Following are excerpts from the U.S. Supreme Court’s majority, concurring, and dissenting opinions in Board of Education of Kiryas Joel Village School District v. Grumet.
JUSTICE SOUTER delivered the opinion of the Court.
The Village of Kiryas Joel in Orange County, N.Y., is a religious enclave of Satmar Hasidim, practitioners of a strict form of Judaism. The village fell within the Monroe-Woodbury Central School District until a special state statute passed in 1989 carved out a separate district, following village lines, to serve this distinctive population. The question is whether the Act creating the separate school district violates the Establishment Clause of the First Amendment, binding on the States through the 14th Amendment. Because this unusual act is tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion, we hold that it violates the prohibition against establishment. ...
“A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion,’' Committee for Public Education & Religious Liberty v. Nyquist (1973), favoring neither one religion over others nor religious adherents collectively over nonadherents. Chapter 748, the statute creating the Kiryas Joel Village School District, departs from this constitutional command by delegating the State’s discretionary authority over public schools to a group defined by its character as a religious community, in a legal and historical context that gives no assurance that governmental power has been or will be exercised neutrally.
Larkin v. Grendel’s Den Inc. (1982) provides an instructive comparison with the litigation before us. There, the Court was requested to strike down a Massachusetts statute granting religious bodies veto power over applications for liquor licenses. ... In spite of the State’s valid interest in protecting churches, schools, and like institutions from “the hurly-burly’’ associated with liquor outlets, the Court found that ... [t]he Act brought about a “fusion of governmental and religious functions’’ by delegating “important, discretionary governmental powers’’ to religious bodies, thus impermissibly entangling government and religion. ...
The Establishment Clause problem presented by Chapter 748 is more subtle, but it resembles the issue raised in Larkin to the extent that the earlier case teaches that a State may not delegate its civic authority to a group chosen according to a religious criterion. Authority over public schools belongs to the State, and cannot be delegated to a local school district defined by the State in order to grant political control to a religious group. What makes this litigation different from Larkin is the delegation here of civic power to the “qualified voters of the village of Kiryas Joel,’' as distinct from a religious leader such as the village rov, or an institution of religious government like the formally constituted parish council in Larkin. In light of the circumstances of this case, however, this distinction turns out to lack constitutional significance. ...
Of course, Chapter 748 delegates power not by express reference to the religious belief of the Satmar community, but to residents of the “territory of the village of Kiryas Joel.’' Thus the second (and arguably more important) distinction between this case and Larkin is the identification here of the group to exercise civil authority in terms not expressly religious. But our analysis does not end with the text of the statute ... and the context here persuades us that Chapter 748 effectively identifies these recipients of governmental authority by reference to doctrinal adherence even though it does not do so expressly. ...
It is undisputed that those who negotiated the village boundaries when applying the general village incorporation statute drew them so as to exclude all but Satmars, and that the New York Legislature was well aware that the village remained exclusively Satmar in 1989 when it adopted Chapter 748. The significance of this fact to the state legislature is indicated by the further fact that carving out the village school district ran counter to customary districting practices in the State. Indeed, the trend in New York is not toward dividing school districts but toward consolidating them. ... [O]nly one remains precisely coterminous with an incorporated village. The object of the State’s practice of consolidation is the creation of districts large enough to provide a comprehensive education at affordable cost, which is thought to require at least 500 pupils for a combined junior-senior high school. The Kiryas Joel Village School District, in contrast, has only 13 local, full-time students in all (even including out-of-area and part-time students leaves the number under 200), and in offering only special education and remedial programs it makes no pretense to be a full-service district. ...
Because the district’s creation ran uniquely counter to state practice, following the lines of a religious community where the customary and neutral principles would not have dictated the same result, we have good reasons to treat this district as the reflection of a religious criterion for identifying the recipients of civil authority. Not even the special needs of the children in this community can explain the legislature’s unusual Act, for the State could have responded to the concerns of the Satmar parents without implicating the Establishment Clause. ... We therefore find the legislature’s Act to be substantially equivalent to defining a political subdivision and hence the qualification for its franchise by a religious test, resulting in a purposeful and forbidden fusion of governmental and religious functions. ...
The fact that this school district was created by a special and unusual Act of the legislature also gives reason for concern whether the benefit received by the Satmar community is one that the legislature will provide equally to other religious (and nonreligious) groups. ...
The fundamental source of constitutional concern here is that the legislature itself may fail to exercise governmental authority in a religiously neutral way. ... Because the religious community of Kiryas Joel did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a general law, we have no assurance that the next similarly situated group seeking a school district of its own will receive one. ... Early on in the development of public education in New York, the State rejected highly localized school districts for New York City when they were promoted as a way to allow separate schooling for Roman Catholic children. And in more recent history, the special Act in this case stands alone. ...
Here the benefit flows only to a single sect, but aiding this single, small religious group causes no less a constitutional problem than would follow from aiding a sect with more members or religion as a whole, and we are forced to conclude that the State of New York has violated the Establishment Clause. ...
In finding that Chapter 748 violates the requirement of governmental neutrality by extending the benefit of a special franchise, we do not deny that the Constitution allows the state to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. ...
But accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars’ religiously grounded preferences that our cases do not countenance. Prior decisions have allowed religious communities and institutions to pursue their own interests free from governmental interference ... but we have never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation. Petitioners’ proposed accommodation singles out a particular religious sect for special treatment, and whatever the limits of permissible legislative accommodations may be ... it is clear that neutrality as among religions must be honored. ...
This conclusion does not, however, bring the Satmar parents, the Monroe-Woodbury school district, or the State of New York to the end of the road in seeking ways to respond to the parents’ concerns. ... [T]here are several alternatives here for providing bilingual and bicultural special education to Satmar children. Such services can perfectly well be offered to village children through the Monroe-Woodbury Central School District. Since the Satmars do not claim that separatism is religiously mandated, their children may receive bilingual and bicultural instruction at a public school already run by the Monroe-Woodbury district. Or if the educationally appropriate offering by Monroe-Woodbury should turn out to be a separate program of bilingual and bicultural education at a neutral site near one of the village’s parochial schools, this Court has already made it clear that no Establishment Clause difficulty would inhere in such a scheme, administered in accordance with neutral principles that would not necessarily confine special treatment to Satmars. ... [I]f the New York Legislature should remain dissatisfied with the responsiveness of the local school district, it could certainly enact general legislation tightening the mandate to school districts on matters of special education or bilingual and bicultural offerings.
Justice Cardozo once cast the dissenter as “the gladiator making a last stand against the lions.’' Justice Scalia’s dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining. We do not disable a religiously homogeneous group from exercising political power conferred on it without regard to religion. ...
Indeed, under the dissent’s theory, if New York were to pass a law providing school buses only for children attending Christian day schools, we would be constrained to uphold the statute against Establishment Clause attack until faced by a request from a non-Christian family for equal treatment under the patently unequal law. ...
In this case we are clearly constrained to conclude that the statute before us fails the test of neutrality. It delegates a power this Court has said ranks at the very apex of the function of a State to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It therefore crosses the line from permissible accommodation to impermissible establishment. The judgment of the Court of Appeals of the State of New York is accordingly affirmed.
Scalia’s Dissent
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an “establishment’’ of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause--which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters,’' Zorach v. Clauson (1952), has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion. ...
Justice Souter’s steamrolling of the difference between civil authority held by a church, and civil authority held by members of a church, is breathtaking. To accept it, one must believe that large portions of the civil authority exercised during most of our history were unconstitutional. ... The history of the populating of North America is in no small measure the story of groups of people sharing a common religious and cultural heritage striking out to form their own communities. It is preposterous to suggest that the civil institutions of these communities, separate from their churches, were constitutionally suspect. ... If the conferral of governmental power upon a religious institution as such (rather than upon American citizens who belong to the religious institution) is not the test of Grendel’s Den invalidity, there is no reason why giving power to a body that is overwhelmingly dominated by the members of one sect would not suffice to invoke the Establishment Clause. That might have made the entire States of Utah and New Mexico unconstitutional at the time of their admission to the Union, and would undoubtedly make many units of local government unconstitutional today.
Justice Souter’s position boils down to the quite novel proposition that any group of citizens (say, the residents of Kiryas Joel) can be invested with political power, but not if they all belong to the same religion. Of course such disfavoring of religion is positively antagonistic to the purposes of the Religion Clauses, and we have rejected it before. ...
Since the obvious presence of a neutral, secular basis renders the asserted preferential effect of this law inadequate to invalidate it, Justice Souter is required to come forward with direct evidence that religious preference was the objective. His case could scarcely be weaker. It consists, briefly, of this: The People of New York created the Kiryas Joel Village School District in order to further the Satmar religion, rather than for any proper secular purpose, because (1) they created the district in an extraordinary manner--by special Act of the legislature, rather than under the State’s general laws governing school district reorganization; (2) the creation of the district ran counter to a State trend towards consolidation of school districts; and (3) the District includes only adherents of the Satmar religion. On this indictment, no jury would convict. ...
Justice Souter’s case against the statute comes down to nothing more, therefore, than his third point: the fact that all the residents of the Kiryas Joel Village School District are Satmars. But all its residents also wear unusual dress, have unusual civic customs, and have not much to do with people who are culturally different from them. ... On what basis does Justice Souter conclude that it is the theological distinctiveness rather than the cultural distinctiveness that was the basis for New York State’s decision? The normal assumption would be that it was the latter, since it was not theology but dress, language, and cultural alienation that posed the educational problem for the children. ...
I have little doubt that Justice Souter would laud this humanitarian legislation if all of the distinctiveness of the students of Kiryas Joel were attributable to the fact that their parents were nonreligious commune-dwellers, or American Indians, or gypsies. ... The neutrality demanded by the Religion Clauses requires the same indulgence towards cultural characteristics that are accompanied by religious belief. ...
Justice Kennedy expresses the view that School District of Grand Rapids v. Ball, and Aguilar v. Felton--the cases that created the need for the Kiryas Joel legislation by holding unconstitutional state provision of supplemental educational services in sectarian schools--"may have been erroneous.’' ... I heartily agree that these cases, so hostile to our national tradition of accommodation, should be overruled at the earliest opportunity; but meanwhile, today’s opinion causes us to lose still further ground. ...
The Court’s decision today is astounding. Chapter 748 involves no public aid to private schools and does not mention religion. In order to invalidate it, the Court casts aside, on the flimsiest of evidence, the strong presumption of validity that attaches to facially neutral laws, and invalidates the present accommodation because it does not trust New York to be as accommodating toward other religions. ... This is unprecedented--except that it continues, and takes to new extremes, a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation’s tradition of religious toleration. I dissent.
Kennedy’s Concurrence
JUSTICE KENNEDY, concurring in the judgment.
The Court’s ruling that the Kiryas Joel Village School District violates the Establishment Clause is in my view correct, but my reservations about what the Court’s reasoning implies for religious accommodations in general are sufficient to require a separate writing. ... The real vice of the school district, in my estimation, is that New York created it by drawing political boundaries on the basis of religion. I would decide the issue we confront upon this narrower theory, though in accord with many of the Court’s general observations about the State’s actions in this case. ...
This is an unusual case, for it is rare to see a State exert such documented care to carve out territory for people of a particular religious faith. It is also unusual in that the problem to which the Kiryas Joel Village School District was addressed is attributable in no small measure to what I believe were unfortunate rulings by this Court.
The decisions in [School District of] Grand Rapids [v. Ball (1985)] and Aguilar may have been erroneous. In light of the case before us, and in the interest of sound elaboration of constitutional doctrine, it may be necessary for us to reconsider them at a later date. A neutral aid scheme, available to religious and nonreligious alike, is the preferable way to address problems such as the Satmar handicapped children have suffered. But for Grand Rapids and Aguilar, the Satmars would have had no need to seek special accommodations or their own school district.
O’Connor’s Concurrence
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion. All handicapped children are entitled by law to government-funded special education. If the government provides this education on-site at public schools and at nonsectarian private schools, it is only fair that it provide it on-site at sectarian schools as well.
I thought this to be true in Aguilar [v. Felton (1985)], and I still believe it today. The Establishment Clause does not demand hostility to religion, religious ideas, religious people, or religious schools. It is the Court’s insistence on disfavoring religion in Aguilar that led New York to favor it here. The court should, in a proper case, be prepared to reconsider Aguilar, in order to bring our Establishment Clause jurisprudence back to what I think is the proper track--government impartiality, not animosity, towards religion.
