Old legal issues linger, says AJCongress rep

If the Jewish community has overcome many of the legal obstacles it faced in the past, there are new ones to replace them, says Marc Stern, acting co-executive director and longtime legal director of the American Jewish Congress.

Stern – who has served AJCongress for more than three decades and who was scheduled to speak at a meeting of the group’s Fair Lawn chapter on Thursday – said that “what is interesting is that some of these problems are still what you would call ‘first-generation’ problems. They’ve been around for 60 years.”

He cited a case heard by the Supreme Court this year on whether a cross could be placed on a war memorial on public land.

“We fought that 50 to 55 years ago,” he said. Noting that some issues “linger, though in modern garb,” he also mentioned a New Jersey case, still pending, about whether school assemblies are required to include religious music.

While some of these old issues are still around, said Stern, “they’re not as sociologically important as they were 50 to 60 years ago.” For example, he added, “fewer places today are prepared to put up exclusively Christian symbols.”

Stern said the Jewish community also faces what he called “second-generation” problems. As an example, he noted that the Supreme Court last week took on a case involving student clubs at a law school. At issue: whether these clubs must admit everyone as a voting member.

“It doesn’t make sense,” he said. “It would be saying they can’t be what they are.” For example, he said, a pro-choice group would be required to admit pro-lifers as voting members.

AJCongress, he said, is “inclined to support the private group part of the way” but will make a final decision this week. The question to be asked, however, is: “Is the Jewish community best protected by rigorous insistence that anything touching on government be non-discriminative?” Or, he added, “do we need a place we can call our own, [including] only people who share our commitment?”

“This represents the debate about where the safety and well-being of the Jewish community lie,” he said. In earlier days, he noted, Jews had fought to exclude religious clubs from school. “Now, having lost that battle, we’re picking up the pieces.”

Stern said there is a third group of legal issues that touch directly on the Jewish community.

“There is the globalization of everything, including law,” he said. Issues arising in the area of international law “touch directly on the well-being of Israel and the Jewish people.”

He said that, bias aside, Richard Goldstone, author of a United Nations report on the Gaza conflict, “did a terrible job on the law” in compiling his report, “denigrating the rights of states to defend themselves and placing the right of individuals above all else.”

In days past, he said, there was no need to pay such close attention to U.N. resolutions or the laws of war. Today, he said, he’s had to teach himself to argue in that arena.

“The globalization of law has put new issues on the table of the Jewish community,” said Stern, citing the case of Samantar v. Yousef, brought in Virginia and pending in the Supreme Court.

It involves “a sordid set of facts,” he said, raising the issue of whether someone who committed torture in Somalia while in government office has immunity from a suit brought in the United States.

AJCongress contends that the applicable U.S. statute “was intended to incorporate international law on the rules of sovereign nations” and therefore a suit cannot be brought here. Were it to be permitted, he said, “we could have Israelis tried in Venezuelan courts.”

“Sovereign immunity does protect officers of the state,” he said. He noted, however, that a separate statute covers torture, and that might still be applicable in the Samantar case.

The AJCongress position “comes at a price,” said Stern. “There’s a certain emotional satisfaction in letting those who tortured be sued, but the problem is that the international criminal court is now looking at NATO troops for acts in Afghanistan. Germans bombed a Taliban fuel tank and civilians got killed. Iran could now try German troops,” were a precedent to be set in Samantar.

Similarly, “The Goldstone Report would become a complaint and Israelis coming here could be sued. It would be chaotic, a disaster.”

Stern noted that the success of the Jewish community in breaking down barriers “raises the question, ‘Do you need to leave any barriers in place to develop your own community?'”

He noted, for example the fight over charitable choice during the Bush administration and asked what it would mean if Jewish agencies that receive any federal money were subject to absolute laws of nondiscrimination.

“Could a federation be made to hire a non-Jew as executive director, since it accepts some [government] funds?” he asked.

“Different questions arise from the openness of our society, which require rethinking our positions,” he said. For example, New York City is requiring large buildings to do energy audits and then to bring their facilities into conformity with certain regulations. Some of these structures are older synagogues.

“What if these synagogues can’t afford the audits?” he asked, pointing out that some old congregations certainly would not be able to deal with energy-efficiency requirements. If the government is not permitted to help them out – because of concerns over separation of church and state – what will happen?

Circumstances change, he said. “We have to figure out how to negotiate these new problems for our institutions.”

Stern said he “backed into international law some 10 years ago” when it became clear that the issue was ongoing and important. In effect, he said, “the battle between Israel and the Palestinians has taken on a legal form” and he needed to know how to respond.

“You don’t respond by name-calling,” he said.

Another issue that has taken on new dimensions – and to which the Jewish community will have to respond – is same-sex marriage. In addition, he suggested, we have to take the sensibilities of nonbelievers into account.

“This was not predictable 25 years ago,” he said. “People who say they know what the Jewish community will need in the future are mistaken.”

The need is for the Jewish community “to remain flexible and hard-headed in its evaluation of its current situation and where the current trajectory leads it. We can’t be guided by slogans and policies adopted 50 years ago. We need to be skeptical enough to look at each thing again.”

“Who would have known 25 years ago that we would have needed an expert on the laws of war?” he asked.

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