To the Editor:

Jeremy Rabkin [“The Curious Case of Kiryas Joel,” November 1994] says quite a bit about Kiryas Joel, but not nearly enough. For one thing, Mr. Rabkin reports on the various amicus briefs filed on each side, noting that the liberal Jewish and Protestant organizations opposed the Kiryas Joel school district, while “Orthodox Jews, the Catholic Church, the Southern Baptist Convention, and other evangelical Protestant denominations” supported it. Curiously, however, Mr. Rabkin makes no mention of another amicus brief filed in opposition to the creation of the Kiryas Joel school district by the Committee for the Weil-Being of Kiryas Joel, consisting of over 500 Satmar hasidic residents of Kiryas Joel.

Thereby hangs a tale. The leader of the dissidents, Joseph Waldman, had the temerity to run for the Kiryas Joel school board without the approval of Grand Rabbi Moses Teitelbaum. Waldman is a fifth-generation Satmar. Nonetheless, for his rashness, he was expelled from the synagogue, his six children were expelled from the main yeshiva, his tires were slashed, the windows of his house were broken, and hundreds of Satmars, including the grand rabbi, demonstrated in front of his home, shouting: “Death to Waldman.” (Waldman now has a permit to carry a pistol for self-protection.)

The fact is that Kiryas Joel is indeed a “theocratic municipality,” ruled with an iron hand by the grand rabbi, somewhat reminiscent of the Puritan theocracy in the Massachusetts Bay Colony in the 17th century. His dictates are law on all matters of importance and dissent is not taken lightly, not only concerning religious observance, but also on such matters as who may marry whom, who may buy property, and who may run for public office. Television, radio, and the sale of English-language newspapers are forbidden in Kiryas Joel.

Mr. Rabkin writes: “In the Court’s view, the New York State law creating the school district had improperly singled out the Satmar Hasidim for a special privilege not available to other groups.” But Justice David Souter, in the majority opinion striking down the Kiryas Joel school district, wrote:

[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.

Mr. Rabkin fails to tell us that, nor does he mention a key case relied on by the Court, Larkin v. Grendel’s Den, in which the Court held that giving churches veto power (to control whether nearby restaurants may receive liquor licenses) “enmeshes churches in the exercise of substantial governmental powers contrary to . . . First Amendment strictures against establishment.”

Mr. Rabkin chastises the Court majority for inconsistency in upholding accommodation to religious needs in some cases, but not for the Satmar Hasidim of Kiryas Joel. Justice Souter’s opinion, however, says that:

[We] do not deny that the Constitution allows the state to accommodate religious needs by alleviating special burdens . . . 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.

The American Jewish Committee (AJC) believes deeply in reasonable religious accommodation for people of all faiths, and we have so contended in numerous cases before the Supreme Court. For one example, in Goldman v. Weinberger, AJC upheld the right of an Or-thodox Jew in the Air Force to wear his yarmulke indoors while on duty, notwithstanding the Air Force dress code to the contrary. For another, in the case of Gallagher v. Crown Kosher Supermarket, AJC supported a constitutional challenge by Orthodox Jews on religious-liberty grounds to the Massachusetts Sunday-closing law. AJC also joined as amicus in support of religious accommodation in two of the cases cited by Mr. Rabkin in which the Supreme Court upheld the accommodation, Sherbert v. Verner (a state cannot deny unemployment benefits to a Seventh-Day Adventist who refused to work on Saturday), and Wisconsin v. Yoder (a state cannot require Amish pupils to attend school beyond the eighth grade). These accommodation cases, distinguishable from Kiryas Joel, all involved the lifting of state-imposed burdens on religious sects.

But there are some religious groups which would like to see the concept of religious accommodation stretched to the point of reading the establishment clause of the First Amendment virtually out of existence. What they really seek, under the umbrella of accommodation, is government payment for all schools controlled by religious groups. Not surprisingly, these organizations banded together in support of the Kiryas Joel school district. The American Jewish Committee is not among them.

In an amicus brief (together with Americans United for Separation of Church and State, the Anti-Defamation League of B’nai B’rith, the American Civil Liberties Union, the National Council of Jewish Women, and the Unitarian Universalist Association), AJC maintained that the creation of the Kiryas Joel school district “represents an impermissible form of religious accommodation.” Unlike other religious accommodations which we support because they provide relief for religious groups or individuals from the burden of government regulation, the law creating Kiryas Joel “provides an affirmative benefit in the form of a state-financed and fully operational school district.” That is a core violation of the establishment clause.

If the constitutional principle of separation of church and state is to have any meaning at all, it should mean at least this: a state cannot confer its governmental powers on a religious body. Yet that is exactly what the state of New York did in creating a special public-school district for the learning-disabled children of Kiryas Joel.

Obviously there is no constitutional problem in a public-school district that happens to be populated overwhelmingly by Jews—or Catholics, Baptists, or citizens of any other faith. But that is not Kiryas Joel. Rather, this religious enclave, by design, is for Satmar Hasidim only. Its political boundaries were drawn by the state precisely along religious lines. No one is free simply to move in. Others are not welcome. Permission to build or rent must be granted by the grand rabbi, and anyone who wants to build within Kiryas Joel’s borders must pay a minimum tithe of $10,000 to Congregation Yetev Lev. Two residents who were foolhardy enough to rent without rabbinic permission were beaten and stoned. Is this an American municipality in charge of a public-school district? What lessons do the children of Kiryas Joel learn from this about the meaning of freedom and democracy?

The learning-disabled children of Kiryas Joel are fully entitled by law to a secular education at public expense. Yet these children culturally are so different from other handicapped children that they are apt to be miserable in a regular public-school setting. But there is a viable alternative. Their education can and should be effectively provided by the local public-school district at a neutral location—as Justice Souter suggested—without doing violence to constitutional principle.

Instead, as Mr. Rabkin notes, New York has “enacted a new law designed to overcome the Supreme Court’s objections: any incorporated village in the state which meets certain specified conditions may now vote to organize a separate school district for itself.” The purported general applicability of this new law is a subterfuge. Its sole purpose is to perpetuate the joinder of governmental and religious authority embodied in the Kiryas Joel school district.

Mr. Rabkin is quite correct in saying that the last word on this matter has not yet been spoken.

Samuel Rabinove
Legal Director
American Jewish Committee
New York City

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Jeremy Rabkin writes:

I agree with Samuel Rabinove that the incidents of tire-slashing and window-breaking in Kiryas Joel were deplorable. But I do not agree with his suggestion that the Satmars are too devoted to the grand rabbi to be trusted with the same rights as other citizens.

In the first place, it is a wild leap to conclude, as Mr. Rabinove does, that because the Satmars are generally so devoted to their grand rabbi, the village of Kiryas joel is a “theocratic municipality” and its public-school board is a “religious body.” Civil officials in the village—including members of the school board—are not appointed by the rabbi but elected by secret ballot, in full conformity with New York State election laws. In the contested school-board election mentioned by Mr. Rabinove, the dissident leader, Joseph Waldman, who was the subject of so much disapprobation from the grand rabbi, actually received the support of some 40 percent of the voters (and something like two-thirds as many votes as the nearest successful contender for a seat on the school board). This represents considerably more dissent, I believe, than could be rallied at an Ivy League university for a candidate who opposed the reigning political orthodoxies in those institutions.

Mr. Rabinove seems to think that because the winning candidates had been endorsed by the rabbi, they were unfit for civil office. Does he say this about successful candidates endorsed, for example, by the Reverend Jesse Jackson or by the many other clergymen who have involved themselves in electoral politics in cities across America? It is true that Kiryas joel is, in religious terms, a far more homogeneous community than most and for this reason might seem to allow greater influence by particular clergymen. But Kiryas joel is not religiously homogeneous by law—any more than school districts in rural Utah are entirely Mormon by law, though they may happen to be so in fact. For all Mr. Rabinove’s charges about rabbinic edicts of exclusion, discrimination in housing sales is, by federal and state law, as prohibited in Kiryas joel as anywhere else.

Mr. Rabinove’s constitutional arguments are no more convincing. He insists that there is a principled difference between “lifting state-imposed burdens” on religion, on the one hand, and providing an “affirmative benefit” to religion, on the other. The very cases he cites—from the American Jewish Committee’s amicus briefs—illustrate how confused and manipulable this supposed “principle” really is.

Captain Goldman, for example, had volunteered for service in the Air Force and drawn a regular salary from the federal treasury. No one questioned his right to wear a yarmulke when not in uniform. The issue was whether he could continue to draw the special benefits of participation in the Air Force while refusing to comply with the prescribed dress code for that service. It seems rather a stretch to say that he was seeking relief from “state-imposed” burdens.

Similarly, no one sought to prevent Mrs. Sherbert from refraining from work on Saturday in accordance with her Seventh-Day Adventist beliefs. The issue in Sherbert v. Verner was whether, having refused available employment that would have required her to work on Saturday, she could still draw unemployment insurance—which looks rather like an “affirmative benefit” to me.

On the other hand, until they organized their own special school district, the Satmars were forced to pay special taxes for the public-school system in the surrounding town. Mr. Rabinove acknowledges that the Satmars have a right to receive public-school services for their handicapped children and he also acknowledges that these children deserve to receive these services in special facilities, as they are “apt to be miserable in a regular public-school setting.” So, after all, the “benefit” they are seeking is no more evidently “affirmative” than that sought by other successful claimants for special accommodation to their religious needs.

Mr. Rabinove says the proper solution is for the public-school system in the surrounding town to provide special facilities for the Satmars at a “neutral site.” But in fact, the Monroe-Woodbury school district refused to do this, and when Satmar families sought to overturn that decision, the highest court in New York State ruled that the school district was not required to provide such facilities. That is why the Satmars set up their own public-school district in Kiryas Joel: to ensure that an acceptable public-school facility would be available for handicapped Satmar children.

But Mr. Rabinove finds this unacceptable because somewhere else other people have been seeking state support for actual parochial schools and somehow the Satmars remind him of these other people (though the Kiryas Joel public school was not in any way a religious school and the Satmars never sought public funding for their separate religious schools). Since Mr. Rabinove is concerned about lessons, I would ask him: what lessons do the children of Kiryas Joel learn about American principles of tolerance and equality from the relentless campaign against their school?

Fortunately, New York State’s legislative response to last June’s Supreme Court ruling—allowing any village of a certain size to establish its own school district, as the village of Kiryas Joel has voted to do—has already been endorsed by a lower court in Albany. The same groups that challenged the Kiryas Joel school district last year will probably seek to appeal this ruling all the way to the U.S. Supreme Court (as Mr. Rabinove intimates at the end of his letter). But I think that, this time around, the three dissenters in the original Supreme Court ruling will be joined by Justices Kennedy and O’Connor (who wrote separate concurrences to the original Kiryas Joel ruling, inviting just the sort of response New York has now made). The Court is therefore likely to reject the efforts of Mr. Rabinove and his allies to overturn the tolerant and accommodating policy of New York’s elected legislature. I certainly hope it does.