By Andrew Lapin
ANN ARBOR, Michigan – The U.S. Supreme Court has declined to hear two different requests to take up a suit against a group of protesters who have gathered weekly outside an Ann Arbor synagogue for nearly two decades holding anti-Israel and antisemitic signs, seemingly closing off any remaining legal avenues against the long-running display.
The court issued orders in March and May denying petitions brought by two different congregants who had argued that the protests targeted Jews at their place of worship, violating their First Amendment right to freely exercise their religion.
The plaintiffs belong to two different congregations that both meet in the same synagogue building: Conservative Beth Israel Congregation and the Jewish Renewal-affiliated Pardes Hannah Congregation. Neither congregation was involved in the lawsuits.
The two congregants, one of whom is a Holocaust survivor, had first brought a joint lawsuit against the protesters, the city and Ann Arbor Mayor Christopher Taylor in 2019. Lower courts dismissed it on First Amendment grounds, and a judge ordered the plaintiffs to pay the protesters’ legal fees. Following a dispute between one of the plaintiffs, Marvin Gerber, and their attorney, Marc Susselman, the suit was broken up and two separate petitions under two separate attorneys were filed to the Supreme Court.
Both of those petitions have now been declined; Gerber’s was rejected most recently, on May 16.
Gerber had retained the well-known Jewish attorney Nathan Lewin, a veteran of the Supreme Court who has argued multiple Jewish-interest cases and who was a close friend of former Justice Antonin Scalia.
“I am shocked and dismayed that the Supreme Court and the court of appeals view antisemitic picketing timed and designed to harass and intimidate Jews only when they come to pray — clearly protected by the First Amendment’s Religion Clause — as free speech that may not be curtailed,” Lewin told the Jewish Telegraphic Agency.
He compared the case to a law that makes it a federal crime to protest or picket near a judge’s residence in order to influence a decision — a law that has been in the news lately as abortion rights protesters upset with a leaked Supreme Court draft appearing to overturn Roe v. Wade have protested outside the homes of conservative justices.
Jewish groups, including Agudath Israel of America, the Rabbinical Council of America and the Orthodox Jewish Chamber of Commerce, filed friend-of-the-court briefs on behalf of the plaintiffs.
Henry Herskovitz, the lead defendant and a regular presence at the weekly protests since their origins in 2003, told JTA that his group (identified in court documents as “Jewish Witnesses for Peace”) was “grateful” for the ruling, saying, “Freedom of expression is the bedrock principle of a democracy.”
Earlier this year, the Ann Arbor City Council issued a formal resolution condemning the protests as antisemitic. The protesters, who claim they are opposed to Israeli policy, have held signs with messages including “Jewish Power Corrupts” and “Resist Jewish Power.”