The Supreme Court, on holiday today, returns to the bench tomorrow for a hearing on a familiar topic: claims of government discrimination against religious groups. In a second hearing Tuesday, it will be dealing with another recurring topic: who owns famous art objects seized by the Nazis during the Holocaust?
“Live” audio (no video) of both of the hearings will be broadcast at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt ae well as at C-Span Now App. Each hearing is scheduled for 70 minutes.
First case: Shurtleff v. City of Boston. Starting at 10 a.m.
Background: The Constitution’s First Amendment and its mandate that government and religion be kept separate (though not rigidly so) has occupied a good deal of the Supreme Court’s time for the past eight decades. Of course, that Amendment has existed for 230 years, but the Court’s most frequent focus on it began in 1940.
That year, the Court decided the case of Cantwell v. Connecticut, involving soliciting on residential streets by Jehovah’s Witnesses. For the first time, the Court ruled that the Amendment’s guarantees of religious freedom apply to state and local governments’ actions, too. Before that, the protections only restrained actions by the federal government.
Since 1940, the Court has spent far more time on challenges to state and local laws, rather than federal laws, that are claimed to intrude on religious freedom.
One fundamental meaning of the Constitution’s religion clauses is that government must remain neutral toward religion, neither favoring it nor inhibiting it – including the rule that it generally cannot discriminate against a group solely because it is religious. Claims of bias can arise in a number of settings, but a fairly common one is religious groups that seek access to government property (such as school classrooms or the grounds of city or state buildings).
When a government excludes a form of religious messaging from occurring on public property, it usually does so to avoid being seen as endorsing the religious content or symbolism. That is an argument about obeying the First Amendment clause barring government “establishment of religion.” Messages displayed on public grounds, it is argued, mean the government itself is speaking.
Countering that argument, religious groups denied equal access make these claims: that their free-speech rights under the First Amendment have been violated, that public grounds open to some messages must be open to all as “public forums,” that they have been denied equality, and that displays of religious messages do not constitute endorsement of religion.
In the case being heard Tuesday, a religious organization named “Camp Constitution” lost on all of those arguments in the lower federal courts when it challenged the city government of Boston’s refusal to let it fly its flag with a Christian message on a flag pole in front of City Hall.
Camp Constitution is a private organization that seeks to educate the public about America’s “Judeo-Christian moral heritage.” It wanted to raise a “Christian flag” on a city flagpole as part of the promotion of contributions to city life by Boston’s Christian community. The city refused, claiming that this would amount to an endorsement of religion.
For several years, the city has allowed various organizations to fly their flags on one of three flagpoles in City Hall Plaza, usually in connection with civic events. Over a 12-year period, it approved such displays 284 times; none of those involved a flag with a religious theme.
Camp Constitution appealed its case to the Supreme Court. It has the support of the U.S. Justice Department, which argues that opening a government facility or structure to a wide range of private messages makes it a public forum, so the messages do not amount to government speech. The Department adds that there are many ways government can allow private messages on its property without seeming to endorse what is said.
The questions before the Court? Does it violate the First Amendment if a city refuses to allow religious groups an equal opportunity to display their messages on public property, when others are freely allowed to do so? How does the Court define a “public forum”?
Significance: It is now clear that the Court’s new conservative majority of six Justices is embarked on a major project to expand religious freedom under the Constitution. This case is the second one on that topic being reviewed this term; on December 8, it heard and now is deliberating over a dispute in which parochial schools might well win the right to use state scholarship funds to pay for religious instruction. Last week, the Court agreed to decide whether a football coach at a public high school has a right to pray with the players.
In earlier decisions, the Court ruled that parochial schools cannot be denied access to state scholarship funds solely because they were religiously affiliated, that those schools must have equal access to state-funded programs to improve school playground facilities, and that anti-discrimination laws do not apply to hiring and firing of parochial school teachers. Several times during the Covid 19 pandemic, the Court has given churches and synagogues special exemptions from government restrictions on group gatherings.
In all of those cases, the Court’s focus was on the “Free Exercise Clause” of the First Amendment – that is, constitutional protection against unequal treatment of groups because they were religious. That clause has been interpreted more expansively than in the past.
One consequence of bolstering the promise of “free exercise” of faith practices is to narrow the scope of the First Amendment’s other clause on religion – that is, the one that forbids government from “establishing a religion.” The more that public funds or public programs reach religious bodies, the greater the risk of seeming to embrace their religious missions.
That was the risk that Boston city officials cited in refusing to allow the flying of flags with explicit religious themes on one of the poles in front of City Hall. Camp Constitution is seeking explicitly to have the Court narrow that risk, and it has the Justice Department’s support.
Second case on Tuesday: Cassirer v. Thyssen-Bornemisza Foundation. Hearing will start at about 11:30 a.m.
Background: American courts have often been drawn into disputes, sometimes continuing for decades, over who owns pieces of valuable art that the Nazis stole during the Holocaust – often from Jewish collectors. One historian has estimated that the Nazis seized more than 3 million works, partly to remove objects with themes that conflicted with the party ideology, partly to amass private collections for party leaders. Many of those objects have since wound up in other countries’ museums, including those run by their governments.
As history has turned out, some descendants from families who lost art objects to the Nazis now live in the United States, and a number of them have sued to try to regain possession, and the Supreme Court has been actively engaged in that process over the years.
How is it, though, that courts in the U.S. have any authority to decide ownership issues when the confiscation took place overseas and the items are now held by foreign government agencies? The answer is the Foreign Sovereign Immunities Act, passed by Congress in 1976.
As a general rule of international law, each nation as a sovereign entity is entitled to immunity in the courts of other nations, as a matter of “comity.” In the U.S., the Supreme Court first embraced that idea in an 1812 decision, barring a private Baltimore company from suing France over ownership of the Schooner Exchange, seized at sea by the forces of Emperor Napoleon.
Until 1976, U.S. courts relied on the State Department to advise them on when a foreign entity was immune to a lawsuit. Global politics often influenced those decisions, and the State Department was sometimes embarrassed to give such advice, so Congress passed FSIA.
Under FSIA, a foreign government remains immune in U.S. courts for actions that their government or its agencies have taken within their own borders, but only if the activity is governmental and not, for example, commercial. The Act withdraws immunity in several other situations; the exception that led to the case being heard Tuesday allows a foreign government to be sued for seizing property in violation of international law from citizens of another country.
The new case focuses on ownership of a painting created in 1897 by a famous French impressionist, Camille Pissarro. Typical of his work, this is a study of the effect of light on color in a pastoral scene. It is titled (in English) Rue Saint-Honore, Afternoon, Rain Effect. It is now in a museum run by the government of Spain in the Villahermosa Palace in Madrid.
In the 1930s, the painting was owned by a German woman, Lilly Cassirer Neubauer. Her family had bought it in 1900. In 1939, she lost her German citizenship because she was Jewish. She decided then to leave Germany to escape the intensifying Nazi persecution. As a condition for leaving, she had to transfer the painting to a Nazi art appraiser, in return for a sum equal to $360, which she never received. The painting is worth vastly more than that.
The painting went through several different hands, winding up in the 1990s with a prominent private collector in Switzerland, Baron Hans Heinrich Thyssen-Bornemisza. The Baron was a member of the family owning Thyssenkrupp Steel, still one of Germany’s largest steel manufacturers. The Baron sold his art collection to the government of Spain in 1993.
The descendants of Lilly Cassirer Neubauer, living in America, had long thought that the painting had been lost or destroyed, but learned in 2000 that it was in the museum in Madrid. The Spanish government refused to hand it over, relying on a legal doctrine in Spain recognizing “adverse possession”— gaining ownership by open, prolonged and uninterrupted possession of property that someone else had owned.
The family sued the museum in 2005 in federal court, relying upon their property rights under California state law, which denies ownership of stolen property. They claimed, under the 1976 FSIA law, that the painting was illegally stolen and thus the Spain government lost its immunity to this lawsuit and the museum had no legal right to keep it. Their case has unfolded in federal courts over more than 16 years, and had been to the Supreme Court twice before.
This time, the lower courts ruled that, under FSIA, the issue of current ownership had to be decided under federal “common law” – a body of legal norms or conventions not spelled out in specific statutes. Applying those principles, the lower courts found that they endorsed Spain’s adverse possession theory, rather than California state law. That defeated the family’s claim, so they appealed to the Supreme Court.
The key to their appeal is that FSIA says that, once a foreign government entity has lost its legal immunity, a U.S. court is to treat it just like any private litigant. And that provision means, the appeal argued, that when someone claims state laws have been violated by a foreign government, state laws must control the remedies – such as awarding ownership of property.
That issue has divided federal appeals courts, and the Justice Department entered the case in the Supreme Court to support the family claim and the principle that state law should prevail.
The question before the Court: Under the FSIA law, when a foreign nation has lost its immunity to being sued in U.S. courts, is the ownership of disputed property that it holds to be settled under state laws or federal “common law”?
Significance: As the Justice Department told the Court, “the question presented is a straightforward issue of law.” That is, the Justices need only decide whether FSIA dictates that state law controls in situations like this one. That will not require the Court to decide the ultimate question of who owns the Pissarro painting, but only which legal standard controls.
Even so, the case does involve larger implications for the Court, because lawyers who practice in the FSIA field are increasingly energetic in pursuing claims against foreign governments, and the Justices have sometimes worried that the process may be going too far. Illustrating how FSIA lawyers use that law, there is now a wave of such lawsuits against China, seeking compensation for the costs of the Covid-19 pandemic on the theory that China is to blame.
The Court will conclude its January hearings on Wednesday. They involve a campaign financing case involving Texas Republican Senator Ted Cruz, along with a separate case on racial issues in criminal sentencing. Discussions of each will appear in this space.