Nathan Lewin Interview 5

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Oral History of Nathan Lewin
This interview is being conducted on behalf of the Oral History Project of The Historical Society
of the District of Columbia Circuit. The interviewer is Susan McMahon, and the interviewee is
Nathan Lewin. The interview took place in Washington, D.C., on August 24, 2018. This is the
fifth interview.
MS. McMAHON: Okay, so go ahead.
MR. LEWIN: One of the early briefs that I wrote once I started private
practice was an amicus curiae brief in what is probably the leading religious First
Amendment case, Lemon v. Kurtzman, in which Chief Justice Burger wrote the
opinion setting down the three-part test under the Establishment Clause. On behalf
of the Orthodox Jewish community, I wrote a brief that differed from the view of
the rest of the American Jewish community. The American Jewish community,
non-Orthodox, urged the Court to reach the result it did, which was to prohibit any
financing of religious institutions in any way. That was the position of the
American Jewish Congress, largely formulated by a man by the name of Leo
Pfeffer, a very nice man but to my view totally wrong-headed on the Establishment
Clause. He prevailed in the days of the Warren Court and then, when Burger
became Chief Justice. In the days of the Warren Court there were a number of
Establishment Clause cases in which Earl Warren and Justice Brennan broadly
applied the Establishment Clause to prohibit any kind of assistance to religious
institutions.
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I wrote a brief for the Orthodox Jewish community in Lemon v. Kurtzman, which
involved public financing of the salaries of teachers in religious schools. Both
Pennsylvania and Rhode Island had different formulas for enabling teachers of
secular subjects to be funded by the state, their salaries to be paid by the state. The
Supreme Court held that was unconstitutional. I wrote a brief for the Orthodox
community that argued that, not only was it constitutionally permissible, it was
constitutionally mandatory. I send my kids to a Jewish religious school because
I’m religiously obliged to do it. They learn Chemistry and French and English
Literature because the state requires them to learn it. Why shouldn’t the teachers
of Chemistry and French and Math be paid by the state when they teach in the
religious schools just as when they teach in the public schools? As a matter of fact,
when I went to high school, Yeshiva University High School, the best teachers I
had of secular subjects were the teachers who taught in the public schools. After
the public school day was over, they would come to teach in my religious school.
And they were great. But they had to be paid by private funding for teaching in the
religious school.
I argued that it was constitutionally mandatory under the Free Exercise Clause not
to discriminate between me and the funding of the teachers who taught my kids
Math and the teachers who taught Math in the public schools. That was not a
position that was accepted by the Supreme Court. Warren Burger wrote Lemon v.
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Kurtzman, with this three-part test. It has continued to be a very, very substantial
hindrance and impediment to Jewish religious education, which has now become
prohibitively expensive. My view, I’ve told to various people, is that I would love
to start a move to overrule Lemon v. Kurtzman and explicitly allow teachers in the
religious schools – Jewish, Catholic, any religious schools – to be paid the same
way as teachers are paid in the public schools. I think there ought to be a local
law, which the Court should approve, that would provide that the teacher of
Chemistry in the Hebrew Academy would be paid out of state funds just as the
teacher of Chemistry in the public school.
MS. McMAHON: Would you make the same argument that it’s
constitutionally mandated?
MR. LEWIN: Would I make that argument today? Yes, I would. And I
think quite frankly with the current Supreme Court – with Gorsuch, Alito, Roberts,
Thomas and now Kavanaugh – I would have enough votes with the current
Supreme Court to win on that proposition. I argued it in 1971 unsuccessfully, but I
think the tide is now turned in terms of attitude towards Establishment Clause and
things that might help religious institutions.
I have been writing amicus briefs in the Supreme Court in virtually all the religion
cases that come up since 1971, since I went into private practice. I did the Lemon
v. Kurtzman brief, and by that time already, various Orthodox institutions were
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coming to me for assistance with regard to religious liberty cases. There are a
number of issues that affect the Orthodox Jewish community in which, quite
frankly, I did the original landmark litigation for all of them. There is the question,
for example, what’s called an “eruv,” which is a kind of boundary around a
residential area that permits Orthodox Jews to carry or to move baby carriages on
the Sabbath outside in the public area. In the early 1970s, there were Jewish,
Orthodox Jewish communities that were being harassed, where people who were
strong Establishment Clause proponents were trying to claim that this boundary,
which nobody recognizes, should be removed. It generally consists of telephone
poles or little attachments to a telephone pole. Things like that would just satisfy
Jewish law, don’t affect anybody. People don’t recognize that it exists.
Nonetheless, those who did not want Orthodox Jewish people living in the
neighborhood and were discriminating against them made an issue about it.
In Belle Harbor, New York, and Asbury Park, New Jersey, the local New Jersey
chapter of the ACLU brought a lawsuit against the eruv. saying that it is
unconstitutional because it’s a violation of the First Amendment, the Establishment
Clause. I represented the eruv, or the people who were supporting it. We won that
case in federal court. We won the Belle Harbor case. I argued it in the New York
Appellate Division. Ultimately years later the whole issue came up again. In those
cases, the local officials approved of the eruv.
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In Tenafly, New Jersey, the local officials, moved by a lot of popular sentiment,
opposed the eruv. There was litigation in the District Court of New Jersey. I was
not in the District Court litigation, but the District Court judge ruled that the City
of Tenafly could prohibit the eruv. That was appealed. There were two groups of
appellants. One group that I did not represent made a factual argument to the
Third Circuit. I argued that as a matter of constitutional law if the telephone poles
could be used to put up secular signs, which they were, the city could not prohibit
their use for a religious purpose. Constitutionally, what was permitted for secular
grounds could not discriminate against religion on that ground. I won that case in
the Third Circuit. Tenafly. My opponent in the Third Circuit was a man who is
now a well-known professor at Harvard by name of Noah Feldman.
MS. McMAHON: Oh?
MR. LEWIN: Noah Feldman argued against the eruv. I think now he
regrets that position. He’s changed his religious convictions somewhat. At that
point, although raised Orthodox, he was sort of anti-Orthodox. Now he’s come
back to the fold somewhat. He argued for the City of Tenafly that they could
prohibit the eruv. I argued the other side – that the city of Tenafly could not
prohibit the eruv. The Third Circuit agreed with me, and we won the Tenafly case.
That kind of battle continues to this day. I have on my desk a packet of materials
from a community in Florida, in Hallandale, Florida, which is now involved in
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battling with local municipal officials who are trying to prevent them from
building an eruv, which previously they had. It came down, and now they’re
trying to rebuild it. So that battle continues to this day. There are various eruv
cases.
Battles over employment discrimination. As I think I described to you, I was
discriminated against in terms of employment when I came out of law school. I
felt all along that there had to be some change in the law in that regard. So in
1972, ’73, I was alerted to the fact that there were amendments that were being
made to the Civil Rights Act of 1964. The Civil Rights Act of 1964 had provided
that in private employment, you couldn’t discriminate on the basis of religion. The
question was, “Is it discrimination on the basis of religion if you are told that the
same working hours apply to you as a Sabbath observer, as apply to everybody
else, and you are an Orthodox Jew or a Seventh Day Adventist.” What is the rule
with regard to that? Does there have to be an accommodation for religious
observance?
There were two cases that went up to the Supreme Court. One was Dewey v.
Reynolds Metals, which raised that issue. The Court came out with an affirmance
by an equally divided Court. Four to four. There was another case called Parker v.
Cummings. The same thing. Came out, four to four. So in 1972 I think it was, or
’73, a group of us were concerned about it. The Equal Employment Opportunity
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Commission, which had the job of enforcing the Civil Rights Act, Title VII of the
Civil Rights Act, had first issued a regulation that it was not religious discrimination
to have a standard working, a schedule. Sabbath observers were stuck if they had to
leave early on Friday or weren’t available on Saturday or on Jewish holidays. Then
with various kinds of pressure that was exerted on the EEOC, the EEOC modified
its regulation and said, yes, you did have to make a religious accommodation.
Amendments to the Civil Rights Act were being proposed and going through the
House and the Senate. As a matter of fact, a whole package of amendments had
gone through the House. We learned about the fact that this was happening, and I
drafted language, borrowing from the EEOC, to put into the Civil Rights Act that
would require an accommodation to religious observance, a reasonable
accommodation to religious observance. If the employer could show that there
was an undue hardship to the business, he could refuse to accommodate, but not
otherwise. I personally drafted that legislation.
We gave it, at the suggestion of Senator Williams of New Jersey who supported it,
to the Senator from West Virginia, Jennings Randolph. He was the Senator from
West Virginia who was in his 70s, very highly regarded, and he was a member of a
Seventh Day Baptist church. He introduced my language on the floor of the Senate
as this bill was making its way through. The Senate, out of respect for him and his
statement that he was doing this because he was a Seventh Day Baptist and did not
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want them to be discriminated against in private employment, unanimously passed
that language.
The next hurdle was the conference committee because the House did not have that
provision in its bill that it passed. I was very much involved in lobbying with the
members of the House committee, members of the Conference Committee from
the House, and they approved that change. So it is now Section 7J of the Civil
Rights Act, as amended in 1973. It requires a reasonable accommodation to the
religious observance of an employee unless an employer can demonstrate undue
hardship.
That provision ultimately made its way to the Supreme Court in a Muslim case, the
Abercrombie and Fitch case, in which a Muslim salesgirl was wearing a head
covering. Abercrombie and Fitch tried to prevent her from doing that. The
Supreme Court, in an opinion by Justice Scalia, who said it was an easy case, said
that it violates Section 7J of the Civil Rights Act of 1973, which was my statute.
In an earlier case called Hardison v. TWA, the question was whether that provision
took precedence over a labor contract. The people who were more senior could
claim to take off on Saturdays, and therefore leave the religious observer without
an ability to be off on Saturday, because the senior people were taking off on
Saturdays. That case was argued in the Supreme Court. I wrote an amicus brief,
and I was given time to argue. That was a case that I argued as an amicus in the
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Supreme Court, Hardison v. TWA. Unfortunately, the Supreme Court, in an
opinion by Byron White, ruled against the religious observers. I don’t think they
would do that today, but nonetheless in the Hardison case they came out against
religion, with Byron White writing an opinion in which he said that the preference
for religion might violate the Establishment Clause of the First Amendment.
A case called the Estate of Thornton vs Caldor came up to the Supreme Court in
1985. That was a case in which a Sunday-observing Presbyterian had been
employed by Caldor’s Department Store as a manager. They repealed the Sunday
laws in Connecticut. He said he couldn’t work on Sundays. The Connecticut
legislature passed a law that said that no one could be required to work on his or
her Sabbath. I was going through the advance sheets looking at religion cases and
I came across this decision in the Connecticut Supreme Court against a Sundayobserving Presbyterian. I called up the lawyer who represented him in the
Supreme Court of Connecticut. The Supreme Court of Connecticut had said that
because this law spoke of a Sabbath, it violated the Establishment Clause. I
thought that was ridiculous. So I called up the lawyer who represented him, and I
said, “I would like to file a friend of the court brief. When are you filing your cert
petition?” And he said, “I’m not filing any cert petition.” I said, “You’re not
filing, this is a ridiculous decision by the Connecticut, why are you not filing it?”
He said, “Because I’m not going to be paid. My client died and nobody is going to
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pay me to do this cert petition.” I said, “I will do it pro bono if the client or the
client’s wife agrees that I should represent Mr. Thornton’s estate, the Estate of
Thornton.” So I filed a cert petition in the Supreme Court in a case called Estate of
Thornton vs. Caldor.
Amazingly, with the Solicitor General’s office at the time was Michael McConnell,
who is now on the Tenth Circuit and is a great expert on church-state. He was a
young lawyer in the office of the Solicitor General. Just the other day, at a
conference at the Department of Justice, they invited McConnell to speak, and he
recalled his days in the Solicitor General’s office. He said that’s when he first got
the religious liberty portfolio. He did the unusual thing of getting the Solicitor
General to support my petition in the Estate of Thornton vs. Caldor. And the
Supreme Court granted that case. After they granted the case, I was told that a
newly elected Attorney General of Connecticut was a Sabbath observer and would
be supportive of our position. This came from Connecticut. The Connecticut
Supreme Court had ruled against the law that said you had an absolute right to
observe your Sabbath. So I called up the Attorney General of Connecticut. His
name was Joe Lieberman. I said, “Are you interested in this case.” He said,
“What case?” I said, “The Connecticut Supreme Court ruled that a Connecticut
statute is unconstitutional.” Connecticut does not have a procedure under which the
Attorney General is notified when this happens or when that issue comes up. And
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it was total surprise to Joe Lieberman that his Supreme Court had held this statute
unconstitutional. He said, “Oh, you’re filing a petition in the Supreme Court, I
would like to intervene in the case.” And I said to Attorney General Lieberman,
“It’s too late, if you haven’t intervened below the Supreme Court is not going to let
you intervene just in the Supreme Court.” He said, “Well I’m going to try
anyway.” He tried and the Supreme Court granted the petition to intervene.
So I, for 20 minutes, and Joe Lieberman for 10 minutes, argued that case in the
Supreme Court. We had the support of the Solicitor General of the United States.
We had the Attorney General of Connecticut telling the Supreme Court that this
statute is constitutional because it’s like the federal statute, which I had drafted,
that said that you have to make a reasonable accommodation. But this law didn’t
say “reasonable accommodation.” It just said you can’t force somebody to work
on their Sabbath. So the Supreme Court says the law is absolute, and both I and
Joe Lieberman said to the Supreme Court, that’s not an issue in this case. In fact,
Lieberman said we construe the statute as meaning reasonable accommodation. If
you can’t reasonably accommodate, the statute was not being enforced.
The Supreme Court ignored that. It ruled in Estate of Thornton v. Caldor that the
Connecticut statute was unconstitutional because it violated the Establishment
Clause and gave religious observers a special preference. Burger wrote the
opinion, and it was a terrible opinion. Why it took so long for it to come out was a
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mystery to me for many years, until Justice Blackmun’s papers and Justice
Marshall’s papers became public. I saw that Justice Brennan had written a
concurring opinion, a long concurring opinion that was never published, that he
withdrew ultimately when Burger sort of narrowed his opinion. The Brennan
opinion in Estate of Thornton v. Caldor is a very mystifying narrow opinion, which
is against the exercise of religion in various ways.
But that was maybe the first of a number of religion cases that I had in the
Supreme Court while I was at Miller Cassidy. Estate of Thornton. The following
year I had the yarmulke case, Goldman v. Weinberger. I got a call from the wife of
Captain Goldman who was a psychologist in the Air Force in March Air Force
Base in California. His commanding officer had threatened to court martial him if
he wore his yarmulke in the hospital. Goldman was more religious than I am. I
wear a yarmulke now in my office here, but in court I don’t, and I did not, quite
frankly, at Miller Cassidy in my office. But Goldman did. After I went through
the different levels of government bureaucracy, I couldn’t believe that they were
going to court martial him for wearing a yarmulke. It was ridiculous.
So I spoke first to the chief counsel of the Air Force. He said no, they are standing
by their rule. I went all the way up in terms of the Pentagon to the counsel for the
Department of Defense. Well, the Secretary of Defense at the time was Casper
Weinberger. I did not know him, but everything that I have read about him,
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although he was born Jewish in Shanghai among the family that escaped Nazism,
as he grew older, he became disenchanted with Judaism and, as a matter of fact,
became hostile to Judaism. At least the stories I was told at the time the yarmulke
case was being litigated was that Casper Weinberger had said at a staff meeting –
in those days a big issue at the Department of Defense was what was called the
MX missile – that he would prefer to lose on the MX missile than lose on the
yarmulke, that he was so hostile to the whole notion of allowing this kind of
Jewish religious observance in public.
So I brought the lawsuit in the District Court here in D.C. The judge I drew was
Aubrey Robinson, who later on in the Jewish community was called an anti-Semite
because he sentenced Jonathan Pollard to a life term for spying for Israel. Aubrey
Robinson was not an anti-Semite. I got to know him somewhat by litigating a
couple of cases in the District Court here. He had had Jewish partners, he was
sympathetic. As a matter of fact in the yarmulke case he ruled in our favor, that
Goldman had a right under the Constitution to wear a yarmulke in the military,
notwithstanding the fact that a yarmulke was not included in the dress code. So we
won that case in the District Court. I was amazed, and only discovered later, that
it was at Casper Weinberger’s insistence that the government took the case up on
appeal to the Court of Appeals. I still remember the day that I was going to argue
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this case. By the way, my opponent in the District Court in the yarmulke case was
none other than Judge Lamberth.
MS. McMAHON: Oh really.
MR. LEWIN: He was then a young Assistant U.S. Attorney, and he represented
the Air Force in the District Court opposing the yarmulke. I won that case, but we
had cordial relations. My theory in terms of litigating is not to become an enemy
of the lawyer on the other side. He’s doing his job, I’m doing mine, and there are
various times dealing with very reasonable Assistant U.S. Attorneys, reasonable
prosecutors, you come to a meeting of the minds, you can resolve a case. I’ve
resolved a good number of religion cases because I’ve had reasonable Assistant
U.S. Attorneys on the other side.
Lamberth litigated that case because the Air Force had its regulation. We had a
full hearing before Judge Robinson. We won. Robinson issued both a preliminary
injunction and a permanent injunction, saying that Goldman had the constitutional
right to wear his yarmulke. The government appealed. I recall, I still have in my
mind, standing out in front of the glass case that has the announcements in the
Court of Appeals for the D.C. Circuit. In those days you didn’t know who your
panel was going to be until the day of the oral argument. Notice was put up, and
the Department of Justice lawyer who argued the other side, I remember he looked
up at the panel that was going to hear it and said to me, “I don’t know why I’m
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bothering even going into this court, there is no chance that I can win this case.”
We went into court, the case was argued, and they won, I lost. Who was on the
panel? The panel was none other than Abner Mikva, who had been after all the
head of the Jewish caucus when he was a Congressman, Harry Edwards, who was
then a young Black liberal judge, and a judge from the Seventh Circuit who was
also very liberal and was sitting by designation or by invitation that day. They
ruled against us three to nothing.
I argued the case not wearing a yarmulke. Ultimately, I argued it in the Supreme
Court without wearing a yarmulke. I showed the Court what a yarmulke was. I
waved it to the Supreme Court, but I did not wear the yarmulke during the case.
Years later, after he was off the federal bench and after he had been White House
counsel, Abner Mikva was a guest in our sukka for the Jewish holidays. I got up
the courage to say to him, “Abner, why did you vote against the yarmulke?” He
said to me, “Nat, I have to tell you, you are not the only one who has been very
critical of me for that. Two daughters, one of whom was a reform rabbi in Chicago
when the yarmulke case came down and I was against it, she really gave it to me.
The other one was the law clerk to this judge from the Seventh Circuit. She didn’t
come to Washington when he came to Washington to hear the argument, but she
said to me, ‘Mikva, what did you do to my judge, why is he ruling against the
yarmulke?’” And Mikva says to me truthfully, “Nat what happened was after the
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argument both Edwards and the other judge turned to me and said, ‘How important
is it?’ And I said to them, ‘It’s not really that significant.’” That is how the Court
of Appeals for the D.C. Circuit ended up ruling against the yarmulke. I filed a
petition for rehearing en banc. I got three votes for en banc. One was Ruth
Ginsburg, the other was Nino Scalia, and the third, who wrote a very impassioned
defense of the right to wear a yarmulke – was none other than Ken Starr. Those
were three votes I got for the en banc. Years later I said to Scalia, who I was very
friendly with, “How come you voted to rehear the yarmulke case and then when
you are on the Supreme Court you wrote the Smith opinion which cut the guts out
of the Free Exercise Clause of the First Amendment?” Scalia says to me, very
honestly, “When I was on the Court of Appeals, I had to follow Supreme Court
precedent, and at that point Sherbert v. Verner, Brennan’s opinion in Sherbert. vs.
Verner, gave you a Free Exercise right. But when I was on the Supreme Court
myself, I wrote the constitutional precedent.” Scalia said that to me as an
explanation of how he could have voted for the yarmulke and yet have years later
written the Smith opinion when he was on the Supreme Court.
MS. McMAHON: And he said, “I wrote the Constitution.”
MR. LEWIN: He didn’t say “I wrote the Constitution,” but “When I was
on the Supreme Court it was my job to interpret the Constitution, but before that I
had to follow precedent and under Sherbert v. Verner you should win.” So then I
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petitioned for cert to the Supreme Court. Much to many people’s surprise the
Court granted cert in the Goldman case. Again, that was a case where you would
think that in terms of the exercise of religious rights it would be so easy for the
Court to say the Free Exercise clause does give you the right. Who is hurt by
wearing a yarmulke? You are not impinging on anybody else. You are not
harming. You are not restricting anybody else’s rights. Charles Fried was then the
Solicitor General and Kathryn Oberly, who later was on the D.C. Court of Appeals,
was then an Assistant to the Solicitor General. They argued the Goldman case and
supported the Defense Department. The Court rendered an opinion by Rehnquist,
voted five to four, that you had no constitutional right to wear a yarmulke in the
military.
By then I had become a good friend of Congressman Steve Solarz of New York.
He had in his district a good number of observant Jewish communities. He was, I
will tell you, to my mind the most substantive congressman I have ever met. He
would really study legislation. He would be asking opinions about what they are.
He was the most neutral, honest, straight congressman that I have ever seen, and he
became a good friend. When the Court came down with the decision against the
yarmulke, or even before the Court of Appeals had ruled against the yarmulke,
Solarz said, “Let’s draft a statute that will require the military to permit you to
wear a yarmulke whether or not the regulations provide for it.” So he had
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introduced such legislation before the Court granted cert. He withdrew it or didn’t
push it when the Court granted cert. When the Court rejected our position, he
reintroduced the legislation. The fact that there had been legislation was part of the
history that the Court saw. Justice Brennan in a very strong dissenting opinion in
the yarmulke case ended his opinion by saying that although the Court today
rejects the right of Orthodox Jews to observe their religion while being in the
military, he hopes that Congress will cure this.
We went back and tried to get Solarz’s bill enacted. The legislative history is very
interesting. The House passed the yarmulke bill, but the Senate did not. In the
Senate, Senator Barry Goldwater got up on the floor of the Senate and said that
although he is proud of being one-eighth Jewish, he does not think he has a right to
exercise that right in the military. The Senator from Nevada, Chick Hecht, got up
on the floor of the Senate, a Republican Senator, and also said, “You know, I’m
Jewish, but I don’t think I have a right. There should not be a statute that would
give me the right to do this in violation of military dress code.” So the bill did not
pass in the Senate. At that point the United States had its war in Grenada, and a
chaplain, a Jewish chaplain, went down to Grenada. We heard that he had himself
made a yarmulke of camouflage material.
MS. McMAHON: Oh, really?
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MR. LEWIN: I may have one in my briefcase, I carry it around sometimes
to show people. So, he had a yarmulke made of camouflage material and wore it
down in Grenada. We heard about it. We decided that we would manufacture
similar yarmulkes made of camouflage material and distribute them in the Senate
to see whether we could satisfy Senators that you can be an Orthodox Jew and still
be a patriotic soldier fighting for the United States. We gave it to a Jewish Senator
from New Jersey, and he distributed it in the Senate. Then a vote was taken in the
Senate again and the bill passed the Senate.
Congressman Solarz then sent a note to Justice Brennan saying, “Mr. Justice, thank
you for your strong dissent in the yarmulke case. I think you will be pleased to
hear that Congress has passed a law now that requires the military to allow you to
wear a yarmulke.” It is part of U.S. Code, I forget the exact citation, but it’s a
section of the U.S. Code that protects the right to wear an article of religious
clothing that is neat and conservative with a military uniform. It requires the
military services to allow that. He sent that letter to Justice Brennan with a p.s.
that says, “Enclosed is a yarmulke that we distributed in the Senate and helped get
the law passed.” Solarz sent me a copy of the letter that he sent to Brennan.
Coincidentally, just around that time, I get a call from Justice Brennan’s chambers
saying that Justice Brennan is going to Israel – the one trip he made in his life to
Israel – to get an honorary degree from Hebrew University. He would like me to
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come over and have lunch with him. I knew Brennan from the time I was a law
clerk and in the Solicitor General’s office. I should come over and have lunch with
him to talk to him about Israel, what judges he should see, what courts he should
go to. I said, “Sure, I would be delighted.” So I had lunch with Justice Brennan in
his chambers. He had prepared a fruit salad for me so no kosher problem. We sat
in his chambers having lunch and talking about Israel.
At the end of our conversation about Israel, Brennan says to me, “By the way, Nat,
you know that yarmulke case you argued?” I said, “Yes.” He says, “Well, do you
know that Congress passed a law now that says that you have a right to wear a
yarmulke in the military?” I said to him, “Justice, the truth is I was involved in
drafting that law. I know it passed.” He said, “I got a letter the other day from
Congressman Solarz of New York telling me that the law passed, and in with the
letter was a yarmulke.” He said, “My secretary brought the day’s mail into me,
and I read the letter, and I saw the yarmulke. I put the yarmulke on my head, it
looked so inviting.” And then he says, “Nat, would you believe it, I sat there the
rest of the day. I forgot I was wearing the yarmulke, and I wore it all day in my
chambers.” He said, “When I got up at the end of the day to go home and I walked
through my secretary’s office, two of my law clerks were standing there and told
me later that they were puzzled by why I was wearing a yarmulke. I went down,
drove home, I was home for five or ten minutes before my wife says to me, ‘Bill,
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what do you have on your head?’ I felt up there, it was the yarmulke, it was very
comfortable.” I said, “Justice Brennan, take it with you to Israel, you’ll find it
useful when you go.”
I told this story subsequently twice at least with Brennan in the audience. He loved
it. He loved when I told the story. He goes off to Israel. I never had a
conversation with him afterwards about the yarmulke. A man who subsequently
became a Justice on the Supreme Court of Israel and is now retired but a good
friend, Elyakim Rubinstein – I had gotten to know him the year that I presented the
yarmulke case in the Supreme Court because he was then the minister of the Israeli
Embassy. We became friends that year. He came to hear the argument in the
yarmulke case. He knew about it. We talked about it. He came to the argument,
and he sat in court in that front section in the Supreme Court because he was a
minister of the Israeli Embassy. He sat there in a yarmulke while I argued the
case, so he knew the story of the yarmulke case. About six months after Brennan
goes over to the Hebrew University and gets his honorary degree, Rubinstein
comes for a visit to the United States. He says to me, “Nat, by the way, do you
know I met your Justice Brennan in Jerusalem? He got his honorary degree, and I
was there and I met him. At that point Rubinstein was not yet on the Supreme
Court of Israel but he had been secretary to the Cabinet, he had been minister of
the Israeli embassy. Rubinstein tells me, “I introduced myself to Justice Brennan.”
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Rubinstein wears a yarmulke everywhere, and he also has a sense of humor. He
says, “I said to Justice Brennan, ‘Justice Brennan, I’m so happy I live here in Israel
because here in Israel I can wear a yarmulke anywhere, even in the military.’”
Rubinstein says to me, “When I told him that, Brennan put his hand in his pocket,
pulled out this very funny looking yarmulke, it was the camouflage yarmulke, put
it on his head and he said, ‘Me too.’”
MS. McMAHON: [Laughter.]
MR. LEWIN: The yarmulke case was one where the Supreme Court
decision is roundly criticized, but it was a case in which a majority of the Supreme
Court said that the military is so different that even though there is not really much
rationale behind prohibiting it, the military could prohibit the yarmulke. Now,
both because of the Solarz statute that I worked with him on and because of a total
change of attitude, the military now issues military-issue yarmulkes.
MS. McMAHON: Oh really.
MR. LEWIN: So that somebody who wants to wear it has got an
appropriate color, which is a military-issue yarmulke. I tell this whole story about
Justice Brennan when I speak to Jewish audiences. At one of them, a guy came up
to me who had been in the military and gave me a whole collection of different
military-issue yarmulkes that have now been put out.
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MS. McMAHON: So, depending on the uniform you would wear a
different yarmulke?
MR. LEWIN: Right.
MS. McMAHON: Oh my goodness, wow. One question that whole story
raises for me is that, when you are faced with these religious injustices, you have
several different paths you can take. You could take it to court, you could try to
get a legislative solution. How do you make the decision as to which path to take
and what’s the best solution?
MR. LEWIN: Well, there have been lots of cases where I succeeded in
resolving those by discussion, by citing precedent. Another case which came up a
couple of years later, which is an important Establishment Clause and ultimately
Free Speech case, was the whole question of the Chanukah Menorah. Chabad
Lubavitch, the Rebbe, had said that it is desirable to put up the Chanukah
candelabrum menorahs in the center of town in order to publicize the miracle of
the Chanukah holiday. All over the world the agents and the rabbis who are
associated with Lubavitch, and now even others, go out and try to put up large
Chanukah menorahs at the center of town in a public place.
I get a call at some time in the early or mid-1980s from a lawyer in Pittsburgh who
has been representing Chabad Lubavitch. The mayor of Pittsburgh, Mayor
Caliguiri, who is a Catholic, had supported the display of a large 18-foot-high
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Chanukah menorah in front of Pittsburgh City Hall as part of the holiday display.
The ACLU decided they were going to sue to enjoin that on the ground that it
violated the Establishment Clause. They brought a lawsuit in federal district court
in Pittsburgh. I did not represent them initially in the district court. They brought
that case against a Chanukah menorah and the same complaint challenged a
nativity scene that was being put up by the County of Allegheny in the county
courthouse, which was a couple of blocks down the street from the town hall in
Pittsburgh. They challenged both of them as a violation of the Establishment
Clause.
The District Judge, whose name was Barron McCune, ruled that neither the
menorah nor the nativity scene violated the Establishment Clause. The ACLU
took that up to the Third Circuit. At that point, this local lawyer in Pittsburgh
called me and said this is not his field. He needs somebody to help him. So I
wrote a brief, and I argued it in the Third Circuit on behalf of Chabad Lubavitch
whose menorah it was. Judge McCune allowed Chabad to intervene in the case in
the middle of the proceeding in the District Court because it was its menorah and
because it was able to explain what the menorah was. So we were a party in the
Court of Appeals, and I argued it in the Third Circuit.
I had the bad luck, which we frequently had in some of these menorah cases, to
have a Jewish judge in the Court of Appeals write the opinion, Judge Greenberg.
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He ruled that both the menorah and the nativity scene were violations of the
Establishment Clause. Dissenting was Judge Weis, who was a Catholic, who said
that neither the menorah nor the nativity scene was a violation of the Establishment
Clause.
There was a history in the Supreme Court of prior cases involving public displays,
or displays in public parks, of Christmas decorations. This was a natural sequence
to prior Supreme Court cases. By two to one, we lost in the Third Circuit. I filed a
cert petition for Chabad, the city of Pittsburgh filed a cert petition for the city of
Pittsburgh, and Allegheny County filed a cert petition for Allegheny County over
the nativity scene. The ACLU was on the other side, and the Supreme Court
granted and consolidated all three cert petitions. Because Allegheny County was
the first to file a cert petition, the case is named in the Supreme Court Reports,
Allegheny County vs. ACLU. It involved the Allegheny County nativity scene, and
the Chabad menorah in Pittsburgh and the city of Pittsburgh. So there were three
cases consolidated and the Court granted cert.
In the cert petition I filed, I put into the body of the cert petition a glossy
photograph of the scene in which there was an 18-foot-high menorah and a 45-
foot-high Christmas tree right next to the menorah. My basic argument was that
the city’s display was not an establishment of Judaism by having the menorah, but
it was a recognition of the fact that in the United States we are open to all kinds of
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religious beliefs and observances. If you looked at the 45-foot-high Christmas tree
and the 18-foot-high menorah next to it, you didn’t get a feeling that you were
trying to proselytize people to be Jewish. I stuck that in the body of the cert
petition, not as an appendix, but into the cert petition itself. It turned out that that
photograph was used by Justice Blackmun and is in the U.S. Reports. That
photograph was very important in terms of the ultimate decision of the case.
The fact that we had three parties on our side presented a problem because the
Supreme Court only allows argument to be split by two parties, not three. I did not
endear myself to the lawyer for Allegheny County or the lawyer for the City of
Pittsburgh, because part of my argument – maybe this is similar to what I was
telling you before about Lemon vs. Kurtzman – was that not only did it not violate
the Establishment Clause to have a menorah in front of Pittsburgh City Hall, but
that regardless of what the City of Pittsburgh wanted, the front of the City Hall is a
public forum and Chabad had a right to put the menorah there. Mayor Caliguiri
had supported it, but nonetheless we had a right to put it up there. When I put that
into our cert petition and made that argument – I may have made it in the Third
Circuit too – the Allegheny County lawyer and the City of Pittsburgh lawyer said,
“You try to make that argument, and we’re going to cut your menorah out totally
and there will not be a menorah in the future.” I said, “No, I have a right to make
that argument, and I think it’s right.”
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The time came to discuss how we are going to divide up the oral argument. The
lawyer for Allegheny County and the lawyer for the City of Pittsburgh said, “The
two of us will take the 30 minutes and we’ll divide it up between the two of us.” I
said, “Hold on, I represent Chabad, I’m entitled to argue for Chabad. Our position
is different from yours. As a matter of fact I’m going to argue we have a right to
put it in there and I’ve got a different interest than the government interest, so I
have a right to argue in the Supreme Court.” They said, “No you don’t. You are
not arguing. The two of us are going to divide up the oral argument time.”
Although the Court hates it when lawyers cannot agree on dividing up time and do
not want people to apply, those circumstances made me apply to the Court for time
to argue. I got an order from the Supreme Court that gave me ten minutes in the
case, which meant that the two of them would have to decide who is going to argue
the other 20 minutes. They could not agree, and what they ultimately ended up
doing was hiring Peter Buscemi, who is a lawyer who had been in the Solicitor
General’s Office, to argue for Pittsburgh and Allegheny County, while I was
arguing for Chabad.
MS. McMAHON: So he did the whole 20 minutes.
MR. LEWIN: He did 20 minutes, and I did 10 minutes for Chabad. He
was representing both the city and the county in the Supreme Court. He did the
first 20 minutes. I had 10 minutes. He had the rebuttal too. I argued the case in
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the Supreme Court. The ACLU was represented by a woman called Roslyn
Litman, who I think just died within the last year. She was a fine lawyer. But she
was arguing that both violated the Establishment Clause, the menorah and the
crèche, the nativity scene.
Now that Blackmun’s papers are public, you go to them and you see the difficulties
within the Court over this case. That year the Court did not adjourn until into July.
Usually they’re gone by the end of June. This year, even with all the troublesome
cases they had, they finished by the end of June. That year they did not finish until
July 3. On July 3, there were still two cases left to be decided. One was Allegheny
County vs. ACLU and the other one was another case which I didn’t focus on that
much, but they had two. I went down to Court on that day. Not many cases that I
argued in the Supreme Court was I in court when the Court decided, because the
Supreme Court of the United States does not tell you, even the lawyers, that they
are going to decide the case on that day. You hear about the decision because the
reporters call you up and ask what your reaction is to the decision. In the old days
you didn’t even read the decision. Reporters would call me up and say, “What do
you think about this case that you argued and lost,” and I would say, “I haven’t
even read the opinion yet.” Now they come up on the screen.
In any event I was in Court that day. Justice Blackmun announced the decision of
the Court, which was that the menorah won 6 to 3, O’Connor voted along with
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Blackmun, and the nativity scene lost 5 to 4 because it was all by itself. They said,
it’s a violation of the Establishment Clause. I was very happy. I sat there in court.
Sitting in the row in front of me was Art Spitzer, who is the head of the
Washington chapter of the ACLU. He was in the row in front of me and he was, of
course, on the brief on the other side in that case. After the opinions were
announced I recall walking out of the attorneys’ section. He was parallel to me
walking out and he says to me, “Congratulations, Nat, you know you’ve turned this
into a Jewish nation.” I said, “I don’t think it’s quite that extreme.” The notion is
that Jews won and the Christians lost. When I went out I figured, okay this is my
five minutes of fame on TV tonight. We’re all going to be out there. I’m going to
make some statement about how pleased I am that the Court ruled in favor of the
menorah. All the TV cameras were out there, but they weren’t interested in me at
all. I went through the whole thing and got into a cab and went to the office. I
hadn’t realized it, but the other case that was decided was a case called Webster vs.
Reproductive Services, the abortion decision. All that the media were interested in
was the abortion case. The fact that there was some to-do about menorahs or a
nativity scene was not really significant.
So what happens? We win this case, but while the case is up in the Supreme
Court, disaster. Mayor Caliguiri dies of a blood disease. I forget what it was, but
he dies. Who takes over for him as mayor of Pittsburgh, but a nice Jewish lady
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called Sophie Masloff. Sophie was very active in the American Jewish Congress.
She believed in the Establishment Clause. She made an announcement that there
were not going to be any holiday displays in front of City Hall in the future when
she’s the mayor. The reporters said, “You mean you’re not going to have a
Christmas tree?” She backed off, “Okay there will be a Christmas tree but there
will not be a menorah.” We won the case in the Supreme Court that it was not an
Establishment Clause, but Mayor Masloff says no menorah in the future.
The year after we win that case in the Supreme Court, the following December
before Chanukah, we are before Judge Barron McCune, the same judge in
Pittsburgh, and this time, rather than the issue being, “Is it a violation of the
Establishment Clause?” the issue is, “Is the front part of town hall a public forum
so that we have a Free Speech right to be there and put the menorah up,” regardless
of Mayor Masloff. The City of Pittsburgh opposes us before Judge McCune. We
finish a day of hearings. This is Monday. Friday evening is the first night of
Chanukah, so if the menorah is going to go up, it’s got to go up by Friday night.
Judge McCune says at the end of the hearing, “I’ve got to weigh this overnight.
Come back tomorrow. I’ll give you a decision tomorrow morning.”
We come back to federal court Tuesday morning. Judge McCune announces that
he rules in our favor, the menorah has to be permitted to go up, the Chabad
menorah, the same way as last year under Mayor Caliguiri, because we have a
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right under the First Amendment, the Free Speech clause, to put up the menorah. I
had to be off in court in Los Angeles that week. Figuring, okay we’ve won this
case, it’s over, I get on a plane and fly out to Los Angeles. When I arrive I’m told
by telephone that Mayor Masloff has gone to the Court of Appeals to try to get a
stay of Judge McCune’s order. Remember, when the three Third Circuit judges
ruled against us or two of them ruled against us, Judge Weis dissented, he was
from Pittsburgh, and he ruled in favor on the Establishment Clause. This time they
go to Judge Weis. Judge Weis grants them a stay of McCune’s order. So Weis has
stayed the order. We can’t put up the menorah because of the stay.
I draft up an application to the full Third Circuit to vacate Weis’s stay. I had a
non-Jewish associate, very fine lawyer, his name is David Webbert, in our firm
working on this matter. He’s very interested in religion cases, and he worked with
me on a couple of religion cases. We file with the Third Circuit a request to vacate
Weis’s stay. This was Tuesday or Wednesday. Of course, Masloff and Pittsburgh
oppose our request. I’m in Los Angeles, I don’t hear anything. The Third Circuit
is not ruling on my request to vacate the stay, and Chanukah is going to start
Friday night. I send off a letter saying, I would like to fly in from Los Angeles to
Philadelphia to argue our request that the stay be vacated. No response at all,
Third Circuit does nothing, just silence. I’m finished with my business in L.A. on
Thursday. I get on a red eye flight to go from Los Angeles to Washington
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Thursday night. Again, Chanukah is going to be on Friday. I get on the plane.
Still no word from the Third Circuit.
On the plane, I hand write out an application to the Circuit Justice for the Third
Circuit to vacate Judge Weis’s stay. I figure that’s the only way I’ll get the stay
vacated. I call up my secretary from the plane. In those days there was one phone
on the plane. You asked the stewardess, so I asked her for it. I called my
secretary. I said, “I’m landing at 5:00 in the morning. I’m going to go straight to
the office with this draft. Will you be able to type it up so we can get it to the
Supreme Court at 9:00 in the morning.” And she’s terrific. She came to the office,
typed it up, we got the application to the Supreme Court at 9:00 in the morning to
vacate Judge Weis’s stay of Judge McCune’s order, so that we could put the
menorah up Friday night. We file it and serve a faxed copy to Masloff, the city
solicitor of Pittsburgh, who filed a short response. The Clerk of the Supreme
Court, Assistant Clerk, who I was friendly with at the time, calls. He says they
presented it to Justice Brennan. “Justice Brennan says he sees from your papers
that you have applied to the Third Circuit to get them to vacate the stay. He does
not want to rule on it while it is pending in the Third Circuit.” I said, “We’ll
withdraw it from the Third Circuit, just withdraw the application and go from
Weis’s stay to the Supreme Court.” So I send off a letter to the Third Circuit,
saying we are hereby withdrawing our application for the stay, and we have filed
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an application with Justice Brennan. I send it over to the Supreme Court. I get a
call again from the Clerk and the Clerk says to me, “Justice Brennan is not happy
with what you did. He wants the Third Circuit to rule on your stay application
before he will rule on your motion to vacate the stay.”
I sent another letter to the Third Circuit, saying we hereby reinstate our application
because Justice Brennan is waiting to see what the Court of Appeals will do. By
now it’s about 2:33 in the afternoon on Friday. I have to be home for the Sabbath
and for Chanukah. I drive home. I leave David Webbert in the office. I come
home. I get a phone call. This is before cell phones. I get home, Webbert says,
“The Third Circuit has denied our application to vacate the stay.”
I say, “Immediately tell that to the Clerk so he can report that to Justice Brennan.”
Three-quarters of an hour later, I get a phone call saying Justice Brennan has
granted our motion, and it is vacated. Mayor Masloff was not satisfied. She went
to the full Supreme Court to try to get them to overrule Brennan. There is an order
from the Supreme Court, which appears in the U.S. Reports, in which the Court by
a six to three vote approved Brenan’s vacation of the stay. The irony is that the
three Justices who voted against us on that phase of the case were three Justices
who voted for us on the Establishment Clause issue. In other words, when there
was a Free Speech issue, Scalia, and I think Kennedy or, I forget who, three
Justices voted against us on the free speech issue, but those three Justices voted for
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us on the Establishment Clause, which is really ironic. It’s funny that the year after
the issue of the menorah becomes a Free Speech issue and we win, the year before
it was an Establishment Clause issue.
There was a lot of litigation afterwards. To this day there is continued battling
over the menorahs. In the city of Grand Rapids, Michigan, the city allowed
Lubavitch Chabad to put up a big menorah in Calder Plaza, which is the center
plaza in the City of Grand Rapids. No Christmas tree, just the menorah all by itself
in Calder Plaza. The ACLU or some other Establishment Clause organizations
challenged that. The city allowed it, they supported it, and they allowed the
menorah to go up. It was litigated in District Court. The District Court ruled
against us. We went to the Sixth Circuit. The Sixth Circuit ruled two to one
against us. I filed for rehearing en banc, got rehearing en banc, argued the case
before 15 judges of the Sixth Circuit in Cincinnati. Fifteen judges, they sat in a
semi-circle. I was getting questions from behind me.
There was another case that was argued en banc before my case. While I was
sitting there in court, the other case was a little boring, I forget what it was. I wrote
a limerick in which I described what I thought was the wrong position of my
opponents. I get up to argue the case and the argument went very well. All the
judges were fascinated by the case. Supposedly I had 20 minutes. More than 50
minutes after I began the argument the Chief Judge, who I knew from the
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Department of Justice, says to me, “Mr. Lewin, this is a fine argument but you
better wrap it up. I think the time is long over.”
So, I did what I tell my class at Columbia you should never do. I figured okay let’s
be funny and I pulled out the limerick I had written. I read it to the court. I said,
“This really kind of summarizes my opponent’s position.” I read the limerick.
Why did I do that? Also because one of the judges, whose name I forget, who had
written the dissent, had put in his dissent a couple of rhymes into footnotes. He
was talking about a sign together with the menorah, like a Burma Shave sign. So I
thought maybe he would appreciate it, and if we won the case and he wrote the
opinion maybe he would put my limerick into the opinion. Well, we won the case,
nine to six, he wrote the opinion. But I was very disappointed that he did not put
my limerick in.
A year later we had a menorah case in Atlanta, Georgia, in which the menorah had
always been put up on the grounds of the State Capitol in Atlanta. Then the
ACLU, or whoever was opposing us, some organization, read the regulations. The
regulations say you couldn’t put up a permanent display on the state grounds. The
menorah goes up for eight days, so they said, even though you put it up in past
years, you can’t put up the menorah on state grounds. I read the regulations and
noticed that, although it did say that you couldn’t put up a display permanently on
the state grounds, it did not cover the interior of the State Capitol, the rotunda of
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the State Capitol in Atlanta. I said, we’re not going to put it up on state grounds,
but we’ll put it up in the rotunda of the State Capitol, which is also a public forum.
They said, “You’re crazy. If you can’t put it up on the grounds, you certainly are
not going to be able to put it up in the rotunda of the State Capitol.” I brought a
lawsuit, Chabad v. Miller, which was ultimately reported in the Eleventh Circuit in
5 F.3d. I brought the lawsuit against Georgia to require them to permit us to put up
a Chabad menorah in the rotunda of the State Capitol. We lost it in the District
Court. I think we lost it by a divided vote of two to one in the Court of Appeals. I
petitioned for rehearing en banc, got en banc, and I argued that case in the
Eleventh Circuit before eleven judges of the Eleventh Circuit. It turned out by the
time we argued it en banc that even the judges who had voted against us in the
initial hearing turned around and supported us. The Chief Judge was Tjoflet.
After I’m arguing for a while, it’s quite clear that the court is very sympathetic to
my position that I have a First Amendment right to put it up on the public forum in
the Capitol. Judge Tjoflet says something like, “I think your time is up.” So I
pulled out my limerick again, and I read them the limerick. Ultimately, we win
that case, it’s in 5 F.3d, eleven to nothing, eleven to nothing in the Eleventh
Circuit. In Judge Tjoflet’s opinion appears a footnote that says, “with great
panache Chabad’s counsel recited the following limerick to the court.” And there
is my limerick in the footnote in 5 F.3d. The limerick went: “There was a young
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rabbi of Chabad/who thought the Constitution was odd/to permit all speech in a
public place/on age or abortion or race/but to prohibit anyone from mentioning
God.” That was the limerick and it’s in there. There are not many lawyers whose
limericks are in the Federal Reporter, but my limerick is in the Federal Reporter in
5 F.3d.
We had other litigation. One of the menorah litigations we had was up in the City
of White Plains. The City of White Plains did not want to allow a menorah to go
up in front of Town Hall. Coincidentally, the name of the Chabad rabbi who was
supporting putting up the menorah and was the lead plaintiff in the case that we
brought in federal District Court to force them to allow the menorah to go up, was
a Rabbi Flamer. So it’s appropriate that for the menorah lights the case is Flamer
vs. City of White Plains. But who is the district judge? We drew a relatively new
district judge in the Southern District I guess it is, for the Flamer case. Who was
the district judge? A judge called Sonia Sotomayor, as a district judge. And the
issue was whether we had a right, a constitutional right, to have the menorah in
front of the White Plains City Hall. We brought the lawsuit. Chanukah was
coming up. We argued it in White Plains in federal court, and a week before
Chanukah, the district judge ruled in favor of Chabad that the menorah can go up.
And it took a lot of independence, quite frankly, because although we were
winning a lot of menorah cases, the one place where we lost was in the Second
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Circuit in Burlington, Vermont, where we wanted to put up a menorah, and the
Second Circuit ruled against us and said no. There the city was approving it, and
yet they said it violated the Establishment Clause. Again, largely a Jewish panel of
judges, they ruled against us. So she could very easily have relied on the Second
Circuit precedent. Yet she distinguished it and ruled in favor of the menorah. At
some social occasion, a couple of years ago, I had the opportunity to speak to
Justice Sotomayor. I said, “You may not recall it, but I appeared before you in this
case involving a Chanukah menorah in White Plains.” She said, “I remember that
case very well.” Obviously, it was a memorable litigation for her, and this was
when she was a district judge, just a young starting district judge in the Southern
District of New York, before she was even on the Second Circuit.
We continue to have menorah battles to this day. Every year I get one or two or
three calls from some community somewhere, where the opponents of a menorah
have managed to persuade the mayor or the city council that it violates the
Constitution to allow this religious object to be put up, and I’ve got to write them a
letter and cite the cases. This battle goes on, no matter what.
MS. McMAHON: Why is it important to be fighting those battles?
MR. LEWIN: It’s important because religious liberty, to me at least, is so
much a central part of what being an American is all about. I think now the
Department of Justice is emphasizing – in both the Bush and Obama
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administrations the Civil Rights Division set up a separate section for religious
liberty claims or various kinds of religious discrimination, which they didn’t used
to have. When I was in the Civil Rights Division, there was nobody who was
really looking for those issues. Now they do, and they’ve done it for a while, but
now they are supposedly emphasizing it even more. They had this event at the
Department of Justice that I attended that Mike McConnell spoke at. The Attorney
General said, they are all now talking about defending the rights of religious
liberty. The most recent appointees to the Supreme Court, Kavanaugh and
Gorsuch, are very strong supporters of religious liberty.
I just think that those battles are important. I have written amicus briefs
supporting, not necessarily Jewish claims of religious liberty, but Muslim,
Christian, different groups, and also a much more liberal view of the Establishment
Clause. The question of whether you should allow a prayer at the beginning of
some city council meeting, things like that. I’ve written briefs supporting that on
the ground that the Establishment Clause should not be read as prohibiting or
restricting religion. I continue to believe that notwithstanding Scalia’s decision in
the Smith case, which I thought was a huge disaster. One thing, I can’t forgive him
for having done what he did in Smith. But I think it’s important that the right to
recognize an individual’s religious observance should be protected. I’m not
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talking about snake-handling, or doing things where there is clearly a compelling
governmental interest in preventing that.
But all sorts of other things – whether it’s wearing a yarmulke or a head scarf or
issues that now in the rest of the world have become things that some countries
prohibit, circumcision, humane slaughter. The question of ritual slaughter, which
is totally humane. My father was very much involved in the enactment of the 1957
Humane Slaughter Law. He came down to Washington and lobbied for a
provision in federal law that recognizes kosher slaughter as being humane. He
insisted, contrary to the American Jewish Congress and the others, who simply
wanted a provision in the law that said that religious slaughter would be protected
because of the Free Exercise clause, you have to put in a provision in the law that
recognizes that kosher slaughter is humane. It’s a very quick cut of the throat. The
animal loses consciousness. They gathered all sorts of expert opinion on that, and
it is now part of federal law that a recognized humane method is kosher slaughter,
is the slaughter of an animal by the kosher means. He was insistent on that. Years
later, people who were opposed to – the ethical treatment for animal folks who
were opposed to kosher slaughter – bring a lawsuit, and they challenged the
constitutionality under the Establishment Clause of the provision that protects
kosher slaughter. They say the exemption for kosher slaughter is unconstitutional,
it’s a violation of the Establishment Clause. I ended up intervening in the case and
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representing the observers of kosher slaughter. It’s a case called Jones vs. Butz,
argued before three federal judges. In those days, when you attack the federal
statute you had to empanel three judges to hear it, so a three-judge court heard
Jones v. Butz. I argued, and I used my father’s provision. I said, kosher slaughter
has been found by Congress to be humane. It’s not that we’re exempting it
because of religion and we’re treating religion differently. Congress said that that
is a humane method. On that basis three judges, opinion by Judge Palmieri, said,
yes, it’s constitutional. The other side tried to take a direct appeal to the Supreme
Court, which you were able to do in those days from a three-judge court. You had
a right of direct appeal to the Supreme Court. The Supreme Court could
summarily affirm, and they summarily affirmed in Jones v. Butz. They affirmed
the decision of the three judges.
These kinds of issues, humane slaughter . . . . I was very much involved, and
continue to be, with the whole issue of trying to use the law to alleviate the
problem of Jewish women who are not given a divorce by their husbands. Under
Jewish law, there is a requirement that in order to effectuate a religious divorce the
husband has to authorize the writing of a bill of divorce, a get. There are,
unfortunately, women whose husbands have refused to do that, just out of spite or
whatever reason because they are holding them up for money. So I was involved
and actually drafted a law in New York that said that no civil divorce would be
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granted to a party who applies for a divorce but refuses or insists on maintaining a
barrier to the other spouse’s remarriage, a barrier to remarriage. I didn’t talk about
it in religious terms, but you should not be able to get a divorce, an order of
divorce, from a court, if you do not totally free your spouse to remarry. So that’s
the barrier to remarriage that is part of New York law, it’s been copied in Canada.
I tried to get it enacted in Maryland, testified a couple of times in Annapolis, and
unfortunately a man who is now a congressman and who was teaching
constitutional law at American University insisted it’s unconstitutional and
persuaded his colleagues. It still has not been enacted in Maryland, but it has
withstood constitutional attack in New York.
Those kinds of things, the Jewish divorce, the eruv, RLUIPA, the Religious Land
Use and Institutionalized Persons Act, I handled what is probably one of the
landmark RLUPA cases in the country for a synagogue in Surfside, Florida that
was on the second floor of a bank building. The town of Surfside tried to force
them to close down because it said that under the local zoning regulations you
couldn’t have a synagogue in a bank building. We took that to the Eleventh
Circuit, and the Eleventh Circuit ruled for us so that the congregation continued.
Then it bought a piece of property across the street and has now got a terrific
synagogue, separate synagogue building there. That was the Midrash Sephardi
case, which was my case in the Eleventh Circuit, kind of a landmark RLUPA case.
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After Scalia very surprisingly issued his Smith opinion, Congressman Solarz, who
unfortunately passed away a number of years ago, was then a very active member
of the House. He started the drive to enact the Religious Freedom Restoration Act,
RFRA, and I worked on that. I very foolishly said to the people there at the time
there is no problem in enacting a federal statute that would do this under the
Fourteenth Amendment, under section five of the Fourteenth Amendment, because
I thought that the Supreme Court cases clearly sustained that.
RFRA was enacted almost unanimously, a very important statute. Years later in an
opinion by Kennedy, it was held unconstitutional as applied to the states because
there was not enough legislative history. It was clear, even from informal
conversations I had with Scalia, that a majority of the justices of the Court – Scalia,
Kennedy, and the conservatives on the Court – viewed what Congress did as a
clear affront to the Supreme Court trying to overrule a Supreme Court
constitutional decision by statute. So they were offended by it, and they held five
to four that RFRA was unconstitutional as applied to the states. But to the credit of
Bill Clinton, who I’m told by various people who spoke to him personally about it,
including my former partner Seth Waxman who was Solicitor General under Bill
Clinton, was a very strong supporter of religion and religious observance, and that
very soon after the Supreme Court decided the City of Boerne case, in which it
held that it was unconstitutional as applied to the states, Clinton made an
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announcement that it is still going to be constitutional and applicable to the federal
government. And RFRA has been applied to the federal government. The
Supreme Court, in a nine to nothing decision written by Roberts in the O Centro
case, applied RFRA to the federal government to prevent criminal prosecution of a
small group that was using hoasca, a narcotic. It applied RFRA even though it had
been held unconstitutional in the City of Boerne case as applied to the states. The
City of Boerne opinion does not say, “Yes it is applicable to the federal
government.” It just simply says it’s unconstitutional because of the lack of
findings. Yet President Clinton clearly declared afterwards that decision will apply
only to the states and municipalities, but the federal government will still be bound
by the terms of RFRA. So it is still to this day, thank goodness, applicable against
the federal government, and there are many states that have enacted local RFRAs,
which is very, very good. So that covers only part of it, I think.
MS. McMAHON: I know. I’m thinking we might need yet another
meeting. Is that a good stopping point for today, do you think?
MR. LEWIN: Yes, I think so.
MS. McMAHON: Okay. [END RECORDING]