abortion rights and of expanding the rights of individuals often forgotten by society — prison inmates, welfare recipients and the mentally handicapped.

As true a champion of individual rights as any legal scholar can recall, Brennan “voted in ways that most of the Jewish community agreed with,” said Marc Stern, co-director of the American Jewish Congress’ legal department.

Rabbi David Saperstein, the director of the Religious Action Center of Reform Judaism, who also teaches church-state law at Georgetown University, said: The vision of liberty and justice that Brennan helped create “shaped a new order in America that provided Jews and others with more rights, freedoms and opportunities than they have ever known in Diaspora life.”

For longtime Washington Jewish activist Hyman Bookbinder, Brennan’s “understanding of Jewish aspirations, Jewish pain and Jewish interests was really second to none.”

His views on church-state separation were neatly encapsulated in a 1976 opinion, in which he wrote: “The discrete interests of government and religion are mutually best served when each avoids too close a proximity to the other.”

During the 1960s, Brennan played major roles in Supreme Court decisions that banned officially sponsored prayers and Bible readings from public schools.

“He was part of majorities that built up a very strong wall of separation that the court has just been chipping away at since he left,” said Steve Freeman, director of legal affairs for the Anti-Defamation League.

Brennan argued with equal force in favor of religious liberty.

“In terms of the free exercise of religion, he was the strongest advocate on the court,” said Lewin, who has argued numerous religion cases before the high court and served as a court clerk during the 1960s.

In one of the most important rulings this century for the free exercise of religion, Brennan wrote the majority opinion for a 1963 case, Sherbert vs. Verner, stating that only a compelling state interest could justify limitations on religious liberty.

That guiding principle remained intact until 1990, when the court, ruling in Employment Division vs. Smith, said laws that were neutral toward religion could be valid even if they infringe on some people’s religious beliefs.

It was that ruling which prompted Congress in 1993 to enact the Religious Freedom Restoration Act — a law, molded after the Brennan view, that made it harder for government to interfere with religious practice.

A divided court struck down the law as unconstitutional in June.

Brennan, whose opinions were often moving, was particularly eloquent in his defense of religious freedom. In his dissent in Goldman vs. Weinberger, the yarmulke case, he wrote:

“Through our Bill of Rights, we pledged ourselves to attain a level of human freedom and dignity that had no parallel in history. Our constitutional commitment to religious freedom and acceptance of religious pluralism is one of our greatest achievements in that noble endeavor.

“Almost 200 years after the First Amendment was drafted, tolerance and respect for all religions still set us apart from most other countries and draws to our shores refugees from religious persecution from around the world.”

Some of his opinions on religious matters created considerable controversy within the Jewish community.

Brennan wrote the majority opinion in Aguilar vs. Felton, a 1985 ruling that banned public school teachers from offering remedial instruction at religiously affiliated schools.

The decision was widely criticized by the Orthodox and split the Jewish community at the time.

The Supreme Court also overturned that decision in June, saying the practice does not violate the constitutional separation of church and state.

“We disagree with him on a number of his opinions and decisions,” said David Zwiebel, general counsel and director of government affairs for Agudath Israel of America, which represents the fervently Orthodox.

“We thought he sometimes took too absolutist a view of the barrier between church and state,” Zwiebel said. “But on balance, Brennan was always considered a champion of religious liberty and a friend of minority communities.”

Brennan’s death last week, seven years after leaving the court because of ill health, also struck a personal note for some in the Jewish community.

“It’s good that every now and then, we can be reminded that public service can also be a great noble, civil, polite, gracious kind of service, and that’s what he represented,” Bookbinder said.