Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
IN SIGNING THE bill into law, Governor Cuomo was establishing the first governmental unit in American history that was created solely to serve the needs and interests of only one religious group. Other units have had a large majority of individuals from one group, such as Utah Mormons, but no other unit had ever been established with the intent of only dealing with the needs of one religion. Never before had a religious sect been given a public school to run. In my mind, this could not go unchallenged.
As a lawyer and a history buff, I fully appreciate the freedom of versus freedom from religion debate that has continued since our nation’s birth. Our Founding Fathers—particularly Thomas Jefferson and James Madison—began the debate more than two hundred years ago, and to this day it has not been firmly resolved by the US Supreme Court. Certainly, the court decides Establishment Clause cases all the time, frequently relying on stare decisis (precedent), but this is an incredibly shaded debate and different courts in different areas and different eras have come to different conclusions on what the First Amendment really means. Perhaps that is because it meant one thing to Jefferson and something a little different to Madison. In short, where Madison was focused on protecting religion and the religious from government interference, Jefferson was intent on protecting government and individuals from religion.
But the Jefferson and Madison viewpoints were not diametrically opposite by any stretch. Both of them believed in freedom of and freedom from religion, and their differences were relatively nuanced.* The Constitution artfully embraces both concepts in the eloquently simple prose of the First Amendment: “Congress shall make no law respecting an establishment of religion [Jefferson] or prohibiting the free exercise thereof [Madison]” (emphasis mine). Note that the clause is absolute, permitting no laws of either sort. To me, no is not an ambiguous word. Over the years, the Supreme Court has acknowledged the validity of the Jeffersonian and Madisonian arguments but has never firmly chosen one and rejected the other. So one ruling may seem to flow directly from Madison’s reasoning, another from Jefferson’s, and many seemingly coming from a compromise between the two.
Our founders clearly did not want religion meddling in the affairs of government, nor did they want government interfering with an individual’s right to worship (or not worship) however he or she saw fit. And for good reason. They were well aware that when religion and government mixed, oppression and/or bloodshed was frequently the result.
Many of our ancestors came here specifically to escape religious persecution, and the colonies they established reflected their beliefs: Massachusetts was envisioned by the Puritans as their shining “city on a hill”; the Quakers, under the leadership of William Penn, settled in Philadelphia; Maryland was established by Lord Baltimore as a colony where religion and state were separate and Roman Catholics could peacefully prosper alongside their Protestant neighbors; eastern Virginians were committed largely to the Church of England, while western Virginia was Methodist territory. Ironically, and hypocritically, these were generally not very tolerant groups, and they were not above persecuting those who did not share the beliefs of the dominant majority. Citizens were forced to attend government-sponsored, tax-supported churches, most of the colonies eventually had an official religion, and religious tests for public officials were standard.
After the revolution, there was considerable controversy over the role of religion in government, especially as Baptists, Presbyterians, and other minorities escaped to the new country, lured by the promise of religious freedom. The battle reached fever pitch after Patrick Henry, in 1784, proposed a bill for tax-supported religion in Virginia, spurring Madison and Jefferson into action. Madison, in his “Memorial and Remonstrance Against Religious Assessments,” drew a line in the sand in 1785:
Because we hold it for a fundamental and undeniable truth, “that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.” The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him…. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? … What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.
Jefferson meanwhile had proposed a “Bill for Establishing Religious Freedom”:
Well aware … that Almighty God hath created the mind free … that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do…. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities…. We are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
Madison, who wrote the First Amendment, drew heavily from Jefferson’s “Bill for Establishing Religious Freedom,” incorporating both the freedom of and freedom from concepts. Jefferson, while he certainly favored religious freedom and most definitely opposed government interference (“It does me no injury for my neighbor to say there are twenty Gods, or no God”), saw the institutions of religion and government on entirely different, never intersecting orbits. He called for a “wall” of separation between the two, with neither having any influence on the other.* That, perhaps, was overly optimistic, even for Jefferson. As two-hundred-plus years of Supreme Court cases show, there is no end to the ways in which government and religion inevitably interact, and often collide, as Madison clearly foresaw.†
Even after the adoption of the Bill of Rights in 1791, a number of states kept established churches (the last state to abandon the practice was Massachusetts in 1833), and in the first century following the ratification of the Constitution there was very little Establishment Clause jurisprudence. During that period, immigration brought millions of individuals to America, increasing dramatically the religious diversity of the nation. The first groups, from northern Europe, were Protestant; the southern Europeans were mainly Catholic, as were the Irish; the eastern Europeans were either Eastern Orthodox or Jewish.
The large tide of immigration brought many antiforeigner sentiments, and it spurred the growth of a public school system dedicated to Americanizing the new arrivals. The schools promulgated Protestant ethical values, even when they stopped short—often just short—of proselytizing for a particular denomination. This led to the establishment of parochial schools, especially among the Catholic populations. In a countermovement, many states passed constitutional amendments that prohibited public funding for parochial schools. Adoption of children by prospective parents of a different faith was prohibited in many states. Nevertheless, there were no movements to gerrymander local or state boundaries along religious lines. Even when the Mormons decided to establish the new state of Utah, the Utah Constitution prohibited state spending or actions aimed at helping religious groups. Still, a number of states did require citizens to belong to and support a religion.
The first major test of the Establishment Clause occurred in 1878, after George Reynolds of Utah, a member of the Church of Jesus Christ of Latter Day Saints, took a second wife while he was still married to the first. There was no question at all that he had committed polygamy, and no question that polygamy was illegal in the United States. Reynolds did not dispute that he had broken federal law. Instead, he asserted his First Amendment right to the free exercise of religion, arguing that his religion not only tolerated polygamy but encouraged it.
In Reynolds v. United States, the Supreme Court held that while Congress could not outlaw a belief in the correctness of polygamy, it could outlaw the practice of it. It said that with the First Amendment, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” The court made clear that people cannot evade the law because of their religion: “Can a man excuse his [illegal] practices … because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” The ruling also noted that since religion was not defined in the Constitution, it was necessary to look back to both Jefferson and Madison for an understanding of what was meant by the First Amendment.
Some sixty years later, in the 1940s, the court returned to the issue of church-state separation in Everson v. Board of Education, permitting a New Jersey school district to reimburse parents for the cost of transporting their children to and from parochial schools. The court stood strong for separation of church and state but held that in this scenario busing did not impact on religious ideas one way or another. In the 1960s the Supreme Court expanded upon the meaning of separation and prohibited the use of prayers in public schools. In 1968 the court overturned a law prohibiting, for religious reasons, the teaching of evolution; the ruling indicated that by enforcing religious views, the Arkansas State Legislature was establishing religion.
With the sheer number of Establishment Clause cases making their way into court and the obvious confusion in the courts and in the country, the Supreme Court in the 1971 case of Lemon v. Kurtzman attempted to draw some guidelines on just where the line falls. In a dispute over state aid to help parochial schools pay their teachers, the court enacted a three-part litmus test for Establishment Clause analysis: (1) the law must have a secular purpose, (2) the law may neither advance nor inhibit religion, and (3) the law must not excessively entangle religion and government. But, as always, the devil was in the details, and the Lemon attempt to achieve clarity was not successful.
The country was in the midst of massive change regarding church-state separation as the proliferation of governmental services raised all kinds of new questions. Government safety nets were reaching into areas such as civil rights, serving the mentally ill and developmentally disabled, planned parenting and abortion-related services, communicable disease prevention and services, and increased standards for public schools—all of which potentially involved religious issues or organizations.
Many of the newly offered government services had in the past been provided by religious groups and religious-supported nonprofits, and the new governmental actions were intruding on their turfs. Political groups pushed for abortion and planned parenting or related services, but strident and angry countervailing forces organized and pushed back. As the costs of serving developmentally disabled children and adults skyrocketed and those impacted saw their rights dramatically expanded, huge battles broke out among service providers, many of which were religiously based. When courts and legislatures decided to shut down inhumane, warehouse-like institutions and shift resources to small, less restrictive community residences and group homes, religious affiliates quickly filled the need. Billions of dollars were channeled to groups like Catholic Charities and the Jewish Federation of Philanthropies, and such organizations suddenly became the largest providers of the new services.
Meanwhile, public education was at a low point in the 1970s. Desegregation and busing and the resultant racial tension and riots took a toll on educational quality. Schools lowered standards and pushed kids from grade to grade whether they could read or not. Parochial schools began to grow rapidly in evangelical Protestant groups, and Conservative and Reform Jewish groups were also forming religiously based schools.
By the late 1970s voters were convinced society was breaking down. The cultural pendulum that had veered far leftward in the 1960s and ’70s swung not only back toward the center but well over to the right. By the 1980s “Government is not the solution but the problem” became a familiar mantra of the Reagan Revolution. Public support for government services dropped dramatically, and at the same time support for private enterprises—including churches and synagogues—increased. Religious groups capitalized on their societal resurgence and became masters of political pressure. Coalitions grew among the evangelical Christians, the Catholic Church, and the Hasidic Jews. Groups such as the Moral Majority and Pat Robertson’s 700 Club exerted unprecedented influence in matters of governance and public policy.
We were reaching a point Jefferson had feared we would reach and Madison had so fervently hoped to avoid with his careful drafting of the First Amendment. As Madison observed in “Memorial and Remonstrance Against Religious Assessments”: “The same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.” Our founders feared that religious liberty would ultimately be the victim if government could use its taxing and spending powers to aid religion. The First Amendment—just those few short words in a remarkable document—were all that stood between us and Madison’s worst nightmare.
So, it was in this context that I considered how to legally challenge the statute that created the Kiryas Joel Village School district, as well as the political and public relations consequences.
Many small religious groups that have intensely held views are valuable political allies because they tend to vote as a bloc. But the Satmar, who vote in almost unanimous accord, are especially potent, partially because, unlike other religious groups, they do not subject politicians to an ideological litmus test. While Catholics, for example, may well withhold support from anyone who does not share their view on, say, abortion, the Satmar rarely concern themselves with the politician’s ethical or legal positions. What they want are specific dollars-and-cents services, not philosophical or spiritual accord. They remember the politicians who deliver and, just as strongly, don’t forget those who don’t.
Cuomo, admittedly, was in a difficult position, and though suffering more than a hint of political paranoia, he had reason to feel ambushed. Hardly anyone had spoken out against the bill until it was on his desk, leaving him to shoulder the entire political weight of the issue: sign the bill and receive tens of thousands of votes; veto the bill and lose the same number or more. It was that simple.
I understood this political reality, but I thought Cuomo was not giving enough weight to the possibility that for every Hasidic vote he won in Brooklyn or Orange County, he would lose more Reform Jewish votes in places such as Forest Hills, the Upper West Side, and Riverdale. Separation of church and state was a gut issue for most Jews, who for obvious reasons instinctively oppose any steps toward involving government in their parochial concerns. I knew the Kiryas Joel statute would divide the Jewish community, and that there were likely many more Jewish voters who would oppose the measure than would support it. In addition, many New Yorkers—Jews and non-Jews alike—had traditionally opposed changing the Blaine Amendment (and had indeed defeated an effort to excise it from the state constitution). The problem, of course, is that the Satmar vote as a bloc, whereas others do not necessarily do so. Consequently, while support for Cuomo from the Satmar was a virtual sure thing, support from other groups and individuals was far less certain.
At first glance, it might appear that Cuomo and Kiryas Joel held the higher moral ground, because the underlying issue—educational services for children with disabilities—was entirely legitimate. Who could argue that these unfortunate kids should be denied services that are provided to everyone else? It’s hard to persuade the public with abstract talk about the Constitution when the other side accuses you of shortchanging deaf or developmentally disabled kids.
But after years of fighting to ensure and expand services for children with disabilities, I was ready to face such rhetoric, and quickly formulated a two-pronged approach. The first spike would be a lawsuit seeking to shut down the school district as unconstitutional on church-state grounds. That was the legal attack. Second, and equally important, was the PR skirmish. We needed to win both battles to prevail in this war, and I knew that managing the public relations aspect would help the legal effort. Although they are supposed to be independent and divorced from popular opinion, the courts are—and must be—attuned to public sentiment.
I don’t mean to suggest that judges (most judges anyhow) rule with a finger-to-the-wind abandon. But they do understand that their decisions must have if not public support then at least credibility with the public. Consider, for example, the Supreme Court’s momentous decision in Brown v. Board of Education, which held that separate schools for black and white students were inherently unequal and unconstitutional. I suspect that if the greatest Supreme Court justices in history came together and were handed the exact same case a decade earlier, they would not have come to the result reached in 1954—and if they did, the public would have been outraged and the credibility of the Supreme Court would have been compromised. Obviously, the decision would have been just as right in 1924, 1934, or 1944 as it was in 1954, but neither the court nor the public was ready for such a leap in an earlier era.*
I reasoned that if we could win the battle in the press, it would pave the way for a victory in the courts as well. To my thinking, courts, no less than legislatures, track the media’s attention to and reporting of policy issues. My view was born of a career serving inside complex modern bureaucracies and closely observing government decision making from all angles—as a young Democratic National Committee employee in the days of Lyndon Johnson, as a clerk doing legislative research in Senator Jacob Javits’s law offices, as a state urban development administrator, as an aide to powerful appointees and politicians, and now as the executive director of an organization representing many elected officials. I had lobbied and I had been lobbied; I had advised and been advised; I had felt both sides of the media’s double-edged sword. If I had learned anything, it was that politicians rarely take significant action until forced to do so by a vigorous press and/or by vigilant citizens or pressure groups. And, like it or not, judges are politicians.
First I had to determine the level of support I could expect from my board of directors. The board was made up of seventeen individuals elected from the various geographic regions of the state. This made for a somewhat diverse set of ideological philosophies, making it fun to work with but difficult to coalesce. The board officers were elected for one-year terms, though many served for two terms. At the time, Judy Katz from suburban Buffalo was the president. She was a model board member and the type of person every executive director dreams of working with. She had served on many other boards, including those of prominent Jewish groups. Experienced, articulate, and well connected, with excellent judgment, Judy fully understood the church-state issues involved in Monroe-Woodbury. But I was concerned that she would not support a lawsuit that might open the association up to charges of anti-Semitism. It turned out I was wrong in that concern—dead wrong. She was immediately and incredibly supportive.
The president-elect was a retired state worker from rustic western New York who was very conservative and represented rural areas quite well. Al Hawk, a strong advocate for protecting the public schools from religious encroachment, would be the president at the start of the lawsuit. He was willing to be listed first as the named plaintiff.
Gordon S. Purrington was a vice president. A professor of education at the State University of New York at Albany, Gordon was an extremely religious Mormon and the father of two special needs children.* A strong advocate for public education in an integrated setting, Gordon was in full support of challenging the Kiryas Joel measure.
Georgine Hyde was the board member with the most at stake. As president of the school board in East Ramapo, she had already witnessed the danger of a religious community voting down school budgets and ousting school board members who did not support their educational demands. Georgine had been the school board president there for thirty-five years, and she was well known and widely beloved. She spoke often on her years as a prisoner in Theresienstadt and Auschwitz, and was a noted author on ethics issues. Georgine knew well that if she signed on to our lawsuit, she would be viewed in some segments of her community as a Benedict Arnold and would forever lose their support and respect. But without hesitation, and as a monument to her political courage, Georgine never flinched in giving me her support.
In fact, not one single board member opposed filing a lawsuit; the board unanimously endorsed litigation filed under the auspices of the association and in the individual capacities of Al Hawk and myself.
First hurdle cleared.
But how could we possibly afford to hire an attorney with the skills, acumen, and time to take on what could be a long and exhausting legal battle against the weight of the New York state attorney general (who had roughly five hundred lawyers at his disposal) or the Washington-based litigators I was sure the Satmar would retain? In my mind, we already had our man—a young, exceptionally bright, overworked and underpaid in-house counsel right down the hall.
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* In a 1787 letter to Jefferson, Madison wrote, “No distinction seems to be more obvious than that between spiritual and temporal matters. Yet whenever they have been made objects of Legislation, they have clashed and contended with each other, till one or the other has gained the supremacy.” See James Madison, The Writings of James Madison, vol. 5, Correspondence, 1787–1790 (New York: Putnam, 1904), http://oll.libertyfund.org/titles/1937.
* Jefferson used the “wall” metaphor in a letter he sent to the Danbury Baptists on January 1, 1802. It has been cited by the US Supreme Court on several occasions. See Reynolds v. United States, 98 US 145 (1878); Everson v. Board of Education, 330 US 1 (1947); McCollum v. Board of Education, 333 US 203 (1948).
† In an 1832 letter to the Rev. Jasper Adams, Madison wrote, “I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference in any way whatever, beyond the necessity of preserving public order, and protecting each sect against trespasses on its legal rights by others.” See James Madison, The Writings of James Madison, vol. 9, Correspondence, 1819–1836 (New York: Putnam, 1910), http://oll.libertyfund.org/titles/madison-the-writings-vol-9-1819-1836.
* I hope it is clear that I am not comparing the particulars of the Kiryas Joel case to Brown v. Board of Education. My point is simply that the courts can’t take society where it’s unwilling or unready to go, and that public acceptance is crucial to jurisprudence.
* Gordon S. Purrington’s obituary in 2012 described him as a “warrior for people with special needs.” It is an apt description. See Deseret News, April 29, 2012, www.legacy.com/obituaries/deseretnews/obituary.aspx?pid=157308557.