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About to Usher in a New Era, U.S. Supreme Court Slates Cases

September 28, 2005
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With the U.S. Supreme Court about to launch a new era, Jewish activists say they will be watching closely for clues to future rulings on controversial issues such as abortion rights and the separation of church and state. The court will officially open its session Monday, most likely under the helm of a new chief justice.

John Roberts was expected to be confirmed by the full Senate on Thursday. The high court will likely have a second new member by the end of the term. President Bush will reportedly nominate a justice to replace Sandra Day O’Connor within a week of the court’s Oct. 3 opening.

The passing of the gavel from Justice William Rehnquist, who died earlier this month, to a Roberts court could have a major effect on issues that will come before the court, both this year and for years to come.

Already included on the court’s docket for the approaching session are cases involving doctor-assisted suicide, the use of drugs for religious purposes, abortion rights and campaign finance laws.

One of the first cases to challenge the new court examines the legality of Oregon’s law permitting doctor-assisted suicide. The U.S. Department of Justice has said assisting suicide is a violation of federal law, despite Oregon’s 1994 ballot initiative legalizing the practice.

The case, Oregon v. Gonzales, will be heard Oct. 5, the second day of Rosh Hashanah.

The case will likely focus on the debate between protecting life and states’ rights, analysts said.

While many Jewish groups have not weighed in on the case, they will be watching closely for its larger implications on end-of-life issues and states’ rights.

The Orthodox Union joined a brief in the case, arguing against euthanasia.

In another case, several Jewish groups have joined briefs in a case that involves the use of a hallucinogenic drug for religious purposes.

Jeffrey Bronfman, a member of the Jewish philanthropic Bronfman family, and other members of the Brazilian O Centro Espirita Beneficiente Uniao Do Vegetal religion, known as UDV, are challenging the federal government’s Controlled Substance Act. They are claiming they should be allowed to import a specific tea that contains DMT, which is banned in the United States but is central to their religious practices.

The petitioners claim that laws against importing DMT violate their First Amendment rights and the Religious Freedom Restoration Act of 1993, known as RFRA, which requires a “compelling government interest” for burdening religious exercise.

The court found RFRA unconstitutional in 1997 as it applied to the states but not to federal legislation.

That legislation was widely supported by the Jewish community, and many were angry when the court knocked it down. But last year, the court upheld a similar law, which set the “compelling government interest” standard for denying prisoners religious expression.

A large number of Jewish groups joined briefs in the current case, supporting the plaintiffs and defending RFRA’s constitutionality for federal powers.

“Congress is free to express and implement its own interpretation of the Constitution through legislation, even when it may differ from the interpretations of this Court,” said a brief by the Becket Fund for Religious Liberty, signed by the American Jewish Committee, the American Jewish Congress, the Jewish Council for Public Affairs and the United Synagogue for Conservative Judaism.

Opponents say the legislation violates the separation of powers, and that it is a government interest to uniformly regulate controlled substances.

Agudath Israel of America and the Union for Reform Judaism joined another brief, making a broader argument supporting the UDV and against the Justice Department’s claim, as did a separate brief the Orthodox Union joined. The case is slated to be heard Nov. 1.

On Nov. 30, the court will hear two cases regarding abortion rights. The first case, Ayotte v. Planned Parenthood, takes up the issue of whether a parental notification law for abortions on women younger than 18 is unconstitutional if it does not include a health exemption.

Several Jewish groups are expected to weigh in on the case, opposing restrictions for access to abortions. However, amicus briefs have yet to be filed in the case. The case could also give analysts their first assessment of where Roberts and the other new justice, if sitting by then, stand on the abortion issue.

The second case regards the free speech rights of abortion opponents. Lower courts have found that anti-abortion groups that use violence or threats are violating the Racketeer Influenced and Corrupt Organizations Act.

The court also agreed to hear two cases on campaign finance laws, which could effect Jewish participation in the political process. The first case challenges spending limits for state legislature races in Vermont.

The second case challenges prohibitions on corporate election communications, like issue advertisements that have been used by Jewish organizations, as well as Wisconsin Right to Life. Dates for the Supreme Court to hear arguments have not been scheduled for either case.

Court watchers say several other cases of Jewish interest may come down the road, either this year or in the near future. Specifically, Jewish groups are watching cases regarding the holding of detainees in Guantanamo Bay, Cuba, and several challenges to a law criminalizing a procedure known as “partial-birth abortion.”

In addition, many people are watching a current Pennsylvania federal case, where several parents are challenging a Dover, Pa., school board’s decision to teach “intelligent design,” as an alternative explanation for evolution. The case is expected to make its way to the U.S. Supreme Court in the next few years.

Cases like these raise the stakes for the court’s next confirmation of a Supreme Court justice.

Several Jewish activists said they expected the next court fight to be larger than the battle over Roberts, partially because the new justice would be filling the seat of O’Connor, considered the court’s centrist justice.

Mark Pelavin, associate director of the Religious Action Center for Reform Judaism, said the Union for Reform Judaism chose not to formally oppose Roberts because they wanted to concentrate on the next nominee.

“By picking and choosing your battles, your opposition becomes more meaningful,” Pelavin said. “By not marshaling the troops as often, they’ll have more energy when the time comes.”

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