The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment, and it cannot be dismissed by saying it will happen only once.
JUSTICE KAHN’S DECISION sent shock waves throughout the educational establishment and religious communities, and suddenly an issue that I always knew was a big deal started garnering intense interest. The Satmar, of course, worried that Kahn’s decision would stand, forcing them to close down. But like myself, many others (including a number of Jewish organizations) were deeply concerned that if Kahn were to be reversed, the Establishment Clause would suffer a vicious blow that could dramatically weaken the Jeffersonian wall of separation between church and state. We all knew the stakes were high, and we all knew the case could eventually go to the Supreme Court.
In the New York court system, there are two levels of appellate courts. The first level is the appellate division of the state supreme court, which is composed of elected trial judges (like Kahn) who have impressed or pleased the governor enough to win an appointment. Since relatively few cases take the next step up to the esteemed New York State Court of Appeals, the appellate division usually has the last word. Although we were sure Kiryas Joel would not end with the ruling of the appellate division, we also had to proceed as if the arguments before five justices in Albany would be our last.
The importance of the appeal was underscored by the number of constituencies that submitted briefs. Of course, there were the main briefs submitted by us and Kiryas Joel. But also weighing in were the Monroe-Woodbury Central School District, the State of New York through Attorney General Robert Abrams (who was defending the constitutionality of the statute), New York State United Teachers, the American Jewish Congress, and the New York Committee for Public Education and Religious Liberty. All of them made valid points and cogent arguments.
Attorney General Abrams portrayed the law creating Kiryas Joel not as an accommodation to religion but as a sign of respect for the diverse views and culture in the American melting pot:
The creation of a public school along boundaries already drawn tolerates or respects the different lifestyle and fear of assimilation, without endorsing, promoting or favoring Satmar beliefs. It allows them to live, as they have for over sixty five years, in the manner their religion teaches. It so happens that the manner in which they live and worship makes the education of their handicapped students outside the community—an alien world to those students—a difficult and bona fide problem.
The attorney general described the legislation as a masterful attempt to solve a very legitimate concern:
The genius of the legislation creating a public school district in Kiryas Joel is that it ends the conflict between neighbors, provides an opportunity for a secular education to the village’s handicapped students, allows for the cultural differences in their way of life from their more secular neighbors, and all the while maintains a neutrality between the two opposing positions.
Unlike the New York State Court of Appeals and the US Supreme Court, the appellate division consists of a group of justices (there are a dozen in the third department in Albany, where we would be heard), only five of whom are assigned to any particular case. We drew what I thought was a good panel, which included two justices I considered the intellectual leaders of the court: Howard Levine, who would eventually move on to a stellar career at the New York Court of Appeals, and Thomas Mercure, a top-notch judge with a fine legal mind who never quite made it to the high court, although he surely belonged there.* I thought, and hoped, both would go our way. But the last thing I wanted was a contrary opinion from either of them, because I well knew that the court of appeals greatly respected Levine and Mercure, and I feared that if either of them went against us, it could influence the high court when we inevitably made our way down to the courthouse on Eagle Street.
The appellate division’s ruling came out on December 31, 1992. I was heartened that we prevailed with a 4–1 decision, and delighted that Mercure was in the majority. But a lengthy dissent by Levine was troublesome. And the fact that two of the smartest judges in the state were on opposite sides of this case worried me.
Justice John T. Casey’s majority opinion not only endorsed Kahn’s opinion but also elaborated on it in ways that I thought would be helpful as the case continued its journey through the courts. Casey also spent a considerable amount of time refuting Levine’s dissent. While it concerned me somewhat that the dissent was longer than the majority opinion, and that the majority was so intent on responding to Levine, I was glad that the majority had thoroughly addressed the issues in the dissent.
From the majority standpoint, the legislation violated the Lemon test,* especially the prong that bars legislation in which the primary or principal effect is to advance religion. The majority saw the district’s argument (it just happens that this secular school district’s boundaries coincide with the boundaries of a religions enclave) as the sham that it was:
Regardless of whether the public school operated by the Village District is a neutral site, and regardless of how scrupulous the district is in maintaining the secular nature of the educational services, we are of the view that the symbolic union between church and State effected by the creation of a school district coterminous with a religious enclave to provide within that enclave educational services that were already available elsewhere is significantly likely to be perceived by adherents of the Satmar Hasidim as an endorsement, and by non-adherents as a disapproval of their religious beliefs.
We emphasize that it is not the location of the public school in the religious community and the provision of public educational services to sectarian students that we find offensive to the Establishment Clause. The impermissible effect is the symbolic impact of creating a new school district coterminous with a religious community to provide educational services that were already available in an effort to resolve a dispute between the religious community and the school district within which the community was formerly located, a dispute based upon the language, lifestyle and environment of the community’s children created by the religious tenets, practices and beliefs of the community.
Levine saw it differently—much differently. In his view, the needs of the Satmar children were not necessarily based on religion; rather, he argued, they were culturally based. Levine would have given “the Satmar Hasidim their day in court to establish that the statute can be and has been implemented in a way that sufficiently separates the Village District’s provision of special education services for their disabled children from their precepts and practices to avoid conflict with the Establishment Clause.” He argued that absent direct proof that the district was a religious operation, the court should assume that it is not, despite the fact that our argument centered on the adoption rather than the implementation of law.
The ultimate ground for the majority’s invalidation of [the law] … is its conclusion that the primary or principal effect of the legislation is to advance religion. I disagree…. I believe that this Court should not be looking for ulterior motives…. As repeatedly stated, the motive for the Satmar parents’ refusal to accept the special educational services for their handicapped children offered by the Monroe-Woodbury District was not religious, but was to protect the children from the psychological and emotional trauma caused by exposure to integrated classes outside the Village that were inadequately addressed by the professional staff of the Monroe-Woodbury District.
Levine added:
While I am not able to discern with complete confidence why the majority rejects the … religious-neutral explanation by the Satmar for their refusal to accept the special educational services of the Monroe-Woodbury District, the majority’s rationale seems to be based on either one of two propositions. The first of these is that the Satmar’s explanation is disingenuous, i.e., that segregated education of even its handicapped children is in fact at the core of the Satmar sect’s religious beliefs…. Alternatively, the majority’s decision may be read as concluding that the [Satmar’s] professed explanation for rejecting the Monroe-Woodbury District’s offer of services is … religion based because the Satmar’s cloistered lifestyle and cultural outlook are derived from their religious beliefs. This … has grave constitutional implications…. In effect, the majority is saying that the State may not respond to a bona fide secular interest of the Satmar Hasidim, i.e., the psychological and emotional vulnerabilities of their handicapped children, because the culture bringing about the insecurities of these youngsters was “molded” by Satmar religious precepts. In a real sense, then, the majority is holding that merely because of some link between their religion and a legitimate secular need, the Satmar are disqualified from receiving from the State the purely secular services to meet that secular need. The case law simply does not support such a rigidly impenetrable wall between church and State.
In response, Justice Casey cited “uncontradicted evidence of a direct link between the language, lifestyle and environment of the community’s children and the religious tenets, practices and beliefs of the community…. The dissent’s suggestion that the creation of a new school district was the appropriate remedy to address the Satmar parents’ claim that the services offered by the Monroe-Woodbury District were inappropriate for the special needs of their children is less than compelling.”
Levine’s dissent, skillfully and articulately distinguishing between cultural and religious accommodation, gave us some real problems, because it offered the New York Court of Appeals a plausible way to duck the case. If the court of appeals wanted to avoid overturning the Pataki-Lentol law without endorsing it, the judges could take the path suggested by Levine. I had to admit that Levine had made a plausible and principled argument—although I still believed our argument was more plausible and equally principled. Fortunately, there was no Supreme Court authority on the question.
And the question, going to the heart of the Establishment Clause, was probably outside the purview of the state courts. From a tactical standpoint, Levine perhaps undermined his own dissent. Worona and Lewin had introduced competing experts testifying on the question of theocracy in the village, and the judge’s argument would have been better served by choosing sides between the experts rather than attempting to divine a Supreme Court–approved method of disentangling religion from culture in a few highly tangential cases about Christmas trees or menorahs.
Meanwhile, the further the case went up the judicial ladder, the more attention it garnered. The divided opinion of the appellate division captured the interest of Establishment Clause scholars across the country, several of whom filed amicus briefs. When courts, especially high courts, are faced with important decisions about policy, they often welcome these “friend of the court” briefs, which tend to be written by lawyers and academics who have deep experience on the issues before the court. Not infrequently, academics who happen to have written articles touching on issues before the court will send these to the court as well. If a court cites information from the article, it’s considered a great honor in academic circles.
Most of these amici relied on the Lemon test, despite the fact that at least four of the nine Supreme Court justices and maybe even a majority had implied that Lemon had run its course and outlived its usefulness.
Marc Stern of the American Jewish Congress (AJC) had a different approach. One of the nation’s most venerable Jewish organizations, the AJC has built a powerful reputation in legal circles on the issue of separation between church and state. It has long been the position of the AJC that the safety of Jewish Americans and their religious practices and beliefs depends on maintaining Jefferson’s vision of a wall of separation between church and state. Stern consulted with Jay Worona, and they decided that since Lemon remained the official Supreme Court test, Jay should concentrate on Lemon in his brief to the court. Rather than reiterate those arguments, Stern would use his amicus to present the court with a broad historical perspective on the New York Constitution’s Blaine Amendment as well as a policy defense of the principles behind Lemon. His was a brilliant addition to the Lemon argument.
The first part of Stern’s brief familiarized the court with the history of the “Poughkeepsie plan”—the compromise plan that had been worked out in the Hudson Valley town of Poughkeepsie in the 1870s to provide public schools to Catholics. When Catholics began to arrive in great numbers in the middle of the nineteenth century, they quickly rejected the Protestant teaching (and at times evangelizing) that pervaded public schools of that era and demanded public funds for their own parochial schools.
The early “public” schools in this state were under de facto Protestant control. The exercise of Protestant power was not manifest in legal terms by proprietary interests or corporate structures, but it was no less real….
With the influx of large numbers of Irish Catholic immigrants in the middle decades of the 19th century, and the entry of their children into the public schools tensions arose between the immigrants who regarded the existing schools as religiously hostile and the ruling Protestant majority. The latter failed to see any religious bias in the schools (what, after all, could be wrong with the Bible and general principles of Christianity?). They were also convinced that Catholicism was a clear and present danger to the Republic.
Stern explained how the Catholics, unable to purge the public schools of religion, sought equal funding for Catholic parochial schools.
Catholics argued that it was unfair to tax Catholics to support what amounted to Protestant schools to which Catholics could not in good conscience send their children, and on top of these taxes, have them bear the financial burden of funding parochial schools for their own children….
The conflict put politicians who wanted to offend neither group into a bind. Various compromises were proposed. Among them was a proposal to allow for the organization of public school districts along religious lines. That is, school districts would be gerrymandered to create religiously and culturally homogenous communities which could sidestep the cultural and religious wars which plagued heterogeneous school districts. These proposals were rejected as inconsistent with the principle of church-state separation.
In Poughkeepsie, the Catholic Church devised a compromise with the local government: The church would make parochial schools available to the public school system. All public school students could attend, and the government would pay the teachers (most of whom were nuns) and ensure that during school hours the curricula were secular. At the same time, the church maintained control of the buildings and would use the school buildings both before and after school hours as places of worship and religious teaching.
The plan was very successful and was copied in many other municipalities until the New York Constitutional Convention of 1894, which rejected the Poughkeepsie plan and adopted a much stricter separation of church and state. Now, a century later, the plan of religiously segregated public schools had been revived in Kiryas Joel. As Stern wrote in his brief, “The existence of [the Kiryas Joel Village School District] is premised on the long-discredited notion that the way to avoid religious conflicts in the public schools is to create religiously identifiable school districts.”
Next, Stern wanted to refocus the court on the broad political and constitutional principles behind the Lemon test and the Establishment Clause itself. The Lemon test, Stern argued, was devised to help the court sort out the marginal cases, like whether there can be a prayer during a college graduation or whether the Ten Commandments can be displayed at a school. But the Kiryas Joel situation was not a side issue; it was a direct affront to the Establishment Clause, as it represented an actual granting of government authority to the leaders of a religious group. Stern argued that the court should just knock the Kiryas Joel school district out as a direct establishment and, therefore, contrary to the First Amendment. His brief concluded with a clarion call for the New York Court of Appeals to hold back the tide of resegregation in America:
The original idea of a common school is under broad attack from many sources. There are constant proposals for schools for specific racial and ethnic groups, sometimes for one sex or the other. Here the legislature has created a school district for members of one religion only. The time and place to stop this disturbing trend is now. Whatever else the Kiryas Joel School District may be, it is not a common school. Its existence is inconsistent with our Constitutional system, and cannot stand.
Jay Worona’s brief, strategically conceptualized to complement Stern’s amici, described in detail how the New York State Legislature and the governor had violated each prong of the Lemon test. First, the legislature had no nonreligious purpose for creating a Hasidic school district; indeed the governor’s message upon signing the bill referenced only an accommodation to religion. Second, the only identifiable purpose of the legislation was to advance and endorse the Satmar religion and to place the imprimatur of the state upon the grand rebbe’s theocracy. And third, the existence of the school district would require extensive monitoring and thus entanglement between the government and religion.
We knew that the Lemon test argument, while sound, was a bit dicey, because of a 5–4 decision on school prayer the US Supreme Court had handed down on June 24, 1992 (after Kahn’s original decision, but six months before the appellate division’s ruling). Lee v. Weisman was the first major school prayer case decided by the Rehnquist court. The case itself was about a somewhat marginal question—whether a rabbi could offer a nonsectarian prayer before a public school graduation. But it was a litmus test of whether the addition of Clarence Thomas to the Supreme Court would result in a rollback of the rules governing school prayers. In Weisman, Justice Anthony Kennedy broke with the conservative wing and established what today is known as the coercion test—that is, whether the act of government has the effect of coercing participation in a religious exercise:
The school district’s supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction. A reasonable dissenter of high school age could believe that standing or remaining silent signified her own participation in, or approval of, the group exercise, rather than her respect for it. And the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce Orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to the Rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors’ rights.
Regardless, Weisman gave some indication that, in the right case, there could be five justices willing to repudiate Lemon. But, for the time being anyhow, Lemon remained good law and the New York Court of Appeals was bound by it. We would worry about Lemon’s future later, if this journey eventually took us to Washington.
In addition to the Lemon question, Worona also took up the challenge of Judge Levine’s dissent, which suggested the state was merely “accommodating” the Satmar culture by lifting a burden. Levine seemed to be trying to analogize the Satmar to the Amish, who had successfully convinced the state to lift the “burden” of compulsory education. This analogy did not ring true, because, unlike the Amish, Kiryas Joel was demanding special government services rather than an accommodation to free them from following a government mandate that interfered with their religious beliefs. In short, they wanted to have their cake and eat it too.
Worona directly attacked the cultural accommodation theory. He argued that the village could not simultaneously maintain that it was merely accommodating the Satmar culture while at the same time disputing that religion had anything to do with their refusal to use the ordinary public schools:
Hasidim believe in a literal interpretation of Scripture and the teachings of the Torah and the Talmud (the book of Jewish law and tradition) serve to guide every aspect of life from dress to diet. Central to Hasidic beliefs and way of life is the drawing of cultural boundaries between themselves and the rest of society. To protect themselves against undesirable acculturation, Satmar Hasidim, for instance, prevent their children from watching television. They also do not allow their children to attend school with children who belong to cultures deemed undesirable for Satmar….
Thus, education comes close to being an adjunct to religion. “English language” or secular educational programs are offered only as necessary to meet the minimum state requirements for qualifying as an approved school under the State’s compulsory education laws. Textbooks are censored in advance, and the borrowing of public library books is forbidden because of their uncensored content. Nonacademic subjects such as art, music and physical education are absent from Satmar schools….
The cultural needs of the children of Kiryas Joel are inextricably linked to fundamental Satmar religious beliefs which define the essence of Satmar culture, and dictate, in relevant part, that Satmar children be educated separate and apart from non-Satmar students. The only reason why Village residents required a separate school district was because of their religious need to remain culturally isolated. Thus, the primary effect of the contested statute is not to provide Village children with special education services, but rather to involve the state in sponsorship of Satmar separatist precepts.
We were confident that if the court accepted this argument, and therefore rejected Levine’s accommodation theory, it would have nothing to fall back on other than the Lemon test. And in our view, we couldn’t possibly lose with a strict interpretation of Lemon.
Predictably, our adversaries urged the New York Court of Appeals to embrace Levine’s dissent. They wanted nothing to do with Lemon if possible, and far preferred to rely on the argument that the Pataki-Lentol law was a legitimate accommodation of the Satmar right to free exercise of their religion. In other words, in the reasoning of Lewin and company, the state wasn’t “establishing” the Satmar religion within the meaning of the First Amendment; rather, it was removing an obstacle that prevented the Satmar from receiving government services without impinging on the free exercise of Satmar beliefs. “For reasons that are secular and not religious, the Satmar handicapped children are unable to leave Kiryas Joel and attend the heterogeneous special education classes provided by Monroe-Woodbury,” they insisted in their legal brief.
I viewed this argument as a mistake in legal, logical, and political terms, because it hinged on an absurdity. The Satmar’s argument struck me as the equivalent of a white supremacist community arguing that their white children in Little Rock would be so traumatized by having to go to school with black kids that the state should provide a segregated public school environment for them.
Now that the case was headed to the court of appeals, we redoubled our efforts to draw media interest. Frankly, we wanted as much attention as we could get, and we hoped that such interest would resonate with the judges of the court of appeals and dissuade them, if they were so inclined, from ducking the issue as Levine had. We framed the case as a major confrontation between the governor and the Constitution and between the board of regents and the governor, with potentially profound implications for the religious rights of the average citizen. Our effort was highly successful, and we garnered the attention of the New York Times, the Albany Times Union, the Gannett chain, the Associated Press, Newsday—in short, all of the most influential and broad-based newspapers in the state. Those papers ran numerous stories about the conflict, many of them editorializing on the matter and suggesting that Kiryas Joel’s school district threatened the entire premise of the melting pot and could lead to serious revivals of separatist tendencies in the schools.
But we knew, of course, that it wasn’t the press we ultimately had to persuade but seven of the sharpest legal minds in the state: the judges of the rightly renowned New York State Court of Appeals.
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* A study published in the Albany Law Review in 2006 showed that Mercure had an astonishing record on appeal. Over a six-year period, every single time a divided case went to the court of appeals, the high court vindicated Mercure. See Jason A. Cherna, Jessica Blain-Lewis, and Vincent Martin Bonventre, “Appellate Division on Appeal,” www.albanylawreview.org/Articles/Vol70_3/70.3.0983-Bonventre.pdf. A judicial screening committee had nominated Mercure for the court of appeals several times, but the politics were never quite right for a gubernatorial appointment.
* Again, under Lemon v. Kurtzman, 403 US 602 (1971), a statute must have a secular purpose, its primary effect must be one that neither promotes nor inhibits religion, and it must not foster “an excessive government entanglement with religion.”