Jewish Groups Hail Court Rulings on Hate Laws and Ritual Sacrifice
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Jewish Groups Hail Court Rulings on Hate Laws and Ritual Sacrifice

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Two far-reaching rulings handed down Friday by the U.S. Supreme Court are expected to have significant ramifications for the protection of Jewish civil and religious rights in this country.

Jewish organizations welcomed the decisions in the two cases — one upholding the constitutionality of laws that enhance penalties for crimes motivated by hate, and the other striking down laws designed specifically to prohibit practices by a particular religious group.

The high court justices were unanimous in their decisions in both cases, though the justices did not always agree with each other on the constitutional rationale for the decisions.

In the first case, Wisconsin vs. Mitchell, the justices upheld the constitutionality of a Wisconsin law that lengthens prison sentences and raises fines in criminal cases where the guilty party is found to have selected the victim based on his or her race, religion, color, disability, sexual orientation, national origin or ancestry.

The decision will likely have nationwide impact because nearly every state has some form of hate-crimes legislation on its books and more than half those states’ laws focus on enhancing penalties, according to Steven Freeman, legal director for the Anti-Defamation League.

In several states, including California, Florida, New Jersey, Vermont and Washington, hatecrimes laws are being challenged in state courts.

The high court ruling will affect those challenges because it “has clearly validated the concept of looking at a motive and deciding that it has such an impact on society that it warrants a tougher sentence,” said Freeman.

The Wisconsin law is based on model hate-crimes legislation first drawn up by ADL 12 years ago, he said.


In upholding the law, Chief Justice William Rehnquist drew a distinction in his opinion between it and a hate-crimes ordinance the court struck down last year in St. Paul, Minn.

That decision, in RAV vs. St. Paul, raised deep concern among some Jewish and civil rights groups that a decade of efforts to enact hate-crimes legislation in most states would be undone as these laws were deemed unconstitutional.

But in its decision Friday, the court made clear that the penalty-enhancement approach is constitutional as long as it punishes conduct motivated by hate.

By contrast, the St. Paul ordinance also punished expressions of discriminatory speech, including cross-burnings, which the court found to be an unconstitutional infringement of the free speech guarantees contained in the First Amendment.

The ADL filed a friend-of-the-court brief in the Wisconsin case and was joined by a diverse array of 15 other groups, including People for the American Way, the Southern Poverty Law Center and the National Gay and Lesbian Task Force.

Another amicus brief, submitted by the American Jewish Committee, was co-signed by the Crown Heights Coalition, a group of black and Jewish residents of the strife-torn Brooklyn neighborhood.

“This case is a perfect example of how blacks and Jews should be working together in common purpose,” said Sam Rabinove, AJCommittee’s legal director.

Betty Ehrenberg of the Union of Orthodox Jewish Congregations of America said Friday’s ruling is important because of the difference between bias crimes and crimes with other motivations.

Bias crimes “tear at whole communities, at the peace between racial and ethnic groups, and so deserve special condemnation and punishment,” said Ehrenberg, who is executive director of the Orthodox Union’s Institute for Public Affairs.

She noted that Orthodox Jews are “particularly vulnerable” to hate crimes because “they’re usually more visible and stand out more.”

Robert Lifton, president of the American Jewish Congress, urged that the decision be viewed by law-enforcers as a mandate.

“At a time when there is broad concern that there is an upsurge in bias crimes, the court’s very unanimity should encourage police and prosecutors to vigorously pursue these hateful crimes,” he said in a statement.


The other Supreme Court ruling Friday considered important for Jewish interests — Church of Lukumi Babalu Aye vs. City of Hialeah, Fla. — struck down a city ordinance prohibiting the Santeria church from engaging in animal sacrifice, a central practice of the Caribbean religion.

While the justices were unanimous in reaching their decision, they differed on the reason for striking down the ordinance.

A six-justice majority, led by Justice Anthony Kennedy, ruled that the ordinance was unconstitutional because it unfairly targeted one group’s religious practices.

Kennedy — joined in full by Justice John Paul Stevens and in part by Justices Rehnquist, Antonin Scalia, Clarence Thomas and Byron White — wrote that laws barring religious practices must be written as narrowly as possible and must be neutral, that is, applied to all religious groups.

That was considered good news by Jewish organizations, many of which signed onto friend-of-the-court briefs backing the Santeria church’s right to practice its religious rituals, however distasteful they may seem to some.

But most Jewish groups were not pleased that the majority opinion affirmed the high court’s 1990 ruling in Employment Division vs. Smith, popularly known as the “peyote decision.”

In that case, a court majority upheld an Oregon law banning the hallucinogen peyote, used by Native Americans in religious rituals. In doing so, the justices argued that the First Amendment does not always require the government to prove a compelling interest before enacting legislation that may infringe on religious practices.

That ruling provoked an outcry among Jewish and other religious groups, which are hoping to circumvent it with legislation currently pending in Congress, known as the Religious Freedom Restoration Act, or RFRA.

Two justices who voted against the majority in the peyote case, Harry Blackmun and Sandra Day O’Connor, issued a concurring opinion in the Santeria case, arguing that the Hialeah ordinance would have been unconstitutional whether it targeted the Santeria church specifically or not.


And in a separate concurring opinion, Justice David Souter, who was not on the court when the peyote decision was handed down, argued forcefully that the court should reconsider its ruling in that case and again require demonstration of a “compelling state interest” in laws that infringe on religious practices.

He argued that a secular law, applicable to all religions, would be unconstitutional if it placed an undue burden on followers of those religions. As an example, he gave a law prohibiting the consumption of alcohol that did not make exceptions for the sacrificial drinking of wine.

That is exactly the type of law that concerns Jewish and other religious groups. As a result, Friday’s ruling is expected to spur efforts to convince the Senate to adopt the RFRA legislation. It has already cleared the House of Representatives.

In the meantime, “Smith will stand as good law, unfortunately,” said Freeman of ADL.

Smith could be problematic for the Jewish community if there were efforts to outlaw ritual slaughter or if, for example, an anti-circumcision group was successful in an effort to pass a law barring people other than doctors, such as mohels, from performing medical procedures, such as circumcisions.

Such a law would apply to people of all religions and so would likely be viewed as constitutional. After the Hialeah decision, a law specifically prohibiting ritual circumcision would be unconstitutional.

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