Plaintiffs petition

Holocaust survivor’s estate appeals court order for payout to antisemitic picketers

The high court previously declined to take up two cases seeking to restrict an antisemitic group that has picketed an Ann Arbor, Mich., synagogue for decades

Elliot Sorkin

The main entrance to Beth Israel Congregation in Ann Arbor, Mich.

A lawyer representing a Holocaust survivor is asking the Supreme Court to consider overturning a lower court decision holding his client’s estate liable for a significant payout to antisemites who have picketed a Michigan synagogue for years.

An antisemitic group, including Holocaust deniers, has picketed the Beth Israel Congregation in Ann Arbor, Mich., for nearly two decades during Shabbat services. Two congregants who attended services at two different congregations at the site, Miriam Brysk — a Holocaust survivor who has since died — and Marvin Gerber, sued the group and its leader in federal court in 2019. They sought an injunction to limit when the picketers could demonstrate, arguing that their religious liberty was being violated, but were unsuccessful. 

Both plaintiffs separately petitioned the Supreme Court last year to take up the case, but the court declined to do so, without requesting a response from the defendants.

A district court ordered the plaintiffs to pay $159,000 in attorneys’ fees to the respondents, including the picketers, which was upheld by the Sixth Circuit Court of Appeals. Marc Susselman, the attorney who initially represented both plaintiffs and has continued to represent Brysk, is again petitioning the Supreme Court, asking it to review the penalty in this case. The court will evaluate the petition in September, Susselman told Jewish Insider.

Susselman has accused the district court judge — who deemed the case frivolous and assigned attorneys’ fees — of being antisemitic or anti-Israel.

“How do you explain the judge ruling that the Jewish complainers’ emotional distress is not a concrete injury?” Susselman told JI.

He argued that the court’s decision to assign attorneys’ fees to the plaintiffs in this case is clearly out of step with precedent and the intent of the law, which “encourage[s] attorneys to file lawsuits to protect civil rights and constitutional rights of petitioners, even if they lose.” 

Susselman said he believes that the Supreme Court’s decision not to take up the Brysk or Gerber cases last year is not necessarily indicative of how they’ll approach the new petition.

“This issue of whether the lawsuit was frivolous is a separate issue as to whether we were entitled to an injunction,” he said. “It affects anybody who wants to seek relief against protests in front of houses of worship.”

Nathan Lewin, a longtime constitutional attorney who took over Gerber’s case, filed an amicus brief in the case on behalf of the National Jewish Commission on Law and Public Affairs and a number of Orthodox Jewish groups including Agudath Israel of America, Agudas Harabbonim, Coalition for Jewish Values, Orthodox Jewish Chamber of Commerce, Rabbinical Alliance of America, Rabbinical Council of America, Torah Umesorah and the Orthodox Union.

“It’s pretty clear that a plaintiff in a civil rights case is entitled to proceed with this case, unless it’s totally frivolous or vexatious,” Lewin told JI. “This was not frivolous or vexatious, this was, frankly, I thought, a very proper and correct complaint.”

He argued that the similar threat of sanctions would have deterred plaintiffs, such as those in the case that overturned affirmative action at the end of the last Supreme Court term, from filing what became landmark cases.

“People bring civil rights cases frequently to get new doctrines adopted by the courts,” Lewin said. “This is such a deterrent to bringing a really either new or different case that it will scare off the clients and the lawyers. That’s not what should be done in terms of our system.”

He also urged the court to require the respondents to respond to the petition in this case — a step that the court did not take before rejecting the previous petitions in the Brysk and Gerber cases.

Lewin said he’s hopeful that the Jewish community will step up to support this case.

“It’s unfortunate that it has been ignored from the time that the district judge issued the original opinion,” he said. “I would hope that there would be substantial public attention given to it by organizations that protect religious rights, by organizations that protect civil liberties, by the Jewish community.”

Subscribe now to
the Daily Kickoff

The politics and business news you need to stay up to date, delivered each morning in a must-read newsletter.