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Justice Souter, the First Amendment and the case of the synagogue standoff
August 3, 2017 / 8:34 PM / 4 months ago

Justice Souter, the First Amendment and the case of the synagogue standoff

(Reuters) - Thanks to the First Amendment’s Establishment Clause, U.S. courts have to be extremely wary of taking sides in doctrinal disputes between religious groups. On the other hand, as retired U.S. Supreme Court Justice David Souter pointed out Wednesday in his opinion for the 1st U.S. Circuit Court of Appeals in Congregation Jeshuat Israel v. Congregation Shearith Israel, the Free Exercise Clause means courts can’t interfere with religious autonomy.

Judges have to navigate between those “twin risks,” Justice Souter said, using the map the Supreme Court provided in 1969’s Presbyterian Church v. Mary Elizabeth Blue Hull: When property disputes reflect religious cleavages, courts should avoid entanglement with the doctrinal issues and hew closely to civil law.

So, according to the 1st Circuit, no matter how fascinating the history of one of the oldest synagogues in the U.S. nor how rich the tale of the divide between the Sephardic and Ashkenazi Jews who worshipped there, the dispute between two warring congregations comes down to ordinary documents: 1903 and 1908 leases, a 1945 agreement with the U.S. government and a 2001 deal with the National Trust.

“It is these common instruments for establishing ownership and control that most readily enable a court to apply the required, neutral principles in evaluating disputed property claims,” wrote Justice Souter for a panel that also included Judge Sandra Lynch and 10th Circuit Judge Bobby Baldock, sitting by designation. “When such provisions of deeds, charters, contracts, and the like are available and to the point, then, they should be the lodestones of adjudication.”

Reversing an epic 2016 decision by U.S. District Judge John McConnell of Providence, the 1st Circuit found that the documents proved New York City’s Congregation Shearith Israel to be the rightful owner of a 250-year-old synagogue in Newport, Rhode Island, even though Newport’s Congregation Jeshuat Israel has worshipped there and maintained the building for more than 100 years.

The Newport synagogue - formally known as the Touro Synagogue in honor of two brothers who bequeathed thousands of dollars to keep it standing in the 1800s – embodies the divide between America’s original Jewish settlers from Spain and Portugal and those who arrived two hundred years later in a wave of immigrants from Central Europe.

The first Jews to arrive in Newport, in 1658, were Sephardim, mostly of Spanish and Portuguese descent. By the mid-1700s, their community was sufficiently well-rooted to begin raising money to build a synagogue. Sephardic Jewish communities from around the world, including the New York City congregation known as Shearith Israel, contributed to the Newport appeal. In 1763, the Newport congregation, Yeshuat Israel, or the Salvation of Israel, celebrated the dedication of its brand-new synagogue. Myer Myers, a colonial silversmith who was a member of the congregation, created elaborate silver-and-gold finials, known as rimonim, to adorn Yeshuat Israel’s Torah scrolls.

Alas, most of the Sephardic Jews who founded Yeshuat Israel left Rhode Island when the Revolutionary War decimated Newport’s shipping industry. The last of Newport’s Jews died in 1822, according to Judge McConnell’s utterly compelling 2016 opinion.

As Judge McConnell recounted the story, many of the Sephardic Jews who left Newport ended up joining New York City’s Shearith Israel. The New York congregation cared for the Newport synagogue and the synagogue’s contents for several decades in the 19th century, when Newport didn’t have enough Jews to sustain it.

But over the last half of the 1800s, a new wave of Jews arrived in Rhode Island. Unlike their Sephardic predecessors, these Jews were mostly Ashkenazi from Russia and Central Europe. The two cultures followed slightly different religious rituals. The crucial doctrinal difference, as it would turn out, is that the Sephardim prohibit the disposition of ritual objects and the Ashkenazi do not.

At the turn of the nineteenth century, the Newport Ashkenazi staged a year-long occupation of Touro Synagogue at the turn of the century, after the New York Sephardim from Shearith Israel shut them out of the building in a dispute over the appointment of a new religious leader. The warring congregations eventually put aside their differences to execute a 1903 lease agreement allowing Congregation Jeshuat Israel to use the building, although the lease specified that the Ashkenazis must conduct services “according to the ritual rites and customs of the (Sephardic) Jews as at this time practiced.”

The two congregations renewed the lease in 1908. In 1945, the New York group reached an agreement with the U.S. Department of the Interior to preserve Touro Synagogue as a national historic site. The Newport congregation signed the agreement as a leaseholder. Congregation Jeshuat Israel similarly affirmed its leaseholder status in a 2001 agreement between the congregation, a group known as the Society of Friends of Touro Synagogue and the National Trust for Historic Preservation. That contract, according to the 1st Circuit, described the Newport congregation as having “possession of the site through a lease with Congregation Shearith Israel as owner.”

Despite their mutual respect for Touro Synagogue as a landmark of American Jewish history, relations between the New York and Newport congregations were prickly. (Justice Souter’s exceedingly dry description: “a want of cordiality.”) Matters exploded in 2011, when the Newport group proposed selling the historic Myers Torah ornaments to establish an endowment for their congregation’s activities. Boston’s Museum of Fine Arts offered more than $7 million. The New York congregation protested that a sale would violate the terms of the lease agreement, which required adherence to Sephardic practices. Litigation ensued.

Judge McConnell concluded after a nine-day bench trial and copious historical research that the New York congregation was actually a trustee for Touro Synagogue, not the owner, and that the Newport congregation has a right to oust the New York group as trustee. The judge also found the Newport congregation to be the outright owner of the Myers Torah adornments.

The judge tried to follow the U.S. Supreme Court’s directive from the Presbyterian case, grounding his opinion in the legal agreements between the two congregations, as well as ancient deeds, wills, trust documents and congregation account books.

But when the 1st Circuit reviewed his opinion, it concluded Judge McConnell wasn’t quite careful enough. As Justice Souter put it, with great delicacy: “These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court’s plenary enquiry into centuries of the parties’ conduct by examining their internal documentation that had been generated without resort to the formalities of the civil law.”

In a strict reading of the documents, the 1st Circuit found no reference to a trust in the lease agreements between the New York and Newport congregations, which assumed the New York group owned Touro Synagogue. The appeals court also held the Torah ornaments are encompassed in the lease’s reference to paraphernalia,” so the New York congregation owns them as well.

The New York congregation is represented by Greenberg Traurig and Locke Lord. Greenberg partner Louis Solomon, who argued before the 1st Circuit, told my Reuters colleague Chris Kenning that his clients will continue to uphold their obligations to Touro Synagogue and look forward to putting “this unfortunate litigation behind us.” Gary Naftalis of Kramer Levin, who argued for the Newport congregation, said he’s exploring the group’s options.

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