We do not disable a religiously homogenous group from exercising political power conferred on it without regard to religion…. Nor do we impugn the motives of the New York Legislature, which no doubt intended to accommodate the Satmar community without violating the Establishment Clause; we simply refuse to ignore that the method it chose is one that aids a particular religious community … rather than all groups interested in separate schooling.
BY MID-JUNE, WE were on pins and needles. The session was winding down, and every decision day that came and went without a resolution was eating us alive. Jay and I desperately wished we could call the Supreme Court and ask when our case would be decided, but we knew, first, that was exceedingly poor form, and, second, they wouldn’t tell us anyhow. Then, on the morning of June 27, 1994, Jay got a call from the court, and almost simultaneously I got a call from a local reporter advising that the Associated Press had just moved an alert that we had won 6–3. I was elated, wired, exhausted, and immensely curious: as important as it was to prevail, it was just as important in the long run for the court to embrace the reasoning we had advanced and uphold the separation of church and state.
In short order, our fax machine sprang to life and slowly started spitting out the decision, all sixty-five pages, at a painfully slow pace. The first page surprised me: Justice Souter had written for the majority. We had thought that if we won, Stevens or O’Connor would write the decision. No matter. As the fax machine grunted out the document, Jay and I huddled together, reading each page as it arrived. The synopsis of the first few pages gave us the gist: since the legislation applied to only one community in the state and clearly catered to the Satmar, it violated the Constitution by favoring one religion (and not making the same accommodation to other religious groups). The court said the legislature had delegated governmental authority to a group defined by its religion, resulting in an unacceptable “fusion” of church and state. The first pages also told us that Blackmun, Stevens, and Ginsburg signed on to Souter’s opinion; that Kennedy and O’Connor agreed with the result and part of the reasoning; and that Scalia wrote a dissent joined by Rehnquist and Thomas. With multiple writings, it took a while to figure out which judge was where on various points of the discussion, but we eventually realized that the court had basically avoided the Lemon question, neither endorsing nor repudiating the precedent. All in all, the decision broke down as follows in something of a mixed message.
The four-judge plurality, adopting the Souter opinion, said the legislation “singles out a particular religious sect for special treatment,” resulting in unconstitutional favoritism toward a particular religious organization. The justices also took Scalia to task for his typically bombastic dissent.
O’Connor and Kennedy agreed that the Kiryas Joel legislation stepped over the constitutional line. But they offered a more accommodating view, implying (accurately, as future events would prove) that they were amenable to ditching O’Connor’s old nemesis Aguilar v. Felton. The dissenters were on board with that sentiment; they would have overruled Aguilar then and there, even though the issue wasn’t before the court. (I had actually thought they could have used Kiryas Joel to reverse Aguilar. In retrospect, if they had, it would have prevented years of confusion.)
After outlining the history of the village, the school district, and the various decisions that had bubbled up from the New York courts, and noting Chief Judge Kaye’s astute observation that the law was an “unnecessarily broad response to a narrow problem,” Souter went on to describe articulately just where the law had run afoul of the Establishment Clause:
Because the religious community of Kiryas Joel did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a general law, we have no assurance that the next similarly situated group seeking a school district of its own will receive one….
Here, the benefit flows only to a single sect, but aiding this single, small religious group causes no less a constitutional problem than would follow from aiding a sect with more members or religion as a whole, and we are forced to conclude that the State of New York has violated the Establishment Clause….
We do not deny that the Constitution allows the state to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. Rather, there is “ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” … But accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars’ religiously grounded preferences that our cases do not countenance…. Petitioners’ proposed accommodation singles out a particular religious sect for special treatment, and whatever the limits of permissible legislative accommodations may be … it is clear that neutrality as among religions must be honored.
The majority also said there were lots of ways to accomplish the underlying intent of the law without running into constitutional hurdles:
There are several alternatives here for providing bilingual and bicultural special education to Satmar children. Such services can perfectly well be offered to village children through the Monroe-Woodbury Central School District. Since the Satmars do not claim that separatism is religiously mandated, their children may receive bilingual and bicultural instruction at a public school already run by the Monroe-Woodbury district. Or if the educationally appropriate offering by Monroe-Woodbury should turn out to be a separate program of bilingual and bicultural education at a neutral site near one of the village’s parochial schools, this Court has already made it clear that no Establishment Clause difficulty would inure in such a scheme, administered in accordance with neutral principles that would not necessarily confine special treatment to Satmars.
Blackmun wrote separately, “only to note my disagreement with any suggestion that today’s decision signals a departure from the principles described in Lemon v. Kurtzman…. I remain convinced of the general validity of the basic principles stated in Lemon, which have guided this Court’s Establishment Clause decisions in over 30 cases.”
Stevens also wrote a concurrence (shared by Blackmun and Ginsburg), opining that New York, when faced with a legitimate problem, “responded with a solution that affirmatively supports a religious sect’s interest in segregating itself and preventing its children from associating with their neighbors.”
In her concurrence, O’Connor said there is nothing inherently unconstitutional about government accommodating religious interests, as long as it does so equally:
What makes accommodation permissible, even praiseworthy, is not that the government is making life easier for some particular religious group as such. Rather, it is that the government is accommodating a deeply held belief. Accommodations may thus justify treating those who share this belief differently from those who do not; but they do not justify discriminations based on sect. A state law prohibiting the consumption of alcohol may exempt sacramental wines, but it may not exempt sacramental wine used by Catholics but not by Jews.
O’Connor said New York could solve the problem simply by allowing all villages to operate their own school districts, or by setting forth neutral criteria that a village must satisfy to operate its own school district. It has continued to mystify me that no one at the Supreme Court realized that, in New York, no village has the power or authority to operate a school district. School districts are intended by law to be independent of any other form of local government in the state, except in the five largest cities.
Kennedy suggested the core issue wasn’t so much that the legislature had created a school district composed of members of a religious sect but that it permitted the establishment of a village that was gerrymandered to keep all but members of the sect at bay. He said the “Establishment Clause forbids the government to use religion as a line-drawing criterion.”
Scalia’s dissent was, typically, laced with sarcasm. He began with the same statement in his pre-decision memo (“The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim …”) and then continued:
The Court’s decision is astounding. [The law] involves no public aid to private schools and does not mention religion. In order to validate it, the Court casts aside, on the flimsiest of evidence, the strong presumption of validity that attaches to facially neutral laws and invalidates the present accommodation because it does not trust New York to be as accommodating toward other religions (presumably those less powerful than the Satmar Hasidim) in the future. This is unprecedented except that it continues, and takes to new extremes, a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation’s tradition of religious toleration.
The majority could not allow that outburst to go unanswered:
We do not disable a religiously homogenous group from exercising political power conferred on it without regard to religion…. Nor do we impugn the motives of the New York Legislature, which no doubt intended to accommodate the Satmar community without violating the Establishment Clause; we simply refuse to ignore that the method it chose is one that aids a particular religious community … rather than all groups interested in separate schooling….
Our job, of course, would be easier if the dissent’s position had prevailed with the Framers and with this Court over the years. An Establishment Clause diminished to the dimensions acceptable to Justice Scalia could be enforced by a few simple rules, and our docket would never see cases requiring the application of a principle like neutrality toward religion as well as among religious sects. But that would be as blind to history as to precedent, and the difference between Justice Scalia and the Court accordingly turns on the Court’s recognition that the Establishment Clause does comprehend such a principle and obligates courts to exercise the judgment necessary to apply it.
As I finished reading the final sentences of the opinion and paused to ponder the fact that I had been part of a case that upheld the Establishment Clause, I was overwhelmed and humbled. But there was little time for reflection—that would come in the days and years that followed. There were calls to make and calls to return.
I called my wife, Barbara, who was teaching a class at Sage College, my daughter Lisa, who was studying at Yale Law School, and my daughter Debbie, who was a graduate student at NYU. I called New York’s commissioner of education to offer my help in placing the kids. I called the members of my board who had been so supportive, like Judy Katz, Al Hawk, and Georgine Hyde. We all agreed we had to talk to the press immediately, and had to stress the importance of the separation of church and state. We did not want to lose the main issue in the drama of the disabled children (who we knew could, and most certainly would, continue to receive the services they required), and we felt it essential to keep the focus on the importance of never allowing a governmental unit to be formed for religious purposes.
Meanwhile, we wondered how Governor Cuomo would react, and I personally thought about how angry he would be. As I have said, although I was one hundred percent certain Cuomo was wrong on this matter, I still had enormous respect for his intellect and integrity, and hoped that with this battle behind us we could resume our friendship and let bygones be bygones. On the other hand, I knew well how thin-skinned the governor was, how competitive he was, and how vindictive he could be. I pretty much expected that our relationship would remain strained for the immediate future, perhaps permanently, and anticipated that Cuomo would exact a measure of retribution by shortchanging me and the New York State School Boards Association whenever possible.
What I didn’t foresee was that Cuomo would attempt to execute an end run against the US Supreme Court.