Agudath Israel of America, along with nine other national Jewish organizations, filed an amicus curiae brief last week asking the U.S. Supreme Court to hear a case with significant ramifications for religious freedom. The case, Marvin Gerber v. Herskovits, et al., involves the rights to worship and free speech, in the context of nearly two decades of protests and harassment affecting members of a synagogue in Ann Arbor, Michigan.
Two members of the Beth Israel Congregation synagogue brought the case against a group of people who have been harassing its members every Shabbos morning since 2003 by protesting and carrying signs with anti-Jewish slogans. The case was also brought against the city of Ann Arbor and city officials for allowing the protests to continue. The protestors use signs with slogans such as "Resist Jewish Power," "Jewish Power Corrupts," and "No More Holocaust Movies." One of the members bringing the case is a Holocaust survivor who has suffered extreme emotional distress from the ongoing protests, which prevents him, at times, from attending synagogue services.
The Beth Israel members first turned to the city of Ann Arbor to take action against the protestors, asking the city to enforce its law requiring such protests to obtain a permit, which these protestors have not done. But the city refused to take action, claiming that the protestors have the right to freedom of speech, even though the protests are intimidating and harassing those attending synagogue services. The plaintiffs then filed a lawsuit in federal district court seeking an order of protection against the protesters. The court denied the request, ruling that the Beth Israel members had not demonstrated concrete injury. The Beth Israel congregants then appealed to the Sixth Circuit Court of Appeals where a panel of judges ruled that they had shown concrete injury, but that the protestors had free speech rights under the First Amendment and the protests were allowed to continue. In October 2021, the synagogue members submitted petitions to the Sixth Circuit Court of Appeals asking the court to rehear the case. In January 2022, the court upheld the previous ruling.
Following this ruling, as a last resort, the Beth Israel members appealed to the U.S. Supreme Court asking it to hear the case. Their appeal argued that the protestors violated numerous laws and that the protests are not protected by the free speech clause of the First Amendment. Instead, they constitute intimidation and harassment and interfere with the synagogue members' constitutional right to free exercise of their religion.
Agudath Israel of America has submitted an amicus curiae or "friend of the court" brief in support of plaintiff Marvin Gerber's petition. Attorney Joshua Klarfeld of the law firm Ulmer & Berne LLP volunteered to research and write the brief with help from his colleague Emma Tomsick. Other major Jewish organizations that also signed on include the National Jewish Commission on Law and Public Affairs, the Agudas HaRabbonim, the Coalition for Jewish Values, the Orthodox Jewish Chamber of Commerce, the Rabbinical Alliance of America, the Rabbinical Council of America, Torah Umesorah (the National Society of Hebrew Day Schools), the Union of Orthodox Jewish Congregations of America, and National Council of Young Israel.
The brief argues that the case involves attacks on private citizens' rights to exercise their religion freely when faced with consistent and sustained vicious protests targeting them specifically – as private citizens and as Jews. The brief further argues that the protests do not constitute speech entitled to First Amendment protection, but instead the speech includes epithets that, throughout the history of the Jewish people – from ancient times through the present – has led to assaults, pogroms, and murder. The brief concludes that the Sixth Circuit opinion would set a dangerous precedent, marking open season on Americans attempting to exercise their First Amendment free exercise right to worship, without interference by protestors espousing epithets and non-protected fighting words, at houses of worship throughout the country.
"We have seen time and time again how antisemitic intimidation has led to violence," said Rabbi David Zwiebel, executive vice president of Agudath Israel. "These protests have continued week after week for years, in front of the same private, residentially zoned building designated for individuals attempting to peaceably exercise their religion, understandably deterring congregants from being able to do so. We implore the Supreme Court to hear this case and protect the rights of those who wish to worship freely."
Agudath Israel thanks Joshua Klarfeld and his colleagues at Ulmer for researching and writing this important brief in this critical case on a pro bono basis.
You can view this release on our website.
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