A Steep Price to Pay for Religious Freedom
On a quiet street in a residential neighborhood in Ann Arbor, Mich. stands Beth Israel Congregation, a synagogue built to provide the community with a safe and tranquil sanctuary for prayer and contemplation – a refuge for Sabbath services and Jewish spiritual life.
Instead, the synagogue has become ground zero for Jew-hatred.
For the last 18 years, a group of protestors has gathered in front of the synagogue to harass congregants and their families every Saturday morning, carrying signs with messages including "Resist Jewish Power," "Jewish Power Corrupts," and "End the Palestinian Holocaust."
When the leader of the protestors, Henry Herskovitz, is asked to provide a reason for his relentless protests, his response is simple:
"I hate Jews!"
Herskovitz, who was born Jewish, has sadly devolved into a self-loathing antisemite and Nazi supporter. At one time, he went so far as to fly to Germany to support an imprisoned neo-Nazi. The fact that his family would have been killed by the Nazis during the Holocaust is a minor detail that seems to escape him.
The protestors who join Herskovitz are cut from the same hate-embroidered cloth. They serenade the congregants with Holocaust-denying rhetoric and age-old antisemitic tropes. One protestor declares that there was no such thing as the Holocaust. Jews, he explains, "built the gas chambers and ovens themselves after World War II." He also blames the Jews for 9/11 and for the attack on Charlie Hebdo in Paris. Another protestor claims he has been unemployed for years because of "Jewish power." According to the protestors, all societal ills have their source in a clandestine "global Jewish conspiracy."
Imagine being verbally assaulted with hate messages every time you arrive at synagogue to exercise your right to practice religion.
Imagine being forced to expose your children – week after week, year after year – to toxic, demeaning rhetoric about who they are as a people.
Imagine having to explain to your frightened children why an angry group of protestors is rooting for their demise.
The stories of adults who attended Beth Israel as children are heartbreaking. Every visit to the congregation was fraught with anxiety, their young minds frightened that the verbal assaults could turn physical. Their emotional distress was severe.
After 18 years of this harassment, two congregants – both in their 80s and one a Holocaust survivor – decided they'd had enough. They filed a lawsuit against the protestors and against the City of Ann Arbor for failing to enforce an ordinance that would have reduced the harassment.
The congregants have been clear that they support freedom of speech – even hate speech. They did not ask the federal court to cancel the protests or silence the protestors. They simply sought reasonable limits, such as requiring the picket line to be moved further back from the synagogue so that congregants could attend services without being harassed. Courts routinely balance competing First Amendment rights by setting such restrictions.
The congregants, however, lost. Their case was dismissed without them getting so much as their day in court.
But what happened next is perhaps more disturbing than the decision itself. The district court judge ordered the congregants to pay nearly $159,000 in legal fees to the protestors – essentially punishing the congregants for their good faith effort to enforce their civil rights. The judge justified her fee decision by declaring the lawsuit frivolous, contrary to two court of appeal judges, who specifically stated that the congregants' claims were not frivolous.
This fee decision should offend every American who values open access to our courts – a fundamental principle upon which our country was founded.
Civil rights statutes are designed to encourage victims of discrimination to seek relief through our judicial system. But if a litigant can be penalized hundreds of thousands of dollars for asserting a right as basic as religious freedom, utilizing the court system to enforce any civil right would be akin to gambling.
Litigation is an essential tool in the ongoing battle to protect and expand our civil rights. The "chilling" effect this fee award will have on future litigants is devastating.
During these turbulent times, when worshippers are being attacked and killed in their synagogues, mosques, and churches, and this country is being torn apart by civil rights controversies, the last thing judges should do is hold out the threat of financial ruin to dissuade civil rights victims from addressing their grievances in court.
But with a single stroke of the pen, that is exactly what one district court judge has done.
Ziporah Reich is the Director of Litigation at The Lawfare Project. She is one of the attorney's representing a congregant in Gerber vs. Herskovitz.
