POLITICS APRIL 11, 1994
Can the state of New York, by drawing political boundaries along religious lines, establish a municipal theocracy governed entirely by Satmar Hasidim? This is the constitutional question the Supreme Court is likely to avoid when it takes up the Kiryas Joel case on March 30. Instead, the justices will answer a related but less basic question: Can New York grant the Satmar village all the powers of a religiously segregated public school district and authorize it to educate handicapped Hasidic children at state expense?
The missed opportunity is unfortunate. The village and the school represent a literal fusion of church and state; they are analytically inseparable and should stand or fall together. In fact, the Kiryas Joel case seems to be the most meticulous example of religious gerrymandering the Court has ever confronted.
If the Satmars had set out, like the Puritans, on an errand into the wilderness, they would have been entitled to incorporate as a village and receive basic municipal services. But they chose not to establish their city on a hill. In 1974 they moved from Brooklyn to Monroe, New York, a town noted at the time for its religious diversity. (It had a Jesuit retreat, a Hare Krishna ashram and a Jehovah's Witness convention center.) Two years later, during the course of a dispute over zoning laws, the Satmars invoked an obscure New York law that allowed them to secede from Monroe by carving out a religiously segregated community, which they named Kiryas Joel ("the community of Joel") in honor of Grand Rabbi Joel Teitelbaum. When the surveyor's first draft accidentally left three or four non-Hasidim inside the village, he was sent back to the drawing board.
As soon as New York authorities approved the petition to incorporate in 1977, the Satmars closed the regular public school and sent their children to the village yeshivas. In an annex to the yeshivas, the state provided special education for disabled Satmar children. But the Supreme Court put an end to this sort of sensible arrangement with its 1985 Aguilar decision, which forbade public education for the disabled at parochial schools. In response to Aguilar, some Satmar parents sent their disabled children to the Monroe public school outside the village; but they complained that the children suffered "panic, fear and trauma" when forced to endure the taunts of non- Hasidim. The Monroe school district then refused to provide the most constitutionally appropriate solution: special education at a neutral site inside the village.
In 1989, still scrambling for a response to Aguilar, the New York legislature designated the village of Kiryas Joel itself as a separate public school district; and village authorities promptly created a special public school exclusively for handicapped Hasidim. Today, about 200 disabled Hasidic children, many of them bused in from the surrounding county, attend the Satmar public school. The organizing principle for the school, in short, is sectarian rather than geographic.
The Satmars' lawyer, Nathan Lewin, is staking his case on the claim that the village and the district are defined by geography rather than faith. "No one is excluded from the village on the grounds of race or religion," says Lewin. But rather dramatic evidence suggests the opposite. Kiryas Joel requires anyone who wants to build within its borders to pay a tithe of $10, 000 to Congregation Yetev Lev. In a 1989 announcement in Der Yid: Voice of American Orthodox Jewry, the village set forth a restrictive housing policy: " It is forbidden for any contractor or owner of a house, in our village, to sell or rent an apartment in Kiryas Joel to a new resident without receiving permission in advance, in writing." Speaking later that year, Grand Rabbi Moses Teitelbaum, son of Joel, made the point more directly: "Anyone that rents without this permission has to be dealt with like a real murderer ... and he should be torn out from the roots." Two residents who rented apartments without rabbinic permission were later beaten and stoned.
Since April 1993 residents who have received permission to move to Kiryas Joel have also been required to sign a contract promising "to be guided by the laws and ways of the Grand Rabbi." The contract binds the residents "only to go to the synagogues under the control of our congregation"; and to send their children "only to the school Torah Veyreh, and Bais Rachel, that was founded and built by the Grand Rabbi (Joel) and is under the control of the present Rabbi (Moses)."
As for the public school board, the first and only election was held in January 1990. A month earlier the Grand Rabbi said: "It's like this. With the power of the Torah, I am here the Authority in the Rabbinical Leadership... As you know I want to nominate seven people and I want these people to be the people." When Joseph Waldman, a dissenting Satmar, tried to run without the rabbi's permission, he was banished from the congregation; his six children were expelled from the yeshiva; his tires were slashed; his windows were broken; and several hundred people, including the rabbi, marched outside his house chanting, "Death to Joseph Waldman!"
"This rabbi is behaving the same way Khomeini used to behave in Iran," says Waldman, who has filed a brief against the village. "They gave out an order against me in the Jewish newspapers. They hung up placards in the synagogue saying this man has to be killed. My campaign manager was gored in front of his home by a congregation official." Two years ago, according to Michael Sussman, Waldman's lawyer, sixty families who had voted for Waldman were forbidden to visit the graves of their fathers. They were also banned from a local synagogue, which doubles as the municipal polling station, and their names were removed from a list of registered Democrats.
In their Supreme Court briefs, lawyers for both sides have chosen not to emphasize these unpleasant facts. Instead, they are attacking and defending the New York statute as it is written rather than as it has been applied. But even if the Court closes its eyes to the realities of life in Kiryas Joel, there is little doubt that the village was created to invest a religious community with political power, and that its borders are, in practice, impermeable. In this sense, it looks like an even purer establishment of religion than the Massachusetts Bay colony. "The Hasidim are like parodies of the popular image of the Puritans," says Sacvan Bercovitch of Harvard, who notes that the Puritans, unlike the Hasidim, took care to maintain the separation between civil and religious authority.
The best argument for supporting Kiryas Joel is that it is not an establishment of religion but an accommodation of a religious minority. The argument, however, is complicated by the Satmars' attempt to have it every which way: they deny that religious law prohibits their children from mixing with non-Hasidim, but they insist that a separate school district is necessary to accommodate their religious "lifestyle." In short, their effort to avoid the restrictions of the Constitution's Establishment clause (" Congress shall make no law respecting an establishment of religion") makes it harder for them to invoke the protections of the Free Exercise clause ("or prohibiting the free exercise thereof").
The Satmars compare themselves to the Amish, and cite the 1972 Yoder case, which excused the Amish from sending their children to public schools. But there are two crucial differences. The Supreme Court in Yoder emphasized that "social values" (as opposed to religious scruples) are not enough to justify a religious exemption. And unlike the Amish, who don't believe in voting or holding office, the Satmars are not asking to withdraw their children from the secular world. Instead, they want to administer a state program for Satmar children on their own authority and their own terms.
The justices are likely to rule against the Satmars; but it is not clear which legal theory will command a majority. As Ira Lupu argues in the January issue of the George Washington Law Review, the various opinions by the New York State Court of Appeals reflect the conflicting strands of separationism that have muddled the Supreme Court's religion jurisprudence in the past two decades. Some of the New York judges saw Kiryas Joel as a discriminatory sect preference; others as a symbolic union of church and state; still others as a state endorsement of religion.
None of these theories is very convincing. It is implausible to argue, as the lower court did, that non-Satmars will perceive the village as a symbolic disapproval of their own religious choices. In a case as tangible as this, it seems foolish to speculate about perceptions rather than reality. It would be even more unfortunate if the justices endorsed the reasoning of Chief Judge Judith Kaye, who said that all religious accommodations are a kind of religious establishment, and therefore should be subject to the strictest scrutiny. In practice, this could mean the end of legitimate accommodations for religious minorities who, unlike the Satmars, seek exemptions from generally applicable laws.
The most convincing way of ruling against the Satmars is also the narrowest; and it would require the justices to tease out the ill-defined metaphor of religious gerrymandering. In the 1970 Waltz case, Justice John Harlan warned about the dangers of "political fragmentation on sectarian lines," and he suggested that government cannot, by ingenious draftsmanship, carve out homogeneous enclaves for particular religious sects. Kiryas Joel, far more dramatically than Shaw v. Reno, the landmark voting rights case last June, involves the use of political boundaries to enforce ethnic balkanization and cultural apartheid.
Religious minorities who fear the rigors of pluralism should be perfectly free to resist assimilation. But if they can fence themselves into separate governments and separate school districts, then racial and ethnic minorities will be entitled, by equal treatment principles, to segregated cities and schools of their own. "The Constitution is not violated if God smiles on Caesar's handiwork," says Nathan Lewin. But the Constitution is surely violated when Caesar smiles on God's handiwork, which is what New York state is attempting to do.
Jeffrey Rosen is the legal affairs editor at The New Republic.