Some Framers simply did not share a common understanding of the Establishment Clause, and, at worst … they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next.
“OYEZ! OYEZ! OYEZ! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this Honorable Court.”
With those words from the court crier, the argument was underway.
It was March 30, 1994, a sparkling spring day in Washington, and there we were at the legal citadel. The Supreme Court building rises from street level in such neoclassical excess that one justice suggested the judges should arrive riding on the backs of elephants. When the building was completed in the 1930s, Chief Justice Harlan Friske Stone found it “almost bombastically pretentious” and “wholly inappropriate.” As we approached, I think we all felt a bit intimidated to be standing at the bastion of justice. Jay Worona mounted the steps in awe, a comparative welterweight entering the ring, praying he wouldn’t get pummeled by behemoths. An avid runner, he had jogged past the court building a couple hours earlier, and was startled to see a line of spectators eager to hear the arguments—his arguments.
Our opponent, Nat Lewin, was already in the gallery, looking as suave, comfortable, and at ease as one would expect from an attorney who had so regularly argued before the high court. I think Jay and I were both taken aback when retired justice William Brennan, an icon to us, walked into the corridor and warmly greeted Lewin like a long lost friend. At least perceptually, Lewin clearly had a home court advantage. But Jay was too focused on the job at hand to give it much thought.
With the crier’s announcement, the nine justices strode through openings in the curtains, filing in by reverse seniority and taking their spots behind the bench. The chief justice gets the center seat, flanked by the associate justices. The most senior sit to the chief’s left and right, the most junior at the far ends, and everyone else in between. Chief Justice William Rehnquist quickly glanced at the assemblage in his courtroom, leaned forward slightly, and declared, “We’ll hear argument now in Number 93-517, The Board of Education of Kiryas Joel Village School District Versus Louis Grumet and two cases consolidated with it for argument. Mr. Lewin?”
Like all good appellate advocates, Lewin cut to the quick: “The statute that is being challenged in this case as inconsistent on its face with the Establishment Clause of the First Amendment involves no governmental participation in the teaching and propagation of religious doctrine and underwrites no public employee to participate directly in religious indoctrination.”
The die was cast. In Lewin’s view, the fact that the school did not provide religious instruction was paramount. Lewin went on to reason that the village was constitutional, and therefore the school district must be legitimate—an illogical exercise, I thought. He would pin his hopes on persuading the justices to focus on the students with disabilities and the organization of the village instead of on the act of the legislature. Lewin added a quick pitch to Justices Blackmun and Souter, suggesting that the Kiryas Joel district satisfied the reservations both of these justices had expressed previously about church-state entanglements. He got in as much as he could before the interruptions began. And then he was bombarded.
Justice O’Connor lobbed the first grenade. “Were the laws of the State of New York,” she asked, “not such that other people similarly situated could form their own special school district? Why did a special law have to be enacted here?”
Lewin explained that all school districts in New York were formed by special acts, but O’Connor was plainly not satisfied with that answer, and she was less than satisfied with his peculiar attempt to equate the creation of a school district to the collection of trash. Under his analogy, if the state collected trash on Saturdays and one community felt that it couldn’t, for religious or cultural reasons, take trash out on Saturdays, then the state could make a special provision for that community to put out trash on another day.
“Well, Mr. Lewin,” O’Connor responded curtly, “if such a law were to neutrally extend to everybody in New York, so that anybody similarly situated could dispose of their own trash, I think you have a very good analogy. I have a little trouble seeing why the same analysis applies when the law that you’re examining is not neutral.”
Music to my ears! If Lewin couldn’t persuade O’Connor that the law was neutral or get her to focus on the plight of the children, I thought, we had an excellent chance of winning her swing vote.
The next question, from Justice Kennedy, was also encouraging. “Is it fair to say that governmental power was transferred here to a geographic entity based on the religious beliefs and practices of its residents?” he demanded, cutting to the heart of the case.
Lewin immediately attempted to argue, but Kennedy cut him off. “If my characterization that I used in the question were deemed the appropriate characterization, would you lose the case?” It was obviously a theoretical and rhetorical trap, and Lewin attempted to sidestep it by stressing, again, the legitimate creation of the village. Lewin was taking a beating and he knew it, but he got a break from Justice Scalia after noting that the establishment of the Village of Kiryas Joel was rooted in a zoning dispute.
“Well, that may be unconstitutional too, Mr. Lewin,” Scalia said sarcastically. “If people for religious reason have larger families we can’t have special zoning communities with special zoning rules, either.”
Scalia continued, “The argument being made is that if they had large families for some other reason, not a religious reason, you could establish a special community with different zoning laws for that group, but if they have large families for religious reasons, just as this community has certain customs that make it difficult for them to go to another community for their schooling for religious reasons, then it’s ‘bad.’”
It was exactly the opportunity that Lewin had been looking for, and he hammered the softball that Scalia lobbed over the center of the plate and took the opportunity to portray himself as the savior of the religious freedom provisions of the First Amendment. “Well, our view of course is that that turns the First Amendment on its head!” Lewin said with flourish. “That essentially meant that the free exercise of religion, which is protected by the Constitution, becomes the one impermissible vice that invalidates anything that’s done, and we think—”
Souter cut him off in midsentence. “Yes but leaving that argument aside—”
Souter interrupted, dismissing Scalia’s point entirely: “I take it that the upshot of the forces that led to the creation of the village was that in fact the village was defined by adherence to this sect. That was the result, I take it?”
Ginsberg jumped in. “Your case I think would be considerably harder if you didn’t have the school district that coincided with the preexisting village boundaries,” she said.
I was frustrated and wanted to interrupt and remind everyone that villages do not run school districts in New York, and that this was unique.
The remainder of Lewin’s argument was fairly uneventful—except for an odd interjection by Chief Justice Rehnquist. Looking uncomfortable, and occasionally standing up and wandering around, Rehnquist, suffering from back pain and other health problems, interjected, “Is this place geographically located up around Rochester?” To this day, I don’t know where, if anywhere, the chief justice was going with that question. Lewin seemed equally baffled, partially because he didn’t know why in the world it mattered, and partially because he appeared to have no idea where Rochester was (some three hundred miles from Kiryas Joel). With that, his time was up.
Assistant Attorney General Julie Mereson, New York State’s lawyer, went next. Mereson began by drawing a distinction between accommodating religion and advancing religion, but was quickly cut off by Scalia.
“Do you see a difference between [accommodating religion and advancing religion]?” Scalia demanded. “By tolerating it and facilitating it, you advance it. I mean, do we have to pretend that there’s a difference between the two?” Scalia’s comment went to the heart of the Lemon test and punctuated his long-held concern that the court had built too high a wall between church and state.
Mereson attempted to explain the distinction, but she was struggling. “I believe there’s a great difference between the two,” she responded. “There’s a red line between the two that sometimes is hard to discern, perhaps.”
O’Connor asked, with growing exasperation, “How is this neutral? If the legislature set up just a special school district for this one situation, instead of passing a law to the effect that groups of people or villages or towns can form their own school district by applying neutral criteria?”
Mereson attempted to salvage her case by stressing that the New York State Legislature was simply reacting to a demonstrated need when it created the Kiryas Joel school district. “There was a local problem that did not need a general statute for other groups in the State,” she said. “The problem here—”
She got no further before she was cut off.
Souter jumped in and, echoing Chief Judge Kaye’s opinion from the New York Court of Appeals, asked whether the state went too far, whether it could have eliminated the problem by “simply mandating that some kind of a special school in a neutral place be set up by the existing school district to accommodate these particular children.” Mereson wasn’t having any more luck than Lewin had in focusing the justices on the special needs of the disabled Satmar rather than the doubtful solution of the legislature.
At last, it was Jay Worona’s turn to address the court. He began by describing the Satmar demands for a religiously segregated environment, but didn’t get thirty seconds into his speech before Scalia brusquely cut him off.
“Excuse me, you say religiously segregated,” Scalia said. “That sort of begs the question, doesn’t it? It was culturally segregated, certainly, you might say linguistically segregated, but why necessarily religiously segregated?”
This was a powerful point, and essentially the one Justice Levine had made at the appellate division. But I thought it was logically refutable. Of course, with the exception of specific religious rituals, it is virtually impossible to distinguish neatly between religious and cultural behavior, especially in a community like Kiryas Joel where religion and culture are so interwoven. But so what? I couldn’t imagine that Scalia—the “originalist”—seriously believed that the Establishment Clause forbids nothing but direct government subsidy of religious rituals. If that were so, the clause would be meaningless, as government would be able to indirectly influence (and yes, Mr. Jefferson, be influenced by) religion. The wise men who drafted our Constitution, and the citizens who embraced it, were far too smart for that. They clearly understood that religion is too combustible an element for the government to safely handle.
Scalia had backed himself into a corner. (Blackmun commented in his notes, “Nino is ruffled.”) Ginsburg again attempted to move the conversation into a different direction, but both she and Worona were interrupted by the sudden interjection of the chief justice.
“What you’re saying,” roared an incredulous Rehnquist, “is that the Satmar, because they all live together, can’t exercise the ordinary kind of secular authority that any other group living together could.”
“No, that’s not what we’re saying,” Worona responded. I was pleased and impressed that he refused to be intimidated by the chief justice of the United States.
“Well, it seems to me you are!” Rehnquist shot back.
“No,” Jay countered, stubbornly standing his ground. “We’re asking this court to examine the context in which this particular piece of legislation was established.”
Rehnquist wouldn’t let it go: “Supposing a large group of Roman Catholics lived close together in some part of New York state, and they decide they would like a separate school district, and they go through all the normal forms for it, and the state legislature creates a special act school district, is that suspect under the First Amendment?”
Leery of being lured into Rehnquist’s hypothetical, Jay attempted to steer the discussion back to Kiryas Joel: “It might be. I don’t think it would necessarily be unconstitutional, if indeed the circumstances surrounding the passage of that legislation are not as they are in this particular case, Your Honor.”
Rehnquist: “Well, suppose they said, we’d like to have our own school district. We think pretty much alike on school issues, and we just want our own school district and they’re all, 99.9 percent of them are Roman Catholic.”
Worona: “I think the major problem that we have in this particular case is that—”
Rehnquist: “Well, will you answer my question?”
Worona: “I will try, Your Honor, and forgive me.”
Rehnquist: “Try right away, will you?”
There was laughter in the courtroom, and I feared Jay would get rattled. I grew concerned that he would never get through his argument if the judges kept interrupting and peppering him with questions—questions that, predictably, went to the core of his case. He attempted to formulate an answer when Souter did it for him, seemingly debating with the chief justice as Jay stood between them like a volleyball net.
“But isn’t the difference,” Souter said, “that there wouldn’t be any alternative to having a school district in the Roman Catholic case, where there is an alternative to having this school district in this case?”
Jay was starting to get the feeling that he wasn’t so much a net in a volleyball game as a wall in a rather aggressive squash match between Rehnquist and Souter, with each of them smashing the ball off him. The squash game continued with Scalia, Rehnquist, Kennedy, and Ginsburg bouncing questions to each other off Worona. At one point Ginsburg interrupted Kennedy, who shot back, “May I just finish?”
A lesser attorney would have come unglued. But despite the interruptions and peculiar back and forth between the justices, Jay kept his composure and managed to present the gist of his argument forcefully. During the few moments that he was able to come up for air, he struggled to bring the focus back to the New York State Legislature’s impermissible establishment of a school district with full governmental powers for the purpose of supporting the religious isolation of a particular sect. It seemed to be to little avail, as the justices were too busy playing cat and mouse with Jay. They certainly did not seem sympathetic to his case (Blackmun noted, “The Justices get so excited!”).
“We believe that a political constituency defined along religious lines has in fact been established by the statute,” Jay told the court. “The particular community of individuals who are devoutly religious were imbued with governmental powers and functions to allow them not simply to be exempted, as this court has in the past accepted, to privately pursue their religious perspectives, but rather, New York State has offered its arm to these individuals to be able to run a school district with full governmental [power].”
At one point O’Connor suggested that the legislature’s maneuver in creating a one-village school district, instead of enacting a law that would apply equally to any community, could “set a dangerous precedent.” Kennedy opined that “the rationale for the district was religious, pure and simple.” Scalia questioned why, if the accommodation to Kiryas Joel wasn’t legal, it isn’t unconstitutional for Congress to go out of session on Good Friday or Passover or Easter or Rosh Hashanah. Jay provided the self-evident answer: “Because we’re not imbuing any particular governmental functions on any particular religious person to carry out those … his religion.”
At last, after not even an hour of arguments, the court adjourned and the parties found themselves once again on the marble steps of the Supreme Court building among a phalanx of reporters and a bank of microphones. Some fifty print journalists were there, along with C-SPAN (which was producing a two-hour documentary on the case) and all the major networks.
Abe Wieder—the mayor of Kiryas Joel, head of the Talmudic Academy, and president of the Kiryas Joel Village School Board—approached the media with a glowing smile, flanked by Steve Benardo, George Shebitz, Malka Silberstein, and about ten other Satmar. All of them were ecstatic, interpreting the interrogative tornado that rained down on Jay as proof positive of their victory. But the reporters were more objective, asking questions that in some ways were as probing and insightful as those of the justices.
“How can this not be a religious accommodation?” “What would you say if an Arab community asked for the same thing?” “How do you distinguish between cultural and religious differences?” “Wouldn’t it be better to teach tolerance to children?” And finally, “Did anybody win election to the school board without endorsement by the rabbi?”
With that last question, Joseph Waldman, the dissident whose six children had been expelled from the private schools when he challenged rabbinical dictates and tried to run for the public school board without the rabbi’s blessings, began shouting “No! No!” He pushed his way up to the center of the podium just as Benardo was trying to introduce Malka Silberstein so that she could tell the story about her daughter Sheindle and the reindeer costume.
Waldman elbowed his way to the microphones, knocking National Public Radio correspondent Nina Totenberg out of the way. “The village is an absolute theocracy and the public school district is run by the rebbe!”
Eventually, Malka Silberstein was able to have her say, but before long Waldman was back in front of the microphones yelling about the theocracy in Kiryas Joel. He was basically right but came off negatively. As much as the media, particularly the TV media, appreciates a juicy quote, the best of them—like the best judges—prefer a reasoned articulation of the facts over a pyrotechnic performance. So the contrast was clear when, after Waldman ran out of breath, Rabbi David Saperstein, a leader of the Reform Jewish community, arrived at the podium along with Barry Lynn, the executive director of Americans United for the Separation of Church and State, and Brent Walker, the general counsel of the Baptist Joint Committee.
Saperstein cogently explained that his and other prominent civil rights and religious groups had become involved with the case because the interests of all Americans were at stake. He expressed concern that the Supreme Court might use the case to overturn or dilute Lemon and impair both the Jeffersonian and Madisonian rationale for separating church and state. The rabbi also noted that the justices had not asked a single question about the Lemon test during the entire oral argument. He felt this was an indication that the court did not intend to overturn the famous precedent, a very astute observation.
Barry Lynn added, “I really believe that if this school district is allowed to stand that we will see religious apartheid in America. Clearly, what happened here is that the New York State Legislature in the last hours of the last night of the legislative session in 1989 decided to give in to the demands of a group which believed that separatism is a religious tenet and an important one. They have every right to believe that, but they do not have the right to ask the taxpayers to support their religious belief system.”
He then explained articulately why many Jewish organizations supported us in this case: “Many of the Jewish groups in this country understand that American Jews have benefited tremendously from church-state separation, that it has protected their children from Christian bias in the public schools.”
Lynn left the reporters with the following question: “Why is the president of the principal synagogue of this community also the [mayor] and also the head of the school board if not to demonstrate very clearly that there is no difference between the religious purposes of the community and what occurs in this specially created school district?”
Before much longer, the press conference was over, the news broadcasts had been prepared, and the articles had been written. I found the press coverage fascinating and considered it particularly interesting that the myriad different reporters came away with varied impressions and observations.
For example, Ana Puga of the Boston Globe summarized the case as follows:
The central question in the case is how far the state can go in accommodating a particular religious group without violating the separation of church and state. At issue is the Satmar Hasidic Jewish community’s use of about $6 million in public funds to educate some two hundred disabled children in its own school. Supporters of the community argued that to educate those children in a public school outside their district—where they would mix with children who do not share their culture and customs—would cause “emotional and psychological trauma.” But because the Satmar community lacked the funds to establish a private school for the disabled, it instead persuaded the New York State Legislature in 1989 to create a public school district that includes only their village, thus making public funds available.
Law columnist William H. Freivogel wrote in a column published in the St. Louis Post-Dispatch that the court seemed “befuddled” by the case and at times “seemed to wear blinders,” adding that the case took a turn toward the “absurd” with Rehnquist’s Rochester question. His take:
Theirs is a story of religious persecution that is suggestive of the small-town New England theocracies that inspired Hawthorne’s fiction and the First Amendment’s separation between church and state. If the Supreme Court upholds the Kiryas Joel district, it may open the way for more state aid to religious schools. One wonders whether that would lead to fights within state legislatures over control of scarce resources. Finally, one wonders whether the Supreme Court can get the separation between church and state right—when the separation between law and reality is stark and the lady justice wears a blindfold.
I was quoted extensively in an article that appeared in the March 31, 1994, edition of the Bond Buyer, as follows:
If we lose, and the high court upholds the state’s legislative creation of the separate school district, New York and any state could set up school districts with public funding and public taxing authorities to meet religious precepts. People in the parochial school movement have been talking about [government] vouchers to help families pay for some costs of sending children to parochial schools. That’s small stuff compared to this…. Almost 3 million children attend public schools in New York State, and another 800,000 to 900,000 children attend parochial schools…. Why couldn’t [the latter] suddenly become public school districts (under a ruling favorable to the Kiryas Joel Village District)? That’s what this is all about.
Lyle Denniston, in an article published in the Chicago Sun-Times under the headline COURT WARY OF JEWISH VILLAGE SCHOOL, wrote:
A one-hour hearing on what may turn out to be a decisive case on government aid to religion disclosed distinctly negative reactions to the community’s position among most of the moderate justices, who are likely to control the outcome. Only conservative justice Antonin Scalia offered full-scale support for the community’s plea. The hearing provided no hint that the community would get its strongest wish: to have the Supreme Court cast aside the strict constitutional formula it has been using for 23 years that generally bars most forms of official support for religious groups. There were also no reliable clues about how the newest justice, Ruth Bader Ginsburg, views that formula.
Interestingly, the same article published the same day but in the Houston Chronicle garnered this headline: JEWISH VILLAGE GETTING SUPREME NEGATIVE VIBES; JUSTICES SHOW LITTLE SUPPORT IN HEARING.
In the Los Angeles Times, David G. Savage wrote that the justices “sounded as though they wanted to avoid a broad pronouncement in either direction.” Linda Greenhouse of the New York Times came to the same conclusion: “While the Court could use this case … as a vehicle to reexamine its approach to the establishment clause, the Justices appeared absorbed in the details of the case and did not seem eager to make new law.”
Joan Biskupic of the Washington Post thought that the court, rather than reconfiguring Lemon, might use the case to overturn its 1985 decision in Aguilar v. Felton. (The court later did indeed overturn Aguilar, albeit not in the Kiryas Joel case.)*
In Newsday, Timothy M. Phelps observed:
Although Lewin seemed in danger of losing Kennedy’s and O’Connor’s votes, which could be fatal since three other justices have taken strong secular stands in the past, he may have picked up some unexpected support from Justice Ruth Bader Ginsburg…. Ginsberg, who joined the court this term, has been described as a likely advocate of strict separation of church and state.
USA Today covered the case three ways. A story by its ace Supreme Court reporter, Tony Mauro (who later went on to a stellar career with ALM Media, owner of the highly respected New York Law Journal and various sister publications), noted that the justices “were unusually blunt in their questioning, foreshadowing sharp divisions.” An editorial called on the court to stand with the New York Court of Appeals and reject a policy “that the nation’s founders wisely banned.” And a rebuttal by a Roman Catholic nun argued, “It doesn’t hurt to be accommodating.”
Nat Lewin and I faced off on ABC World News Tonight a few hours after the arguments. I argued, “The reason the legislature enacted the statute, if you look at the legislative history, was to solve a religious problem so that people can live within their religious customs. It was done for religious reasons and it violates the Constitution.” Lewin countered, “It’s a creation of a school district for a village in which there are people who are devoutly religious. That’s all it is. It’s not a creation of a district for religious reasons.”
Rabbi Saperstein appeared on the MacNeil/Lehrer NewsHour and again laid out the case and the implications articulately: “There are thousands of school districts in this country that are predominantly white, but the government cannot create a single one with the intent of having it be white or any other color or any religion. It is a fact that the state intentionally set up a school district along religious lines. That is in violation of separation of church and state. And if this school district is allowed to prevail, then every group, religious group, that is a minority in any particular school district, Catholic, Methodist, Hindu, or anything else, can demand their own school district.”
Although I thought we had clearly prevailed in the public relations battle, with the media pretty solidly agreeing with us, I obviously knew that it was the justices and not the scribes whose opinions mattered. I was cautiously optimistic. Lewin and Wieder, on the other hand, were so supremely confident that they chartered a jet flight back to Kiryas Joel in order to tell the grand rebbe the good news. There was dancing in the streets of the village that night, a community-wide celebration.
But the celebration was premature, as the Supreme Court had not yet spoken.
________________
* Aguilar v. Felton, 473 US 402 (1985), which said that New York City could not send public school teachers into parochial schools, was overturned a few years later in Agostini v. Felton, 521 US 203 (1997). With O’Connor writing for the majority, the court held that the Establishment Clause is not offended when public school teachers instruct at religious schools, as long as the material is secular and neutral and there is no “excessive entanglement” between government and religion.