The day that the country ceases to be free for irreligion, it will cease to be free for religion—except for the sect that can win political power.
TWO DECADES AFTER the Supreme Court decision and despite the doomsday predictions of our opponents, the Kiryas Joel Village School District thrives under a fourth state law that finally enabled the community to secure what it wanted without thoroughly trashing the US Constitution. I still considered the law to be of questionable constitutionality, but the point had been made and, from my perspective, the Establishment Clause had survived a dangerous threat.
Since then, the village of Kiryas Joel has grown enormously (a population of around twenty-two thousand in 2014), spurred by extremely low local taxes and incredible amounts of politically acquired state and federal aid. Its theocratic village leaders still know how to use their clout and are still remarkably adept at controlling and delivering votes—and therefore controlling the political process on select issues.
At the state level, the Satmar continue to get financial aid and grants of power available to no other religious group; both political parties fight over who can do more for them. As the power of this little community has grown, so too has the discord with its neighbors. There is an uneasy truce but constant tension between the residents of Kiryas Joel and the rest of Monroe. The village taxpayers, unlike their municipal brethren in the town, almost never see an increase in their property taxes, relying on federal and state dollars to support their education of children with disabilities. This inevitably causes some resentment with the broader community, where taxes rise steadily and where the residents lack the voting bloc power to control political spending.
Meanwhile, the Satmar continue to purchase large tracts of nearby farmland outside the original village, raising local concerns over their intentions. Consider this July 2015 headline in Capital New York, an online news outlet covering New York State politics: FILINGS SHOW KIRYAS JOEL MONEY FLOWED TO CUOMO AFTER VETO. The article goes on to explain that less than a week after Governor Andrew Cuomo (Mario’s son) vetoed a piece of legislation that the leaders of Kiryas Joel feared would restrict their ongoing development, a network of limited liability companies with links to the village suddenly gave the governor $250,000 for his campaign. According to the article, nine separate checks “from vaguely titled L.L.C.s entered Cuomo’s campaign account.” Coincidence?
At the federal and constitutional level, the high wall separating church and state has eroded, though certainly not collapsed, through a generation of new Supreme Court decisions. Kiryas Joel was the last clear statement of support for Jefferson’s vision, or even Madison’s. In the years since, the religious right has heavily influenced presidential appointments to the Supreme Court, and that influence has manifested in a series of decisions that have, in my mind, undermined the Establishment Clause and the principles we fought for in our long legal battle.
For example, look at the court’s landmark 2014 decision in Burwell v. Hobby Lobby, where for the first time ever it recognized a for-profit corporation’s claim of religious adherence. In a 5–4 decision, the court said that a family-owned business did not have to offer its employees contraceptive insurance coverage if doing so conflicted with the owners’ religious principles. Two months earlier, the same 5–4 majority upheld an Upstate New York town’s practice of beginning its public sessions with a Christian prayer.
Justice Scalia, who was in the majority in both cases, told an audience at Colorado Christian University in October 2014, “I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion.” Of course, I think that is exactly what separation of church and state means. As the two recent cases illustrate, however, Scalia’s view seems to prevail at the moment.
This trend is troubling to me, but I also view it as a swinging pendulum. With Kiryas Joel as the Establishment Clause fulcrum, from which the two extremes can never quite disconnect, I expect that in time the pendulum will swing back toward the Jeffersonian vision.
Reviewing the legacy of Kiryas Joel, I think one of the values of the case emerges from a crystal clear, unambiguous fact pattern that could then be neatly applied to constitutional principles. To me, the basic facts continue to fascinate because they so vividly illustrate two of the wonderful guiding principles of our country and our constitutional culture: that people in this country are free to live their lives as they see fit, no matter how far outside the mainstream they happen to be, as long as they don’t interfere with the rights of others; and that this remains a country of laws that unite, and protect, all of us from the tyranny of both the majority and the minority. What a wonderful tribute to the US Constitution that a minority subculture with traditions, habits, beliefs, and practices that are so different from the prevailing culture can flourish and live their lives as they wish, unfettered by the majority.
Yet the Satmar sought to undermine that framework, and would have succeeded had we not mounted our long challenge. Remember, this is a group of people who demanded to be left alone to follow their own religious and cultural precepts with absolutely no interference by the culture or institutions of the surrounding region and nation. They insisted on isolation in a self-designed ghetto. They have every right to do so, and in that regard they are not unlike some other groups and cultures that wish to remain aloof or separate from the mainstream and Main Street. The melting pot concept does not require that the disparate cultural interests abandon their unique mores. Instead it envisions a stew in which all the various ingredients make the meal all the richer and more robust.
The Satmar do not support that vision of the melting pot, and this is their absolute right. But it illustrates how different they are from, say, the Amish, who avoid the have-their-cake-and-eat-it-too insistence that the society outside of the ghetto walls heavily subsidize their choices. Rather than remaining apart from the political infrastructure of the outside world, the Satmar exploit it whenever possible, skillfully and effectively. Examples abound and are well documented, and it is clear to me, all these years later, that resentment by their neighbors has grown geometrically as Kiryas Joel expands its bases of power.
Consider, for example, what has transpired in East Ramapo, Rockland County, in recent years, a story that was reported in a September 12, 2014, segment of public radio’s This American Life. When we filed the Kiryas Joel case in 1990, Georgine Hyde, one of the most remarkable human beings I have ever met and a survivor of Hitler’s concentration camps, was president of the East Ramapo School Board and had served on the board for three decades; in addition, she was vice president of the board of the New York State School Boards Association. Nobody of any political stripe could possibly question Georgine’s commitment or integrity, but she became a casualty of East Ramapo’s ultra-Orthodox steamroller.
At the time we filed the suit, only thirteen of the several hundred kids in the school district were actually from Kiryas Joel. The bulk of the children were bused in from East Ramapo, one of the biggest and best school districts in the state, the district where Georgine Hyde presided. Although East Ramapo wasn’t a Satmar-only community like Kiryas Joel, there were thousands of Hasidic and ultra-Orthodox families there who had made their way up from New York City. Typically, they were quite organized politically, and they could cripple the local school district whenever they chose to do so by voting down the budget (again, in New York, school district budgets are generally subject to public vote). But they had declined to do so as long as public school authorities looked the other way and did not enforce state education laws in their yeshivas. In other words, the rules that generally apply to public and private schools, such as ensuring that students receive an education well grounded in reading and math and other core subjects, did not apply to the yeshivas.
That informal deal allowed the two sides to coexist in relative peace for a number of years. However, as school taxes went up and the ultra-Orthodox residents grew increasingly irritated that they had to pay taxes for schools they would never send their children to, the religious community began running congregants for the school board. With the bloc and the fact that relatively few people turn out for school board elections, they soon controlled the school board—despite the fact that they had virtually no children in the public school system. They unseated Georgine and the rest of the old guard and cut services drastically in the public schools. They attempted to shift funding to their private schools, closing public school buildings and selling them to the yeshivas for substantially below market value. They began to circumvent state and federal regulations governing placement of children with disabilities, shifting the kids to religious-based settings subsidized with tax monies.
Their justification for these actions was laid out in a letter that Yehuda Weissmandl, a prominent citizen of the Hasidic community who was later elected president of the school board, wrote to a local newspaper:
Dear fellow taxpayer in the East Ramapo school district, again and again, I read about how upset you are about the members of the school board, how we bloc-voted them in, how we don’t have the interests of the schoolchildren at heart. Well, let’s take a closer look at that.
For many years, you took our tax money, year after year, increase after increase, and you never had a problem with that. But when we finally get together and say, that’s enough, that is a problem.
I have a solution. How about giving all of us the option to bow out of the public school system and keep our money in our pockets? You want our money and our silence. Sorry, you cannot have it all your way.
Their gripe—that they were paying taxes for the public school system and getting little or nothing in return—is an argument often made by the elderly and the childless. It’s just that those groups are virtually never persuasive, because they simply lack the collective political clout to get their way. The Orthodox voters, on the other hand, had that clout and used it.
A number of their actions were overturned by the state education department, but they tended to reemerge. The local NAACP and ministerial and rabbinical associations asked the state to step in to protect the large minority populations in the public schools, but state officials are often reluctant to stand up to the ultra-Orthodox. Indeed, a number of elected officials in East Ramapo have discussed trying to establish a new religiously based “public” school district.
Meanwhile, in other parts of the state, religious groups have begun to demand public support for their religious needs. For example, in New York City, scores of newly formed churches have been conducting church services in public school buildings. Granted, churches have long been allowed to hold services in public schools temporarily as a result of fires or hurricanes. But the church-planting movement seeks not a place to temporarily worship because of some unforeseen disruption in their normal services but a permanent, government-sanctioned, and subsidized presence in public schools. The tactic is currently under challenge in various federal cases.
This type of preferential and grossly unconstitutional behavior is not confined to New York State. The national legal trend at the moment, coming directly from signals sent by the increasingly conservative Supreme Court since Kiryas Joel, is to view Establishment Clause disputes from the distorted lens of so-called viewpoint discrimination under the Free Speech Clause of the First Amendment. The notion that a religious viewpoint is like any other speech and equally protected is intriguing and appealing—if one ignores what the Establishment Clause was meant to do (ensure freedom of religion and freedom from religion). But I suspect that if Kiryas Joel were to be decided now, the viewpoint discrimination argument could well carry the day. Still, the decision remains a beacon after all these years, and even the Supreme Court is loath to abandon its precedents. That gives me great comfort.
As I look back, I see that Kiryas Joel was a crucial benchmark at a critical juncture. I am certain both Jefferson and Madison would applaud the bottom-line result of the case, and equally certain that they would be gravely troubled by what has occurred since. It is my hope that another lawyer somewhere in our constitutional landscape will have the case, the nerve, and the support to carry the Jefferson-Madison banner to a new generation of American citizens and judges and to preserve our religious freedom, which former president Bill Clinton has referred to as “perhaps the most precious of all American liberties—called by many our ‘first freedom.’”* For, as is said, eternal vigilance is indeed the price of liberty.†
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* On July 12, 1995, President Clinton directed his attorney general and education secretary to annually provide every public school with a statement on “religious expression in public schools.” The text of the memo is available at the New York Times website, www.nytimes.com/1995/07/13/us/president-s-memorandum-on-religious-expression-in-schools.html.
† The phrase, interestingly, is often attributed to Jefferson, although Jeffersonian scholars find no indication that the founder ever said or wrote these words. More likely those are the words of abolitionist Wendell Phillips, or maybe the Irish attorney John Philpot Curran. No matter. If Jefferson didn’t say it or write it, I am abundantly confident he would have endorsed the message.