Give Alex Acosta credit — he came to the rescue of a tiny South Florida synagogue | Opinion

Labor Secretary Acosta resigns amid Epstein plea deal controversy

U.S. Labor Secretary Alexander Acosta has resigned, effective on July 19, 2019. His resignation follows controversy over his involvement in a plea deal for sex offender Jeffrey Epstein in 2008.
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U.S. Labor Secretary Alexander Acosta has resigned, effective on July 19, 2019. His resignation follows controversy over his involvement in a plea deal for sex offender Jeffrey Epstein in 2008.

Alex Acosta resigned as secretary of Labor because, as U.S. attorney in Miami in 2008, he was too lenient with a hyper-wealthy man who sexually abused teenage girls. I met Acosta once in my life — in a federal courthouse in Miami in 2004 — when he flew from Washington, D.C., to join in rescuing Young Israel of Bal Harbour, a synagogue that then was a struggling congregation of 91 members. Less than five months earlier, Acosta had begun as assistant attorney general for the Civil Rights Division of the Department of Justice.

Young Israel of Bal Harbour is not in Bal Harbour, Florida. It is on the farthest northern block of Surfside next door. In 2000, the founders of the Orthodox congregation merged with Medrash Sephardi, a congregation that had leased the second floor of the Amtrust bank building that is on the border. During a visit to Miami, I prayed at the second-floor Young Israel and learned of the legal difficulties being inflicted on it by the town of Surfside.

The town said that the synagogue had to close. Surfside’s zoning code did not authorize houses of worship on the second floor of buildings in its business district, although “private clubs” could meet there. Surfside asked a Florida court to shut the synagogue and impose $1,000-a-day fines for its illegal operation. A hostile federal magistrate-judge consistently ruled for Surfside.

In September 2000, Congress had enacted the “Religious Land Use and Institutionalized Persons Act” — RLUIPA — which gives federal rights to churches and synagogues if local zoning officials interfere in a discriminatory manner with religious exercise. Young Israel added a RLUIPA federal claim to its lawsuit in federal court, but the judge rejected it. He ruled that it was legal for Surfside to close the congregation and collect accumulated fines.

I agreed to be the synagogue’s lawyer on appeal. Surfside’s zoning code, I argued, discriminated against religious institutions. While forbidding churches and synagogues, it allowed private clubs, lodge halls, dance studios and art galleries on the second floor of buildings in its business district. The U.S. Court of Appeals for the 11th Circuit stayed the judge’s order, meaning the synagogue could continue. Oral argument of the appeal was set for Jan. 13, 2004, in Miami.

The participants in sessions before the magistrate judge were only me as Young Israel’s lawyer, Simon Schwartz, the Midrash Sephardi attorney, and Surfside’s aggressive lawyers. I had no expectation that the U.S. Department of Justice had any interest in the fate of a tiny Orthodox Jewish congregation in Florida.

About one week before the oral argument, the Department of Justice’s Civil Rights Division (where I had served as a deputy assistant attorney general 35 years earlier) intervened in the lawsuit and filed a 37-page brief supporting the constitutionality of RLUIPA. I assumed the brief was filed just to go on public record.

When I showed up to argue the appeal on Jan. 13, the court clerk informed me, with obvious awe, that an assistant attorney general would be coming to court personally. The court had assigned him extra time to argue on our side. In strode Alex Acosta — whom I had never met or spoken with — to make a stirring presentation. I later learned that he had clerked for Judge (now Justice) Samuel Alito when Alito was a judge on the Court of Appeals. In less than two years as assistant attorney general before becoming U.S. Attorney in Miami, Acosta initiated a a number of civil-rights protections for religious liberty.

We won the case that Acosta and I argued together. The court of appeals ruled that Surfside’s zoning laws could not, under RLUIPA, legally exclude synagogues from spaces where private clubs were permitted. The enormous fines that Surfside sought were cancelled.

Young Israel of Bal Harbour continued on the second floor of the bank building for a short while thereafter. It then purchased a neighboring property where — after bitter legal disputes with Surfside authorities in which I again represented the congregation — it has built a magnificent synagogue.

Alex Acosta deserves credit.

Nathan Lewin is a Washington lawyer who has argued 28 cases in the Supreme Court including several high-profile religious liberty cases. He is on the adjunct faculty of Columbia Law School where he teaches Supreme Court litigation.