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BOSTON (AP) — Appeals court judges deciding the fate of the nation's oldest synagogue seemed skeptical Wednesday about a lower court's decision to put control of the building and a set of bells worth millions of dollars in the hands of the congregation that worships there.
The nation's oldest Jewish congregation, Shearith Israel in New York, appealed last year's ruling removing it as trustee of the 250-year-old Touro Synagogue in Newport, Rhode Island. A judge on the U.S. District Court in Providence, Rhode Island, had rejected the New York congregation's arguments that it was the rightful owner of the synagogue and the silver Colonial-era bells, called rimonim (rih-moh-NEEM'), which are valued at $7.4 million.
A three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston on Wednesday steered clear of wading into that history, which had been a focus of the trial and of last year's decision.
"You keep going back to history, but we're dubious it has anything to do with this case," Judge Sandra Lynch told Gary Naftalis, a lawyer for the Newport congregation, Jeshuat Israel.
She referred to agreements the sides made in the 20th century, including a settlement that followed an earlier lawsuit and struggle for control of Touro. In settling it, the Newport congregation signed a lease in 1903 to rent Touro from Congregation Shearith Israel for $1 per year.
A 1945 agreement among both sides and the U.S. government described the New York congregation as owner and "lessor" and the Newport congregation as "lessee."
Naftalis said that in the past 20 years, the Newport congregation has made just one payment of $1 to New York, and argued that the lease does not include the bells. During the trial, he argued that the New York congregation had abandoned its duty as trustee to care for the synagogue.
"Why are they not, in effect, superseding documents?" asked retired U.S. Supreme Court Justice David Souter, who occasionally sits as a judge on the court.
"In no way, most respectfully, Justice Souter, do they supersede anything," Naftalis replied. "You can't lease or sell what you don't own."
Some of the arguments centered on whether the rimonim, a set of two bells that adorn a Torah scroll, were a part of the "paraphernalia" of the Touro synagogue, language contained in the lease. Lou Solomon, a lawyer for the New York congregation, argued they are "intimate parts" of the synagogue.
But Naftalis argued that term referred to building fixtures, not personal property, and said the rimonim have not been on the premises of the synagogue for years. They are on display at the Museum of Fine Arts in Boston.
Touro Synagogue holds an important place in the history of the nation's commitment to religious liberty. In 1790, George Washington visited Touro, then sent its congregants a letter saying the government of the United States "gives to bigotry no sanction, to persecution no assistance." The synagogue, dedicated in 1763, is a national historic site that draws tens of thousands of visitors every year.
By 1820, all the Jews had left Newport, and Congregation Shearith Israel became trustee of Touro. It was reopened later that century as Jews began to move back to the city.
The dispute began when the Newport congregation, struggling with money, came up with a plan establish an endowment by selling the rimonim to the Museum of Fine Arts. The New York congregation objected, and has argued that the sale would violate religious law and would be akin to selling a "birthright."
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