Uneasy Lie the Crowns

Written by Joshua Z. Rokach on . Posted in Capital Commentary

A new column focusing on court decisions, legislation, and other public policy news related to Jewish community and practice in America.

Last month in Boston, the United States Court of Appeals for the First Circuit handed down a decision in a dispute between two Jewish congregations over the ownership of some very special klei kodesh (ritual objects). Both the parties and the property involved — a set of 18th-century Torah crowns — boast of a lineage older than the United States itself.

Congregation Shearith Israel, a Sephardic synagogue in New York, was established in lower Manhattan in 1654. Rhode Island’s Touro Synagogue owes its fame to an exchange of letters between its trustees and George Washington, in which Washington reaffirmed our nation’s commitment to religious tolerance. The renowned colonial silversmith, Myer Myers, designed the silver crowns in question for Touro Synagogue in the 1760s, where they decorated the wooden shafts of Torah scrolls as they stood in the Ark.

The fortunes of Touro Synagogue declined as Jews left Newport. Eventually, Shearith Israel purchased the premises and leased it, most recently to Congregation Jeshuat Israel. To raise money, Jeshuat Israel tried to sell the two 18th-century crowns to the Museum of Fine Arts in Boston for more than seven million dollars. Shearith Israel objected, claiming it owned the ritual objects within Touro, not just the real estate. The plaintiff also argued that although Jeshuat Israel follows Ashkenazic tradition in its services, Shearith Israel’s Sephardic rules governed the sale of congregational property. Sephardic custom forbids selling the crowns, Shearith Israel asserted.

Jeshuat Israel denied that Shearith Israel owned the ritual objects within Touro Synagogue. Even if the New Yorkers did own the movable property, Shearith Israel had agreed to act as a trustee for the benefit of the resident congregation in Rhode Island. A trustee owes a duty to act for the benefit of its fiduciary. Jeshuat Israel needed the money for an endowment and to pay its expenses, including the rabbi’s salary, so Shearith Israel had to consent to the sale.

Because the parties resided in different states, the case went to federal court in Rhode Island. The district judge ruled in favor of the sale. He found that Shearith Israel stood as a trustee of Touro Synagogue, not its owner. Furthermore, he ruled that, in the course of over a century, Shearith Israel neglected its duties. The judge revoked the “trust” and placed Jeshuat Israel in charge. Shearith Israel had no veto. The court of appeals unanimously reversed the district court.

In his written opinion for the three-judge panel, retired Supreme Court Justice David H. Souter emphasized the limited role of courts in deciding property disputes between religious organizations. Souter explained:

“[T]he Supreme Court has established a regime of limits on judicial involvement in adjudicating disputes between religious entities situated like the parties before us, when competing property claims reflect doctrinal cleavages. [The doctrine] is aimed at avoiding, or at least minimizing, the twin risks [of] compromising the degree of religious autonomy [and putting the government] in the position of seeming to endorse the religious positions of the winners ...”

The court thereby skirted the question of whether the halacha permits the sale of the crowns to the museum. Interpreting the lease documents as they would in any secular context solves the dispute here, Justice Souter said. He found no indication that the parties envisioned anything but straightforward landlord-tenant relationship. Admittedly, the Shearith Israel representatives signed one document as “trustees,” but that signified their office within their congregation, not their relationship to Jeshuat Israel. The record also contained a handwritten addition of the word “appurtenance” to the list of what Shearith Israel owned in Touro Synagogue. Relying on old dictionaries, Justice Souter held that the word included all kinds of movable property, including religious objects.

In short, the court found that Jeshuat Israel overstepped its rights, and Shearith Israel came out victorious.

By Joshua Z. Rokach

 Joshua Z. Rokach is a retired attorney and a graduate of Yale Law School.