Congregation Kol Ami asks en banc rehearing by Third Circuit

Oct 31, 2002

Congregation Kol Ami, a Jewish congregation seeking the right to continue using a former Catholic convent and 250-seat chapel as a place of worship, has asked the full Third U.S. Circuit Court of Appeals to rehear its case en banc .

Two weeks ago, a three-judge panel of the court vacated a district court decision finding that Abington Township, Pennsylvania had violated the Congregation's Equal Protection rights. The panel directed U.S. District Court Judge Clarence Newcomer to apply "a novel equal protection analysis that calls for a threshold assessment of 'similarity of uses' prior to any discussion of governmental interest," according to the petition filed with the appeals court (PDF format, 65K) by Kol Ami's attorneys. The full Third Circuit "should vacate the opinion of the Panel to avoid a conflict" with Supreme Court precedent, the brief states.

The rehearing petition also warns that "the Panel opinion would discard over fifty years of settled federal due process precedent prohibiting local governments from banning houses of worship in all residential zones in a jurisdiction." The panel considered only weak arguments "that the Congregation did not make," ignoring the Congregation's actual argument, "that Abington's ordinance was facially invalid because it banned houses of worship in all residential zones in the Township." The panel similarly "ignored the brief amicus curiae of the Commonwealth of Pennsylvania on this same question," the petition notes.

Not only is the panel's decision at odds with U.S. Supreme Court precedent, it also "calls directly into question the long-standing, federal constitutional rulings of the Supreme Courts of at least five states, as well as one very recent decision of the U.S. Court of Appeals for the First Circuit," the petition points out.

Congregation Kol Ami is represented by The Becket Fund for Religious Liberty and by attorneys Jonathan Auerbach and Jerome Marcus of the firm of Berger & Montague, and Peter Friedman of Jaffe, Friedman, Schuman, Sciolla, Nemeroff & Applebaum.

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