First Amendment Watch: A Chance to Untangle the Law

On November 30, the Supreme Court agreed to hear a case in which, once again, it will rule for the nation on the meaning and effect of the First Amendment’s Establishment Clause. The New York Times has expressed horror that the Court would venture to take up the case. But at the very least Grumet v. Board of Education of Kiryas Joel Village School District highlights the mass of contradictions which the Court’s church-state jurisprudence has become. The Court will have the opportunity to change the course of that jurisprudence for the good; we shall see whether it takes advantage of the occasion.

A community of Satmarer Hasidic Jews in Orange County, New York, had become a legally incorporated village in 1977. The Village had come into being as an insular faith community wherein distinctive Hasidic dress and Yiddish language would be the norm, media influence excluded, and children (except for disabled children) educated in separate boys’ and girls’ religious schools. Until 1985, the disabled children had been provided special education services by (secular) local public school teachers on Hasidic school premises. In that year the Supreme Court, in the Aguilar case, barred public school teachers nationwide from affording services to children on religious school premises.

Therefore if the Village’s disabled children were to continue to get needed special education services, they would be forced to go to public school to get them. This was tried, but the effort proved a disaster due—as the brief of Nathan Lewin, attorney for the Village, states—to the “panic, fear, and trauma the children suffered in leaving their own community and being with people whose ways were so different from theirs.” The New York legislature came to their rescue by enacting Chapter 748 of the Laws of 1989, which created a new public school district coterminous with the boundaries of Kiryas Joel Village. Since the community was thereby made a public school district, the Aguilar ruling would not be violated by public school teachers continuing to serve the children on the Hasidic school premises.

Unhappy with the legislature’s humane and practical solution to the Hasidim’s problem, the New York School Boards Association, supported by an array of church-state separation extremists, took the Village to court to challenge Chapter 748 as a violation of the Establishment Clause. Last July, the New York Court of Appeals ruled in the Association’s favor. That court based its decision on Lemon v. Kurtzman and pointed to Lemon’s now famous (and much-controverted) “test” of constitutionality laid down 22 years ago in a case involving subsidies for private religious schools. Lemon held that the Establishment Clause required all legislation (1) to have a secular purpose, (2) to have no “primary effect advancing religion,” and (3) to create no “excessive entanglements” between church and state. It was the “primary effect” point that the New York Court of Appeals relied upon in holding Chapter 748 unconstitutional and hence putting a stop to public services for the village’s 200 disabled children (who, without the services, would receive no education whatever).

The accommodation given by Chapter 748 to the Kiryas Joel community, the Court of Appeals said, had a “primary effect advancing religion” because it created “a symbolic union of church and state.” To whom would it be a symbol? How? By the fact, said the court, that 748 “is likely to be perceived by the Satmarer Hasidim as an endorsement of their religious choice, or by non-adherents as a disapproval of their individual religious choices.” The court thus rested its crucial holding upon subjective guesswork about subjective perceptions. It believed this “primary effect” so clear, as a matter of law, that no trial was needed. That being so, there was no record evidence of any polling of opinion as to who, among the public, thought what—if anything—about the statute or the small but important program aiding disabled children. But the New York court was, in one sense, on firm legal ground. It was simply replicating Establishment Clause “doctrine” previously stated by the Supreme Court of the United States.

One hopes (but rather doubts) that the Supreme Court, in the Kiryas Joel case, will at last face up to the fictions and absurdities of Lemon v. Kurtzman, which has been the great instrument employed by our courts for two decades in secularizing our society. The Lemon “test” is 100 percent invention, homemade constitutional law, and undreamt of by the Constitution’s framers. No certainty whatever can be found in Lemon’s phrase (first conjured up in 1963), “primary effect advancing religion.” By what gauge is an effect found to be “primary”? When can it be said that religion has been “advanced”? Is the “religion” which is advanced a particular religion? A denomination? Religion in general? The “symbolic union” concept (Justice Brennan’s 1985 phrase) is expandable or contractible according to judges’ biases. The “excessive entanglement” part of the Lemon test was a notion conceived by Harvard’s Professor Paul Freund in 1968 and put center stage by the Supreme Court in Lemon three years later.

The Establishment Clause was sensibly drafted for an important but limited purpose: to bar the creating or support by the national government of particular religious bodies, or “establishments.” The broad companion Free Exercise Clause would protect against governmental intrusions on religious liberty. Taken together, the clauses commanded federal neutrality between religious sects, but not between religion and irreligion. By contrast, the judicial sophistry which the New York Court of Appeals took as commanding precedent has resulted in a decision harmful to religious liberty and harsh to disabled children.

In “Lepanto,” Chesterton spoke of a culture “full of tangled things and texts and aching eyes.” Such is the jurisprudential culture into which our courts have brought our strong and essentially simple Constitution.


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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