Politicians, legal scholars and journalists are poring over the legal and judicial history of Judge Brett Kavanaugh, President Donald Trump’s pick for the U.S. Supreme Court ahead of an expected confirmation battle.
Tucked away in his record is a case that made the construction of a Maryland synagogue possible, which is also considered influential in facilitating the ability to establish religious communities in areas zoned for residential housing.
During a stint in private practice at the law firm of Kirkland & Ellis LLP in the 1990s, Kavanaugh, now 53, worked pro bono on a legal team representing the Reconstructionist congregation of Adat Shalom in its quest to establish a permanent home in the D.C. suburb of Bethesda.
“Synagogue Plan Divides Neighborhood” trumpeted the headline in the Washington Post in 1996, which told the story of a vigorous effort by neighbors to stop the construction of the synagogue in a residential neighborhood, worrying that it might decrease property values and “ruin the character” of what they described as a “huge project.”
The Post described the conflict as being “the crux of a countywide debate over whether zoning regulations are strict enough for religious institutions in residential areas.”
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Jay Lefkowitz, a Kirkland & Ellis attorney who worked with Kavanaugh on the Adat Shalom case, and has since argued before Kavanaugh on the D.C. Circuit, calls his former colleague “smart, sensitive, one of the hardest workers I know and has a great judicial temperament.” He is always “incredibly well-prepared” for every case, adds Lefkowitz.
Like Kavanaugh, Lefkowitz is a Republican who has moved between law and politics, and served both Bush Sr. and Jr. in the White House.
By contrast, most of the members of Adat Shalom – located in the heart of the deep-blue, liberal Democratic Maryland suburbs – included committed liberal Democrats like Matt Nosanchuk. The latter was the point man on the case and would later become President Barack Obama’s liaison to the Jewish community and associate director of the White House Office of Public Engagement.
“Our congregation found a site that was extremely conducive to building our synagogue and we needed representation because, after we had already bought the land, we faced a legal challenge from some nearby homeowners. They argued that the county’s zoning law permitting the synagogue to be built in a residential area violated the Establishment Clause of the U.S. Constitution,” Nosanchuk tells Haaretz.
“However, because the same zoning law applied to a range of other facilities – including, for example, libraries, museums, adult foster care homes, farmers markets and fire stations – the county was not extending any special preference to us as a house of worship,” he recalls. “Supporting a synagogue’s ability to be treated like any other comparable institution, and allowing our congregation to build according to the requirements of the law, was not a close call as a matter of constitutional law. Jay and Brett, both well-known and skilled constitutional law experts, along with others at their firm, ably and successfully represented us,” he adds.
Despite any other political differences, this case “was an instance in which our interests were very much aligned with theirs,” continues Nosanchuk. “We had a legally justified position that supported building our synagogue on the land that we bought, and they felt comfortable advocating for us.”
The land where Adat Shalom wanted to build its synagogue was a large lot that had previously held a single family house, located next to a Presbyterian church. Adat Shalom, which had been meeting in a local community center until then, planned to build a sanctuary, auditorium, social hall, kitchen, day care, offices, classrooms and a parking lot for 150 cars on the land.
The zoning laws of the county allowed for religious institutions to be constructed in areas zoned for single-family housing, along with other types of institutions deemed compatible for improving residential life – including libraries and day care centers – as long as they met certain guidelines.
When the congregation broke ground for construction in 1999, a group of “concerned citizens” filed suit in the local district court. They argued that the county zoning ordinance that designated “churches, memorial gardens, convents, monasteries and other places of worship” among “permitted uses” within areas zoned for single-family residential use was unconstitutional. Their claim was that an ordinance that allowed religious institutions to bypass the process requiring special approval violated the Constitution’s Establishment Clause which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise.” The ordinance, they claimed, was “endorsing religion.”
In February 2000, the case was quickly resolved in the congregation’s favor.
Kavanaugh and the team of attorneys representing the synagogue successfully convinced the judge that because other residential-family uses were included in the same category as churches, the accusations against the ordinance as unfairly benefiting religion didn’t hold up.
“A reasonable legislator would likely view libraries, museums, adult foster care homes, family day care homes, publicly supported ambulance and rescue squads, publicly supported fire stations, publicly owned parks and playgrounds, private swimming pools, farm markets, and noncommercial kennels as compatible with single family residential areas. All such uses offer services or amenities that people often want close to their homes, their families and their domestic pets. It is certainly also reasonable to presume that ‘churches ... and other places of worship’ properly belong among this category of uses as wholly compatible with single family home life,” wrote then-District Court Judge Andre M. Davis in his decision. “Because the Ordinance has a valid secular purpose and achieves genuine neutrality toward religion, it does not violate the Establishment Clause of the First Amendment.”
At the time, the victory was hailed as being “not only for our synagogue but for religious freedom,” as the synagogue’s spokesman, Bob Barkin, said at the time.
Nosanchuk says the story had a happy ending: “Since the early 2000s, Adat Shalom has had a spiritual home that has stood in harmony with our neighbors.”
And what of Kavanaugh? Like many Democratic Beltway denizens, Nosanchuk appears to weigh his words carefully, balancing positive personal feelings for the Supreme Court nominee with the deeply divisive fight that is brewing ahead of his confirmation.
“In Washington, professional collaborations and personal relationships sometimes exist despite significant political or philosophical differences. In my experience, that has been the case with Brett,” says Nosanchuk.