  
First Things
The Church-State Game:
A Symposium on Kiryas Joel
Copyright
(c) 1994 First Things 47 (November 1994): 36-42.
On June 27, 1994, the U.S. Supreme Court handed down its decision
in the case of Kiryas Joel v. Grumet. The Court ruled that the New York
State legislature had acted unconstitutionally in establishing a school
district specifically to meet the needs of members of the Satmar Hasidic
Jewish sect. Because of the importance of the decision for church-state
jurisprudence, the editors asked four experts on the subject to offer their
opinions on the case.
Symposium Participants
Reading the Supreme Court's opinion in the Kiryas Joel case caused
me suddenly to think of Americans' love of sports. Baseball, football,
golf, tennis, basketball, soccer-all fascinate us, and they are all, in
a sense, absurd. The essence of a sport is to confine physical activity
within artificial limitations of time and space. Golfers, pitchers, nose
guards, and teams must observe the complex of limitations that define the
game. And that is where the absurdity comes in.
That big fellow who failed to touch his foot against third as he rounded
the bases is "out," by the rules. The simple observer may ask:
"Why? He knocked the ball out of the park; so what if he didn't step
on one base?" The golfer whose ball lands in the drink must drop it
(not place it) in an inches-wide spot of turf before being allowed
to drive it toward the hole. And if the point is really to get it there,
why can't he just grab it and heave it at the green? Because the rules,
however arbitrary, are the game.
What has all this to do with Kiryas Joel?
For about half a century, the Supreme Court has been at work making
a game out of the Constitution's Establishment Clause. This it has accomplished
through a constant process of inventing ideas and trotting those
forth as authoritative "interpretations" of the original constitutional
text. These artifices become the rules of the game. In 1947 the Court read
into the Establishment Clause the phrase "wall of separation between
church and state," and held the "wall" to bar all governmental
aid to religion. The phrase was lifted out of context from a letter written
by Thomas Jefferson; its appropriation by the Court to apply to the Constitution
was contrary to historical evidence. Once the "high and impregnable"
wall was installed, the Court was free to confront religious liberty with
notions for heightening the wall. In 1963 the Court, in the Schempp
case, voiding Bible-reading in the public schools, held that the Establishment
Clause is violated by any governmental action having a "primary effect
advancing religion." This, too, was out of whole cloth. In 1971, in
the Lemon case, the Court told the nation that the Clause also barred
"excessive entanglements" between religion and the state-again,
brand-new, home- made doctrine. The "entanglement" concept had
never appeared in any writings of the Constitution's framers, nor even
in any prior Supreme Court opinion. It is not surprising that, as the inventions
multiplied, the Court would propagate variations of the inventions themselves.
So in 1985 the Court took its "primary effect advancing religion"
idea and held that a "primary effect" could consist of governmental
actions that create a "symbolic union" of government and religion.
By the open-ended phrasing of these constitutional add-ons, the justices
have provided themselves blank checks that they can fill in according to
their personal biases. But in Establishment Clause litigation, it is those
add-ons, the inventions, that counsel in litigations must deal with. They
now constitute the game. For the sake of your client, you must present
your case as though the inventions are for real, as though they are constitutional
law, as though "symbolic union" is not nonsense, as though "primary
effect" is not up-for-grabs vagary. Since I am not now in Washington
about to present argument before the Court, but am instead up here in the
fresh, rational atmosphere of First Things, let me describe for you Kiryas
Joel as it was played, with particular attention to the niceties of
the game.
The case, on its facts, was a simple affair. Under a New York statute,
Satmars (members of a Hasidic religious group) had been enabled to establish
a religiously exclusive municipality; under a subsequent statute (Chapter
748, 1989), that municipality had been constituted a public school district.
Disabled children of Satmars needed special education services and were
entitled by federal and state law to have them provided by public teachers.
These children, for religious and psychological reasons, needed to receive
those services on the familiar premises of their religious village. But
the 1985 decision of the Supreme Court in the Aguilar case had barred
public teachers from serving on religious premises. Chapter 748 addressed
the Aguilar difficulty: public teachers could serve the Satmar children
on the premises of their village, these premises now being public
school premises. The people of a state, acting through their legislature,
had successfully solved a human problem. The matter was devoid of constitutional
significance. The Satmars, for their part, had never contended that their
village had any constitutional right to become a public school district.
They were pleased to gain the accommodation of the statute. How, then,
did the accommodation come to be voided by the Supreme Court on constitutional
grounds? Two reasons seem likely.
First, there was the claim of powerful public education advocates that
the existence of the Kiryas Joel Village School District threatened public
education. Second, there was the conjuring of a supposed Establishment
Clause issue. As to the first, the New York legislature had discovered
no such threat. The claim was without a wraith of fact to sustain it. But,
as they now made manifest, six justices of the Supreme Court (four with
almost religious fervor) plainly regard public education as a sacrosanct
institution whose wishes must be catered to except in the rarest of instances.
As to the constitutional claim, the New York Court of Appeals had already
held the challenged law unconstitutional, as creating "a symbolic
union of church and state." Why, then, did the Supreme Court agree
to hear Kiryas Joel's appeal only to affirm the New York court?
The answer can but lie in the eagerness of the Court to re-express its
secularist view of the Establishment Clause. And for that it resorted to
its arsenal of artifices-to the game, in other words.
The opinion of Justice David Souter, writing for the Court, rested on
an accumulation of artifices, apparently because he found no single one
satisfactory. He said that Chapter 748 delegated state authority to a religious
community-that amounting to a "fusion" of governmental and religious
functions; and that equaling an "excessive entanglement"
of each with the other; and that amounting to a "symbolic union"
of both. Off on his facts, he cited for legal precedents a string of cases
not on point. Then, as though to add weight to his contentions, he resorted
to reliance on a future nonevent, namely, that there was no assurance that
if some other religious community in the future would like to become a
school district, the legislature would allow it to. His opinion then trailed
off into irrelevant ruminations about how public policy has related to
public education.
Justice Antonin Scalia was joined by Chief Justice William Rehnquist
and Justice Clarence Thomas in a furious dissent. Justices Sandra Day O'Connor
and Anthony Kennedy, expressing discomfort over the Schempp-Lemon
artifice, nevertheless went along with the secularist wing of the Court
(Souter, Harry Blackmun, John Paul Stevens, and Ruth Bader Ginsburg). O'Connor
also urged that Aguilar be overruled.
Much speculation has followed the Kiryas Joel decision. One commentator
assures us that the decision is not a "Pearl Harbor" respecting
religious accommodations by government, but is instead a narrow ruling
in a case of unique facts. Others have wondered if the combined opinions
do not point to a more coherent Establishment Clause jurisprudence in which
the Schempp-Lemon test will be ignored. Kiryas Joel is indeed
a case of unusual facts, but that makes it all the more unfortunate. The
Court utilized a case of even such facts to restate, reinforce, and even
add to its nonconstitutional notionware. Perhaps in a future case the Court
will narrowly overrule Aguilar, but that small tolerance will do
little toward reaching the goal of parental economic freedom of religious
choice in education. There is now every prospect that six members of the
Court will continue the secularizing process: the opinion of Judge Stephen
Breyer in the New Life Baptist Academy case when he served on the
First Circuit indicates that newly confirmed Justice Breyer will play by
the rules of the game.
William Bentley Ball has argued religious
freedom cases before the U.S. Supreme Court. He is a member of the firm
of Ball, Skelly, Murren & Connell (Harrisburg, Pa.) and author of the
forthcoming book Mere Creatures of the State? Education, Religion,
and the Courts.
Kiryas Joel should have been a simple one-issue case. The relevant
legal principle was never in dispute. States may not confer governmental
authority on religious organizations; letting a religious organization
run its own government is not a permissible means of accommodation.
The only serious issue in the case was whether this principle had been
violated. Should deliberate creation of a government unit with all Satmar
voters be treated as functionally equivalent to conferring governmental
authority on the Satmar religious organization?
There were plausible arguments either way, although I think that those
who saw functional equivalence had much the better of the argument. But
whichever answer you prefer, this was the issue. The Supreme Court failed
to give a clear answer.
Four justices-Souter, Blackmun, Stevens, and Ginsburg-found a "forbidden
fusion of government and religious functions." They got a fifth vote
for a similar formulation from Justice Kennedy, who said that New York
was "drawing political boundaries on the basis of religion."
That should have decided the case.
But the Souter four got a fifth vote from Justice O'Connor for the alternate
proposition that New York had singled out the Satmar for a special benefit,
with no guarantee that it would make a similar benefit available to other
religious groups similarly situated. Government should not single out particular
religions for special benefits, but that principle is irrelevant when the
"benefit" is independently unconstitutional. The logical extreme
of the singling-out theory would be to organize all local government on
religious lines. But that would be a constitutional nightmare, not a solution.
The singling-out theory opened an apparent loophole in the opinions,
and the New York legislature defiantly sought to exploit it. The new law
authorized municipalities to create their own school districts, subject
to five voting requirements and seven eligibility conditions that reportedly
fit only Kiryas Joel. Municipalities created in the future are ineligible,
so no other religious minority can use this law unless it had the foresight
to create a municipality of the right configuration before the law was
enacted. The alleged generality of the new law is a sham, and even if it
were real, the purpose and effect is still a forbidden fusion of government
and religious authority and a drawing of political boundaries on religious
lines.
At the big picture level, Kiryas Joel is consistent with the
pattern of recent cases. What news there is comes in the separate opinions.
Justice O'Connor is apparently willing to abandon her endorsement test
as a universal standard, and confine it to cases of "government speech
on religious topics." That is where the endorsement test originated,
and in my judgment that is where it makes sense.
Five justices-O'Connor, Kennedy, Scalia, Rehnquist, and Thomas-announced
their willingness to reconsider Aguilar v. Felton, which requires
that federal remedial funds for impoverished children be expended off the
site of religious schools. Four of these five-all but O'Connor-said they
would also reconsider Grand Rapids v. Ball, which held that public
schools could not offer supplemental courses on the site of religious schools.
Aguilar could be overruled without doctrinal disruption by reclassifying
the program, treating it as social services for those with a special disadvantage
and not as general education. Grand Rapids is harder to reclassify;
overruling Grand Rapids might have much larger doctrinal implications
for the financing of religious schools.
At the biggest picture level, there remains the Lemon test, diverting
everyone's attention and largely irrelevant to results. Like every other
recent Establishment Clause case, Kiryas Joel was surrounded by media hype
about whether this time Lemon would be "overruled." That was
never in the cards; there are at most four justices, and perhaps only three,
who want any kind of radical change in Establishment Clause jurisprudence.
But as the threat of a radical repudiation of Lemon recedes, the Court's
other wing might feel safe in making incremental clarifications.
The Lemon test is useless because it is a confused amalgam of
inadequately specified elements from separate theories. The first two prongs,
that a statute's purpose and effect must neither advance nor inhibit religion,
were taken almost verbatim from earlier explanations of neutrality. But
these explanations never indicated whether the Court meant formal or substantive
neutrality. Formal neutrality would mean no special rules for religion,
which means no accommodation of burdens on religion. Substantive neutrality
would mean that government should minimize the extent to which it either
encourages or discourages religion; when government imposes burdens that
discourage religion, the most neutral course is usually to lift the burden.
The Lemon formulation has the additional problem that it disaggregates
the search for neutrality into two separate inquiries: Has government advanced
religion? And, has government inhibited religion? And so by an inadvertent
linguistic substitution, many lower courts now ask only whether government
has advanced religion. The original focus on neutrality has been lost.
The Court has never clarified the so-called test, but its results speak
for themselves. Except for cases that the Court views as involving core
educational functions, legislatures are generally free to pursue either
formal neutrality or substantive neutrality toward religion. Laws that
lift regulatory burdens on religion do not "advance religion"
within the meaning of Lemon. Unlike government prayers or religious
observances, removing a burden cannot motivate anyone to be attracted to
the burdened faith in the first place. But imposing a burden can motivate
people to leave the faith, and it can penalize them for staying in. The
encouraging effect of a religious exemption is usually minimal compared
to the discouraging effect of a penalty or loss of government benefits.
Under the Court's cases, religious minorities may be exempted from burdensome
regulation (Corporation of the Presiding Bishop v. Amos [9-0]),
receive social services on an equal basis with other citizens (Zobrest
v. Catalina Foothills School District [5-2- 2], Witters v. Washington
Dept. of Services for the Blind [9-0]), participate on an equal
basis in the institutional delivery of social services (Bowen v. Kendrick
[5-4]), and speak in public places on an equal basis with other speakers
(Lamb's Chapel v. Center Moriches Union Free School District [9-0],
Board of Education v. Mergens [8-1], Widmar v. Vincent [8-1]).
As shown by the bracketed indications of votes on the result (opinions
were often more fractured), most of these recent decisions were not close.
And all but one of the dissenters in these cases were motivated by special
concerns about education.
The remarkable thing is that all but one of these cases reversed the
lower court. The one exception is Mergens, where the Court reviewed
the only court of appeals that had permitted religious clubs to meet after
school. In all these cases, the lower courts erred, misled principally
by the Lemon test.
Kiryas Joel continues in this pattern. The problem in Kiryas
Joel was not that New York sought to accommodate the special need of
disabled Satmar children, but that its chosen method violated the core
requirements of institutional separation. The New York Court of Appeals
relied heavily on the second prong of the Lemon test; its opinions
are full of talk about how New York had advanced and endorsed Satmar Hasidism.
There is no such talk in any of the Supreme Court opinions; there is no
hint that lifting burdens unconstitutionally advances religion.
Given this pattern in the cases, why do so many sensible people persist
in believing that accommodations advance religion in violation of the
Lemon test? It is partly reckless and exaggerated advocacy on both
sides. It is partly that there are real costs when the most visible formulation
of doctrine does not reflect the Court's real working principles. It is
partly that for many on both sides the most important issue is the funding
of religious education, and a majority of the Court has treated education
as a separate category, distinct from social services. If a case is classified
as education, it is subject to its own set of rules, different from the
rules for social services, regulatory exemptions, and religious speech,
even though both sets of rules operate under the common umbrella of
Lemon.
What is needed is not to repudiate Lemon, but to clarify it.
The first two prongs of the Lemon test are about neutrality, and
an arguable "advancement" of religion may be the most nearly
neutral course if the alternative is an even greater "inhibition"
of religion. The Court's results show that it believes this with something
close to unanimity. It would reduce the flow of wasted litigation if the
Court would amend the canonical formulation of Lemon to say so.
Douglas Laycock holds the Alice McKean
Young Regents Chair in Law at the University of Texas at Austin. He filed
an amicus brief in Kiryas Joel on behalf of the National Council
of Churches of Christ in the U.S.A. and James E. Andrews as Stated Clerk
of the General Assembly of the Presbyterian Church (U.S.A.).
The Kiryas Joel decision proved once more that a majority of
the justices of the Supreme Court-like most judges of lower courts in the
United States-are either hostile to religion or do not understand what
religious observance is all about.
First the group that was nakedly hostile. It included-much to my surprise-the
Court's newest member, Justice Ginsburg. During the oral argument, she
had sounded receptive to the plight of the Satmar Hasidim, and I had listed
her as a possible vote in favor of the New York law. Instead, she joined
the separate concurring opinion written by Justice Stevens, which Justice
Scalia's dissent rightly called "a manifesto of secularism" that
"announces a positive hostility to religion."
Stevens' startling statement declares that New York's law went beyond
constitutional bounds because it "affirmatively supports a religious
sect's interest in segregating itself and preventing its children from
associating with their neighbors." In his short concurrence, joined
by the now retired Justice Blackmun (along with Ginsburg), Stevens said
that Kiryas Joel's separate public school district was invalid because
it "provided official support to cement the attachment of young adherents
to a particular faith" and "unquestionably increased the likelihood
that they would remain within the fold, faithful adherents of their parents'
religious faith."
I had always thought that the law that allows parents to send their
children to private religious schools rather than to neighborhood public
schools was designed to increase the likelihood that a family's faith would
be transmitted from one generation to the next. Indeed, Pierce v. Society
of Sisters, a 1925 Supreme Court decision, went so far as to hold that
there is a constitutional right to cement the attachment of one's
children to one's faith. But Justices Ginsburg and Stevens have now endorsed
the view that it is a social evil if my children follow the religious observances
that my family has practiced for generations. And a legislature that facilitates
this transmission of belief and increases the likelihood of success of
this baleful effort crosses the constitutional barrier.
Justices O'Connor, Kennedy, and Souter-the Court's centrist bloc-are
not as openly hostile to religion. But their views display gross insensitivity
to the difficulties of religious observance. Souter characterized New York's
law as "religious favoritism"-as if the New York legislature
gratuitously bestowed a lottery jackpot on the state's Satmar Hasidim.
The New York law was "favoritism" for the religious in the
same sense as a progressive income tax rate is "favoritism" for
the poor and a law requiring wheelchair ramps is "favoritism"
for the handicapped. Poverty and disability are "conditions"
that society is presumably entitled (and may be obliged) to ameliorate.
Souter and O'Connor (who also invalidated the Kiryas Joel law because it
singled out the Satmar Hasidim "for favorable treatment") do
not see religion as an individual lifelong condition, like poverty or disability.
They view it as a temporary personal preference-a possession that one may
choose to keep or discard. Hence Justice Souter can say with equanimity
that the Kiryas Joel law was "an adjustment to the Satmar's religiously
grounded preferences that our cases do not countenance."
This judicial astigmatism is not really new. It is the reason I lost
a case in the Supreme Court almost a decade earlier. When the Connecticut
legislature repealed its Sunday closing law, it included a provision that
gave every employee in the state a seemingly absolute right to be excused
from work on the day of the week "observed as his Sabbath." In
a decision called Estate of Thornton v. Caldor, decided in June
1985, the Supreme Court held 8-to-1 that this provision was unconstitutional
because it was an "unyielding weighing in favor of Sabbath observers
over all other interests." The law, said then Chief Justice Burger
(with only current Chief Justice Rehnquist dissenting), gave Sabbath observers
"the valuable right to designate a particular weekly day off,"
so it had the unconstitutional effect of "impermissibly advanc[ing]
a particular religious practice." The Court plainly thought of this
as religious favoritism-just as Justices Souter and O'Connor viewed the
Kiryas Joel law. Burger went so far as to say that the law discriminated
against employees who were not religiously observant because they "must
take a back seat to the Sabbath observer."
No one on the Thornton Court saw the incongruity of treating
the Sabbath-observer-who is frequently shut out of employment altogether
or denied a promotion because of his or her unavailability one day a week-as
a favored front-seat passenger. Have the rich been forced to "take
a back seat" to the poor because the rich pay more than 38 percent
of their income in federal taxes while some of the poor may not pay any
income tax at all? And have those whose license plates show them to be
handicapped drivers been accorded the "favoritism" of reserved
close-in parking spaces while the rest of us must take long hikes from
our parked cars?
The New York law singled out the Village of Kiryas Joel and gave it
a public school district of its own because the Satmar Hasidic community
had a unique condition that grew out of the religious observance of its
members. Their learning-disabled children could not attend the public school
program provided in the town of Monroe. Justices Souter and O'Connor (and
possibly Justice Kennedy-although the reason he arrived at his conclusion
is more murky) treated the religious conviction of the Satmar Hasidim as
if it were a personal preference that entitled the Hasidim to no unique
treatment. The law offended the Establishment Clause, they said, because
it is impermissible to treat those who have a religious quirk differently
from those who lack it-although secular preferences may be a basis for
legislative distinction. Only those who are oblivious to religion can so
cavalierly shunt it aside. The Framers of the First Amendment were not
blind to religious values. This is why they categorically denied government
the power to prohibit the "free exercise of religion."
Nathan Lewin is a Washington attorney who
represented the Kiryas Joel Village School District in the Supreme Court.
In 1974, the New York State legislature divided the Hasidic Jewish community
of Williamsburg, in Brooklyn, between two state legislative districts,
submerging their votes and eliminating Hasidic representatives from the
legislature. This was explicitly for the purpose of creating additional
districts with "substantial nonwhite majorities." The Hasidim
challenged the racial gerrymander in court, but the Supreme Court rejected
their plea. "The Constitution does not prevent a state," the
Court explained, "from deliberately creating or preserving black majorities
in particular districts." The Court brushed aside the Hasidim's own
distinctive claim as a minority group, treating them as generic "white"
voters, adequately represented, as "whites," in the legislature
as a whole (United Jewish Organizations v. Carey [1977]).
In 1989, the New York legislature divided an Orange County school district
into two parts, creating a district for the Village of Kiryas Joel, a municipality
made up almost entirely of members of the Satmar Hasidic Jewish sect. The
purpose was to enable the handicapped children of Kiryas Joel to obtain
special educational services (to which they are entitled under state and
federal law) at a public school within their own community, without having
to send them to a more distant school where the other kids made fun of
them for their Yiddish language, odd clothes and hairstyle, and peculiar
customs. Public school officials from elsewhere in the state challenged
the creation of the Kiryas Joel school district in court, and the Supreme
Court again ruled against the Hasidim, declaring that it is unconstitutional
for a legislature to create a political jurisdiction along lines defined
by religion.
It is the old story of the double standard. It is okay to draw political
boundaries for the benefit of racial minorities, but not of religious minorities.
When the legislature deliberately chops up a district dominated by a religious
minority, there is no problem: the Hasidim are just "white."
But when it draws boundaries in their favor, the Hasidim become a distinct
and dangerous group, and Justice Stevens-who happily joined in carving
out districts more than 70 percent black-issues stern warnings against
"segregation" along religious lines, which might, he says, "provide
official support to cement the attachment of young adherents to a particular
faith."
Ironically, the Kiryas Joel school district was created in the interest
of accommodation and toleration-almost the opposite of the spirit of "Establishment"
with which it was labeled. Two decades ago, about 8,000 members of the
Satmar sect (most of whose members perished in the Holocaust) moved to
a then-uninhabited part of Orange County, New York, and formed the Village
of Kiryas Joel. Like most Orthodox Jews, the people of Kiryas Joel educate
their children in religious schools, or yeshivas, while paying property
taxes to support the secular schools used by the majority of their fellow
citizens.
Under both state and federal law, all handicapped children-whether they
go to public or to private school-are entitled to educational assistance
appropriate to their special needs. For years, this assistance was provided
by public school employees on the premises of the religious schools in
Kiryas Joel. In 1985, however, the Supreme Court held that it is unconstitutional
to provide the services in this way.
The Satmar handicapped children were then forced to travel to the public
school in an adjoining community, run by the Monroe-Woodbury School District.
Predictably, this was a disaster. The children, many of them already suffering
from emotional disturbance and insecurity, experienced "panic, fear,
and trauma," and all but one of the Satmar parents removed their children
from this unsatisfactory placement.
The Satmar parents requested the school district to provide special
education at a "neutral site" in the Village, as would have been
permitted under the law; but the district refused. The parents sought relief
in state court, but the court held that the district has discretion to
decide how and where to provide the special education.
So the Satmar community turned to the legislature for help. Under the
New York Constitution, the legislature could not tell the Monroe- Woodbury
School District how to exercise its educational functions. But it could
determine the boundaries of the district. And so the legislature voted
to carve out a new school district coterminous with the boundaries of the
Village of Kiryas Joel. This enabled the people of Kiryas Joel to establish
a public school in the Village that would provide appropriate education
for their handicapped children.
It seemed the perfect solution to a contentious problem. No individual's
interests or rights were hurt. Even the Monroe-Woodbury School District
was pleased, for it was freed of responsibility to deal with people whose
customs it did not understand and who seemed obstreperous and difficult.
Why, then, did the Supreme Court hold it unconstitutional? It gave three
reasons, none of them very persuasive.
First, the Court said this district violates the First Amendment "by
delegating the State's discretionary authority over public schools to a
group defined by its character as a religious community." But this
cannot be right. In the same opinion, the Court stated that there is no
constitutional problem with the existence of the Village of Kiryas Joel,
which is "defined by" the same boundaries and which exercises
far more discretionary governmental authority than the school district
does. And as the Court admits, there are scores of other self-governing
communities around the country no less "defined" by their religious
character. If people have the freedom to move freely, establish communities,
and govern themselves, there will be governmental units where the electorate
is almost entirely of a particular religion. This is not Establishment.
This is religious pluralism.
But the Court explained that the problem is not that the electorate
making up the Kiryas Joel school district is all of one religion. The problem
is that the legislature created this all-Satmar district deliberately.
But again this cannot be right. The Court admitted that the legislative
purpose of accommodating the needs of a religious minority is legitimate,
even laudable. But if the purpose is legitimate, and the effect is legitimate,
what is the problem?
Perhaps the Court should hold, as Justice Thomas urged in another case
this term, that the states may not draw political boundaries intentionally
on the basis of race, ethnicity, or religion. But it seems odd that
the Voting Rights Act encourages the creation of districts dominated by
one kind of minority while the First Amendment forbids creation of districts
dominated by a different kind of minority.
The Court's second answer is less mysterious but more troubling. The
problem is that the legislature may have exercised favoritism toward the
Satmar Hasidim. The Court lacked "assurance that the next similarly
situated group seeking a school district of its own will receive one."
This portion of the opinion has the virtue of appealing to a genuine
constitutional principle: that of equal treatment of all religious groups.
But the application is illogical. Because the circumstances of the Satmar
Hasidim are unique, no other group has presented an analogous problem.
Surely the better course-as Justice Kennedy insisted in his concurrence-is
to wait until the legislature fails to treat another group in a
comparable way before striking down this law. If the Court is serious about
this line of reasoning, then any "case-specific" accommodation
to the needs of a particular religious minority is unconstitutional. That
has never been the law.
The third reason for striking down the law in Kiryas Joel is
the most distressing. According to three of the justices-Stevens, Blackmun,
and Ginsburg- New York behaved unconstitutionally when it affirmatively
"support[ed] a religious sect's interest in segregating itself and
preventing its children from associating with their neighbors." This
is an attack on a precious aspect of religious freedom for religious minorities.
For many members of minority religions, to be able to assimilate into the
wider culture is a great blessing. But for others-such as the Amish or
the Satmar Hasidim-assimilation would destroy their religious way of life.
It is difficult to bring up a child as a Satmar Hasid when the state insists
upon educating all children in schools dominated by the majority culture.
Justice Scalia rightly said that the Kiryas Joel decision "turn[s]
the Establishment Clause into a repealer of our nation's tradition of religious
toleration." The Hasidim may seem a small and exotic group. But they
represent the many millions of Americans whose lives are oriented around
their religion, and who do not wish to be caught up-or have their children
caught up-in the profane melting pot of mainstream America. The Supreme
Court's lack of sympathy for this group- indeed, its utter incomprehension
of this group-is symptomatic of the failure of our governing elites to
take religion seriously.
Admittedly, there are glimmers of hope in the various opinions. Justice
O'Connor openly called for reconsideration of Supreme Court precedents
that seem to require "hostility to religion, religious ideas, religious
people, or religious schools." And even the majority endorsed the
important principle that "the Constitution allows the state to accommodate
religious needs by alleviating special burdens." These are hopeful
signs.
In practice, however, the Supreme Court finds every excuse to strike
down state action that accommodates the free exercise of religion or that
includes religious activities in the benefits of public programs. While
it no longer mouths the rhetoric of "strict separation" or follows
the Lemon test, which is the source of so much confusion and mischief
in this area, the Court declines every invitation to repudiate Lemon
or to replace it with an interpretation of Establishment more consistent
with principles of religious free exercise.
And so the Hasidim are once again at the mercy of an unfriendly majority,
and the nation remains mired in a First Amendment jurisprudence that is
suspicious and uncongenial toward religion. For a decade the Court has
made noises about doctrinal change. But after Kiryas Joel it is
as distant as ever.
Michael W. McConnell is the William B.
Graham Professor of Law at the University of Chicago.
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Updated: 13 July 2002
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