OCTOBER TERM, 1993
Syllabus
BOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT
v. GRUMET
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK No. 93-517.
Argued March 30, 1994-Decided June 27,1994*
The New York village of Kiryas Joel is a religious enclave of
Satmar Hasidim, practitioners of a strict form of Judaism. Its
incorporators intentionally drew its boundaries under the State's
general village incorporation law to exclude all but Satmars. The
village fell within the Monroe-Woodbury Central School District
until a special state statute, 1989 N. Y. Laws, ch. 748, carved out
a separate district that follows village lines. Although the
statute gives a locally elected school board plenary authority over
primary and secondary education in the village, the board currently
runs only a special education program for handicapped children;
other village children attend private religious schools, which do
not offer special educational services. Shortly before the new
district began operations, respondents and others brought this
action claiming,
inter alia, that Chapter 748 violates the
Establishment Clause of the First Amendment. The state trial court
granted summary judgment for respondents, and both the intermediate
appellate court and the New York Court of Appeals affirmed, ruling
that Chapter 748's primary effect was impermissibly to advance
religion.
Held: The judgment is affirmed.
81 N. Y. 2d 518, 618 N. E. 2d 94, affirmed.
JUSTICE SOUTER delivered the opinion of the Court with respect
to Parts II-B, II-C, and III, concluding that Chapter 748 violates
the Establishment Clause. Pp. 702-710.
(a) Because the Kiryas Joel Village School District did not
receive its new governmental authority simply as one of many
communities eligible for equal treatment under a general law, there
is no assurance that the next religious community seeking a school
district of its own will receive one. The anomalously case-specific
creation of this district for a religious community leaves the
Court without any way to review such state action for the purpose
of safeguarding the principle that government should not prefer one
religion to another, or religion to irreligion. Nor can the
historical context furnish any reason to suppose that the Sat-
*Together with No. 93-527, Board of Education of Monroe-Woodbury
Central School District v. Grumet et al., and No. 93-539, Attorney
General of New York v. Grumet et al., also on certiorari to the
same court.
688
Syllabus
mars are merely one in a series of similarly benefited
communities, the special Act in these cases being entirely at odds
with New York's historical trend. Pp. 702-705.
(b) Although the Constitution allows the State to accommodate
religious needs by alleviating special burdens, Chapter 748 crosses
the line from permissible accommodation to impermissible
establishment. There are, however, several alternatives for
providing bilingual and bicultural special education to Satmar
children that do not implicate the Establishment Clause. The
Monroe-Woodbury school district could offer an educationally
appropriate program at one of its public schools or at a neutral
site near one of the village's parochial schools, and if the state
legislature should remain dissatisfied with the local district's
responsiveness, it could enact general legislation tightening the
mandate to school districts on matters of special education or
bilingual and bicultural offerings. Pp. 705-708.
JUSTICE SOUTER, joined by JUSTICE BLACKMUN, JUSTICE STEVENS, and
JUSTICE GINSBURG, concluded in Part II-A that by delegating the
State's discretionary authority over public schools to a group
defined by its common religion, Chapter 748 brings about an
impermissible "fusion" of governmental and religious functions. See
Larkin v.
Grendel's Den, Inc.,
459 U. S. 116, 126, 127.
That a religious criterion was the defining test is shown by the
legislature's undisputed knowledge that the village was exclusively
Satmar when the statute was adopted; by the fact that the creation
of such a small and specialized school district ran uniquely
counter to customary districting practices in the State; and by the
district's origin in a special and unusual legislative Act rather
than the State's general laws for school district organization. The
result is that the legislature has delegated civic authority on the
basis of religious belief rather than on neutral principles. Pp.
696-702.
JUSTICE KENNEDY, agreeing that the Kiryas Joel Village School
District violates the Establishment Clause, concluded that the
school district's real vice is that New York created it by drawing
political boundaries on the basis of religion. See,
e. g.,
Shaw v.
Reno, 509 U. S. 630, 648-649.
There is more than a fine line between the voluntary association
that leads to a political community comprised of people who share a
common religious faith, and the forced separation that occurs when
the government draws explicit political boundaries on the basis of
peoples' faith. In creating the district in question, New York
crossed that line. Pp. 728-730.
SOUTER, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-B, II-C, and
III, in which BLACKMUN, STEVENS, O'CONNOR, and GINSBURG, JJ.,
joined, and an opin-
689
ion with respect to Parts II (introduction) and II-A, in which
BLACKMUN, STEVENS, and GINSBURG, JJ., joined. BLACKMUN, J., filed a
concurring opinion,
post, p. 710. STEVENS, J., filed a
concurring opinion, in which BLACKMUN and GINSBURG, JJ., joined,
post, p. 711. O'CONNOR, J., filed an opinion concurring in
part and concurring in the judgment,
post, p. 712. KENNEDY,
J., filed an opinion concurring in the judgment,
post, p.
722. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.
J., and THOMAS, J., joined,
post, p. 732.
Nathan Lewin argued the cause for petitioners in Nos.
93-517 and 93-527. With him on the briefs was
Lisa D.
Burget.
Julie S.
Mereson, Assistant Attorney General of
New York, argued the cause for petitioners in No. 93-539. With her
on the briefs were G.
Oliver Koppell, Attorney General,
Jerry Boone, Solicitor General, and
Peter H. Schiff,
Deputy Solicitor General.
Lawrence W Reich and
John H.
Gross filed briefs for petitioner Board of Education of the
MonroeWoodbury Central School District.
Jay Worona argued the cause for respondents in all
cases.
With him on the brief was
Pilar Sokol.t
tBriefs of amici curiae urging reversal in No. 93-517 were filed
for the Archdiocese of New York by Richard J. Concannon; for the
American Center for Law and Justice et al. by Jay Alan Sekulow,
James Matthew Henderson, Sr., Mark N. Troobnick, Keith A. Fournier,
Nancy J. Gannon, and Robert A. Destro; for the Christian Legal
Society et al. by Michael W McConnell, Thomas C. Berg, and Steven
T. McFarland; and for the Knights of Columbus by William P. Barr,
Michael A. Carvin, and Carl A. Anderson.
Briefs of
amici curiae urging reversal in all cases were
filed for Agudath Israel of America by
David Zwiebel; for
the Institute for Religion and Polity by
Ronald D. Maines;
for the National Jewish Commission on Law and Public Affairs
(COLPA) by
Julius Berman and
Dennis Rapps; for the
Southern Baptist Convention by
Michael K. Whitehead; and for
the United States Catholic Conference by
Mark E. Chopko and
Phillip H. Harris.
Briefs of
amici curiae urging affirmance in all cases
were filed for the American Jewish Congress et al. by
Norman
Redlich, Marc D. Stern, and
Elliot Mincberg; for
Americans United for Separation of Church and State et al. by
Steven K. Green, Steven R. Shapiro, Jeffrey P. Sinensky,
Steven
690
JUSTICE SOUTER delivered the opinion of the Court, except as to
Parts II (introduction) and II-A.
The village of Kiryas Joel in Orange County, New York, is a
religious enclave of Satmar Hasidim, practitioners of a strict form
of Judaism. The village fell within the MonroeWoodbury Central
School District until a special state statute passed in 1989 carved
out a separate district, following village lines, to serve this
distinctive population. 1989 N. Y. Laws, ch. 748. 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 Fourteenth 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.
I
The Satmar Hasidic sect takes its name from the town near the
Hungarian and Romanian border where, in the early years of this
century, Grand Rebbe Joel Teitelbaum molded the group into a
distinct community. After World War II and the destruction of much
of European Jewry, the Grand
M. Freeman, and
Samuel Rabinove; for the Committee
for the Well-Being of Kiryas Joel by
Joan E. Goldberg and
Michael H. Sussman; for the General Council on Finance and
Administration of the United Methodist Church by
Samuel W
Witwer, Jr.; for the National Coalition for Public Education
and Religious Liberty et al. by
David B. Isbell; for the
National Council of Churches of Christ in the U. S. A. et al. by
Douglas Laycock; for the National School Boards Association
by
Gwendolyn H. Gregory, August W Steinhilber, and
Thomas
A. Shannon; for the New York State United Teachers et al. by
Bernard F.
Ashe and
Gerard John De Wolf; and
for the Council on Religious Freedom by
Lee Boothby, Walter E.
Carson, and
Robert W Nixon.
Briefs of
amici curiae in all cases were filed for the
New York Committee for Public Education and Religious Liberty by
Stanley Geller; and for the Rutherford Institute by
John
W Whitehead and
James J.
Knicely.
691
Rebbe and most of his surviving followers moved to the
Williamsburg section of Brooklyn, New York. Then, 20 years ago, the
Satmars purchased an approved but undeveloped subdivision in the
town of Monroe and began assembling the community that has since
become the village of Kiryas Joel. When a zoning dispute arose in
the course of settlement, the Satmars presented the Town Board of
Monroe with a petition to form a new village within the town, a
right that New York's Village Law gives almost any group of
residents who satisfy certain procedural niceties. See N. Y.
Village Law, Art. 2 (McKinney 1973 and Supp. 1994). Neighbors who
did not wish to secede with the Satmars objected strenuously, and
after arduous negotiations the proposed boundaries of the village
of Kiryas Joel were drawn to include just the 320 acres owned and
inhabited entirely by Satmars. The village, incorporated in 1977,
has a population of about 8,500 today. Rabbi Aaron Teitelbaum,
eldest son of the current Grand Rebbe, serves as the village rov
(chief rabbi) and rosh yeshivah (chief authority in the parochial
schools).
The residents of Kiryas Joel are vigorously religious people who
make few concessions to the modern world and go to great lengths to
avoid assimilation into it. They interpret the Torah strictly;
segregate the sexes outside the home; speak Yiddish as their
primary language; eschew television, radio, and English-language
publications; and dress in distinctive ways that include
headcoverings and special garments for boys and modest dresses for
girls. Children are educated in private religious schools, most
boys at the United Talmudic Academy where they receive a thorough
grounding in the Torah and limited exposure to secular subjects,
and most girls at Bais Rochel, an affiliated school with a
curriculum designed to prepare girls for their roles as wives and
mothers. See generally W. Kephart & W. Zellner, Extraordinary
Groups (4th ed. 1991); 1. Rubin, Satmar, An Island in the City
(1972).
692
These schools do not, however, offer any distinctive services to
handicapped children, who are entitled under state and federal law
to special education services even when enrolled in private
schools. Individuals with Disabilities Education Act, 20 U. S. C. §
1400
et seq. (1988 ed. and Supp. IV); N. Y. Educ. Law, Art.
89 (McKinney 1981 and Supp. 1994). Starting in 1984 the
Monroe-Woodbury Central School District provided such services for
the children of Kiryas Joel at an annex to Bais Rochel, but a year
later ended that arrangement in response to our decisions in
Aguilar v.
Felton, 473 U. S. 402 (1985), and
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373 (1985).
Children from Kiryas Joel who needed special education (including
the deaf, the mentally retarded, and others suffering from a range
of physical, mental, or emotional disorders) were then forced to
attend public schools outside the village, which their families
found highly unsatisfactory. Parents of most of these children
withdrew them from the Monroe-Woodbury secular schools, citing "the
panic, fear and trauma [the children] suffered in leaving their own
community and being with people whose ways were so different," and
some sought administrative review of the public-school placements.
Board of Ed. of Monroe-Woodbury Central School Dist. v.
Wieder, 72 N. Y. 2d 174, 180-181, 527 N. E. 2d 767, 770
(1988).
Monroe-Woodbury, for its part, sought a declaratory judgment in
state court that New York law barred the district from providing
special education services outside the district's regular public
schools.
Id., at 180, 527 N. E. 2d, at 770. The New York
Court of Appeals disagreed, holding that state law left
Monroe-Woodbury free to establish a separate school in the village
because it gives educational authorities broad discretion in
fashioning an appropriate program.
Id., at 186-187, 527 N.
E. 2d, at 773. The court added, however, that the Satmars'
constitutional right to exercise their religion freely did not
require a separate school, since the parents had alleged emotional
trauma, not inconsistency
693
with religious practice or doctrine, as the reason for seeking
separate treatment.
Id., at 189, 527 N. E. 2d, at 775.
By 1989, only one child from Kiryas Joel was attending
Monroe-Woodbury's public schools; the village's other handicapped
children received privately funded special services or went
without. It was then that the New York Legislature passed the
statute at issue in this litigation, which provided that the
village of Kiryas Joel "is constituted a separate school district,
... and shall have and enjoy all the powers and duties of a union
free school district .... " 1989 N. Y. Laws, ch. 748.1 The statute
thus empowered a locally elected board of education to take such
action as opening schools and closing them, hiring teachers,
prescribing textbooks, establishing disciplinary rules, and raising
property taxes to fund operations. N. Y. Educ. Law § 1709 (McKinney
1988). In signing the bill into law, Governor Cuomo recognized that
the residents of the new school district were "all members of the
same religious sect," but said that the bill was "a good faith
effort to solve thee] unique problem" associated with providing
special education services to handicapped children in the village.
Memorandum filed with Assembly Bill Number 8747 (July 24, 1989),
App. 40-41.
Although it enjoys plenary legal authority over the elementary
and secondary education of all school-aged children
1 The statute provides in full:
"Section 1. The territory of the village of Kiryas Joel in the
town of Monroe, Orange county, on the date when this act shall take
effect, shall be and hereby is constituted a separate school
district, and shall be known as the Kiryas Joel village school
district and shall have and enjoy all the powers and duties of a
union free school district under the provisions of the education
law.
"§ 2. Such district shall be under the control of a board of
education, which shall be composed of from five to nine members
elected by the qualified voters of the village of Kiryas Joel, said
members to serve for terms not exceeding five years.
"§ 3. This act shall take effect on the first day of July next
succeeding the date on which it shall have become a law."
694
in the village, N. Y. Educ. Law § 3202 (McKinney 1981 and Supp.
1994), the Kiryas Joel Village School District currently runs only
a special education program for handicapped children. The other
village children have stayed in their parochial schools, relying on
the new school district only for transportation, remedial
education, and health and welfare services. If any child without a
handicap in Kiryas Joel were to seek a public-school education, the
district would pay tuition to send the child into Monroe-Woodbury
or another school district nearby. Under like arrangements, several
of the neighboring districts send their handicapped Hasidic
children into Kiryas Joel, so that two thirds of the full-time
students in the village's public school come from outside. In all,
the new district serves just over 40 full-time students, and two or
three times that many parochial school students on a part-time
basis.
Several months before the new district began operations, the New
York State School Boards Association and respondents Grumet and
Hawk brought this action against the State Education Department and
various state officials, challenging Chapter 748 under the National
and State Constitutions as an unconstitutional establishment of
religion.2 The State Supreme Court for Albany County allowed the
Kiryas Joel Village School District and the Monroe-Woodbury Central
School District to intervene as parties defendant and accepted the
parties' stipulation discontinuing the action against the original
state defendants, although the attorney general of New York
continued to appear to defend the constitutionality of the statute.
See N. Y. Exec. Law § 71 (Mc-
2 Messrs. Grumet and Hawk sued in both their individual
capacities and as officers of the State School Boards Association,
but New York's Appellate Division ruled that the Association and
its officers lacked standing to challenge the constitutionality of
Chapter 748. 187 App. Div. 2d 16, 19, 592 N. Y. S. 2d 123, 126
(1992). Thus, as the case comes to us, respondents are simply
citizen taxpayers. See N. Y. State Fin. Law § 123 (McKinney
1989).
695
Kinney 1993). On cross-motions for summary judgment, the trial
court ruled for the plaintiffs (respondents here), finding that the
statute failed all three prongs of the test in
Lemon v.
Kurtzman, 403
U. S. 602 (1971), and was thus unconstitutional under both the
National and State Constitutions.
Grumet v.
New York
State Ed. Dept., 151 Misc. 2d 60, 579 N. Y. S. 2d 1004
(1992).
A divided Appellate Division affirmed on the ground that Chapter
748 had the primary effect of advancing religion, in violation of
both constitutions, 187 App. Div. 2d 16, 592 N. Y. S. 2d 123
(1992), and the State Court of Appeals affirmed on the federal
question, while expressly reserving the state constitutional issue,
81 N. Y. 2d 518, 618 N. E. 2d 94 (1993). Judge Smith wrote for the
court in concluding that because both the district's public-school
population and its school board would be exclusively Hasidic, the
statute created a "symbolic union of church and State" that was
"likely to be perceived by the Satmarer Hasidim as an endorsement
of their religious choices, or by nonadherents as a disapproval" of
their own.
Id., at 529, 618 N. E. 2d, at 100. As a result,
said the majority, the statute's primary effect was an
impermissible advancement of religious belief. In a concurring
opinion, Judge Hancock found the effect purposeful, so that the
statute violated the first as well as the second prong of
Lemon. 81 N. Y. 2d, at 540, 618 N. E. 2d, at 107. Chief
Judge Kaye took a different tack, applying the strict scrutiny we
have prescribed for statutes singling out a particular religion for
special privileges or burdens; she found Chapter 748 invalid as an
unnecessarily broad response to a narrow problem, since it creates
a full school district instead of simply prescribing a local school
for the village's handicapped children.
Id., at 532, 618 N.
E. 2d, at 102 (concurring opinion). In dissent, Judge Bellacosa
objected that the new district was created to enable the village's
handicapped children to receive a secular, public-school education;
that this was, indeed, its primary effect; and that any attenuated
ben-
696
Opinion of SOUTER, J.
efit to religion was a reasonable accommodation of both
religious and cultural differences.
Id., at 550-551, 618 N.
E. 2d, at 113.
We stayed the mandate of the Court of Appeals, 509 U. S. 938
(1993), and granted certiorari, 510 U. S. 989 (1993).
II
"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 Ed.
&
Religious Liberty v.
Nyquist, 413 U. S. 756, 792-793
(1973), favoring neither one religion over others nor religious
adherents collectively over nonadherents. See
Epperson v.
Arkansas, 393
U. S. 97,104 (1968). 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., 459 U. S. 116 (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. Under the statute, the governing body of any
church, synagogue, or school located within 500 feet of an
applicant's premises could, simply by submitting written objection,
prevent the Alcohol Beverage Control Commission from issuing a
license.
Id., at 117. In spite of the State's valid interest
in protecting churches, schools, and like institutions from" 'the
hurly-burly' associated with liquor outlets," id., at 123 (internal
quotation marks omitted), the Court found that in two respects the
statute violated "[t]he wholesome 'neutrality' of which this
Court's cases speak,"
School Dist. of Abington Township v.
Schempp, 374 U. S. 203, 222 (1963). The Act brought about a
"'fusion of
697
governmental and religious functions'" by delegating "important,
discretionary governmental powers" to religious bodies, thus
impermissibly entangling government and religion. 459 U. S., at
126, 127 (quoting
School Dist. of Abington Township v.
Schempp, supra, at 222); see also
Lemon v.
Kurtzman, supra, at 613. And it lacked "any 'effective means
of guaranteeing' that the delegated power '[would] be used
exclusively for secular, neutral, and nonideological purposes,'"
459 U. S., at 125 (quoting
Committee for Public Ed. &
Religious Liberty v.
Nyquist, supra, at 780); this,
along with the "significant symbolic benefit to religion"
associated with "the mere appearance of a joint exercise of
legislative authority by Church and State," led the Court to
conclude that the statute had a "'primary' and 'principal' effect
of advancing religion," 459 U. S., at 125-126; see also
Lemon v.
Kurtzman, supra, at 612. Comparable
constitutional problems inhere in the statute before us.
A
Larkin presented an example of united civic and religious
authority, an establishment rarely found in such straightforward
form in modern America, cf.
Wolman v.
Walter, 433 U.
S. 229, 263 (1977) (Powell, J., concurring in part, concurring in
judgment in part, and dissenting in part), and a violation of "the
core rationale underlying the Establishment Clause," 459 U. S., at
126. See also
Allegheny County v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 590-591
(1989) (Establishment Clause prevents delegating governmental power
to religious group); id., at 660 (KENNEDY, J., concurring in
judgment in part and dissenting in part) (same);
Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947)
(Establishment Clause prevents State from "participat[ing] in the
affairs of any religious organizations or groups and
vice
versa"); Torcaso v.
Watkins, 367 U. S. 488, 493-494
(1961) (same).
698
Opinion of SOUTER, J.
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, N. Y. Const., Art. XI, § 1, 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," 1989 N. Y.
Laws, ch. 748, 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 these cases, however, this distinction turns
out to lack constitutional significance.
It is, first, not dispositive that the recipients of state power
in these cases are a group of religious individuals united by
common doctrine, not the group's leaders or officers. Although some
school district franchise is common to all voters, the State's
manipulation of the franchise for this district limited it to
Satmars, giving the sect exclusive control of the political
subdivision. In the circumstances of these cases, the difference
between thus vesting state power in the members of a religious
group as such instead of the officers of its sectarian organization
is one of form, not substance. It is true that religious people (or
groups of religious people) cannot be denied the opportunity to
exercise the rights of citizens simply because of their religious
affiliations or commitments, for such a disability would violate
the right to religious free exercise, see
McDaniel v.
Paty, 435 U.
S. 618 (1978), which the First Amendment guarantees as
certainly as it bars any establishment. But
McDaniel, which
held that a religious individual could not, because of his
religious activities, be denied the right to hold political office,
is not in point here. That individuals who happen to be
religious
699
may hold public office does not mean that a State may
deliberately delegate discretionary power to an individual,
institution, or community on the ground of religious identity. If
New York were to delegate civic authority to "the Grand Rebbe,"
Larkin would obviously require invalidation (even though
under
McDaniel the Grand Rebbe may run for, and serve on,
his local school board), and the same is true if New York delegates
political authority by reference to religious belief. Where
"fusion" is an issue, the difference lies in the distinction
between a government's purposeful delegation on the basis of
religion and a delegation on principles neutral to religion, to
individuals whose religious identities are incidental to their
receipt of civic authority.
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." 1989 N. Y. Laws,
ch. 748. Thus the second (and arguably more important) distinction
between these cases 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 at issue, see
Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508
U. S. 520, 534
(1993); Wallace v.
Jaffree,
472 U. S. 38,
56-61 (1985);
Gomillion v.
Lightfoot, 364 U. S. 339, 341-342
(1960), 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. We find this to be the better view of the facts because
of the way the boundary lines of the school district divide
residents according to religious affiliation, under the terms of an
unusual and special legislative Act.
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 Chap-
700
Opinion of SOUTER, J.
ter 748. See Brief for Petitioner in No. 93-517, p. 20; Brief
for Respondents 11. 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. The
thousands of small common school districts laid out in the early
19th century have been combined and recombined, first into union
free school districts and then into larger central school
districts, until only a tenth as many remain today. Univ. of State
of N. Y. and State Education Dept., School District Reorganization,
Law Pamphlet 14, pp. 8-12 (1962) (hereinafter Law Pamphlet);
Woodward, N. Y. State Education Dept., Legal and Organizational
History of School District Reorganization in New York State 10-11
(Aug. 1986). Most of these cover several towns, many of them cross
county boundaries, and only one remains precisely coterminous with
an incorporated village. Law Pamphlet, at 24. 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. Univ. of State of N. Y. and
State Education Dept., Master Plan for School District
Reorganization in New York State 10-11 (rev. ed. 1958).3 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.
The origin of the district in a special Act of the legislature,
rather than the State's general laws governing school district
3 The Commissioner of Education updates this Master Plan as
school districts consolidate, see N. Y. Educ. Law § 314 (McKinney
1988), but has not published a superseding version.
701
reorganization,4 is likewise anomalous. Although the legislature
has established some 20 existing school districts by special Act,
all but one of these are districts in name only, having been
designed to be run by private organizations serving
institutionalized children. They have neither tax bases nor student
populations of their own but serve children placed by other school
districts or public agencies. See N. Y. Educ. Law §3601-a
(Statutory Notes), §§4001 and 4005 (McKinney Supp. 1994); Law
Pamphlet, at 18 ("These districts are school districts only by way
of a legal fiction"). The one school district petitioners point to
that was formed by special Act of the legislature to serve a whole
community, as this one was, is a district formed for a new town,
much larger and more heterogeneous than this village, being built
on land that straddled two existing districts. See 1972 N. Y. Laws,
ch. 928 (authorizing Gananda School District). Thus the Kiryas Joel
Village School District is exceptional to the point of singularity,
as the only district coming to our notice that the legislature
carved from a single existing district to serve local residents.
Clearly this district "cannot be seen as the fulfillment of [a
village's] destiny as an independent governmental entity,"
United States v.
Scotland Neck City Bd. of Ed.,
407 U. S. 484,
492 (1972) (Burger, C. J., concurring in result).5
4 State law allows consolidation on the initiative of a district
superintendent, N. Y. Educ. Law § 1504 (McKinney 1988), local
voters, §§ 15101513, 1522-1524, 1902, or the Commissioner of
Education, §§ 1526, 18011803-a, depending on the circumstances. It
also authorizes the district superintendent to "organize a new
school district," § 1504, which may allow secession from an
existing district, but this general law played no part in the
creation of the Kiryas Joel Village School District.
5 Although not dispositive in this facial challenge, the pattern
ofinterdistrict transfers, proposed and presently occurring, tends
to confirm that religion rather than geography is the organizing
principle for this district. Cf.
United States v.
Scotland Neck City Ed. of Ed., 407 U. S., at 490 (Burger, C.
J., concurring in result). When Chapter 748 was passed, the
702
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, as we explain in some
detail further on. 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."
Larkin v.
Grendel's Den, 459 U.
S., at 126 (internal quotation marks and citation omitted).6
B
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. This is the second malady
understanding was that if a non-Hasidic child were to move into
the village, the district would pay tuition to send the child to
one of the neighboring school districts, since Kiryas Joel would
have no regular education program. Although the need for such a
transfer has not yet arisen, there are 20 Hasidic children with
handicapping conditions who transfer into Kiryas Joel's school
district from the nearby East Ramapo and MonroeWoodbury school
districts.
6 Because it is the unusual circumstances of this district's
creation that persuade us the State has employed a religious
criterion for delegating political power, this conclusion does not
imply that any political subdivision that is coterminous with the
boundaries of a religiously homogeneous community suffers the same
constitutional infirmity. The district in these cases is
distinguishable from one whose boundaries are derived according to
neutral historical and geographic criteria, but whose population
happens to comprise coreligionists.
703
the
Larkin Court identified in the law before it, the
absence of an "effective means of guaranteeing" that governmental
power will be and has been neutrally employed.
Id., at 125
(internal quotation marks and citation omitted). But whereas in
Larkin it was religious groups the Court thought might
exercise civic power to advance the interests of religion (or
religious adherents), here the threat to neutrality occurs at an
antecedent stage.
The fundamental source of constitutional concern here is that
the legislature itself may fail to exercise governmental authority
in a religiously neutral way. The anomalously case-specific nature
of the legislature's exercise of state authority in creating this
district for a religious community leaves the Court without any
direct way to review such state action for the purpose of
safeguarding a principle at the heart of the Establishment Clause,
that government should not prefer one religion to another, or
religion to irreligion. See
Wallace v.
Jaffree, 472
U. S., at 52-54;
Epperson v.
Arkansas, 393 U. S., at
104;
School Dist. of Abington Township v.
Schempp,
374 U. S., at 216-217. 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
generallaw,7 we have no assurance that the next similarly situated
group seeking a school district of its own will receive one; unlike
an administrative agency's denial of an exemption from a generally
applicable law, which "would be entitled to a judicial audience,"
Olsen v.
Drug Enforcement Admin., 878 F.2d
1458, 1461 (CADC 1989) (R. B. Ginsburg, J.), a legislature's
failure to enact a special law is itself unreviewable. Nor can the
historical context in these cases furnish us with any reason to
suppose that the Satmars are merely one in a series of
communities
7This contrasts with the process by which the village of Kiryas
Joel itself was created, involving, as it did, the application of a
neutral state law designed to give almost any group of residents
the right to incorporate. See supra, at 691.
704
receiving the benefit of special school district laws. 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. R. Church & M. Sedlak, Education in the
United States 162, 167-169 (1976). And in more recent history, the
special Act in these cases stands alone. See
supra, at
70l.
The general principle that civil power must be exercised in a
manner neutral to religion is one the
Larkin Court
recognized, although it did not discuss the specific possibility of
legislative favoritism along religious lines because the statute
before it delegated state authority to any religious group
assembled near the premises of an applicant for a liquor license,
see 459 U. S., at 120-121, n. 3, as well as to a further category
of institutions not identified by religion. But the principle is
well grounded in our case law, as we have frequently relied
explicitly on the general availability of any benefit provided
religious groups or individuals in turning aside Establishment
Clause challenges. In
Walz v.
Tax Comm'n of City of New
York, 397 U. S.
664, 673 (1970), for example, the Court sustained a property
tax exemption for religious properties in part because the State
had "not singled out one particular church or religious group or
even churches as such," but had exempted "a broad class of property
owned by nonprofit, quasi-public corporations." Accord,
id.,
at 696-697 (opinion of Harlan, J.). And
Bowen v.
Kendrick, 487
U. S. 589, 608 (1988), upheld a statute enlisting a "wide
spectrum of organizations" in addressing adolescent sexuality
because the law was "neutral with respect to the grantee's status
as a sectarian or purely secular institution."8 See also
Texas
Monthly, Inc. v.
Bullock, 489 U. S.
8 The Court used "sectarian" to refer to organizations akin to
this school district in that they were operated in a secular manner
but had a religious affiliation; it recognized that government aid
may not flow to an institution "'in which religion is so pervasive
that a substantial portion of its nmc-
705
1 (1989) (striking down sales tax exemption exclusively for
religious publications);
id., at 14-15 (plurality opinion);
id., at 27-28 (BLACKMUN, J., concurring in judgment);
Estate of Thornton v.
Caldor, Inc., 472 U. S. 703, 711 (1985)
(O'CONNOR, J., concurring in judgment) (statute impermissibly
"singles out Sabbath observers for special ... protection without
according similar accommodation to ethical and religious beliefs
and practices of other private employees"); cf.
Witters v.
Washington Dept. of Servs. for Blind, 474 U. S. 481, 492 (1986)
(Powell, J., concurring). 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, see
Larson v.
Valente, 456
U. S. 228, 244-246 (1982), and we are forced to conclude that
the State of New York has violated the Establishment Clause.
C
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. Rather, there is "ample room under
the Establishment Clause for 'benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference,'"
Corporation of Presiding Bishop of Church of
Jesus Christ of Latter-day Saints v.
Amos, 483 U. S. 327, 334 (1987)
(quoting
Walz v.
Tax Comm'n, supra, at 673);
"government may (and sometimes must) accommodate religious
practices and ... may do so without violating the Establishment
tions are subsumed in the religious mission,'" 487 U. S., at 610
(quoting Hunt v. McNair,
413 U. S. 734, 743
(1973)).
706
Clause."
Hobbie v.
Unemployment Appeals Comm'n of
Fla.,
480 U. S.
136, 144-145 (1987). The fact that Chapter 748 facilitates the
practice of religion is not what renders it an unconstitutional
establishment. Cf.
Lee v.
Weisman, 505 U. S. 577, 627
(1992) (SOUTER, J., concurring) ("That government must remain
neutral in matters of religion does not foreclose it from ever
taking religion into account");
School Dist. of Abington
Township v.
Schempp, 374 U. S., at 299 (Brennan, J.,
concurring) ("[H]ostility, not neutrality, would characterize the
refusal to provide chaplains and places of worship for prisoners
and soldiers cut off by the State from all civilian opportunities
for public communion").
But accommodation is not a principle without limits, and what
petitioners seek is an adjustment to the Satmars' religiously
grounded preferences 9 that our cases do not countenance. Prior
decisions have allowed religious communities and institutions to
pursue their own interests free from governmental interference, see
Corporation of Presiding Bishop v.
Amos, supra, at
336-337 (government may allow religious organizations to favor
their own adherents in hiring, even for secular employment);
Zorach v.
Clauson, 343 U. S. 306 (1952) (government
may allow public schools to release students during the schoolday
to receive off-site religious education), 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,10 and whatever the limits of
permissible legislative accommodations may be, compare
9The Board of Education of the Kiryas Joel Village School
District explains that the Satmars prefer to live together "to
facilitate individual religious observance and maintain social,
cultural and religious values," but that it is not '''against their
religion' to interact with others." Brief for Petitioner in No.
93-517, p. 4, n. 1.
10 In this respect, it goes beyond even
Larkin,
transferring political authority to a single religious group rather
than to any church or school.
707
Texas Monthly, Inc. v.
Bullock, supra (striking
down law exempting only religious publications from taxation), with
Corporation of Presiding Bishop v.
Amos, supra
(upholding law exempting religious employers from Title VII), it is
clear that neutrality as among religions must be honored. See
Larson v.
Valente, supra, at 244-246.
This conclusion does not, however, bring the Satmar parents, the
Monroe-Woodbury school district, or the State of N ew York to the
end of the road in seeking ways to respond to the parents'
concerns. Just as the Court in
Larkin observed that the
State's interest in protecting religious meeting places could be
"readily accomplished by other means," 459 U. S., at 124, there 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. See
Wolman v.
Walter, 433 U. S., at
247-248.
To be sure, the parties disagree on whether the services
Monroe-Woodbury actually provided in the late 1980's were
appropriately tailored to the needs of Satmar children, but this
dispute is of only limited relevance to the question whether such
services could have been provided, had adjustments been made. As we
understand New York law, parents who are dissatisfied with their
handicapped child's program have recourse through administrative
review pro-
708
ceedings (a process that appears not to have run its course
prior to resort to Chapter 748, see
Board of Ed. of
MonroeWoodbury Central School Dist. v.
Wieder, 72 N. Y.
2d, at 180, 527 N. E. 2d, at 770), and if 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.
III
Justice Cardozo once cast the dissenter as "the gladiator making
a last stand against the lions." B. Cardozo, Law and Literature 34
(1931). 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. Cf.
post,
at 735-736. Unlike the States of Utah and New Mexico (which were
laid out according to traditional political methodologies taking
account of lines of latitude and longitude and topographical
features, see U. S. Dept. of Interior, F. Van Zandt, Boundaries of
the United States and the Several States 250-257 (Geological Survey
Bulletin 1212, 1966)), the reference line chosen for the Kiryas
Joel Village School District was one purposely drawn to separate
Satmars from non-Satmars. Nor do we impugn the motives of the New
York Legislature, cf.
post, at 737-740, which no doubt
intended to accommodate the Satmar community without violating the
Establishment Clause; we simply refuse to ignore that the method it
chose is one that aids a particular religious community, as such,
see App. 19-20 (Assembly sponsor thrice describes the Act's
beneficiaries as the "Hasidic" children or community), rather than
all groups similarly interested in separate schooling. The dissent
protests it is novel to insist" 'up front' " that a statute not
tailor its benefits to apply only to one religious group,
post, at 747748, but if this were so,
Texas Monthly,
Inc., would have
709
turned out differently, see 489 U. S., at 14-15 (opinion of
Brennan, J.); id., at 28 (BLACKMUN, J., concurring in judgment),
and language in
Walz v.
Tax Comm'n of New York City,
397 U. S., at 673, and
Bowen v.
Kendrick, 487 U. S.,
at 608, purporting to rely on the breadth of the statutory schemes
would have been mere surplusage. 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. Cf.
Everson
v.
Board of Ed. of Ewing, 330 U. S., at 17 (upholding school
bus service provided all pupils). And to end on the point with
which JusTICE SCALIA begins, the license he takes in suggesting
that the Court holds the Satmar sect to be New York's established
church, see
post, at 732, is only one symptom of his
inability to accept the fact that this Court has long held that the
First Amendment reaches more than classic, 18thcentury
establishments. See
Torcaso v.
Watkins, 367 U. S., at
492-495.
Our job, of course, would be easier if the dissent's position
had prevailed with the Framers and with this Court over the years.
An Establishment Clause diminished to the dimensions acceptable to
JUSTICE SCALIA could be enforced by a few simple rules, and our
docket would never see cases requiring the application of a
principle like neutrality toward religion as well as among
religious sects. But that would be as blind to history as to
precedent, and the difference between JUSTICE SCALIA and the Court
accordingly turns on the Court's recognition that the Establishment
Clause does comprehend such a principle and obligates courts to
exercise the judgment necessary to apply it.
In these cases 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
710
the function of a State,"
Wisconsin v.
Yoder,
406 U. S. 205,
213 (1972), 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.
JUSTICE BLACKMUN, concurring.
For the reasons stated by JUSTICE SOUTER and JUSTICE STEVENS,
whose opinions I join, I agree that the New York statute under
review violates the Establishment Clause of the First Amendment. I
write separately only to note my disagreement with any suggestion
that today's decision signals a departure from the principles
described in
Lemon v.
Kurtzman, 403 U. S. 602 (1971). The
opinion of the Court (and of the plurality with respect to Part
II-A) relies upon several decisions, including
Larkin v.
Grendel's Den, Inc., 459 U. S. 116 (1982),
that explicitly rested on the criteria set forth in
Lemon.
Indeed, the two principles on which the opinion bases its
conclusion that the legislative Act is constitutionally invalid
essentially are the second and third
Lemon criteria. See
ante, at 697;
Larkin, 459 U. S., at 126-127 (finding"
'a fusion of governmental and religious functions'" under
Lemon's "entanglement" prong); 459 U. S., at 125-126
(finding a lack of any" 'effective means of guaranteeing'" that
governmental power will be neutrally employed under
Lemon's"
'principal' or 'primary effect'" prong).
I have no quarrel with the observation of JUSTICE O'CONNOR,
post, at 718-719, that the application of constitutional
principles, including those articulated in
Lemon, must be
sensitive to particular contexts. But I remain convinced of the
general validity of the basic principles stated in
Lemon,
which have guided this Court's Establishment Clause deci-
711
sions in over 30 cases. See
Lee v.
Weisman,
505 U. S. 577,
603, n. 4 (1992) (BLACKMUN, J., concurring).
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE GINSBURG
join, concurring.
New York created a special school district for the members of
the Satmar religious sect in response to parental concern that
children suffered "'panic, fear and trauma'" when " 'leaving their
own community and being with people whose ways were so
different.'''
Ante, at 692. To meet those concerns, the
State could have taken steps to alleviate the children's fear by
teaching their schoolmates to be tolerant and respectful of Satmar
customs. Action of that kind would raise no constitutional concerns
and would further the strong public interest in promoting diversity
and understanding in the public schools.
Instead, the State responded with a solution that affirmatively
supports a religious sect's interest in segregating itself and
preventing its children from associating with their neighbors. The
isolation of these children, while it may protect them from "panic,
fear and trauma," also unquestionably increased the likelihood that
they would remain within the fold, faithful adherents of their
parents' religious faith. By creating a school district that is
specifically intended to shield children from contact with others
who have "different ways," the State provided official support to
cement the attachment of young adherents to a particular faith. It
is telling, in this regard, that two-thirds of the school's
full-time students are Hasidic handicapped children from
outside the village; the Kiryas Joel school thus serves a
population far wider than the village-one defined less by geography
than by religion. See
ante, at 694, 701-702, n. 5.
Affirmative state action in aid of segregation of this character
is unlike the evenhanded distribution of a public benefit or
service, a "release time" program for public school students
involving no public premises or funds, or a decision to
712
Opinion of O'CONNOR, J.
grant an exemption from a burdensome general rule. It is, I
believe, fairly characterized as establishing, rather than merely
accommodating, religion. For this reason, as well as the reasons
set out in JUSTICE SOUTER'S opinion, I am persuaded that the New
York law at issue in these cases violates the Establishment Clause
of the First Amendment.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
I
The question at the heart of these cases is: What may the
government do, consistently with the Establishment Clause, to
accommodate people's religious beliefs? The history of the Satmars
in Orange County is especially instructive on this, because they
have been involved in at least three accommodation problems, of
which these cases are only the most recent.
The first problem related to zoning law, and arose shortly after
the Satmars moved to the town of Monroe in the early 1970's. Though
the area in which they lived was zoned for single-family homes, the
Satmars subdivided their houses into several apartments, apparently
in part because of their traditionally close-knit extended family
groups. The Satmars also used basements of some of their buildings
as schools and synagogues, which according to the town was also a
zoning violation. See N. Y. Times, Oct. 17, 1976, section 1, p. 53,
col. 1; App. 10-14.
Fortunately for the Satmars, New York state law had a way of
accommodating their concerns. New York allows virtually any group
of residents to incorporate their own village, with broad powers of
self-government. The Satmars followed this course, incorporating
their community as the village of Kiryas Joel, and their zoning
problems, at least, were solved.
Ante, at 691.
The Satmars' next need for accommodation arose in the
mid-1980's. Satmar education is pervasively religious, and
713
is provided through entirely private schooling. But though the
Satmars could afford to educate most of their children, educating
the handicapped is a difficult and expensive business. Moreover, it
is a business that the government generally funds, with tax moneys
that come from the Satmars as well as from everyone else. In 1984,
therefore, the MonroeWoodbury Central School District began
providing handicapped education services to the Satmar children at
an annex to the Satmar religious school. The curriculum and the
environment of the services were entirely secular. They were the
same sort of services available to handicapped students at secular
public and private schools throughout the country.
In 1985, however, we held that publicly funded classes on
religious school premises violate the Establishment Clause.
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373;
Aguilar v.
Felton, 473 U. S. 402. Based on
these decisions, the Monroe-Woodbury Central School District
stopped providing services at the Kiryas Joel site, and required
the Satmar children to attend public schools outside the village.
This, however, was not a satisfactory arrangement for the Satmars,
in part because the Satmar children had a hard time dealing with
immersion in the non-Satmar world. By 1989, only one handicapped
Kiryas Joel child was going to the public school-the others were
getting either privately funded services or no special education at
all. Though the Satmars tried to reach some other arrangement with
the MonroeWoodbury Central School District, the problem was not
resolved.
In response to these difficulties came the third accommodation.
In 1989, the New York Legislature passed a statute to create a
special school district covering only the village of Kiryas Joel.
This school district could, of course, only operate secular
schools, and the Satmars therefore wanted to use it only to provide
education for the handicapped. But because the district provides
this education in the village, Satmar children could take advantage
of the district's serv-
714
Opinion of O'CONNOR, J.
ices without encountering the problems they faced when they were
sent out to Monroe-Woodbury schools. It is the constitutionality of
the law creating this district that we are now called on to
decide.
II
The three situations outlined above shed light on an important
aspect of accommodation under the First Amendment:
Religious needs can be accommodated through laws that are
neutral with regard to religion. The Satmars' living arrangements
were accommodated by their right-a right shared with all other
communities, religious or not, throughout New York-to incorporate
themselves as a village. From 1984 to 1985, the Satmar handicapped
children's educational needs were accommodated by special education
programs like those available to all handicapped children,
religious or not. Other examples of such accommodations abound: The
Constitution itself, for instance, accommodates the religious
desires of those who were opposed to oaths by allowing any
officeholder-of any religion, or none-to take either an oath of
office or an affirmation. Art. II, § 1, cl. 8; Art. VI, cl. 3; see
also Arndt. 4. Likewise, the selective service laws provide
exemptions for conscientious objectors whether or not the objection
is based on religious beliefs.
Welsh v.
United
States, 398 U. S.
333, 356 (1970) (Harlan, J., concurring in result).
We have time and again held that the government generally may
not treat people differently based on the God or gods they worship,
or do not worship. "The clearest command of the Establishment
Clause is that one religious denomination cannot be officially
preferred over another."
Larson v.
Valente, 456 U. S. 228, 244
(1982). "Just as we subject to the most exacting scrutiny laws that
make classifications based on race ... so too we strictly
scrutinize governmental classifications based on religion."
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.
S. 872, 886, n. 3 (1990). "[T]he Establishment Clause
prohibits
715
government from abandoning secular purposes ... to favor the
adherents of any sect or religious organization." Gil
lette
v.
United States, 401 U. S. 437, 450
(1971). "Neither [the State nor the Federal Governments] can
constitutionally pass laws or impose requirements which aid all
religions as against non-believers, and neither can aid those
religions based on a belief in the existence of God as against
those religions founded on different beliefs."
Torcaso v.
Watkins, 367
U. S. 488, 495 (1961) (footnote omitted). See also
Texas
Monthly, Inc. v.
Bullock, 489 U. S. 1, 8-9 (1989)
(plurality opinion); id., at 26, 28-29 (BLACKMUN, J., concurring in
judgment);
Welsh, supra, at 356 (Harlan, J., concurring);
Walz v.
Tax Comm'n of City of New York, 397 U. S. 664, 696-697
(1970) (opinion of Harlan, J.).
This emphasis on equal treatment is, I think, an eminently sound
approach. In my view, the Religion Clauses-the Free Exercise
Clause, the Establishment Clause, the Religious Test Clause, Art.
VI, cl. 3, and the Equal Protection Clause as applied to
religion-all speak with one voice on this point: Absent the most
unusual circumstances, one's religion ought not affect one's legal
rights or duties or benefits. As I have previously noted, "the
Establishment Clause is infringed when the government makes
adherence to religion relevant to a person's standing in the
political community."
Wallace v.
Jaffree, 472 U. S. 38, 69 (1985)
(opinion concurring in judgment).
That the government is acting to accommodate religion should
generally not change this analysis. What makes accommodation
permissible, even praiseworthy, is not that the government is
making life easier for some particular religious group as such.
Rather, it is that the government is accommodating a deeply held
belief. Accommodations may thus justify treating those who share
this belief differently from those who do not; but they do not
justify discriminations based on sect. A state law prohibiting the
consumption of alcohol may exempt sacramental wines, but it may
716
Opinion of O'CONNOR, J.
not exempt sacramental wine use by Catholics but not by Jews. A
draft law may exempt conscientious objectors, but it may not exempt
conscientious objectors whose objections are based on theistic
belief (such as Quakers) as opposed to nontheistic belief (such as
Buddhists) or atheistic belief. See
Welsh, 398 U. S., at 356
(Harlan, J., concurring in result); see also id., at 335-344
(reaching this result on statutory interpretation grounds);
United States v.
Seeger, 380 U. S. 163 (1965)
(same). The Constitution permits
"nondiscriminatory
religious-practice exemption[s],"
Smith, supra, at 890
(emphasis added), not sectarian ones.
III
I join Parts I, II-B, II-C, and III of the Court's opinion
because I think this law, rather than being a general
accommodation, singles out a particular religious group for
favorable treatment. The Court's analysis of the history of this
law and of the surrounding statutory scheme,
ante, at
699701, persuades me of this.
On its face, this statute benefits one group-the residents of
Kiryas Joel. Because this benefit was given to this group based on
its religion, it seems proper to treat it as a legislatively drawn
religious classification. I realize this is a close question,
because the Satmars may be the only group who currently need this
particular accommodation. The legislature may well be acting
without any favoritism, so that if another group came to ask for a
similar district, the group might get it on the same terms as the
Satmars. But the nature of the legislative process makes it
impossible to be sure of this. A legislature, unlike the judiciary
or many administrative decisionmakers, has no obligation to respond
to any group's requests. A group petitioning for a law may never
get a definite response, or may get a "no" based not on the merits
but on the press of other business or the lack of an influential
sponsor. Such a legislative refusal to act would not normally be
reviewable by a court. Under these
717
circumstances, it seems dangerous to validate what appears to me
a clear religious preference.
Our invalidation of this statute in no way means that the
Satmars' needs cannot be accommodated. There is nothing improper
about a legislative intention to accommodate a religious group, so
long as it is implemented through generally applicable legislation.
New York may, for instance, allow all villages to operate their own
school districts. If it does not want to act so broadly, it may set
forth neutral criteria that a village must meet to have a school
district of its own; these criteria can then be applied by a state
agency, and the decision would then be reviewable by the judiciary.
A district created under a generally applicable scheme would be
acceptable even though it coincides with a village that was
consciously created by its voters as an enclave for their religious
group. I do not think the Court's opinion holds the contrary.
I also think there is one other accommodation that would be
entirely permissible: the 1984 scheme, which was discontinued
because of our decision in
Aguilar. 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 governmentfunded special education.
See,
e. g., Individuals with Disabilities Education Act, 20
U. S. C. § 1400
et seq. 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, see 473 U. S., at
421431 (dissenting opinion), and I still believe it today. The
Establishment Clause does not demand hostility to religion,
religious ideas, religious people, or religious schools. Cf.
Lamb's Chapel v.
Center Moriches Union Free School
Dist., 508 U. S.
384 (1993). 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
juris-
718
Opinion of O'CONNOR, J.
prudence back to what I think is the proper track-government
impartiality, not animosity, toward religion.
IV
One aspect of the Court's opinion in these cases is worth
noting: Like the opinions in two recent cases,
Lee v.
Weisman, 505
U. S. 577 (1992);
Zobrest v.
Catalina Foothills
School Dist., 509
U. S. 1 (1993), and the case I think is most relevant to these,
Larson v.
Valente, 456 U. S. 228 (1982), the
Court's opinion does not focus on the Establishment Clause test we
set forth in
Lemon v.
Kurtzman, 403 U. S. 602 (1971).
It is always appealing to look for a single test, a Grand
Unified Theory that would resolve all the cases that may arise
under a particular Clause. There is, after all, only one
Establishment Clause, one Free Speech Clause, one Fourth Amendment,
one Equal Protection Clause. See
Craig v.
Boren,
429 U. S. 190,
211 (1976) (STEVENS, J., concurring).
But the same constitutional principle may operate very
differently in different contexts. We have, for instance, no one
Free Speech Clause test. We have different tests for content-based
speech restrictions, for content-neutral speech restrictions, for
restrictions imposed by the government acting as employer, for
restrictions in nonpublic fora, and so on. This simply reflects the
necessary recognition that the interests relevant to the Free
Speech Clause inquiry-personal liberty, an informed citizenry,
government efficiency, public order, and so on-are present in
different degrees in each context.
And setting forth a unitary test for a broad set of cases may
sometimes do more harm than good. Any test that must deal with
widely disparate situations risks being so vague as to be useless.
I suppose one can say that the general test for all free speech
cases is "a regulation is valid if the interests asserted by the
government are stronger than the interests of the speaker and the
listeners," but this would hardly be a serviceable formulation.
Similarly,
719
Lemon has, with some justification, been criticized on
this score.
Moreover, shoehorning new problems into a test that does not
reflect the special concerns raised by those problems tends to
deform the language of the test. Relatively simple phrases like
"primary effect ... that neither advances nor inhibits religion"
and" 'entanglement,'"
Lemon, supra, at 612-613, acquire more
and more complicated definitions which stray ever further from
their literal meaning. Distinctions are drawn between statutes
whose effect is to advance religion and statutes whose effect is to
allow religious organizations to advance religion. See,
e. g.,
Corporation of Presiding Bishop of Church of Jesus Christ of
Latter-day Saints v.
Amos, 483 U. S. 327, 336-337
(1987);
id., at 347 (O'CONNOR, J., concurring in judgment)
(discussing this point). Assertions are made that authorizing
churches to veto liquor sales in surrounding areas "can be seen as
having a 'primary' and 'principal' effect of advancing religion."
Larkin v.
Grendel's Den, Inc., 459 U. S. 116, 125-126
(1982). "[E]ntanglement" is discovered in public employers
monitoring the performance of public employees-surely a proper
enough function-on parochial school premises, and in the public
employees cooperating with the school on class scheduling and other
administrative details.
Aguilar v.
Felton, 473 U. S.,
at 413. Alternatives to
Lemon suffer from a similar failing
when they lead us to find "coercive pressure" to pray when a school
asks listeners-with no threat of legal sanctions-to stand or remain
silent during a graduation prayer.
Lee v.
Weisman,
supra, at 592. Some of the results and perhaps even some of the
reasoning in these cases may have been right. I joined two of the
cases cited above,
Larkin and
Lee, and continue to
believe they were correctly decided. But I think it is more useful
to recognize the relevant concerns in each case on their own terms,
rather than trying to squeeze them into language that does not
really apply to them.
720
Opinion of O'CONNOR, J.
Finally, another danger to keep in mind is that the bad test may
drive out the good. Rather than taking the opportunity to derive
narrower, more precise tests from the case law, courts tend to
continually try to patch up the broad test, making it more and more
amorphous and distorted. This, I am afraid, has happened with
Lemon.
Experience proves that the Establishment Clause, like the Free
Speech Clause, cannot easily be reduced to a single test. There are
different categories of Establishment Clause cases, which may call
for different approaches. Some cases, like these, involve
government actions targeted at particular individuals or groups,
imposing special duties or giving special benefits. Cases involving
government speech on religious topics, see,
e. g., Lee v.
Weisman, supra; Allegheny County v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989);
Lynch v.
Donnelly, 465 U. S. 668 (1984);
Stone
v.
Graham, 449
U. S. 39 (1980), seem to me to fall into a different category
and to require an analysis focusing on whether the speech endorses
or disapproves of religion, rather than on whether the government
action is neutral with regard to religion. See
Allegheny County,
supra, at 623-637 (O'CONNOR, J., concurring in part and
concurring in judgment).
Another category encompasses cases in which the government must
make decisions about matters of religious doctrine and religious
law. See
Serbian Eastern Orthodox Diocese for United States and
Canada v.
Milivojevich, 426 U. S. 696 (1976) (which also
did not apply
Lemon). These cases, which often arise in the
application of otherwise neutral property or contract principles to
religious institutions, involve complicated questions not present
in other situations. See,
e. g., 426 U. S., at 721 (looking
at some aspects of religious law to determine the structure of the
church, but refusing to look further into religious law to resolve
the ultimate dispute). Government delegations of power to religious
bodies may make up yet another category. As
Larkin
itself
721
suggested, government impartiality towards religion may not be
enough in such situations: A law that bars all alcohol sales within
some distance of a church, school, or hospital may be valid, but an
equally evenhanded law that gives each institution discretionary
power over the sales may not be.
Larkin, supra, at 123-124.
Of course, there may well be additional categories, or more
opportune places to draw the lines between the categories.
As the Court's opinion today shows, the slide away from
Lemon's unitary approach is well under way. A return to
Lemon, even if possible, would likely be futile, regardless
of where one stands on the substantive Establishment Clause
questions. I think a less unitary approach provides a better
structure for analysis. If each test covers a narrower and more
homogeneous area, the tests may be more precise and therefore
easier to apply. There may be more opportunity to pay attention to
the specific nuances of each area. There might also be, I hope,
more consensus on each of the narrow tests than there has been on a
broad test. And abandoning the
Lemon framework need not mean
abandoning some of the insights that the test reflected, nor the
insights of the cases that applied it.
Perhaps eventually under this structure we may indeed distill a
unified, or at least a more unified, Establishment Clause test from
the cases. Cf.
Clark v.
Community for Creative
Non-Violence, 468
U. S. 288, 298-299 (1984) (uniting two strands of Free Speech
Clause doctrine). But it seems to me that the case law will better
be able to evolve towards this if it is freed from the
Lemon
test's rigid influence. The hard questions would, of course, still
have to be asked; but they will be asked within a more carefully
tailored and less distorted framework.
***
For the reasons stated, I would affirm the judgment of the Court
of Appeals of the State of New York.
722
KENNEDY, J., concurring in judgment
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. As the Court recognizes, a legislative accommodation that
discriminates among religions may become an establishment of
religion. But the Court's opinion can be interpreted to say that an
accommodation for a particular religious group is invalid because
of the risk that the legislature will not grant the same
accommodation to another religious group suffering some similar
burden. This rationale seems to me without grounding in our
precedents and a needless restriction upon the legislature's
ability to respond to the unique problems of a particular religious
group. 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 litigation.
I
This is not an action in which the government has granted a
benefit to a general class of recipients of which religious groups
are just one part. See
Zobrest v.
Catalina Foothills
School Dist., 509
U. S. 1 (1993);
Bowen v.
Kendrick, 487 U. S. 589 (1988);
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481
(1986);
Mueller v.
Allen, 463 U. S. 388 (1983). It
is rather an action in which the government seeks to alleviate a
specific burden on the religious practices of a particular
religious group. I agree that a religious accommodation demands
careful scrutiny to ensure that it does not so burden nonadherents
or discriminate against other religions as to become an
establishment. I disagree, however, with the suggestion that the
Kiryas Joel Village School District contravenes these basic
constitutional commands. But for the
723
forbidden manner in which the New York Legislature sought to go
about it, the State's attempt to accommodate the special needs of
the handicapped Satmar children would have been valid.
"Government policies of accommodation, acknowledgment, and
support for religion are an accepted part of our political and
cultural heritage."
Allegheny County v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 657 (1989)
(KENNEDY, J., concurring in judgment in part and dissenting in
part). Before the Revolution, colonial governments made a frequent
practice of exempting religious objectors from general laws. See
McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harv. L. Rev. 1409, 1466-1473 (1990)
(recounting colonial exemptions from oath requirements, compulsory
military service, religious assessments, and other general
legislation). As early as 1691, for instance, New York allowed
Quakers to testify by affirmation rather than oath in civil court
cases. T. Curry, The First Freedoms: Church and State in America to
the Passage of the First Amendment 64 (1986). Later, during the
American Revolution, the Continental Congress exempted religious
objectors from military conscription. Resolution of July 18, 1775,
reprinted in 2 Journals of the Continental Congress 187, 189
(Library of Congress ed. 1905) ("As there are some people, who,
from religious principles, cannot bear arms in any case, this
Congress intend no violence to their consciences ... "). And since
the framing of the Constitution, this Court has approved
legislative accommodations for a variety of religious practices.
See,
e. g., Selective Draft Law Cases, 245 U. S. 366, 389-390
(1918) (military draft exemption for religious objectors);
Zorach v.
Clauson, 343 U. S. 306 (1952) (New
York City program permitting public school children to leave school
for one hour a week for religious observance and instruction);
Gillette v.
United States, 401 U. S. 437 (1971)
(military draft exemption for religious objectors);
Corporation
of Presiding Bishop of
724
KENNEDY, J., concurring in judgment
Church of Jesus Christ of Latter-day Saints v.
Amos,
483 U. S. 327 (1987) (exemption of religious organizations from
Title VII's prohibition of religious discrimination);
Employment
Div., Dept. of Human Resources of Ore. v.
Smith,
494 U. S. 872,
890 (1990) (exemption from drug laws for sacramental peyote use)
(dicta).
New York's object in creating the Kiryas Joel Village School
District-to accommodate the religious practices of the handicapped
Satmar children-is validated by the principles that emerge from
these precedents. First, by creating the district, New York sought
to alleviate a specific and identifiable burden on the Satmars'
religious practice. The Satmars' way of life, which springs out of
their strict religious beliefs, conflicts in many respects with
mainstream American culture. They do not watch television or listen
to radio; they speak Yiddish in their homes and do not read
English-language publications; and they have a distinctive
hairstyle and dress. Attending the Monroe-Woodbury public schools,
where they were exposed to much different ways of life, caused the
handicapped Satmar children understandable anxiety and distress.
New York was entitled to relieve these significant burdens, even
though mainstream public schooling does not conflict with any
specific tenet of the Satmars' religious faith. The Title VII
exemption upheld in
Corporation of Presiding Bishop, supra,
for example, covers religious groups who may not believe themselves
obliged to employ coreligionists in every instance. See also Walz
v.
Tax Comm'n of City of New York, 397 U. S. 664, 673 (1970)
("The limits of permissible state accommodation to religion are by
no means co-extensive with the noninterference mandated by the Free
Exercise Clause"); accord,
Smith, supra, at 890
(legislatures may grant accommodations even when courts may
not).
Second, by creating the district, New York did not impose or
increase any burden on non-Satmars, compared to the burden it
lifted from the Satmars, that might disqualify the dis-
725
trict as a genuine accommodation. In
Gillette, supra, the
Court upheld a military draft exemption, even though the burden on
those without religious objection to war (the increased chance of
being drafted and forced to risk one's life in battle) was
substantial. And in
Corporation of Presiding Bishop, the
Court upheld the Title VII exemption even though it permitted
employment discrimination against nonpractitioners of the religious
organization's faith. There is a point, to be sure, at which an
accommodation may impose a burden on nonadherents so great that it
becomes an establishment. See,
e. g., Estate of Thornton v.
Caldor, Inc., 472 U. S. 703, 709-710
(1985) (invalidating mandatory Sabbath day off because it provided
"no exception when honoring the dictates of Sabbath observers would
cause the employer substantial economic burdens or when the
employer's compliance would require the imposition of significant
burdens on other employees required to work in place of the Sabbath
observers"). This action has not been argued, however, on the
theory that non-Satmars suffer any special burdens from the
existence of the Kiryas Joel Village School District.
Third, the creation of the school district to alleviate the
special burdens born by the handicapped Satmar children cannot be
said, for that reason alone, to favor the Satmar religion to the
exclusion of any other. "The clearest command of the Establishment
Clause," of course, "is that one religious denomination cannot be
officially preferred over another."
Larson v.
Valente, 456
U. S. 228, 244 (1982); accord,
Smith, supra, at 886, n.
3. I disagree, however, with the Court's conclusion that the school
district breaches this command. The Court insists that religious
favoritism is a danger here, because the "anomalously case-specific
nature of the legislature's exercise of state authority in creating
this district for a religious community leaves the Court without
any direct way to review such state action" to ensure
interdenominational neutrality.
Ante, at 703. "Because the
religious community of Kiryas Joel did not receive its new gov-
726
KENNEDY, J., concurring in judgment
ernmental authority simply as one of many communities eligible
for equal treatment under a general law," the Court maintains, "we
have no assurance that the next similarly situated group seeking a
school district of its own will receive one; ... a legislature's
failure to enact a special law is itself unreviewable."
Ibid. (footnote omitted).
This reasoning reverses the usual presumption that a statute is
constitutional and, in essence, adjudges the New York Legislature
guilty until it proves itself innocent. No party has adduced any
evidence that the legislature has denied another religious
community like the Satmars its own school district under analogous
circumstances. The legislature, like the judiciary, is sworn to
uphold the Constitution, and we have no reason to presume that the
New York Legislature would not grant the same accommodation in a
similar future case. The fact that New York singled out the Satmars
for this special treatment indicates nothing other than the
uniqueness of the handicapped Satmar children's plight. It is
normal for legislatures to respond to problems as they arise-no
less so when the issue is religious accommodation. Most
accommodations cover particular religious practices. See,
e.
g., 21 CFR § 1307.31 (1993) ("The listing of peyote as a controlled
substance ... does not apply to the nondrug use of peyote in bona
fide religious ceremonies of the Native American Church"); 25 CFR §
11.87H (1993) ("[I]t shall not be unlawful for any member of the
Native American Church to transport into Navajo country, buy, sell,
possess, or use peyote in any form in connection with the religious
practices, sacraments or services of the Native American Church");
Dept. of Air Force, Reg. 35-10, , 2-28(b)(2) (Apr. 1989)
("Religious head coverings are authorized for wear while in uniform
when military headgear is not authorized .... Religious head
coverings may be worn underneath military headgear if they do not
interfere with the proper wearing, functioning, or appearance of
the prescribed headgear ....
727
For example, Jewish yarmulkes meet this requirement if they do
not exceed 6 inches in diameter"); National Prohibition Act, § 3,
41 Stat. 308 ("Liquor for nonbeverage purposes and wine for
sacramental purposes may be manufactured, purchased, sold,
bartered, transported, imported, exported, delivered, furnished and
possessed"), repealed by Liquor Law Repeal and Enforcement Act, §
1, 49 Stat. 872. They do not thereby become invalid.
Nor is it true that New York's failure to accommodate another
religious community facing similar burdens would be insulated from
challenge in the courts. The burdened community could sue the State
of New York, contending that New York's discriminatory treatment of
the two religious communities violated the Establishment Clause. To
resolve this claim, the court would have only to determine whether
the community does indeed bear the same burden on its religious
practice as did the Satmars in Kiryas Joel. See
Olsen v.
Drug Enforcement Admin., 878 F.2d
1458, 1463-1465 (CADC 1989) (R. B. Ginsburg, J.) (rejecting
claim that the members of the Ethiopian Zion Coptic Church were
entitled to an exemption from the marijuana laws on the same terms
as the peyote exemption for the Native American Church);
Olsen v.
Iowa, 808 F.2d
652 (CA8 1986) (same). While a finding of discrimination would
then raise a difficult question of relief, compare
Olsen,
878 F. 2d, at 1464 ("Faced with the choice between invalidation and
extension of any controlledsubstances religious exemption, which
would the political branches choose? It would take a court bolder
than this one to predict ... that extension, not invalidation,
would be the probable choice"), with
Califano v.
Westcott, 443
U. S. 76, 89-93 (1979) (curing gender discrimination in the Aid
to Families with Dependent Children program by extending benefits
to children of unemployed mothers instead of denying benefits to
children of unemployed fathers), the discrimination itself would
not be beyond judicial remedy.
728
KENNEDY, J., concurring in judgment
II
The Kiryas Joel Village School District thus does not suffer any
of the typical infirmities that might invalidate an attempted
legislative accommodation. In the ordinary case, the fact that New
York has chosen to accommodate the burdens unique to one religious
group would raise no constitutional problems. Without further
evidence that New York has denied the same accommodation to
religious groups bearing similar burdens, we could not presume from
the particularity of the accommodation that the New York
Legislature acted with discriminatory intent.
This particularity takes on a different cast, however, when the
accommodation requires the government to draw politicalor electoral
boundaries. "The principle that government may accommodate the free
exercise of religion does not supersede the fundamental limitations
imposed by the Establishment Clause,"
Lee v.
Weisman,
505 U. S. 577,
587 (1992), and in my view one such fundamental limitation is that
government may not use religion as a criterion to draw political or
electoral lines. Whether or not the purpose is accommodation and
whether or not the government provides similar gerrymanders to
people of all religious faiths, the Establishment Clause forbids
the government to use religion as a line-drawing criterion. In this
respect, the Establishment Clause mirrors the Equal Protection
Clause. Just as the government may not segregate people on account
of their race, so too it may not segregate on the basis of
religion. The danger of stigma and stirred animosities is no less
acute for religious line-drawing than for racial. Justice Douglas
put it well in a statement this Court quoted with approval just
last Term:
"When racial or religious lines are drawn by the State, the
multiracial, multireligious communities that our Constitution seeks
to weld together as one become separatist; antagonisms that relate
to race or to religion
729
rather than to political issues are generated; communities seek
not the best representative but the best racial or religious
partisan. Since that system is at war with the democratic ideal, it
should find no footing here." Wright v. Rockefeller,
376 U. S. 52, 67
(1964) (Douglas, J., dissenting) (quoted in Shaw v.
Reno, 509 U.
S. 630, 648-649 (1993)).
I agree with the Court insofar as it invalidates the school
district for being drawn along religious lines. As the plurality
observes,
ante, at 699-700, the New York Legislature knew
that everyone within the village was Satmar when it drew the school
district along the village lines, and it determined who was to be
included in the district by imposing, in effect, a religious test.
There is no serious question that the legislature configured the
school district, with purpose and precision, along a religious
line. This explicit religious gerrymandering violates the First
Amendment Establishment Clause.
It is important to recognize the limits of this principle.
We do not confront the constitutionality of the Kiryas Joel
village itself, and the formation of the village appears to differ
from the formation of the school district in one critical respect.
As the Court notes,
ante, at 703, n. 7, the village was
formed pursuant to a religion-neutral self-incorporation scheme.
Under New York law, a territory with at least 500 residents and not
more than five square miles may be incorporated upon petition by at
least 20 percent of the voting residents of that territory or by
the owners of more than 50 percent of the territory's real
property. N. Y. Village Law §§ 2-200, 2-202 (McKinney 1973 and
Supp. 1994). Aside from ensuring that the petition complies with
certain procedural requirements, the supervisor of the town in
which the territory is located has no discretion to reject the
petition. § 2-206; see Decision on Sufficiency of Petition, in App.
8, 14 ("[T]he hollow provisions of the Village Law ... allow me
only to review the procedural niceties of the petition
itself").
730
KENNEDY, J., concurring in judgment
The residents of the town then vote upon the incorporation
petition in a special election. N. Y. Village Law § 2-212 (McKinney
1973). By contrast, the Kiryas Joel Village School District was
created by state legislation. The State of New York had complete
discretion not to enact it. The State thus had a direct hand in
accomplishing the religious segregation.
As the plurality indicates, the Establishment Clause does not
invalidate a town or a State "whose boundaries are derived
according to neutral historical and geographic criteria, but whose
population happens to comprise coreligionists."
Ante, at
702, n. 6. People who share a common religious belief or lifestyle
may live together without sacrificing the basic rights of
self-governance that all American citizens enjoy, so long as they
do not use those rights to establish their religious faith.
Religion flourishes in community, and the Establishment Clause must
not be construed as some sort of homogenizing solvent that forces
unconventional religious groups to choose between assimilating to
mainstream American culture or losing their political rights. There
is more than a fine line, however, between the voluntary
association that leads to a political community comprised of people
who share a common religious faith, and the forced separation that
occurs when the government draws explicit political boundaries on
the basis of peoples' faith. In creating the Kiryas Joel Village
School District, New York crossed that line, and so we must hold
the district invalid.
III
This is an unusual action, 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.
Before 1985, the handicapped Satmar children of Kiryas Joel
attended the private religious schools within the village
731
that the other Satmar children attended. Because their handicaps
were in some cases acute (ranging from mental retardation and
deafness to spina bifid a and cerebral palsy), the State of New
York provided public funds for special education of these children
at annexes to the religious schools. Then came the companion cases
of
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373 (1985), and
Aguilar v.
Felton, 473 U. S. 402 (1985). In
Grand Rapids, the Court invalidated a program in which
public school teachers would offer supplemental classes at private
schools, including religious schools, at the end of the regular
schoolday. And in Ag
uilar, the Court invalidated New York
City's use of Title I funding to pay the salaries of public school
teachers who taught educationally deprived children of low-income
families at parochial schools in the city. After these cases, the
Monroe-Woodbury Central School District suspended its special
education program at the Kiryas Joel religious schools, and the
Kiryas Joel parents were forced to enroll their handicapped
children at the Monroe-Woodbury public schools in order for the
children to receive special education. The ensuing difficulties, as
the Court recounts,
ante, at 692-693, led to the creation of
the Kiryas Joel Village School District.
The decisions in
Grand Rapids and
Aguilar may have
been erroneous. In light of the action 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. See
Witters, 474 U. S., at 490-492
(Powell, J., concurring). But for
Grand Rapids and
Aguilar, the Satmars would have had no need to seek special
accommodations or their own school district. Our decisions led them
to choose that unfortunate course, with the deficiencies I have
described.
One misjudgment is no excuse, however, for compounding it with
another. We must confront this litigation as it comes be-
732
SCALIA, J., dissenting
fore us, without bending rules to free the Satmars from a
predicament into which we put them. The Establishment Clause
forbids the government to draw political boundaries on the basis of
religious faith. For this reason, I concur in the judgment of the
Court.
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, 343 U. S. 306, 319 (1952)
(Black, J., dissenting)-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.
I
Unlike most of our Establishment Clause cases involving
education, these cases involve no public funding, however slight or
indirect, to private religious schools. They do not involve private
schools at all. The school under scrutiny is a public school
specifically designed to provide a public secular
733
education to handicapped students. The superintendent of the
school, who is not Hasidic, is a 20- year veteran of the New York
City public school system, with expertise in the area of bilingual,
bicultural, special education. The teachers and therapists at the
school all live outside the village of Kiryas Joel. While the
village's private schools are profoundly religious and strictly
segregated by sex, classes at the public school are co-ed and the
curriculum secular. The school building has the bland appearance of
a public school, unadorned by religious symbols or markings; and
the school complies with the laws and regulations governing all
other New York State public schools. There is no suggestion,
moreover, that this public school has gone too far in making
special adjustments to the religious needs of its students. Cf.
id., at 312-315 (approving a program permitting early release of
public school students to attend religious instruction). In sum,
these cases involve only public aid to a school that is public as
can be. The only thing distinctive about the school is that all the
students share the same religion.
None of our cases has ever suggested that there is anything
wrong with that. In fact, the Court has specifically
approved the education of students of a single religion on a
neutral site adjacent to a private religious school. See
Wolman v.
Walter, 433 U. S. 229, 247-248
(1977). In that case, the Court rejected the argument that "any
program that isolates the sectarian pupils is impermissible," id.,
at 246, and held that, "[t]he fact that a unit on a neutral site on
occasion may serve only sectarian pupils does not provoke
[constitutional] concerns," id., at 247. And just last Term, the
Court held that the State could permit public employees to assist
students in a Catholic school. See
Zobrest v.
Catalina
Foothills School Dist., 509 U. S. 1, 13-14 (1993)
(sign-language translator for deaf student). If a State can furnish
services to a group of sectarian students on a neutral site
adjacent to a private religious school, or even
within such
a school, how can there be any defect in educating those same
students in
734
SCALIA, J., dissenting
a public school? As the Court noted in
Wolman, the
constitutional dangers of establishment arise "from the nature of
the institution, not from the nature of the pupils," 433 U. S., at
248. There is no danger in educating religious students in a public
school.
For these very good reasons, JUSTICE SOUTER'S opinion does not
focus upon the school, but rather upon the school district and the
New York Legislature that created it. His arguments, though
sometimes intermingled, are two: that reposing governmental power
in the Kiryas Joel school district is the same as reposing
governmental power in a religious group; and that in enacting the
statute creating the district, the New York State Legislature was
discriminating on the basis of religion, i.
e., favoring the
Satmar Hasidim over others. I shall discuss these arguments in
turn.
II
For his thesis that New York has unconstitutionally conferred
governmental authority upon the Satmar sect, JusTICE SOUTER relies
extensively, and virtually exclusively, upon
Larkin v.
Grendel's Den, Inc., 459 U. S.116 (1982). JusTICE SOUTER
believes that the present litigation "resembles"
Grendel's
Den because that case "teaches that a State may not delegate
its civic authority
to a group chosen according to a religious
criterion," ante, at 698 (emphasis added). That misdescribes
both what that case taught (which is that a State may not delegate
its civil authority
to a church), and what these cases
involve (which is a group chosen according to cultural
characteristics). The statute at issue there gave churches veto
power over the State's authority to grant a liquor license to
establishments in the vicinity of the church. The Court had little
difficulty finding the statute unconstitutional. "The Framers did
not set up a system of government in which important, discretionary
governmental powers would be delegated to or shared with religious
institutions." 459 U. S., at 127.
735
JUSTICE SOUTER concedes that
Grendel's Den "presented an
example of united civic and religious authority, an establishment
rarely found in such straightforward form in modern America."
Ante, at 697. The uniqueness of the case stemmed from the
grant of governmental power directly to a religious institution,
and the Court's opinion focused on that fact, remarking that the
transfer of authority was to "churches" (10 times), the "governing
body of churches" (twice), "religious institutions" (twice), and
"religious bodies" (once). Astonishingly, however, JUSTICE SOUTER
dismisses the difference between a transfer of government power to
citizens who share a common religion as opposed to "the officers of
its sectarian organization"-the critical factor that made
Grendel's Den unique and "rar[eJ"-as being "one of form, not
substance."
Ante, at 698.
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, and that much more of it than merely
the Kiryas Joel school district is unconstitutional today. 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. See,
e. g., W. Sweet, The Story of Religion in America 9 (1950).
It is preposterous to suggest that the civil institutions of these
communities, separate from their churches, were constitutionally
suspect. And if they were, surely JUSTICE SOUTER cannot mean that
the inclusion of one or two nonbelievers in the community would
have been enough to eliminate the constitutional vice. 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
736
SCALIA, J., dissenting
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,l and would undoubtedly make many units of local
government unconstitutional today.2
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. In
McDaniel v.
Paty, 435 U. S. 618 (1978), we
invalidated a state constitutional amendment that would have
permitted all persons to participate in political conventions,
except ministers. We adopted James Madison's view that the State
could not "'punis[h] a religious profession with the privation of a
civil right.'"
Id., at 626 (opinion of Burger, C. J.),
quoting 5 Writings of James Madison 288 (G. Hunt ed. 1904). Or as
Justice
1 A census taken in 1906, 10 years after statehood was granted
to Utah, and 6 years before it was granted to New Mexico, showed
that in Utah 87.7% of all church members were Mormon, and in New
Mexico 88.7% of all church members were Roman Catholic. See Bureau
of the Census, Special Reports, Religious Bodies, Part I, p. 55
(1910).
2 At the county level, the smallest unit for which comprehensive
data is available, there are a number of counties in which the
overwhelming majority of churchgoers are of a single religion: Rich
County, Utah (100% Mormon); Kennedy County, Texas (100% Roman
Catholic); Emery County, Utah (99.2% Mormon); Franklin and Madison
Counties, Idaho (99% or more Mormon); Graham County, North Carolina
(93.7% Southern Baptist); Mora County, New Mexico (92.6% Roman
Catholic). M. Bradley, N. Green, D. Jones, M. Lynn, & L.
McNeil, Churches and Church Membership in the United States 1990,
pp. 46, 112-113, 246, 265, 283, 365, 380, 393 (1992). In all of
these counties the adherents of the indicated religion constitute a
substantial majority, in some cases over a 95% majority, of the
total population. If data were available for smaller units
of government than counties, I have no doubt I could point to
hundreds of towns placed in jeopardy by today's opinion.
737
Brennan put it in his opinion concurring in judgment:
"Religionists no less than members of any other group enjoy the
full measure of protection afforded speech, association, and
political activity generally." 435 U. S., at 641; see also
Widmar v.
Vincent, 454 U. S. 263 (1981). I
see no reason why it is any less pernicious to deprive a group
rather than an individual of its rights simply because of its
religious beliefs.
Perhaps appreciating the startling implications for our
constitutional jurisprudence of collapsing the distinction between
religious institutions and their members, JUSTICE SOUTER tries to
limit his "unconstitutional conferral of civil authority" holding
by pointing out several features supposedly unique to the present
cases: that the "boundary lines of the school district divide
residents
according to religious affiliation,"
ante,
at 699 (emphasis added); that the school district was created by "a
special Act of the legislature,"
ante, at 700; and that the
formation of the school district ran counter to the legislature's
trend of consolidating districts in recent years,
ibid.
Assuming all these points to be true (and they are not), they would
certainly bear upon whether the legislature had an impermissible
religious motivation in creating the district (which is JUSTICE
SOUTER'S
next point, in the discussion of which I shall
reply to these arguments). But they have nothing to do with whether
conferral of power upon a group of citizens can be the conferral of
power upon a religious institution. It cannot. Or if it can, our
Establishment Clause jurisprudence has been transformed.
III
I turn, next, to JUSTICE SOUTER'S second justification for
finding an establishment of religion: his facile conclusion that
the New York Legislature's creation of the Kiryas Joel school
district was religiously motivated. But in the Land of the Free,
democratically adopted laws are not so easily impeached by
unelected judges. To establish the unconstitu-
738
SCALIA, J., dissenting
tionality of a facially neutral law on the mere basis of its
asserted religiously preferential (or discriminatory) effectsor at
least to establish it in conformity with our precedentsJUSTICE
SOUTER "must be able to show the absence of a neutral, secular
basis" for the law.
Gillette v.
United States,
401 U. S. 437,
452 (1971); see also
Arlington Heights v.
Metropolitan
Housing Development Corp., 429 U. S. 252, 266 (1977)
(facially race-neutral laws can be invalidated on the basis of
their effects only if "unexplainable on grounds other than
race").
There is of course no possible doubt of a secular basis
here.
The New York Legislature faced a unique problem in Kiryas Joel:
a community in which all the nonhandicapped children attend private
schools, and the physically and mentally disabled children who
attend public school suffer the additional handicap of cultural
distinctiveness. It would be troublesome enough if these peculiarly
dressed, handicapped students were sent to the next town,
accompanied by their similarly clad but unimpaired classmates. But
all the unimpaired children of Kiryas Joel attend private school.
The handicapped children suffered sufficient emotional trauma from
their predicament that their parents kept them home from school.
Surely the legislature could target this problem, and provide a
public education for these students, in the same way it addressed,
by a similar law, the unique needs of children
institutionalized in a hospital. See,
e. g., 1970 N. Y.
Laws, ch. 843 (authorizing a union free school district for the
area owned by Blythedale Children's Hospital).
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
739
(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 toward
consolidation of school districts; and (3) the district includes
only adherents of the Satmar religion. On this indictment, no jury
would convict.
One difficulty with the first point is that it is not true.
There was really nothing so "special" about the formation of a
school district by an Act of the New York Legislature. The State
has created both large school districts, see,
e. g., 1972 N.
Y. Laws, ch. 928 (creating the Gananda School District out of land
previously in two other districts), and small specialized school
districts for institutionalized children, see,
e. g., 1972
N. Y. Laws, ch. 559 (creating a union free school district for the
area owned by Abbott House), through these special Acts. But in any
event all that the first point proves, and the second point as well
(countering the trend toward consolidation),3 is that New York
regarded Kiryas Joel as a
3 The Court says that "[e]arly 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."
Ante,
at 704. Both the implication that this rejection of localism was
general state policy, and the implication that (like the Court's
prohibition of localism today) it had the purpose and effect of
religious neutrality, are simply not faithful to the cited source.
The 1841 proposal was not to treat New York City schools
differently, in order to favor Roman Catholics; it was "that
the state's school code, which promoted a district system structure
with local taxing authority, be extended to New York City." R.
Church & M. Sedlak, Education in the United States 167 (1976).
And the rejection of that proposal was not a triumph for keeping
sectarian religion out of some public schools; it was a triumph for
keeping the King James version of the Bible in all public schools.
The Court's selected source concludes: "[T]he Whigs swept the city
elections that year [1842] and made Bible reading-the King James
version-mandatory in any schools sharing these monies. There was
nothing left for the Catholics to do but to build their own
parochial system with their own money."
Id., at 168-169.
740
SCALIA, J., dissenting
special case, requiring special measures. I should think it
obvious that it did, and obvious that it
should have.
But even if the New York Legislature had never before created a
school district by special statute (which is not true), and even if
it had done nothing but consolidate school districts for over a
century (which is not true), how could the departure from those
past practices possibly demonstrate that the legislature had
religious favoritism in mind? It could not. To be sure, when there
is no special treatment there is no possibility of religious
favoritism; but it is not logical to suggest that when there
is special treatment there is
proof of religious
favoritism.
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. (The Court recognizes that "the Satmars prefer
to live together 'to facilitate individual religious observance and
maintain social, cultural and religious values,' but that it is
not' "against their religion" to interact with others.'"
Ante, at 706, n. 9, quoting Brief for Petitioners in No.
93-517, p. 4, n. 1.) 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. JUSTICE SOUTER not
only does not adopt the logical assumption, he does not even give
the New York Legislature the benefit of the doubt. The following is
the level of his analysis:
"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 [by other means]."
Ante, at 702.
741
In other words, we know the legislature must have been motivated
by the desire to favor the Satmar Hasidim religion, because it
could have met the needs of these children by a method that
did not place the Satmar Hasidim in a separate school district.
This is not a rational argument proving religious favoritism; it is
rather a novel Establishment Clause principle to the effect that no
secular objective may be pursued by a means that might also be used
for religious favoritism if some other means is available.
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 creation of a special, oneculture school district for
the benefit of those children would pose no problem. The neutrality
demanded by the Religion Clauses requires the same indulgence
towards cultural characteristics that
are accompanied by
religious belief. "The Establishment Clause does not license
government to treat religion and those who teach or practice it,
simply by virtue of their status as such, as ... subject to unique
disabilities."
McDaniel v.
Paty, 435 U. S., at 641
(Brennan, J., concurring in judgment).
Even if JUSTICE SOUTER could successfully establish that the
cultural distinctiveness of the Kiryas Joel students (which is the
problem the New York Legislature addressed) was an
essential
part of their religious belief rather than merely an
accompaniment of their religious belief, that would not
discharge his heavy burden. In order to invalidate a facially
neutral law, JUSTICE SOUTER would have to show not only that
legislators were aware that religion caused the problems addressed,
but also that the legislature's proposed solution was motivated by
a desire to disadvantage or benefit a religious group (i.
e., to disadvantage or benefit them
because of their
religion). For example, if the city of Hialeah, knowing of the
potential health problems raised by
742
SCALIA, J., dissenting
the Santeria religious practice of animal sacrifice, were to
provide by ordinance a special, more frequent, municipal garbage
collection for the carcasses of dead animals, we would not strike
the ordinance down just because the city council was aware that a
religious practice produced the problem the ordinance addressed.
See
Church of Lukumi Babalu Aye, Inc. v.
Hialeah,
508 U. S. 520,
543-545 (1993). Here a facially neutral statute extends an
educational benefit to the one area where it was not effectively
distributed. Whether or not the reason for the ineffective
distribution had anything to do with religion, it is a remarkable
stretch to say that the Act was motivated by a desire to favor or
disfavor a particular religious group. The proper analogy to
Chapter 748 is not the Court's hypothetical law providing school
buses only to Christian students, see
ante, at 709, but a
law providing extra buses to rural school districts (which happen
to be predominantly Southern Baptist).
At various times JUSTICE SOUTER intimates, though he does not
precisely say, that the boundaries of the school district were
intentionally drawn on the basis of religion. He refers, for
example, to "the State's manipulation of the franchise for this
district ... , giving the sect exclusive control of the political
subdivision,"
ante, at 698-implying that the "giving" of
political power to the religious sect was the object of the
"manipulation." There is no evidence of that. The special district
was created to meet the special educational needs of distinctive
handicapped children, and the geographical boundaries selected for
that district were (quite logically) those that already existed for
the village. It sometimes appears as though the shady
"manipulation" JusTICE SOUTER has in mind is that which occurred
when the village was formed, so that the drawing of its boundaries
infected the coterminous boundaries of the district. He says, for
example, that "[i]t is undisputed that those who negotiated the
village boundaries when applying the general village incorporation
statute drew them so as to exclude
743
all but Satmars."
Ante, at 699. It is indeed. But
nonSatmars were excluded, not (as he intimates) because of their
religion, but-as JUSTICE O'CONNOR clearly describes, see
ante, at 712-because of their lack of desire for the
high-density zoning that Satmars favored. It was a classic drawing
of lines on the basis of communality of
secular governmental
desires, not communality of religion. What happened in the
creation of the village is in fact precisely what happened in the
creation of the school district, so that the former cannot possibly
infect the latter, as JUSTICE SOUTER tries to suggest. Entirely
secular reasons (zoning for the village, cultural alienation of
students for the school district) produced a political unit whose
members happened to share the same religion. There is
no
evidence (indeed, no plausible suspicion) of the legislature's
desire to favor the Satmar religion, as opposed to meeting
distinctive secular needs or desires of citizens who happened to be
Satmars. If there were, JUSTICE SOUTER would say so; instead, he
must merely insinuate.
IV
But even if Chapter 748 were intended to create a special
arrangement for the Satmars
because of their religion (not
including, as I have shown in Part I, any conferral of governmental
power upon a religious entity), it would be a permissible
accommodation. "This Court has long recognized that the government
may (and sometimes must) accommodate religious practices and that
it may do so without violating the Establishment Clause."
Hobbie v.
Unemployment Appeals Comm'n of Fla., 480 U.
S.136, 144-145 (1987). Moreover, "there is ample room for
accommodation of religion under the Establishment Clause,"
Corporation of Presiding Bishop of Church of Jesus Christ of
Latter-day Saints v.
Amos, 483 U. S. 327, 338
(1987), and for "play in the joints productive of a benevolent
neutrality which will permit religious exercise to exist without
sponsorship and without interference,"
Walz v.
Tax Comm'n
of City of New York, 397
744
SCALIA, J., dissenting
u. S. 664, 669 (1970). Accommodation is permissible, moreover,
even when the statute deals specifically with religion, see,
e. g.,
Zorach v.
Clauson, 343 U. S., at
312-315, and even when accommodation is not commanded by the Free
Exercise Clause, see,
e. g., Walz, supra, at 673.
When a legislature acts to accommodate religion, particularly a
minority sect, "it follows the best of our traditions."
Zorach,
supra, at 314. The Constitution itself contains an
accommodation of sorts. Article VI, cl. 3, prescribes that
executive, legislative, and judicial officers of the Federal and
State Governments shall bind themselves to support the Constitution
"by Oath or Affirmation." Although members of the most populous
religions found no difficulty in swearing an oath to God, Quakers,
Moravians, and Mennonites refused to take oaths based on Matthew
5:34's injunction "swear not at all." The option of affirmation was
added to accommodate these minority religions and enable their
members to serve in government. See 1 A. Stokes, Church and State
in The United States 524-527 (1950). Congress, from its earliest
sessions, passed laws accommodating religion by refunding duties
paid by specific churches upon the importation of plates for the
printing of Bibles, see 6 Stat. 116 (1813), vestments, 6 Stat. 346
(1816), and bells, 6 Stat. 675 (1836). Congress also exempted
church property from the tax assessments it levied on residents of
the District of Columbia; and all 50 States have had similar laws.
See
Walz, supra, at 676-678.
This Court has also long acknowledged the permissibility of
legislative accommodation. In one of our early Establishment Clause
cases, we upheld New York City's early release program, which
allowed students to be released from public school during school
hours to attend religious instruction or devotional exercises. See
Zorach, supra, at 312-315. We determined that the early
release program "accommodates the public service to ... spiritual
needs," and noted that finding it unconstitutional would "show a
callous indifference
745
to religious groups." 343 U. S., at 314. In
Walz, supra,
we upheld a property tax exemption for religious organizations,
observing that it was part of a salutary tradition of "permissible
state accommodation to religion."
Id., at 672-673. And in
Presiding Bishop, supra, we upheld a section of the Civil
Rights Act of 1964 exempting religious groups from the
antidiscrimination provisions of Title VII. We concluded that it
was "a permissible legislative purpose to alleviate significant
governmental interference with the ability of religious
organizations to define and carry out their religious missions."
Id., at 335.
In today's opinion, however, the Court seems uncomfortable with
this aspect of our constitutional tradition. Although it
acknowledges the concept of accommodation, it quickly points out
that it is "not a principle without limits,"
ante, at 706,
and then gives reasons why the present case exceeds those limits,
reasons which simply do not hold water. "[W]e have never hinted,"
the Court says, "that an otherwise unconstitutional delegation of
political power to a religious group could be saved as a religious
accommodation."
Ibid. Putting aside the circularity inherent
in referring to a delegation as "otherwise unconstitutional" when
its constitutionality turns on whether there is an accommodation,
if this statement is true, it is only because we have never hinted
that delegation of political power to citizens who share a
particular religion could be unconstitutional. This is simply a
replay of the argument we rejected in Part II,
supra.
The second and last reason the Court finds accommodation
impermissible is, astoundingly, the mere risk that the State will
not offer accommodation to a similar group in the future, and that
neutrality will therefore not be preserved. Returning to the ill
fitted crutch of
Grendel's Den, the Court suggests that by
acting through this special statute the New York Legislature has
eliminated any" 'effective means of guaranteeing' that governmental
power will be and has been neutrally employed."
Ante, at
703, quoting
Grendel's
746
SCALIA, J., dissenting
Den, 459 U. S., at 125. How misleading. That language in
Grendel's Den was an expression of concern
not (as
the context in which it is quoted suggests) about the courts'
ability to assure the legislature's future neutrality, but about
the legislature's ability to assure the neutrality of the churches
to which it had transferred legislative power. That concern is
inapposite here; there is no doubt about the legislature's capacity
to control what transpires in a public school.
At bottom, the Court's "no guarantee of neutrality" argument is
an assertion of
this Court's inability to control the New
York Legislature's future denial of comparable accommodation. We
have "no assurance," the Court says, "that the next similarly
situated group seeking a school district of its own will receive
one," since "a legislature's failure to enact a special law is ...
unreviewable."
Ante, at 703; see also
ante, at 716
(O'CONNOR, J., concurring in part and concurring in judgment).4
That is true only in the technical (and irrelevant) sense that the
later group denied an accommodation may need to challenge the grant
of the first accommodation in light of the later denial, rather
than challenging the denial directly. But one way or another, "even
if [an administrative agency is] not empowered or obliged to act,
[a litigant] would be entitled to a judicial audience. Ultimately,
the courts cannot escape the obligation to address [a] plea that
the exemption [sought] is mandated by the first amendment's
religion clauses."
Olsen v.
Drug Enforcement Admin.,
878 F.2d
1458, 1461 (CADC 1989) (R. B. Ginsburg, J.).
4 The Court hints,
ante, at 703, that its fears would
have been allayed if the New York Legislature had previously
created similar school districts for other minority religions. But
had it done so, each of
them would have been attacked (and
invalidated) for the same reason as this one: because it had no
antecedents. I am sure the Court has in mind some way around this
chicken-and-egg problem. Perhaps the legislature could name the
first four school districts
in pectore.
747
The Court's demand for "up front" assurances of a neutral system
is at war with both traditional accommodation doctrine and the
judicial role. As we have described,
supra, at 744,
Congress's earliest accommodations exempted duties paid by specific
churches on particular items. See,
e. g.,
6 Stat. 346
(1826) (exempting vestments imported by "bishop of Bardstown").
Moreover, most efforts at accommodation seek to solve a problem
that applies to members of only one or a few religions. Not every
religion uses wine in its sacraments, but that does not make an
exemption from Prohibition for sacramental wine use impermissible,
accord,
Church of Lukumi Babalu Aye, Inc. v.
Hialeah,
508 U. S., at 561, n. 2 (SOUTER, J., concurring in judgment), nor
does it require the State granting such an exemption to explain in
advance how it will treat every other claim for dispensation from
its controlled-substances laws. Likewise, not every religion uses
peyote in its services, but we have suggested that legislation
which exempts the sacramental use of peyote from generally
applicable drug laws is not only permissible, but desirable, see
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.
S. 872, 890 (1990), without any suggestion that some "up front"
legislative guarantee of equal treatment for sacramental substances
used by other sects must be provided. The record is clear that the
necessary guarantee can and will be provided, after the fact,
by
the courts. See,
e. g., Olsen v.
Drug Enforcement
Admin., supra (rejecting claim that peyote exemption requires
marijuana exemption for Ethiopian Zion Coptic Church);
Olsen
v.
Iowa, 808 F.2d
652 (CA8 1986) (same);
Kennedy v.
Bureau of Narcotics
and Dangerous Drugs, 459 F.2d
415 (CA9 1972) (accepting claim that peyote exemption for
Native American Church requires peyote exemption for other
religions that use that substance in their sacraments).5
5 The Court likens its demand for "up front" assurances to the
Court's focus on the narrowness of the statute it struck down in
Texas Monthly, Inc. v.
Bullock, 489 U. S. 1 (1989). See
ante, at 708.
Texas Monthly
748
SCALIA, J., dissenting
Contrary to the Court's suggestion,
ante, at 708-709, I
do not think that the Establishment Clause prohibits formally
established "state" churches and nothing more. I have always
believed, and all my opinions are consistent with the view, that
the Establishment Clause prohibits the favoring of one religion
over others. In this respect, it is the Court that attacks lions of
straw. What I attack is the Court's imposition of novel "up front"
procedural requirements on state legislatures. Making law (and
making exceptions) one case at a time, whether through adjudication
or through highly particularized rulemaking or legislation,
violates,
ex ante, no principle of fairness, equal
protection, or neutrality simply because it does not announce in
advance how all future cases (and all future exceptions) will be
disposed of. If it did, the manner of proceeding of this Court
itself would be unconstitutional. It is presumptuous for this Court
to impose-out
of nowhere-an unheard-of prohibition against
proceeding in this manner upon the Legislature of New York State. I
never heard of such a principle, nor has anyone else, nor will it
ever be heard of again. Unlike what the New York Legislature has
done, this
is a special rule to govern only the Satmar
Hasidim.
v
A few words in response to the separate concurrences:
JUSTICE STEVENS adopts, for these cases, a rationale that is
bears no resemblance to today's opinion, except that it also was
wrong and it also misinterpreted
Walz v.
Tax Comm'n of
City of New York, 397 U. S. 664 (1970), see
489 U. S., at 33-40 (SCALIA, J., dissenting). The tax treatment of
publishing companies in Texas was governed by an across-theboard
rule. There was never any question whether nonreligious publishers
would get the tax exemption accorded to religious publishers; by
rule they did not, and the Court struck down that rule because it
discriminated in favor of religion. By contrast, adjustments to
existing school districts in New York are done case by case. No
decision, including
Texas Monthly, remotely suggests that
approaching accommodations in a casespecific manner automatically
violates the Establishment Clause.
749
almost without limit. The separate Kiryas Joel school district
is problematic in his view because "[t]he isolation of these
children, while it may protect them from 'panic, fear and trauma,'
also unquestionably increased the likelihood that they would remain
within the fold, faithful adherents of their parents' religious
faith."
Ante, at 711. So much for family values. If the
Constitution forbids any state action that incidentally helps
parents to raise their children in their own religious faith, it
would invalidate a release program permitting public school
children to attend the religiousinstruction program of their
parents' choice, of the sort we approved in
Zorach; 6
indeed, it would invalidate state laws according parents physical
control over their children, at least insofar as that is used to
take the little fellows to church or synagogue. JUSTICE STEVENS'
statement is less a legal analysis than a manifesto of secularism.
It surpasses mere rejection of accommodation, and announces a
positive hostility to religion-which, unlike all other noncriminal
values, the State must not assist parents in transmitting to their
offspring.
JUSTICE KENNEDY'S "political-line-drawing" approach founders on
its own terms. He concedes that the Constitution does not prevent
people who share a faith from forming their own villages and towns,
and suggests that the formation of the village of Kiryas Joel was
free from defect.
Ante, at 729-730. He also notes that
States are free to draw political lines on the basis of history and
geography.
Ante, at 730. I do not see, then, how a school
district drawn to mirror the boundaries of an existing village (an
existing geographic line), which itself is not infirm, can violate
the Constitution. Thus, while JUSTICE KENNEDY purports to share my
criticism (Part IV, supra) of the Court's unprecedented insistence
that the New York Legislature make its accommo-
6JUSTICE STEVENS' bald statement that such a program would be
permissible, see
ante, at 711-712, can exclude it from the
reach of his opinion, but not from the reach of his logic.
750
SCALIA, J., dissenting
dations only by general legislation, see
ante, at 722,
726, his own approach is little different. He says the village is
constitutional because it was formed (albeit by members of a single
religious sect) under a general New York law; but he finds the
school district unconstitutional because it was the product of a
specific enactment. In the end, his analysis is no different from
the Court's.
JUSTICE KENNEDY expresses the view that
School Dist. of Grand
Rapids v.
Ball, 473 U. S. 373 (1985), and
Aguilar v.
Felton, 473 U. S. 402 (1985)-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," and he suggests that "it may be necessary for us to
reconsider them at a later date."
Ante, at 731. JUSTICE
O'CONNOR goes even further and expresses the view that
Aguilar should be overruled.
Ante, at 717-718. 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, and in the same antiaccommodationist direction.
Finally, JUSTICE O'CONNOR observes that the Court's opinion does
not focus on the so-called
Lemon test, see
Lemon v.
Kurtzman, 403
U. S. 602 (1971), and she urges that that test be abandoned, at
least as a "unitary approach" to all Establishment Clause claims,
ante, at 721. I have previously documented the Court's
convenient relationship with
Lemon, which it cites only when
useful, see
Lamb's Chapel v.
Center Moriches Union Free
School Dist., 508
U. S. 384, 397-401 (1993) (SCALIA, J., concurring in judgment),
and I no longer take any comfort in the Court's failure to rely on
it in any particular case, as I once mistakenly did, see
Lee
v.
Weisman, 505 U. S. 577, 644 (1992)
(SCALIA, J., dissenting). But the Court's snub of
Lemon
today (it receives only two "see also" citations, in the course of
the opinion's description of
751
Grendel's Den) is particularly noteworthy because all
three courts below (who are not free to ignore Supreme Court
precedent at will) relied on it, and the parties (also bound by our
case law) dedicated over 80 pages of briefing to the application
and continued vitality of the
Lemon test. In addition to the
other sound reasons for abandoning
Lemon, see,
e. g.,
Edwards v.
Aguillard, 482 U. S. 578, 636-640
(1987) (SCALIA, J., dissenting);
Wallace v.
Jaffree,
472 U. S. 38,
108112 (1985) (REHNQUIST, J., dissenting), it seems quite
inefficient for this Court, which in reaching its decisions relies
heavily on the briefing of the parties and, to a lesser extent, the
opinions of lower courts, to mislead lower courts and parties about
the relevance of the
Lemon test. Compare
ante, p. 687
(ignoring
Lemon despite lower courts' reliance), with
Lamb's Chapel, supra (applying
Lemon despite failure
of lower court to mention it).
Unlike JUSTICE O'CONNOR, however, I would not replace
Lemon with nothing, and let the case law "evolve" into a
series of situation-specific rules (government speech on religious
topics, government benefits to particular groups, etc.)
unconstrained by any "rigid influence,"
ante, at 721. The
problem with (and the allure of)
Lemon has not been that it
is "rigid," but rather that in many applications it has been
utterly meaningless, validating whatever result the Court would
desire. See
Lamb's Chapel, supra, at 399 (SCALIA, J.,
concurring in judgment);
Wallace, supra, at 110-111
(REHNQUIST, J., dissenting). To replace
Lemon with nothing
is simply to announce that we are now so bold that we no longer
feel the need even to pretend that our haphazard course of
Establishment Clause decisions is governed by any principle. The
foremost principle I would apply is fidelity to the longstanding
traditions of our people, which surely provide the diversity of
treatment that JUSTICE O'CONNOR seeks, but do not leave us to our
own devices.
752
SCALIA, J., dissenting
***
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 (presumably those less powerful than the Satmar
Hasidim) in the future. 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.
Comments
Be the first to comment
Leave a Comment