The Church-State Game: A Symposium on Kiryas Joel

On June 27, 1994, the U.S. Supreme Court handed down its decision in the case of Kiryas Joel v. Grumet. The Court ruled that the New York State legislature had acted unconstitutionally in establishing a school district specifically to meet the needs of members of the Satmar Hasidic Jewish sect. Because of the importance of the decision for church-state jurisprudence, the editors asked four experts on the subject to offer their opinions on the case .

Symposium Participants

• William Bentley Ball
• Douglas Laycock
• Nathan Lewin
• Michael W. McConnell

William Bentley Ball

Reading the Supreme Court’s opinion in the Kiryas Joel case caused me suddenly to think of Americans’ love of sports. Baseball, football, golf, tennis, basketball, soccer-all fascinate us, and they are all, in a sense, absurd. The essence of a sport is to confine physical activity within artificial limitations of time and space. Golfers, pitchers, nose guards, and teams must observe the complex of limitations that define the game. And that is where the absurdity comes in.

That big fellow who failed to touch his foot against third as he rounded the bases is “out,” by the rules. The simple observer may ask: ”Why? He knocked the ball out of the park; so what if he didn’t step on one base?” The golfer whose ball lands in the drink must drop it (not place it) in an inches-wide spot of turf before being allowed to drive it toward the hole. And if the point is really to get it there, why can’t he just grab it and heave it at the green? Because the rules, however arbitrary, are the game.

What has all this to do with Kiryas Joel ?

For about half a century, the Supreme Court has been at work making a game out of the Constitution’s Establishment Clause. This it has accomplished through a constant process of inventing ideas and trotting those forth as authoritative “interpretations” of the original constitutional text. These artifices become the rules of the game. In 1947 the Court read into the Establishment Clause the phrase “wall of separation between church and state,” and held the “wall” to bar all governmental aid to religion. The phrase was lifted out of context from a letter written by Thomas Jefferson; its appropriation by the Court to apply to the Constitution was contrary to historical evidence. Once the “high and impregnable” wall was installed, the Court was free to confront religious liberty with notions for heightening the wall. In 1963 the Court, in the Schempp case, voiding Bible-reading in the public schools, held that the Establishment Clause is violated by any governmental action having a “primary effect advancing religion.” This, too, was out of whole cloth. In 1971, in the Lemon case, the Court told the nation that the Clause also barred ”excessive entanglements” between religion and the state-again, brand-new, home- made doctrine. The “entanglement” concept had never appeared in any writings of the Constitution’s framers, nor even in any prior Supreme Court opinion. It is not surprising that, as the inventions multiplied, the Court would propagate variations of the inventions themselves. So in 1985 the Court took its “primary effect advancing religion” idea and held that a “primary effect” could consist of governmental actions that create a “symbolic union” of government and religion.

By the open-ended phrasing of these constitutional add-ons, the justices have provided themselves blank checks that they can fill in according to their personal biases. But in Establishment Clause litigation, it is those add-ons, the inventions, that counsel in litigations must deal with. They now constitute the game. For the sake of your client, you must present your case as though the inventions are for real, as though they are constitutional law, as though “symbolic union” is not nonsense, as though “primary effect” is not up-for-grabs vagary. Since I am not now in Washington about to present argument before the Court, but am instead up here in the fresh, rational atmosphere of First Things, let me describe for you Kiryas Joel as it was played, with particular attention to the niceties of the game.

The case, on its facts, was a simple affair. Under a New York statute, Satmars (members of a Hasidic religious group) had been enabled to establish a religiously exclusive municipality; under a subsequent statute (Chapter 748, 1989), that municipality had been constituted a public school district. Disabled children of Satmars needed special education services and were entitled by federal and state law to have them provided by public teachers. These children, for religious and psychological reasons, needed to receive those services on the familiar premises of their religious village. But the 1985 decision of the Supreme Court in the Aguilar case had barred public teachers from serving on religious premises. Chapter 748 addressed the Aguilar difficulty: public teachers could serve the Satmar children on the premises of their village, these premises now being public school premises. The people of a state, acting through their legislature, had successfully solved a human problem. The matter was devoid of constitutional significance. The Satmars, for their part, had never contended that their village had any constitutional right to become a public school district. They were pleased to gain the accommodation of the statute. How, then, did the accommodation come to be voided by the Supreme Court on constitutional grounds? Two reasons seem likely.

First, there was the claim of powerful public education advocates that the existence of the Kiryas Joel Village School District threatened public education. Second, there was the conjuring of a supposed Establishment Clause issue. As to the first, the New York legislature had discovered no such threat. The claim was without a wraith of fact to sustain it. But, as they now made manifest, six justices of the Supreme Court (four with almost religious fervor) plainly regard public education as a sacrosanct institution whose wishes must be catered to except in the rarest of instances. As to the constitutional claim, the New York Court of Appeals had already held the challenged law unconstitutional, as creating “a symbolic union of church and state.” Why, then, did the Supreme Court agree to hear Kiryas Joel’s appeal only to affirm the New York court? The answer can but lie in the eagerness of the Court to re-express its secularist view of the Establishment Clause. And for that it resorted to its arsenal of artifices-to the game, in other words.

The opinion of Justice David Souter, writing for the Court, rested on an accumulation of artifices, apparently because he found no single one satisfactory. He said that Chapter 748 delegated state authority to a religious community-that amounting to a “fusion” of governmental and religious functions; and that equaling an “excessive entanglement” of each with the other; and that amounting to a “symbolic union” of both. Off on his facts, he cited for legal precedents a string of cases not on point. Then, as though to add weight to his contentions, he resorted to reliance on a future nonevent, namely, that there was no assurance that if some other religious community in the future would like to become a school district, the legislature would allow it to. His opinion then trailed off into irrelevant ruminations about how public policy has related to public education.

Justice Antonin Scalia was joined by Chief Justice William Rehnquist and Justice Clarence Thomas in a furious dissent. Justices Sandra Day O’Connor and Anthony Kennedy, expressing discomfort over the Schempp-Lemon artifice, nevertheless went along with the secularist wing of the Court (Souter, Harry Blackmun, John Paul Stevens, and Ruth Bader Ginsburg). O’Connor also urged that Aguilar be overruled.

Much speculation has followed the Kiryas Joel decision. One commentator assures us that the decision is not a “Pearl Harbor” respecting religious accommodations by government, but is instead a narrow ruling in a case of unique facts. Others have wondered if the combined opinions do not point to a more coherent Establishment Clause jurisprudence in which the Schempp-Lemon test will be ignored. Kiryas Joel is indeed a case of unusual facts, but that makes it all the more unfortunate. The Court utilized a case of even such facts to restate, reinforce, and even add to its nonconstitutional notionware. Perhaps in a future case the Court will narrowly overrule Aguilar , but that small tolerance will do little toward reaching the goal of parental economic freedom of religious choice in education. There is now every prospect that six members of the Court will continue the secularizing process: the opinion of Judge Stephen Breyer in the New Life Baptist Academy case when he served on the First Circuit indicates that newly confirmed Justice Breyer will play by the rules of the game.

William Bentley Ball has argued religious freedom cases before the U.S. Supreme Court. He is a member of the firm of Ball, Skelly, Murren & Connell (Harrisburg, Pa.) and author of the forthcoming book Mere Creatures of the State? Education, Religion, and the Courts.

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Douglas Laycock

Kiryas Joel should have been a simple one-issue case. The relevant legal principle was never in dispute. States may not confer governmental authority on religious organizations; letting a religious organization run its own government is not a permissible means of accommodation.

The only serious issue in the case was whether this principle had been violated. Should deliberate creation of a government unit with all Satmar voters be treated as functionally equivalent to conferring governmental authority on the Satmar religious organization?

There were plausible arguments either way, although I think that those who saw functional equivalence had much the better of the argument. But whichever answer you prefer, this was the issue. The Supreme Court failed to give a clear answer.

Four justices-Souter, Blackmun, Stevens, and Ginsburg-found a “forbidden fusion of government and religious functions.” They got a fifth vote for a similar formulation from Justice Kennedy, who said that New York was “drawing political boundaries on the basis of religion.” That should have decided the case.

But the Souter four got a fifth vote from Justice O’Connor for the alternate proposition that New York had singled out the Satmar for a special benefit, with no guarantee that it would make a similar benefit available to other religious groups similarly situated. Government should not single out particular religions for special benefits, but that principle is irrelevant when the ”benefit” is independently unconstitutional. The logical extreme of the singling-out theory would be to organize all local government on religious lines. But that would be a constitutional nightmare, not a solution.

The singling-out theory opened an apparent loophole in the opinions, and the New York legislature defiantly sought to exploit it. The new law authorized municipalities to create their own school districts, subject to five voting requirements and seven eligibility conditions that reportedly fit only Kiryas Joel. Municipalities created in the future are ineligible, so no other religious minority can use this law unless it had the foresight to create a municipality of the right configuration before the law was enacted. The alleged generality of the new law is a sham, and even if it were real, the purpose and effect is still a forbidden fusion of government and religious authority and a drawing of political boundaries on religious lines.

At the big picture level, Kiryas Joel is consistent with the pattern of recent cases. What news there is comes in the separate opinions. Justice O’Connor is apparently willing to abandon her endorsement test as a universal standard, and confine it to cases of “government speech on religious topics.” That is where the endorsement test originated, and in my judgment that is where it makes sense.

Five justices-O’Connor, Kennedy, Scalia, Rehnquist, and Thomas-announced their willingness to reconsider Aguilar v. Felton , which requires that federal remedial funds for impoverished children be expended off the site of religious schools. Four of these five-all but O’Connor-said they would also reconsider Grand Rapids v. Ball , which held that public schools could not offer supplemental courses on the site of religious schools. Aguilar could be overruled without doctrinal disruption by reclassifying the program, treating it as social services for those with a special disadvantage and not as general education. Grand Rapids is harder to reclassify; overruling Grand Rapids might have much larger doctrinal implications for the financing of religious schools.

At the biggest picture level, there remains the Lemon test, diverting everyone’s attention and largely irrelevant to results. Like every other recent Establishment Clause case, Kiryas Joel was surrounded by media hype about whether this time Lemon would be “overruled.” That was never in the cards; there are at most four justices, and perhaps only three, who want any kind of radical change in Establishment Clause jurisprudence. But as the threat of a radical repudiation of Lemon recedes, the Court’s other wing might feel safe in making incremental clarifications.

The Lemon test is useless because it is a confused amalgam of inadequately specified elements from separate theories. The first two prongs, that a statute’s purpose and effect must neither advance nor inhibit religion, were taken almost verbatim from earlier explanations of neutrality. But these explanations never indicated whether the Court meant formal or substantive neutrality. Formal neutrality would mean no special rules for religion, which means no accommodation of burdens on religion. Substantive neutrality would mean that government should minimize the extent to which it either encourages or discourages religion; when government imposes burdens that discourage religion, the most neutral course is usually to lift the burden.

The Lemon formulation has the additional problem that it disaggregates the search for neutrality into two separate inquiries: Has government advanced religion? And, has government inhibited religion? And so by an inadvertent linguistic substitution, many lower courts now ask only whether government has advanced religion. The original focus on neutrality has been lost.

The Court has never clarified the so-called test, but its results speak for themselves. Except for cases that the Court views as involving core educational functions, legislatures are generally free to pursue either formal neutrality or substantive neutrality toward religion. Laws that lift regulatory burdens on religion do not “advance religion” within the meaning of Lemon . Unlike government prayers or religious observances, removing a burden cannot motivate anyone to be attracted to the burdened faith in the first place. But imposing a burden can motivate people to leave the faith, and it can penalize them for staying in. The encouraging effect of a religious exemption is usually minimal compared to the discouraging effect of a penalty or loss of government benefits.

Under the Court’s cases, religious minorities may be exempted from burdensome regulation ( Corporation of the Presiding Bishop v. Amos [9-0]), receive social services on an equal basis with other citizens ( Zobrest v. Catalina Foothills School District [5-2- 2], Witters v. Washington Dept. of Services for the Blind [9-0]), participate on an equal basis in the institutional delivery of social services (Bowen v. Kendrick [5-4]), and speak in public places on an equal basis with other speakers ( Lamb’s Chapel v. Center Moriches Union Free School District [9-0], Board of Education v. Mergens [8-1], Widmar v. Vincent [8-1]).

As shown by the bracketed indications of votes on the result (opinions were often more fractured), most of these recent decisions were not close. And all but one of the dissenters in these cases were motivated by special concerns about education.

The remarkable thing is that all but one of these cases reversed the lower court. The one exception is Mergens , where the Court reviewed the only court of appeals that had permitted religious clubs to meet after school. In all these cases, the lower courts erred, misled principally by the Lemon test.

Kiryas Joel continues in this pattern. The problem in Kiryas Joel was not that New York sought to accommodate the special need of disabled Satmar children, but that its chosen method violated the core requirements of institutional separation. The New York Court of Appeals relied heavily on the second prong of the Lemon test; its opinions are full of talk about how New York had advanced and endorsed Satmar Hasidism. There is no such talk in any of the Supreme Court opinions; there is no hint that lifting burdens unconstitutionally advances religion.

Given this pattern in the cases, why do so many sensible people persist in believing that accommodations advance religion in violation of the Lemon test? It is partly reckless and exaggerated advocacy on both sides. It is partly that there are real costs when the most visible formulation of doctrine does not reflect the Court’s real working principles. It is partly that for many on both sides the most important issue is the funding of religious education, and a majority of the Court has treated education as a separate category, distinct from social services. If a case is classified as education, it is subject to its own set of rules, different from the rules for social services, regulatory exemptions, and religious speech, even though both sets of rules operate under the common umbrella of Lemon .

What is needed is not to repudiate Lemon , but to clarify it. The first two prongs of the Lemon test are about neutrality, and an arguable “advancement” of religion may be the most nearly neutral course if the alternative is an even greater “inhibition” of religion. The Court’s results show that it believes this with something close to unanimity. It would reduce the flow of wasted litigation if the Court would amend the canonical formulation of Lemon to say so.

Douglas Laycock holds the Alice McKean Young Regents Chair in Law at the University of Texas at Austin. He filed an amicus brief in Kiryas Joel on behalf of the National Council of Churches of Christ in the U.S.A. and James E. Andrews as Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.).

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Nathan Lewin

The Kiryas Joel decision proved once more that a majority of the justices of the Supreme Court-like most judges of lower courts in the United States-are either hostile to religion or do not understand what religious observance is all about.

First the group that was nakedly hostile. It included-much to my surprise-the Court’s newest member, Justice Ginsburg. During the oral argument, she had sounded receptive to the plight of the Satmar Hasidim, and I had listed her as a possible vote in favor of the New York law. Instead, she joined the separate concurring opinion written by Justice Stevens, which Justice Scalia’s dissent rightly called “a manifesto of secularism” that ”announces a positive hostility to religion.”

Stevens’ startling statement declares that New York’s law went beyond constitutional bounds because it “affirmatively supports a religious sect’s interest in segregating itself and preventing its children from associating with their neighbors.” In his short concurrence, joined by the now retired Justice Blackmun (along with Ginsburg), Stevens said that Kiryas Joel’s separate public school district was invalid because it “provided official support to cement the attachment of young adherents to a particular faith” and “unquestionably increased the likelihood that they would remain within the fold, faithful adherents of their parents’ religious faith.”

I had always thought that the law that allows parents to send their children to private religious schools rather than to neighborhood public schools was designed to increase the likelihood that a family’s faith would be transmitted from one generation to the next. Indeed, Pierce v. Society of Sisters , a 1925 Supreme Court decision, went so far as to hold that there is a constitutional right to cement the attachment of one’s children to one’s faith. But Justices Ginsburg and Stevens have now endorsed the view that it is a social evil if my children follow the religious observances that my family has practiced for generations. And a legislature that facilitates this transmission of belief and increases the likelihood of success of this baleful effort crosses the constitutional barrier.

Justices O’Connor, Kennedy, and Souter-the Court’s centrist bloc-are not as openly hostile to religion. But their views display gross insensitivity to the difficulties of religious observance. Souter characterized New York’s law as “religious favoritism”-as if the New York legislature gratuitously bestowed a lottery jackpot on the state’s Satmar Hasidim.

The New York law was “favoritism” for the religious in the same sense as a progressive income tax rate is “favoritism” for the poor and a law requiring wheelchair ramps is “favoritism” for the handicapped. Poverty and disability are “conditions” that society is presumably entitled (and may be obliged) to ameliorate. Souter and O’Connor (who also invalidated the Kiryas Joel law because it singled out the Satmar Hasidim “for favorable treatment”) do not see religion as an individual lifelong condition, like poverty or disability. They view it as a temporary personal preference-a possession that one may choose to keep or discard. Hence Justice Souter can say with equanimity that the Kiryas Joel law was “an adjustment to the Satmar’s religiously grounded preferences that our cases do not countenance.”

This judicial astigmatism is not really new. It is the reason I lost a case in the Supreme Court almost a decade earlier. When the Connecticut legislature repealed its Sunday closing law, it included a provision that gave every employee in the state a seemingly absolute right to be excused from work on the day of the week “observed as his Sabbath.” In a decision called Estate of Thornton v. Caldor , decided in June 1985, the Supreme Court held 8-to-1 that this provision was unconstitutional because it was an “unyielding weighing in favor of Sabbath observers over all other interests.” The law, said then Chief Justice Burger (with only current Chief Justice Rehnquist dissenting), gave Sabbath observers ”the valuable right to designate a particular weekly day off,” so it had the unconstitutional effect of “impermissibly advanc[ing] a particular religious practice.” The Court plainly thought of this as religious favoritism-just as Justices Souter and O’Connor viewed the Kiryas Joel law. Burger went so far as to say that the law discriminated against employees who were not religiously observant because they “must take a back seat to the Sabbath observer.”

No one on the Thornton Court saw the incongruity of treating the Sabbath-observer-who is frequently shut out of employment altogether or denied a promotion because of his or her unavailability one day a week-as a favored front-seat passenger. Have the rich been forced to “take a back seat” to the poor because the rich pay more than 38 percent of their income in federal taxes while some of the poor may not pay any income tax at all? And have those whose license plates show them to be handicapped drivers been accorded the “favoritism” of reserved close-in parking spaces while the rest of us must take long hikes from our parked cars?

The New York law singled out the Village of Kiryas Joel and gave it a public school district of its own because the Satmar Hasidic community had a unique condition that grew out of the religious observance of its members. Their learning-disabled children could not attend the public school program provided in the town of Monroe. Justices Souter and O’Connor (and possibly Justice Kennedy-although the reason he arrived at his conclusion is more murky) treated the religious conviction of the Satmar Hasidim as if it were a personal preference that entitled the Hasidim to no unique treatment. The law offended the Establishment Clause, they said, because it is impermissible to treat those who have a religious quirk differently from those who lack it-although secular preferences may be a basis for legislative distinction. Only those who are oblivious to religion can so cavalierly shunt it aside. The Framers of the First Amendment were not blind to religious values. This is why they categorically denied government the power to prohibit the “free exercise of religion.”

Nathan Lewin is a Washington attorney who represented the Kiryas Joel Village School District in the Supreme Court.

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Michael W. McConnell

In 1974, the New York State legislature divided the Hasidic Jewish community of Williamsburg, in Brooklyn, between two state legislative districts, submerging their votes and eliminating Hasidic representatives from the legislature. This was explicitly for the purpose of creating additional districts with “substantial nonwhite majorities.” The Hasidim challenged the racial gerrymander in court, but the Supreme Court rejected their plea. “The Constitution does not prevent a state,” the Court explained, “from deliberately creating or preserving black majorities in particular districts.” The Court brushed aside the Hasidim’s own distinctive claim as a minority group, treating them as generic “white” voters, adequately represented, as “whites,” in the legislature as a whole ( United Jewish Organizations v. Carey [1977]).

In 1989, the New York legislature divided an Orange County school district into two parts, creating a district for the Village of Kiryas Joel, a municipality made up almost entirely of members of the Satmar Hasidic Jewish sect. The purpose was to enable the handicapped children of Kiryas Joel to obtain special educational services (to which they are entitled under state and federal law) at a public school within their own community, without having to send them to a more distant school where the other kids made fun of them for their Yiddish language, odd clothes and hairstyle, and peculiar customs. Public school officials from elsewhere in the state challenged the creation of the Kiryas Joel school district in court, and the Supreme Court again ruled against the Hasidim, declaring that it is unconstitutional for a legislature to create a political jurisdiction along lines defined by religion.

It is the old story of the double standard. It is okay to draw political boundaries for the benefit of racial minorities, but not of religious minorities. When the legislature deliberately chops up a district dominated by a religious minority, there is no problem: the Hasidim are just “white.” But when it draws boundaries in their favor, the Hasidim become a distinct and dangerous group, and Justice Stevens-who happily joined in carving out districts more than 70 percent black-issues stern warnings against ”segregation” along religious lines, which might, he says, “provide official support to cement the attachment of young adherents to a particular faith.”

Ironically, the Kiryas Joel school district was created in the interest of accommodation and toleration-almost the opposite of the spirit of “Establishment” with which it was labeled. Two decades ago, about 8,000 members of the Satmar sect (most of whose members perished in the Holocaust) moved to a then-uninhabited part of Orange County, New York, and formed the Village of Kiryas Joel. Like most Orthodox Jews, the people of Kiryas Joel educate their children in religious schools, or yeshivas, while paying property taxes to support the secular schools used by the majority of their fellow citizens.

Under both state and federal law, all handicapped children-whether they go to public or to private school-are entitled to educational assistance appropriate to their special needs. For years, this assistance was provided by public school employees on the premises of the religious schools in Kiryas Joel. In 1985, however, the Supreme Court held that it is unconstitutional to provide the services in this way.

The Satmar handicapped children were then forced to travel to the public school in an adjoining community, run by the Monroe-Woodbury School District. Predictably, this was a disaster. The children, many of them already suffering from emotional disturbance and insecurity, experienced “panic, fear, and trauma,” and all but one of the Satmar parents removed their children from this unsatisfactory placement.

The Satmar parents requested the school district to provide special education at a “neutral site” in the Village, as would have been permitted under the law; but the district refused. The parents sought relief in state court, but the court held that the district has discretion to decide how and where to provide the special education.

So the Satmar community turned to the legislature for help. Under the New York Constitution, the legislature could not tell the Monroe- Woodbury School District how to exercise its educational functions. But it could determine the boundaries of the district. And so the legislature voted to carve out a new school district coterminous with the boundaries of the Village of Kiryas Joel. This enabled the people of Kiryas Joel to establish a public school in the Village that would provide appropriate education for their handicapped children.

It seemed the perfect solution to a contentious problem. No individual’s interests or rights were hurt. Even the Monroe-Woodbury School District was pleased, for it was freed of responsibility to deal with people whose customs it did not understand and who seemed obstreperous and difficult.

Why, then, did the Supreme Court hold it unconstitutional? It gave three reasons, none of them very persuasive.

First, the Court said this district violates the First Amendment “by delegating the State’s discretionary authority over public schools to a group defined by its character as a religious community.” But this cannot be right. In the same opinion, the Court stated that there is no constitutional problem with the existence of the Village of Kiryas Joel, which is “defined by” the same boundaries and which exercises far more discretionary governmental authority than the school district does. And as the Court admits, there are scores of other self-governing communities around the country no less “defined” by their religious character. If people have the freedom to move freely, establish communities, and govern themselves, there will be governmental units where the electorate is almost entirely of a particular religion. This is not Establishment. This is religious pluralism.

But the Court explained that the problem is not that the electorate making up the Kiryas Joel school district is all of one religion. The problem is that the legislature created this all-Satmar district deliberately. But again this cannot be right. The Court admitted that the legislative purpose of accommodating the needs of a religious minority is legitimate, even laudable. But if the purpose is legitimate, and the effect is legitimate, what is the problem?

Perhaps the Court should hold, as Justice Thomas urged in another case this term, that the states may not draw political boundaries intentionally on the basis of race, ethnicity, or religion. But it seems odd that the Voting Rights Act encourages the creation of districts dominated by one kind of minority while the First Amendment forbids creation of districts dominated by a different kind of minority.

The Court’s second answer is less mysterious but more troubling. The problem is that the legislature may have exercised favoritism toward the Satmar Hasidim. The Court lacked “assurance that the next similarly situated group seeking a school district of its own will receive one.”

This portion of the opinion has the virtue of appealing to a genuine constitutional principle: that of equal treatment of all religious groups. But the application is illogical. Because the circumstances of the Satmar Hasidim are unique, no other group has presented an analogous problem. Surely the better course-as Justice Kennedy insisted in his concurrence-is to wait until the legislature fails to treat another group in a comparable way before striking down this law. If the Court is serious about this line of reasoning, then any “case-specific” accommodation to the needs of a particular religious minority is unconstitutional. That has never been the law.

The third reason for striking down the law in Kiryas Joel is the most distressing. According to three of the justices-Stevens, Blackmun, and Ginsburg- New York behaved unconstitutionally when it affirmatively ”support[ed] a religious sect’s interest in segregating itself and preventing its children from associating with their neighbors.” This is an attack on a precious aspect of religious freedom for religious minorities. For many members of minority religions, to be able to assimilate into the wider culture is a great blessing. But for others-such as the Amish or the Satmar Hasidim-assimilation would destroy their religious way of life. It is difficult to bring up a child as a Satmar Hasid when the state insists upon educating all children in schools dominated by the majority culture.

Justice Scalia rightly said that the Kiryas Joel decision “turn[s] the Establishment Clause into a repealer of our nation’s tradition of religious toleration.” The Hasidim may seem a small and exotic group. But they represent the many millions of Americans whose lives are oriented around their religion, and who do not wish to be caught up-or have their children caught up-in the profane melting pot of mainstream America. The Supreme Court’s lack of sympathy for this group- indeed, its utter incomprehension of this group-is symptomatic of the failure of our governing elites to take religion seriously.

Admittedly, there are glimmers of hope in the various opinions. Justice O’Connor openly called for reconsideration of Supreme Court precedents that seem to require “hostility to religion, religious ideas, religious people, or religious schools.” And even the majority endorsed the important principle that “the Constitution allows the state to accommodate religious needs by alleviating special burdens.” These are hopeful signs.

In practice, however, the Supreme Court finds every excuse to strike down state action that accommodates the free exercise of religion or that includes religious activities in the benefits of public programs. While it no longer mouths the rhetoric of “strict separation” or follows the Lemon test, which is the source of so much confusion and mischief in this area, the Court declines every invitation to repudiate Lemon or to replace it with an interpretation of Establishment more consistent with principles of religious free exercise.

And so the Hasidim are once again at the mercy of an unfriendly majority, and the nation remains mired in a First Amendment jurisprudence that is suspicious and uncongenial toward religion. For a decade the Court has made noises about doctrinal change. But after Kiryas Joel it is as distant as ever.

Michael W. McConnell is the William B. Graham Professor of Law at the University of Chicago.