Synagogue fights quiet but vital religious liberty battle

Land use activists normally reserve the “not in my backyard” declaration for halting the incursion of the most odious bad neighbors, like landfills, ostensibly in defense of property values or neighborhood safety. But what excuse do residents of Boca Raton, Fla., have for filing lawsuits to prohibit the construction of a Jewish synagogue?

The Chabad of East Boca Raton’s 10-year effort to build a house of worship and education center demonstrates the struggles religious institutions, particularly religious minorities, have across the nation in staking their claim as neighbors of neighbors.

While high-profile religious liberty cases like Masterpiece Cakeshop, garner the lion’s share of media attention, “land use cases are a significant religious liberty problem, especially for minority faith groups,” Daniel Blomberg, an attorney with religious liberty law firm Becket, who represents the Chabad, told me.

In Boca Raton, two residents are persisting in their twice-dismissed lawsuit claiming the city advanced a religion when it surreptitiously hammered out a deal with the synagogue and a land developer to amend the city’s zoning laws to accommodate the facility’s construction. A judge dismissed the first lawsuit in 2016. A second one faced the same outcome last year. On Wednesday, attorneys for the city of Boca Raton and the Chabad will defend the city’s actions before the 11th U.S. Circuit Court of Appeals.

Neither Becket nor those who filed a friend-of-the-court brief in the case ascribe anti-Semitic motives to the plaintiffs’ doggedness. But the brief, filed by Alan Dershowitz on behalf of five Jewish entities, said the lawsuits exist within a “larger context in which a small but vocal minority of the [populace] are increasingly open in their opposition to religion generally and Jews particularly.”

The congregation’s current location, a rental property it has outgrown, has suffered vandalism. And in 2015, a Chabad rabbinical student was assaulted by a man shouting, “Go back to Auschwitz,” and “Hitler was right,” according to Dershowitz’s brief.

Even the plaintiffs, who claim in their complaint they are “members of a Christian religion,” acknowledged some residents’ opposition to the Chabad has been “motivated by religious animus.”

Reasons for opposition to the construction of houses of worship varies, Blomberg said. Religious bigotry, bureaucratic convenience, or the desire for more tax revenue than a house of worship generates can each contribute to governmental or residential obstruction. But state and federal law, specifically the First Amendment to the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act, requires municipal zoning codes to carve out development space for those facilities.

The Boca Raton City Council did that in 2008, and in 2015 it approved plans for the Chabad. The lawsuits quickly followed.

Litigants argue that by changing its zoning ordinance, the city violated the First Amendment’s Establishment Clause and its own zoning codes. They cited anticipated traffic problems as a reason for opposing the synagogue, Blomberg said. But that concern rings hollow since the two-story facility is planned for a .81-acre tract surrounded by a business district and several 22-story condominiums. And many of Orthodox Jews walk to synagogue on the Jewish Sabbath.

“Worse, in a recent filing, the litigants admitted that even if the Chabad is never built on the empty lot, they still want the court to prevent the city from offering equal access for religious groups,” Blomberg told me.

The plaintiffs are unlikely to prevail, Blomberg said. But if cases like this are not summarily dismissed, Dershowitz argued, they “create a powerful disincentive for cities to give equal treatment or even fair consideration to religious groups’ requests for building permits or zoning variances or amendments, since any such accommodation will likely lead to a protracted and costly federal lawsuit.”

Take a stand against hypocrisy

The National Football League rejected an advertisement for its Super Bowl LII commemorative program submitted by the American Veterans (AMVETS). The ad features a military color guard carrying the U.S. flag and the phrase “#PleaseStand,” a message NFL officials declared too political.

Marion Polk, the national commander of AMVETS, rejected that characterization, noting in a letter to NFL Commissioner Roger Goodell that the ad presents a respectful request: “Our ad is neither a demand nor a judgment upon those who choose to kneel during the national anthem.”

But NFL spokesman Brian McCarthy told Fox News the commemorative program has “never been a place for advertising that could be considered by some as a political statement.” Ironically, players taking a knee during the playing of “The Star-Spangled Banner” are using a form of political speech Polk—and the NFL—have defended.

The league’s hypocrisy is nothing new.

Under Goodell’s leadership, the NFL has used blackmail tactics against local governments into complying with his political ideals by threatening to withdraw the Super Bowl, and its significant profits, from their cities or states if lawmakers adopt religious liberty protections or fail to promote the LGBT agenda.

Polk told Goodell the military is good for more than “props” and called the league’s rejection of the AMVETS ad “reprehensible and totally beyond the pale.” —B.P.

You win some, you lose some

A Washington state high school football coach whose postgame, midfield prayers drew the ire of school district administrators will ask the U.S Supreme Court to consider his case. Joe Kennedy’s refusal to stop praying got him fired, and last week the 9th U.S. Circuit Court of Appeals rejected his request for a full-court hearing. A three-judge panel of the court previously rejected his appeal, siding with the school district in its decision to fire him.

Bremerton School District administrators argued in 2015 that Kennedy acted in an official capacity when he knelt to pray, giving them the right to order him to stop. Kennedy, backed by attorneys with First Liberty, argued the request violated his free speech and religious expression rights. Every court has disagreed, but Kennedy’s attorneys don’t plan to give up.

Elsewhere in Washington, the state’s Supreme Court overturned a lower court ruling that upheld the Spokane Valley Fire Department’s decision to fire Capt. Jonathan Sprague over his religious posts to the department’s internal message board. The court ruled the department committed viewpoint discrimination by demanding he stop posting messages containing religious content on the message board and in emails, eventually firing him when he refused.

Spokane County Superior Court and the Washington Court of Appeals failed to address the merits of Sprague’s First Amendment claims and dismissed the case, leaving in place the Spokane County Civil Service Commission’s decision to uphold his firing. The Washington Supreme Court remanded the case back to the Superior Court, ordering it to consider Sprague’s speech as constitutionally protected. —B.P.

Transgender student loses locker room fight

A county judge in Illinois denied a transgender student’s demand for an injunction against a school district policy that denies him unrestricted access to the girls’ locker room and restrooms at Palatine High School, northwest of Chicago. Nova Maladay, 18, a male student who identifies as female, sued Township High School District 211 in November with help from the American Civil Liberties Union (ACLU). School policy allows Maladay to use the girls’ locker room, but he must change in a private stall, a restriction he calls discriminatory. Both Maladay, who wants to expand the policy, and the group of parents suing to revoke the policy claim the Illinois Human Rights Act protects their interests.

A 2010 amendment to the act says schools may not “deny access to their facilities,” said Thomas Olp, a lawyer with the Thomas More Society who represents the parents. But the Cook County judge dismissed the ACLU’s claim the law requires “full and equal enjoyment” of sex-segregated facilities. Although Maladay must continue using a private changing room for now, the ACLU plans to continue its lawsuit against the policy. —B.P.

Gimme a C-O-U-R-T!

Perhaps the Kountze Independent School District wants to give students a protracted civics lesson. Why else would the Texas district use taxpayer funds to continue its five-year legal battle against its own high school’s cheerleaders who painted Bible verses on their football team run-through signs? In a brief filed Jan. 15, the district asked the Texas Supreme Court to determine whether the case is moot because all the cheerleaders from the original lawsuit have graduated or are no longer on the squad. The district also wants the court to declare the cheerleader-created signs government speech. A state district court judge ruled in September the signs amounted to private, constitutionally protected speech. —B.P.