When the state becomes enmeshed with a given denomination in matters of religious significance, the freedom of religious belief of those who are not adherents of that denomination suffers, even when the governmental purpose underlying the involvement is largely secular. In addition, the freedom of even the adherents of the denomination is limited by the governmental intrusion into sacred matters.
WHEN JAY AND I traveled to Washington in January 1994 for a summit with those wishing to join our case as amici curiae, an old cliché popped into my mind: “The enemy of my enemy is my friend.”
We were accompanied by Bernard Ashe, the lead attorney for New York State United Teachers (NYSUT) and one of the best education lawyers in the nation, who was interested in joining our cause. Most of the time, we at the New York State School Boards Association were at odds with the union over such issues as teacher discipline, tenure, and merit pay. So ours was an unlikely alliance, and equally odd was the location of our meeting: the headquarters of the National Education Association (NEA) on Sixteenth Street, a couple of blocks from the White House. NEA had long been a rival of NYSUT and the American Federation of Teachers. Indeed, both organizations had splintered from the NEA. We were meeting, too, with the American Civil Liberties Union (ACLU), which generally supported civil rights but sometimes had a problem with the tension between the Free Speech Clause and the Establishment Clause, and on occasion allied with the conservative American Center for Law and Justice (ACLJ) on such issues. Also represented at the meeting was the American Jewish Congress, which joined in our battle against a school catering solely to Jewish children, and in this matter was aligned with the Baptist Joint Committee for Religious Liberty.
The Supreme Court has been compared to nine scorpions in a bottle, and the atmosphere at the NEA seemingly mirrored that peculiar dynamic—except most of the scorpions seemed intent on devouring Jay Worona. (More on that later.) But the meeting did underscore the diversity of opinions and viewpoints that, dating back to Jefferson and Madison, underpin our perspective of religious freedom and the separation of church and state.
The ACLJ, which was founded in 1990 by the evangelical minister and lawyer Pat Robertson, is a right-wing conservative group established as a counterweight to the ACLU. ACLJ’s chief counsel, Jay Alan Sekulow, was a Christian follower of Messianic Judaism.* Sekulow had pioneered the so-called viewpoint discrimination argument in a series of Supreme Court cases concerning state action and religion, claiming that anytime the government restricts religious practice or the presence of religious activity (by, for example, banning school prayer or banning Hare Krishnas from airports), it violates the right to free speech. This view had some traction with the right wing of the court, and gave us some concern—especially if the ACLU were to adopt it in our case. In my mind, the viewpoint discrimination theory was a severe threat to the Establishment Clause.
With the viewpoint discrimination premise, the court could conceivably read the Establishment Clause literally and pare it down to cover only those instances where the government actually “established” an official religion. The conservatives, who would prefer more religious influence (so long as it’s a religion they approve of), were enamored with Sekulow’s theory. And it resonated with the free speech absolutists on the left, those who think that anything that potentially restricts speech leads us down a slippery ramp to suppression of speech. We hoped the ACLU would stick with us, and Worona and the other amici persuaded the group that Kiryas Joel represented a dangerous weakening of the separation of church and state. They successfully headed off an unholy ACLU-ACLJ alliance.
The Baptist Joint Committee for Religious Liberty brought another interesting perspective. With their long commitment to separation of church and state, a viewpoint rooted in New Testament theology, the Baptists were an important ally. Baptists, like other “nonconformists,” had suffered generations of discrimination in Europe. They were very concerned with protecting their rights and freedoms in the United States, and of course it was in Thomas Jefferson’s letter to the Baptists in Danbury, Connecticut, where Jefferson first pledged to erect a wall of separation between church and state. The Baptists were our natural allies.
But …
In the 1970s, when the Republican party was reinventing itself to appeal to fundamentalist voters in the South and Midwest, a conservative faction in the Southern Baptist Convention (SBC)—which was and remains by far the most important governing body of American Baptists—began a takeover of the SBC. These conservative Baptists were in favor of forsaking the age-old Baptist commitment to church-state separation for a political alliance with the surging Republicans. Meanwhile, the Baptist Joint Committee, which represented Baptists in Washington and had been filing briefs in support of separatist views for decades, was also targeted by the SBC junta. The SBC felt that Republican-controlled governments at the national and the state levels would support fundamentalist social policies if the separation of church and state were weakened, but the Baptist Joint Committee, traditionally the legal arm of the Baptist movement, held firm in favor of separation of church and state.
From 1979 (when the splinter group first successfully elected the president of the SBC) until the early 1990s, relations between the SBC and the Baptist Joint Committee deteriorated steadily. The Baptist Joint Committee refused to abandon the principles of church-state separation in exchange for what it considered a very bad marriage with political conservatives. Even though the conservative faction had been electing presidents of the SBC since 1979, it took ten years to fully consolidate control of the most important committees. In 1991 the conservatives finally succeeded in cutting all funding to the Baptist Joint Committee. Nevertheless, there was a cultural and institutional need to maintain the illusion of Baptist unity, so the SBC and Joint Committee at first avoided appearing in public on opposite sides of an issue. Our case would be among the first, and few, in which the SBC and Baptist Joint Committee appeared on opposite sides.
Interestingly, a similar schism had opened between the American Jewish Congress (AJC), renowned champions of separationist litigation, and Agudath Israel, an organization that ran a large Orthodox Jewish system of yeshivas and very much wanted access to government funding streams for their programs. Agudath Israel filed a brief supporting the Satmar; attorneys Marc Stern and Norman Redlich of the AJC supported our cause and were at our meeting at the NEA headquarters.
Coincidently, Redlich, a former corporation counsel for New York City, had been one of my professors at New York University Law School in the 1960s, and I had edited a casebook on municipal law for him. The AJC had been supporting our position through the New York State courts and was one of the best friends of our case because, as the most venerable and influential Jewish civil rights body, the AJC’s participation helped shield me from allegations that I was an anti-Semite or a self-hating Jew. Stern recalls that the meeting about the case was typical of most important amici conferences. “Everybody has a stake and everybody wants to show off. It’s very hard. On the one hand, having a broad coalition shows that your side isn’t just represented by a narrow-minded crank,” Stern told me.
On the other hand, more voices inevitably mean more dissension. Since every civil rights group has a different purpose, and often a different political base and constituency, finding common ground can be difficult.
“I was doing a brief once,” Stern recalls, “for 120 odd civil rights groups with the late Marvin Frankel* and we were relatively close, but the brief had to be approved by 120 groups. No matter how many drafts we went through, there were always some words or some language or some legal theory we couldn’t use…. Most of the people who run these organizations are not practicing lawyers and have no idea of the feel of the case or how to present a winning argument. But they have a true sense of what their own political needs are, so I find it really confining. Thankfully, at this point in my career if I say ‘The law is X and we can go Y distance with it,’ there’s a certain amount of deference, but that wasn’t always the case.”
Our meeting at the NEA was fascinating, with the different organizations ardently pressing their agendas while Jay and I tried to keep them focused on ours. Some groups saw the case as simply one of a series of attempts by the conservatives on the court to jettison the Lemon test in favor of a coercion test. For these groups, preserving Lemon was the goal. Others were inspired by Chief Judge Kaye’s opinion and wanted to stress that Kiryas Joel’s school district represented a direct affront to the Establishment Clause. Because they saw the KJ district as a precursor to a future of religiously segregated school districts and the end of the Establishment Clause as Americans had come to know it, they favored ignoring Lemon and going straight to the language of the Establishment Clause. During the meeting, the various groups managed to divide the important legal and policy arguments among themselves, and it wasn’t until Worona left to take a personal phone call that an ulterior motive for the meeting became apparent.
The instant Jay left the room, the meeting abruptly shifted to a discussion of whether this wet-behind-the-ears whippersnapper from Upstate New York was of sufficient experience, stature, and pedigree to take this important case to the US Supreme Court. It was pointed out that he had never argued a case at the Supreme Court. “The First Amendment is at stake, and you can’t send a novice against Lewin in a case like this,” one of them argued. Lewin had argued a couple of dozen cases in front of the court.
Earlier, Jay and I had detected jealousy and condescension from the Harvard-, Yale-, and Columbia-trained attorneys involved in this dispute in one way or another, but I had no idea that the sentiments were that strong.
I was furious. I angrily reminded everyone in the room that Jay Worona knew this case better than any of them and better than anyone, that he had matched wits and minds with seven of the sharpest legal intellects in the state—the judges of the New York Court of Appeals, who had on many occasions made mincemeat of the Ivy League lawyers—and that he had already won this case three times. As to his age and experience, I noted that Sarah Weddington was twenty-six when she argued and won the iconic Roe v. Wade.* Not for a nanosecond was Jay’s position as lead counsel in any jeopardy. I didn’t tell Jay about the attempted coup until much later, because I didn’t want to distract him, but he couldn’t help but notice the condescending looks and snide comments.
“Basically what I learned was that the intelligentsia in Washington really enjoys listening to themselves talk,” Jay recalls. “When they learned that this local yokel from Albany was going to be litigating this very important case, they decided to use the meeting in Washington as an opportunity not to have me tell them what the case was about so they could decide how to write their briefs but to make me feel as small as possible so I would tuck my tail and run away. I discovered that they didn’t give a crap about what happened in the Hasidic community or the legislation in Albany but only the issue of the almighty Lemon test and their own personal approach to the separation of church and state. It all had a profound effect upon me, because instead of taking a screw ’em attitude, which, now that I’m fifty I could take, at thirty-two years old I thought, Oh my god, what have I got myself into? and I prayed, Dear Lord, please don’t let me screw up!”
After averting the coup, I suggested the amici get down to the business of writing their briefs, and I must say their writings were impressive. I was very pleased with the breadth and scope of the arguments, and very confident that the issues were thoroughly laid out for the Supreme Court. Now it was a matter of getting Jay prepped—and we all knew that the best way to do that was to hold a series of dress rehearsals, so to speak. With the help of the National School Boards Association, a series of “moot courts” were set up, two of them at prestigious law schools—New York University and Albany Law School—and a third at the legendary Supreme Court and appellate advocacy law firm of Hogan & Hartson.*
The preparations for the moot courts were extensive, and Jay crammed for months, attempting to anticipate the questions and responses he would get from the pretend judges at the universities and the law firm, who in turn were anticipating the questions and responses he would encounter when he actually appeared before the high court. The moot court at Hogan & Hartson was especially instructive.
Worona remembers that the “chief judge” gave him a particularly hard time, showing him the ropes of Supreme Court advocacy and just how penetrating the questions of the conservative justices were likely to be. “He was very helpful, very generous with his time,” Jay recalls. “There was an exercise where we would make a mock argument and he would critique what I did, how I delivered the argument. It helped me understand what is and what is not effective oral advocacy.”
The mock chief judge would eventually become rather famous in his own right: John Roberts, who had clerked for Justice Rehnquist and would, years after our case was decided, succeed him as the real chief justice of the Supreme Court. Roberts helped prep Jay for the sort of questioning he could expect, especially from his former boss and Scalia.
But even after the best preparation in the world, neither Worona nor any of the amici thought they could win a vote from Chief Justice Rehnquist or his two archconservative allies, Thomas and Scalia. The key to the case, we were certain, would be getting O’Connor and Kennedy. Stevens, because of his separationist record, could be counted on to support our arguments, and Ginsburg, though in some ways an unknown quantity, was proven to have an expansive view of equal protection (perhaps making her sensitive to Kaye’s segregation analysis) and was widely expected to favor a strong separation between church and state. However, this would be one of her first cases as a Supreme Court justice, and history is replete with examples of new judges who, once joining the high court, changed their stripes or defied expectations. Justice Blackmun, who may well have been the brains behind Lemon (which was signed by his childhood friend Warren Burger), could be counted on to apply the Lemon test. By 1993 Justice Souter was known to favor stability in the court’s decisions; we and the amici felt confident that Souter could be persuaded to apply Lemon or, at least, a test reflective of the goal of Lemon. Further, his recent concurring opinion in Lee v. Weisman* gave us hope, given his analysis of church-state relations in that case. That made four likely votes for our position. The fifth would have to come from Justice O’Connor or Justice Kennedy. From our perspective, the best target was O’Connor.
Although O’Connor’s decisions have been criticized by some academics over the years, and it remains debatable whether her way of looking at cases will be influential in the future, there is little question that while on the court, O’Connor was one of the most influential justices in history. In nearly every tight decision from the late 1980s through to the early years of the new century, O’Connor cast the deciding vote.
We suspected O’Connor was receptive to reconsidering and perhaps retooling the Lemon test. She was not a strong separationist when it came to church and state, and she was a vocal opponent to the court’s decision in Aguilar v. Felton, which held that New York City’s practice of sending public school teachers into parochial schools to teach disabled children violated the Establishment Clause:
Common sense suggests a plausible explanation for this unblemished record. New York City’s public Title I instructors are professional educators who can and do follow instructions not to inculcate religion in their classes. They are unlikely to be influenced by the sectarian nature of the parochial schools where they teach, not only because they are carefully supervised by public officials, but also because the vast majority of them visit several different schools each week, and are not of the same religion as their parochial students…. The actual and perceived effect of the program is precisely the effect intended by Congress: impoverished schoolchildren are being helped to overcome learning deficits, improving their test scores, and receiving a significant boost in their struggle to obtain both a thorough education and the opportunities that flow from it…. The risk that public school teachers in parochial classrooms will inculcate religion has been exaggerated….
For these children, the Court’s decision is tragic. The Court deprives them of a program that offers a meaningful chance at success in life, and it does so on the untenable theory that public school teachers (most of whom are of different faiths than their students) are likely to start teaching religion merely because they have walked across the threshold of a parochial school. I reject this theory….
Kiryas Joel’s attorney George Shebitz thought a plausible outcome of the Supreme Court case might be a reversal of Aguilar. Shebitz strongly believed that the Kiryas Joel situation had occurred only because of Aguilar, and he felt that O’Connor would solve it with a reversal.
On the other hand, O’Connor generally embraced a Madisonian view of the First Amendment, which might, Worona and Stern thought, lead her to uphold the New York Court of Appeals decision. Since Madison had advocated the view that the government could support religion but, if it chose to do so, must support all religion equally, the attorneys supporting our position thought that O’Connor’s vote could be won by focusing on the fact that New York State singled out the Satmar for special treatment.
But that remained to be seen.
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* Messianic Jews accept Jesus as the Messiah and trace the roots of the movement to the twelve apostles—who, like Jesus, were Jewish.
* Marvin E. Frankel was a renowned litigator, federal judge in the Southern District of New York, and scholar who taught at Columbia Law School. He died in 2002.
* Sarah Weddington, an attorney and former Texas state legislator, is best known for representing the plaintiff in Roe v. Wade, 410 US 113 (1973), the Supreme Court’s landmark abortion rights case.
* Hogan & Hartson was an international law firm that merged with a London firm in 2010 and became Hogan Lovells.
* Lee v. Weisman, 505 US 577 (1992), was the Rehnquist court’s first major school prayer case, and it was a blockbuster. By a 5–4 vote, the court shot down, on Establishment Clause grounds, a practice in Providence, Rhode Island, of inviting clergy to deliver benedictions and invocations at public school graduation ceremonies. Essentially, the decision suggested that the constitutionality of any graduation prayer turned on the specific facts of the case.