A History of Jews in America

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Long ago, I had to decide between getting a doctorate in history at Princeton or going to law school at Northwestern. I did not want to risk living in penury and picked the latter. On August 2, the First Circuit issued a decision involving the interface between these two worlds, history and law – or, more precisely, a difference of opinion between the trial and appellate court as to the relevance of historical background, at least when the parties are religious organizations.

The First Circuit decision is found here. Congregation Jeshuat Israel v. Congregation Shearith Israel, No. 16-1756. The decision was authored by frequent First Circuit visitor, ex-Supreme Court Justice Souter, joined by Judge Lynch and Judge Boldock of the Tenth Circuit.

The District Court decision (Judge McConnell, D.R.I), containing a much fuller historical discussion (back to the Spanish Inquisition), is found here. Congregation Jeshuat Israel v. Congregation Shearith Israel, Docket No. 12-CV-822 (D. RI, May 16, 2016).

The facts are fascinating, but time and space only permit the briefest summary. The Touro Synagogue is the oldest surviving Jewish synagogue building in North America, dating back to 1763. The first Jewish families arrived in Newport, Rhode Island in 1658, and, among other things, the Newport congregation (Appellee) had a renowned silversmith, Myer Myers, make the bells (rimonim) for its Torah.   The Revolutionary War decimated the congregation, and the bells were sent to another congregation in New York (Appellant), which also helped, with others, to care for the building. The Jewish population in Newport grew again in the latter part of the 19th century. Relations soured between the two congregations at the turn of the 19th century, resulting in a lawsuit between the two congregations in 1903, followed by a written agreement between them and a lease, then a series of leases. More recently, the Newport congregation found itself financially challenged, and received an offer from the Museum of Fine Arts in Boston to buy the bells for over $7 million. The Newport congregation wanted to sell; the New York congregation said you can’t, the bells belong to us.

After a nine-day bench trial, the district court held that the Newport congregation owned the bells and that the Touro Synagogue was held in trust, and removed the New York congregation in favor of the Newport congregation as trustee.

On appeal, there was total reversal – the Court of Appeals ruled that the New York congregation owns the bells and the building in fee.

How did they arrive at these totally different results, with the Court of Appeals flipping a fact-finding court after trial?

The trial judge examined the entire history of the Newport congregation, including when the founders first built the synagogue, to determine their status, and so what they could contract to thereafter. Justice Souter’s opinion basically said, look, there’s a 20th century agreement and lease, and you should stop there. In its view, it was wrong to go beyond these documents, because it said, if you do, you get sucked into a religious dispute. (In Justice Souter’s words, the district court’s “historical investigation was unavoidably an immersion in the tensions between two organizations that were not doctrinally identical …”).

The Providence Journal reported that this might not be the last round – the appellees plan to file a motion for rehearing en banc. Normally, it makes no sense to file a request for rehearing en banc in the First Circuit. There are only six active judges. If three of them sat on the original panel, to get a majority to agree to the rehearing, you would need at least one of the original panel members to change their mind – right after they joined in the panel decision. This is not likely, and rehearings in the First Circuit, unlike other circuits, e.g. the Ninth, are few and far between.

Nonetheless, in this instance, there was only one active First Circuit member on the panel. So, assuming no conflicts of interest among the remaining active members, the appellees could succeed by convincing four of the five members who had not sat on the panel. (If there are any conflicts, there needs to be a majority in favor of rehearing among the non-conflicted, so maybe three votes would be enough.) This is still an uphill battle, to say the least, but not quite as daunting.

On the other hand, the judges who were on that first panel, Judge Lynch and Justice Souter, aren’t exactly lightweights. (It’s unclear to me under Local Rule 35.0 whether if there were an en banc review, Justice Souter could sit on the en banc panel, but it looks like no.)

In theory, because Justice Souter’s opinion put a First Amendment gloss on the decision, maybe there’s room for a certiorari petition, too. Then it would get really interesting.

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