Freedom Writer - October 1994 [ref001] Kiryas Joel's impact on separation By Barbara A. Si

Freedom Writer - October 1994

[ref001]

Kiryas Joel's impact on separation

By Barbara A. Simon, Esq.

On June 27, 1994, the Court decided Board of Education of _Kiryas_
Joel_v._Grumet_ (No 93-517).  It captured the interest of church-state 
observers because of concerns that the Court might use the case as 
a vehicle to announce a new test for deciding church-state cases, 
thus abandoning its 1971 standard of review, the Lemon test, described 
in _Lemon_v._Kurtzman_ 403 US 602 (1971). Under _Lemon_, a law must 
have at least one legitimate secular purpose, it must have a primary 
effect that neither advances nor inhibits religion, and it must not 
result in excessive governmental entanglement with religion. If the 
law or governmental action fails to meet any one of these three prongs, 
it violates the Establishment Clause, and is, therefore, unconstitutional. 
To the surprise of some, the Court neither affirmed nor discarded 
the Lemon test. Nevertheless, the opinion contained many references 
to the Lemon test. Three members of the Court expressed concern about 
the future of the Lemon test. In recent years, a majority of this 
Court has expressed at least some doubt about whether the Lemon test 
is the best approach for settling Establishment Clause questions. 
To date, there is no agreement on the Court as to whether the Lemon 
test should be replaced, and if so, how to replace it. 

At issue in the Kiryas Joel case was whether the Kiryas Joel Village 
School District, established by the New York State legislature in 
1989 for the benefit of the village's Satmar Hasidic residents, violated 
the Establishment Clause. The Court, in an opinion written by Justice 
Souter, found that the law setting up the district amounted to impermissible 
favoritism toward religion in general and toward one sect in particular, 
in violation of the First Amendment's prohibition against the establishment 
of religion. Souter wrote that the state law violated “a principal 
at the heart of the Establishment Clause, that government should not 
prefer one religion to another, or religion to irreligion.” 

Where does the Village of Kiryas Joel Village School District go from 
here?

Relying on Justice O'Connor's concurring opinion, New York's Governor 
Mario Cuomo and legislative leaders  reached agreement on July 1, 
1994, just four days after the Court decision, which would allow the 
Village of Kiryas Joel School District to keep operating. Legislators 
accepted Justice O'Connor's suggestion that the creation of the Village 
of Kiryas Joel School District might have been constitutionally permissible 
if it had been created through legislation applicable to any municipality, 
and not just Kiryas Joel.

It remains to be seen whether the new legislation will survive judicial 
scrutiny.

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