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Court to Hear Chabad's 10-Year Plea for Fairness

(Becket)

A Jewish congregation in Florida, which for 10 years has been trying to build a new house of worship, is going to court next week to defend itself against a lawsuit that seeks to discriminate against houses of worship (watch this video about the Chabad's experience).

In Gagliardi v. The City of Boca Raton, Florida, two landowners opposed to the Chabad of East Boca Raton claim that the city "established a religion" by granting equal access for houses of worship, including synagogues, to be built in business districts.

But equal access is required by federal law, and the landowners have already lost twice at the federal district court. They continue to delay by appealing to the U.S. Court of Appeals for the Eleventh Circuit, which will hear the case on Wednesday, Jan. 31. Last year, national and international groups and local leaders filed friend-of-the-court briefs in support of the Chabad's right to equal treatment.

Searching for a House of Worship

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The Chabad of East Boca is an Orthodox Jewish synagogue in Florida that provides religious worship, outreach and educational services. Like many other faith groups, it needed a house of worship for its congregation. After searching for years, the Chabad finally found the ideal location, took all the necessary steps to build, and—after a long series of public meetings—received unanimous city council approval to move forward. The approval came under a 2008 zoning law that gave all houses of worship equal rights to build.

But a small opposition group, led by a New York attorney, sued in federal court to stop the synagogue from being built. The lawsuit makes the bizarre claim that allowing a house of worship equal access to build on private land violates the Constitution's Establishment Clause. The Chabad beat the lawsuit twice in lower courts, but is still fighting on appeal to protect its right to exist.

A Decade of Opposition

In 2007, the Chabad began encountering hostile, well-organized and well-financed opposition to its construction plans. And after the building was unanimously approved in 2015, two landowners hired a New York attorney—notorious for her opposition to religious civil rights laws—and filed a lawsuit in federal court to prevent construction.

The small group openly admitted that some of the opposition to the Chabad was driven by anti-Semitism. But they claimed that allowing the synagogue to be built discriminated against them as Christians—even though the 2008 city ordinance they challenged granted equal access for all faith groups, local Christian congregations supported the synagogue and they had never been prevented from building a church. They also implausibly claimed that building the two-story synagogue would cause "inevitable" floods and prevent emergency vehicles from accessing the area—even though the area is already surrounded by 22-story condos and several strip malls.

In addition to the opposition to its building, the Chabad has also suffered a string of attacks in the last few years.

A teenage member of the synagogue was physically assaulted on a public sidewalk and told to "go back to Auschwitz." The ministry's temporary home has been vandalized repeatedly: its glass mezuzahs containing sacred Scripture were destroyed and stolen, and a glass synagogue door was smashed.

But the Chabad persevered and eventually prevailed.

Winning the Right to Build

The Chabad twice urged a federal court to reject the lawsuit, and it won both times, first in July 2016 and then again in March 2017. The court went so far as to find that the plaintiffs "fail[ed] to allege any injury at all." But in April 2017, the plaintiffs prolonged the case by appealing to the U.S. Court of Appeals for the Eleventh Circuit, which will hear oral argument in January 2018.

"It is encouraging to know that so many in our community and our nation support us and want to welcome us with open arms. We are hopeful that soon we will be free to live and worship side by side with our neighbors and friends here in East Boca Raton," said Rabbi Ruvi New, head of the Chabad of East Boca Raton.

The brief from leading national and international Jewish groups and signed by noted Harvard Law Professor Alan Dershowitz called out the "the virulent and ugly opposition the Chabad has encountered over the past few years" and encouraged the court to fully enforce existing "constitutional and statutory safeguards to ensure minority religious groups are given equal property and land use rights."

Another brief, led by Jews for Religious Liberty and joined by several rabbis, stated that accepting "the Plaintiffs' argument would turn religious believers into second–class citizens" and would "prevent governmental actors from doing things like providing chaplains or kosher food to Jews in prison or in the military."

And the brief by the former mayor, former House majority leader, a local Episcopal priest, and several other local community leaders said that allowing the Chabad to build its synagogue would "serve as a potent symbol of religious equality" in Boca Raton, where the Chabad has been a "valuable organization ... for over 15 years."

"It's a shame that a small opposing group has been hiding behind ugly legal claims to stall the synagogue's right to build," said Daniel Blomberg, counsel at Becket, which represents the Chabad of East Boca Raton. "The misguided legal attack on the Chabad is ultimately a threat to every religious group. And today, many of those other religious groups started pushing back."

The Chabad of East Boca is represented by Becket and Kirkland & Ellis.

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