Board of Ed. of Kiryas Joel Village School Dist. v. Grumet

BOARD OF EDUCATION OF VIL- KIRYAS JOEL

LAGE SCHOOL DISTRICT v. GRUMET 30, 1994 27, 1994* No. 93-517. Argued March June Decided 93-527, Monroe-Woodbury Education with No. Board *Together al., 93-539, Attorney Gen- District v. Grumet et and No. Central School al., same court. on certiorari to the New York v. Grumet et also eral Souter, J., judgment announced the Court and delivered the opinion I, II-B, II-C, respect III, of the Court with to Parts and in which Blackmun, Stevens, O’Connor, Ginsburg, JJ., joined, opin- and and an (introduction) II-A, Blackmun, respect ion II in Parts and which Stevens, Ginsburg, JJ., Blackmun, J., joined. concurring filed opinion, post, Stevens, J., p. concurring opinion, 710. in which filed Ginsburg, J., JJ., O’Connor, joined, post, p. Blackmun and filed 711. opinion concurring part concurring post, judgment, p. in in the 712. Kennedy, J., opinion concurring judgment, post, p. filed an 722. J., J., Scalia, Rehnquist, a dissenting opinion, filed in which C. Thomas, J., joined, post, p. 732. Nathan Lewin argued the cause for in Nos. petitioners 93-517 and 93-527. With him on the briefs was Lisa D. Burget. Mereson,

Julie S. Assistant General of New Attorney York, the cause for With argued No. 93-539. petitioners briefs were G. her on the Oliver Koppell, General, Attorney Boone, and Peter H. Jerry Schiff, Deputy General, Solicitor Solicitor General. Lawrence W Reich and John H. Gross filed briefs for Board of Education of the Monroe- petitioner Woodbury Central School District. Worona

Jay in the cause for all argued respondents cases. † him on the brief was Pilar Sokol With † of urging Briefs amici curiae in reversal No. 93-517 were filed for the by Concannon; Archdiocese of New York Richard J for the American Sekulow, for by Center Law and Justice et Jay al. Alan James Matthew Henderson, Sr., Troobnick, Fournier, Nancy Gannon, Mark N. A. Keith J. Destro; and Robert A. Legal Society by for the Christian et al. Michael W. McConnell, McFarland; Berg, Thomas C. and Steven T. and for the Knights Barr, by Carvin, Columbus William P. A. Michael and Carl A. Anderson. Briefs urging amici curiae in Agu- reversal all cases filed were for Zwiebel;

dath by Israel of America Religion David for for the Institute Polity by Maines; Ronald D. for the National Jewish on Commission (COLPA) Law and by Public Affairs Rapps; Julius Berman and Dennis Baptist for the by Whitehead; Southern Convention K. Michael and for the United States Catholic by Conference E. Chopko Phillip Mark H. Harris.

Briefs urging amici curiae in affirmance all cases were filed for the American Congress by Redlich, Jewish et Stern, al. Norman D. Marc Mincberg; Elliot Separation Americans United for of Church and State Green, et al. Steven K. Steven R. Shapiro, Jeffrey Sinensky, P. Steven Court, opinion delivered

Justice Souter (introduction) and II-A. to Parts II except York, is County, in New Orange village Kiryas of a Hasidim, practitioners of Satmar a enclave fell within the Monroe- The village of Judaism. strict form stat- state District until Central School Woodbury district, following 1989 carved out separate passed ute 1989 N. Y. lines, serve this distinctive population. village creating the Act whether question ch. 748. The Laws, Clause the Establishment school district violates separate Amendment, through on the States First binding Act is tanta- this unusual Amendment. Because Fourteenth crite- on religious power mount to allocation political nor governmental neither requires rion and presupposes the pro- we hold that violates religion, toward impartiality establishment. against hibition

I its the town sect takes name from Hasidic The Satmar where, early and Romanian border near the Hungarian Teitelbaum molded Grand Rebbe Joel century, of this years II After World War into a distinct group community. of much of the Grand European Jewry, and the destruction Freeman, Rabinove; M. and Samuel Well-Being for Committee for the the Sussman; Goldberg H. Joan E. and Michael for the Kiryas by Council on of the United Methodist General Finance and Administration Witwer, Jr.; Samuel W by for Coalition for Public Church the National Isbell; et al. David B. Religious the Liberty by and for National Education by Douglas haycock; A. Council of Churches of Christ in the U. S. et al. Gregory, Gwendolyn H. by for the National School Boards Association Steinhilber, Shannon; August W. and Thomas A for New York State the Wolf; De Bernard F. Ashe Gerard John by and United Teachers et al. and Carson, Boothby, Lee Walter E. Religious by for the Council on Freedom W.Nixon. and Robert

Briefs of amici curiae in all cases were filed for the New York Commit- Getter; Religious Liberty by Stanley for Public Education and tee for Knicely. W. J. John Whitehead and James the Rutherford Institute surviving Rebbe and most of his to Wil- followers moved the liamsburg Brooklyn, years Then, section of New York. ago, purchased approved undeveloped the Satmars but began assembling subdivision the town of Monroe community village Kiryas that has since become Joel. zoning dispute aWhen settlement, arose the course of presented peti- Satmars the Town Board of Monroe village right tion to form a new town, within the New Village gives any group York’s Law almost of residents who satisfy procedural Village certain niceties. Law, See N. Y. 1994). (McKinney Neighbors Supp. Art. 2 1973and who did objected strenuously, not wish to secede with the Satmars negotiations proposed and after arduous boundaries of village Kiryas just Joel were drawn to include the 320 entirely by acres owned and inhabited vil- Satmars. The lage, incorporated population in 1977, 8,500 has a of about today. Rabbi Aaron Teitelbaum, eldest son of the current (chief rabbi) village Rebbe, Grand serves as rov and rosh (chief schools). yeshivah authority parochial in the peo- vigorously religious The residents of Joel are ple go who make few concessions to the modern world and great lengths They interpret to avoid assimilation into it. strictly; segregate the Torah the sexes home; outside the speak primary language; Yiddish as their eschew television, publications; English-language radio, and and dress in dis- ways headcoverings special gar- tinctive that include boys girls. ments and modest dresses for are Children private boys educated in schools, most Academy they United thorough Talmudic where receive grounding exposure in the Torah and limited to secular sub- jects, girls and most Rochel, Bais an affiliated school with designed prepare girls a curriculum for their roles as generally Kephart wives and mothers. See W. Zellner, & W. (4th Extraordinary Groups 1991); Satmar, ed. Rubin, I. An (1972). City in Island any serv- distinctive however, offer not, do schools

These state under handicapped are entitled children, who ices to even when special services education law to federal Disabilities with private Individuals schools. in enrolled (1988 Supp. § seq. ed. 1400 et 20Act, U. S. C. Education Supp. (McKinney 1981 and IV); Art. 89 Law, Educ. N. Y. Monroe-Woodbury 1994). Central Starting in 1984 children provided for the such services District School Kiryas year later Rochel, but a to Bais annex at an Joel response in our decisions arrangement ended (1985), Dist. and School Aguilar Felton, 473 U. S. v. (1985). from Rapids Children Ball, 473 U. S. Grand (including special deaf, education who needed suffering range a mentally from others retarded, and disorders) forced to were then physical, or emotional mental, village, families which their public schools outside attend unsatisfactory. chil- highly of most of these Parents found Monroe-Woodbury secular them from dren withdrew children] [the citing panic, suf- fear and trauma “the schools, community being people leaving their own fered in sought ways administra- different,” and some were so whose placements. public-school Ed. Board tive review Monroe-Woodbury Wieder, Dist. School Central 767, 2d 180-181, 527 N. E. Y. 2d N. declaratory judg- sought Monroe-Woodbury, part, for its the district York law barred in state court that New ment providing the dis- services outside education from public regular 2d, at Id., 527 N. E. trict’s schools. disagreed, holding Appeals The New York Court 770. Monroe-Woodbury sepa- free to establish law left state gives village educational author- in the because it rate school fashioning appropriate program. broad discretion ities added, The court how- Id., 186-187, 2d, 527 N. E. at 773. right to exercise their that the Satmars’ constitutional ever, freely require separate school, since the did not inconsistency parents alleged trauma, had emotional

693 seeking religious practice doctrine, as the reason for separate Id., N. at 775. 189, 2d, treatment. 527 E. only

By Kiryas attending from one child Joel was Monroe-Woodbury’spublic village’s schools; the other handi- capped privately children services or received funded Legislature went without. It York was then that the New passed litigation, provided the statute at issue in this which village separate Kiryas that the of Joel constituted “is powers enjoy district,. school shall . . and have and all the and duties of a union free school district. . . .” N. Y. empowered locally Laws, ch. 748.1 The statute thus opening of elected board education take such action as closing hiring prescribing schools and them, teachers, text- establishing disciplinary raising property books, rules, and (McKin- § operations. taxes to fund N. Law Y. Educ. 1988). ney signing In bill law, the into Governor rec- Cuomo ognized that the of residents the new school district were “all members the same sect,” but said that the good problem” unique th[e] bill was “a faith effort to solve providing special associated with education services hand- icapped village. children in the Memorandum filed with As- sembly 1989), (July App. Bill Number 8747 40-41.

Although enjoys plenary legal authority over the ele- mentary secondary school-aged education of all children provides The statute in full: territory “Section 1. The village Kiryas Joel in town of Monroe, Orange county, on effect, the date when act this shall take shall hereby be separate district, constituted a be school and shall known Kiryas as the village Joel school enjoy district and shall have and all the powers and duties of a union free school provisions district under the the education law. “§ 2. Such district shall be under education, of a control board of composed which shall be of from five to nine members elected qualified voters of village Kiryas Joel, said members serve for exceeding terms not years. five “§3. This act shall take effect on day July first succeeding next the date on which it shall have become a law.” (McKinney §3202 village, Educ. Law

in the N. Y. currently 1994), Village Kiryas District Supp. School Joel handicapped program chil- only special for education runs paro- stayed village their have other children dren. The relying school district on the new schools, chial transportation, and welfare education, and health remedial any handicap in If without a child services. pay public-school would education, the district

were to seek Monroe-Woodbury or into another send the child tuition to arrangements, nearby. several Under like school district handicapped neighboring Hasidic send their the districts Kiryas the so two thirds of full-time Joel, that children into village’spublic In outside. school come from students in the just students, 40 over full-time all, new district serves the many parochial students that school and or three times two part-time on a basis. began operations, months the new district

Several before respond- Association the New York State School Boards against brought this action the State ents Grumet Hawk challeng- Department officials, and various state Education ing Chapter 748 under the National and State Constitutions religion.2 The State unconstitutional establishment Supreme Albany County allowed the Court for Monroe-Woodbury Village District and the Central School parties defendant and ac- School District to intervene as parties’ discontinuing cepted stipulation the action attorney against original although state defendants, general appear con- of New York continued to to defend the (Mc- § stitutionality of the statute. N. Y. Exec. Law 71 See 2 capacities Messrs. Grumet and Hawk sued in both their individual Association, Appel as officers of the School but New York’s State Boards standing late ruled its Division that the Association and officers lacked 16, 19, challenge constitutionality App. Div. Chapter 748. 187 2d 123, 126 (1992). Thus, us, respondents 592 N. Y. S. 2d case as the comes to § simply (McKinney are citizen See 123 taxpayers. N. Y. State Fin. Law 1989).

695 1993). Kinney On cross-motions for summary judgment, trial court ruled for the plaintiffs here), (respondents finding that the statute failed all three of the test Lemon prongs Kurtzman, (1971), S. 602 and was thus unconsti- tutional under both the National and State Constitutions. Grumet v. New York State Ed. 151 Misc. 2d Dept., 579 (1992). 2d N. Y. S.

A divided Appellate Division affirmed on the ground 748 had the Chapter effect of primary advancing religion, violation of both constitutions, 187 2d 16, Div. App. N. Y. 2d (1992), S. and the State Court of af Appeals firmed on the federal while question, expressly reserving state constitutional issue, 81 N. Y. 2d 2d N. E. Smith wrote for Judge the court in concluding because both the district’s public-school and its population school board would be Hasidic, the exclusively statute cre ated a “symbolic union of church and State” that was “likely to be perceived Satmarer Hasidim as an endorsement of their choices, religious or by nonadherents as a disap of their proval” Id., own. at 529, 618 2d, N. E. at 100. As a result, said the the statute’s majority, effect primary was an impermissible advancement of belief. In religious a con curring opinion, Hancock Judge found the effect purposeful, so that the statute violated the first as well as the second prong Lemon. 81 2d, N. Y. at 540, 618 2d, N. E. at 107. Chief Judge Kaye took a tack, different applying strict we scrutiny have for prescribed statutes out a singling par ticular for religion burdens; privileges she found Chapter 748 invalid as an broad unnecessarily to a response narrow problem, since it creates a full school district instead of simply a local prescribing school for the village’s handi capped Id., children. at 532, 618 N. 2d, E. at 102 (concurring In opinion). dissent, Judge Bellacosa that the new objected district was created to enable the village’s chil handicapped dren to receive a secular, public-school education; this was, indeed, its primary effect; and that any attenuated ben-

696 reli- of both a reasonable accommodation

efit to was Id., 550-551, 2d, 618 N. E. differences. and cultural gious 113. U. S. Appeals, the mandate of Court stayed We (1993). certiorari, 510 U. S. (1993), and granted II Free Exercise and the Es “A for both the proper respect a course of Clauses the State pursue tablishment compels Public Ed. Committee & religion,” toward ‘neutrality’ (1973), 792-793 Liberty Nyquist, S. Religious over others nor ad neither one religion favoring Epperson over nonadherents. See herents collectively Arkansas, 748, the statute 97, 104 Chapter 393 U. S. District, from School Village departs creating discre this constitutional command State’s by delegating schools to a defined over tionary authority public group by as a and histori its character religious community, legal context that no assurance that governmental power cal gives been or will be exercised has neutrally. Den, Inc.,

Larkin v. Grendel’s (1982), U. S. pro an instructive with the before vides us. comparison litigation There, the was to strike down a Massachu Court requested statute setts bodies veto over power appli granting statute, cations for licenses. Under liquor governing church, or school located within 500 body any synagogue, feet of an could, applicant’s premises simply submitting written objection, the Alcohol Control prevent Beverage Id., from Commission at 117. In issuing license. spite valid churches, schools, State’s interest protecting “ like institutions from ‘the associated with hurly-burly’ liq id., (internal uor outlets,” at 123 omitted), marks quotation the Court found that in two the statute violated respects wholesome “[t]he of which this Court’s cases ‘neutrality’ School Dist. of Abington Township speak,” v. 374 Schempp, “ 203, U. S. 222 The Act about a ‘fusion of brought

697 and “im governmental delegating functions’” religious by portant, discretionary governmental religious powers” bodies, thus and reli impermissibly entangling government Abing School Dist. S., 126, 459 at gion. U. 127 (quoting Township Schempp, supra, ton see also Lemon v. v. 222); at supra, Kurtzman, at And it “any 613. lacked ‘effective means of guaranteeing’ delegated power ‘[would] be used for secular, neutral, exclusively and nonideological ” 459 Committee Public S.,U. at 125 purposes,’ (quoting Religious Liberty Nyquist, supra, Ed. & 780); this, v. along benefit to asso “significant religion” symbolic ciated with “the mere of a appearance exercise joint legis lative authority State,” Church and led the to con Court “ clude that statute had a effect ‘primary* ‘principal’ see also Lemon S., religion,” 125-126; advancing supra, v. Kurtzman, at 612. constitutional Comparable in inhere before problems statute us.

A Larkin of united civic presented example an establishment in authority, rarely found such straightfor- Walter, cf. Wolman ward form in modern America, (1977) 229, U. S. (Powell, J., in concur- concurring part, in in ring judgment part, and in and a viola- dissenting part), tion of “the core rationale underlying Establishment Allegheny County Clause,” 459 U. S., at 126. also See Pittsburgh American Chap- Civil Liberties Union, Greater ter, (1989) (Establishment U. S. 590-591 Clause pre- vents delegating governmental power religious group); id., at 660 (Kennedy, J., in concurring judgment part Ewing, Everson v. Board Ed. dissenting (same); part) (1947) (Establishment U. S. 15-16 Clause prevents State from in the affairs “participat[ing] or- any versa”); ganizations or groups and vice Torcaso v. Watkins, (1961) U. S. 488, (same). 493-494 The Establishment Clause problem presented by Chapter raised in Lar- subtle, 748 is more but it resembles the issue kin to the extent the earlier case teaches that a State not its civic to a may chosen accord- delegate authority group to a ing criterion. over religious Authority public schools State, Const., XI, § to the N. Y. Art. belongs 1, and cannot be to a local school district defined delegated State order to control to a grant political religious What group. different from Larkin is the makes this litigation delegation here of civic to the power voters of the “qualified village Joel,” 1989 Laws, N. Y. ch. distinct from a leader such as religious rov, or an village institution of like the religious government constituted formally parish council in Larkin. In light circumstances of these cases, however, this distinction turns out to lack constitu- tional significance. is, first,

It that the of state dispositive recipients power in these cases are a group religious individuals united by common doctrine, not the leaders or group’s Al- officers. some school though district franchise is common to all voters, the State’s manipulation the franchise for this district lim- ited it to Satmars, the sect giving exclusive control of the political subdivision. In the circumstances of these cases, the difference between thus state vesting in the mem- power bers of a religious as such group instead of the officers of its sectarian organization is one of form, not It substance. (or true that religious people groups religious people) cannot be denied the to exercise opportunity rights citizens because of their simply religious affiliations or com- mitments, for such a would disability violate the right Paty, exercise, see McDaniel free 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 to hold right political office, is not in point here. That individuals who to be happen delib- may mean that a State office does not hold public insti- individual, to an discretionary power erately delegate If identity. of religious on the tution, community ground to “the Grand civic authority were to delegate New York (even invalidation Rebbe,” Larkin would obviously require for, run under McDaniel the Grand Rebbe though if is true New board), and the same on, his local school serve to religious reference authority by York delegates political in the lies issue, “fusion” is an the difference belief. Where on delegation between a government’s purposeful distinction neutral and a on principles the basis delegation inciden- identities are to individuals whose religious religion, of civic tal to their receipt authority. express course, delegates power by

Of Chapter community, to the belief of Satmar reference of Kiryas of the of the “territory village but to residents (and ar- Thus the second Laws, 1989 N. Y. ch. 748. Joel.” these cases and more distinction between important) guably civil Larkin is the identification here of the to exercise group But our in terms not religious. analysis authority expressly see Church issue, not end with the text of the statute at does Hialeah, Lukumi Babalu Inc. v. 520, 508 U. S. Aye, Gomil- (1993); Wallace 38, (1985); 56-61 Jaffree, U. S. lion and the con- Lightfoot, (1960), 341-342 S. text here us that identifies persuades Chapter effectively reference to these recipients governmental authority by doctrinal even not do so adherence, does though expressly. We find this to be the view of the better facts because lines of the school divide way district residents boundary affiliation, under the terms an un- according usual and Act. special legislative

It is those who undisputed negotiated village boundaries when applying general village incorporation statute drew them so as to Satmars, exclude all but and that the New York was Legislature well aware that the village remained Satmar in 1989 when exclusively it adopted Chap- p.

ter 748. See Brief for Petitioner in 93-517, 20; No. Brief Respondents significance 11. The of this fact to the state legislature carving is indicated the further fact that out village customary school district ran counter to district- ing practices in the Indeed, State. the trend in York New dividing consolidating not toward school districts but toward them. The thousands of small common school districts laid early century out 19th have been combined and recom- bined, first into union free school districts and then into larger many central districts, school until a tenth as today. remain Univ. State of N. Y. and State Education Dept., Reorganization, Pamphlet School District Law (1962) (hereinafter pp. Pamphlet); 8-12 Law Woodward, Dept., Legal Organizational N. Y. State Education His- tory Reorganization of School District in New York State 1986). (Aug. 10-11 many Most of these cover several towns, county only of them cross pre- boundaries, and one remains cisely incorporated village. coterminous with an Pam- Law phlet, object practice at 24. The of the State’s of consolida- large tion is the enough provide creation of districts to comprehensive education at thought affordable cost, which is require pupils junior-senior least 500 for a combined high school. Univ. State of Y. and N. State Education Dept., Master Reorganization Plan for School District in (rev. 1958).3 New York Kiryas State 10-11 ed. The Joel Vil- lage School District, in contrast, has 13 local, full-time (even including students in all part-time out-of-area and stu- 200), dents leaves the number offering only under spe- and in cial programs education and pretense remedial it makes no to be a full-service district. origin

The special of the district legislature, in a Act of general rather than the State’s governing laws school district 3The Commissioner of updates Education this Master Plan as school consolidate, districts see N. §314 Y. Educ. 1988), Law (McKinney but has published a superseding version. is reorganization,4 likewise anomalous. Although legis- lature has established some 20 school districts existing Act, all but one of these are districts name only, been to be having designed run by private organizations institutionalized serving children. have neither tax They bases nor student of their own populations but serve children placed by other school districts or public agencies. See N. Y. (Mc- §3601-a Educ. Law §§4001 Notes), and 4005 (Statutory (“These 1994); Law Kinney Supp. at 18 districts Pamphlet, fiction”). are school districts of a only by one way legal school district was petitioners formed point by special Act of the legislature serve a whole as this community, was, one is a district formed for a town, new much larger and more than this heterogeneous built on land village, being that straddled two districts. existing Laws, See N. Y. District). ch. 928 Gananda (authorizing School Thus the Village School District to the exceptional point as the singularity, only district to our notice that coming carved from legislature district to serve single existing local residents. this Clearly district “cannot be seen as the fulfillment of village’s] [a as an destiny independent govern- United mental States v. Scotland Neck entity,” Bd. City Ed., (1972) 407 U. S. (Burger, J.,C. concurring result).5 4 State law allows consolidation on the superin initiative of a district tendent, §1504 N. Y. Educ. Law (McKinney 1988), voters, §§ local 1510— 1513, 1522-1524, 1902, or the Education, §§ Commissioner of 1801- 1803-a, depending on the circumstances. It also authorizes the district superintendent “organize to district,” a §1504, new school which allow secession from an existing district, general but played this law no part in the Kiryas creation of the Village School District. 5Although dispositive in this challenge, facial pattern the of interdis transfers, trict proposed and presently occurring, tends to confirm that

religion rather than geography is the organizing principle for this district. Cf. United States Ed., Scotland City Neck Bd. S., at 490 (Burger, J., result). C. concurring in When Chapter passed, 748 was the

Because the district’s creation ran counter to uniquely state practice, the lines of a following religious community where the and neutral would not customary have principles dictated result, the same we have reasons to treat this good district as the reflection of a for religious criterion identify- of civil even ing recipients Not authority. special needs of the children this can community explain legis- lature’s unusual Act, the State could have responded the concerns of the Satmar without parents implicating Clause, Establishment as we some detail further explain on. We therefore find the Act to be legislature’s substan- tially equivalent defining subdivision and hence political for its franchise qualification by test, religious resulting in a and forbidden “fusion of purposeful governmental Den, functions.” Larkin v. Grendel’s atS.,U. (internal omitted).6 marks quotation and citation

B The fact that this school district was created aby and unusual Act of the also legislature reason for con- gives cern whether the benefit received the Satmar community is one that the will legislature provide to other reli- equally (and gious nonreligious) This is the groups. second malady understanding was that if a non-Hasidic child were to move into the vil- lage, the district pay would tuition to send the child to one of neighbor- ing districts, school since regular Joel would have no education program. Although the need for yet arisen, such a transfer has not there are 20 Hasidic children handicapping conditions who transfer into Kiryas Joel’s school nearby district from Ramapo East and Monroe- Woodbury school districts. 6Because it is the unusual circumstances of this district’s creation that persuade us the employed State has delegating criterion for political power, this conclusion imply any political does not subdivi sion that is coterminous with the religiously boundaries of a homogeneous community suffers the infirmity. same constitutional The district in these distinguishable cases is from one whose boundaries according are derived to neutral historical geographic criteria, but population whose hap pens comprise coreligionists. the absence it, in the law before Court identified the Larkin guaranteeing” governmental that means of of an “effective neutrally employed. Id., at 125 power has been will be and omitted). (internal quotation But and citation marks thought religious groups the Court in Larkin it was whereas might power of reli- advance the interests exercise civic to (or adherents), neutrality gion religious the threat to here stage. at an antecedent occurs concern here fundamental source of constitutional

The governmental legislature itself fail to exercise that the anomalously way. authority religiously in a neutral legislature’s case-specific of au- exercise state nature of the community creating thority for a this district way any to review such state without direct leaves Court safeguarding principle purpose at the of for the action government should Clause, of the Establishment heart religion irreligión. prefer another, or to one to not Epperson Ar- S., 52-54; 472 U. v. Jaffree, See Wallace v. Abington Township kansas, 104; Dist. S., 393 U. School Schempp, at 216-217. Because S., community Kiryas governmen- its new Joel did receive authority simply many eligible as one communities tal general equal no assurance law,7 treatment under a we have similarly group seeking dis- the next situated a school one; of its own will receive unlike an administrative trict generally applicable agency’s exemption denial of an from a judicial audience,” which “would be entitled to a Olsen law, (CADC Drug Admin., 2d 878 F. Enforcement (R. 1989) J.), Ginsburg, legislature’s B. failure enact special law is itself can the historical unreviewable. Nor any suppose context in these cases furnish us with reason to merely that the are in a Satmars one series communities village This process contrasts which the created, did, involving, application was itself as it of a neutral state designed give any group right incorpo law almost residents the supra, rate. See at 691. 704 Early school district laws. of special the benefit

receiving York, in New of education public in the development on York school districts for New localized rejected highly State to allow way separate were as promoted when City they children. R. Church & M. for Roman Catholic schooling 162, in 167-169 Sedlak, Education the United States Act in these cases recent history, And in more at 701. alone. See supra, stands must be exercised that civil principle power The general rec is one the Larkin Court religion in a manner neutral of it did not discuss the possibility although specific ognized, lines because the stat favoritism along religious legislative state authority any religious group ute before it delegated of an for a li liquor assembled near the premises applicant well a further 120-121, 3, n. as to cense, S., see institutions not identified But the by religion. of category in law, is well our case as we have fre principle grounded relied on the of explicitly general availability any quently or individuals in benefit religious groups turning provided In Tax challenges. aside Establishment Clause Walz v. York, (1970), New 397 S. 673 for City Comm’n U. sustained a tax for Court example, property exemption in because the had sin State “not religious properties part out one church or or even particular religious gled group such,” churches as but had “a broad class of exempted prop owned Ac erty nonprofit, quasi-public corporations.” J.). id., at 696-697 cord, Harlan, And Bowen (opinion v. Kendrick, 589, 608 (1988), 487 U. S. a statute upheld enlisting a “wide in adolescent spectrum organizations” addressing because the law was “neutral sexuality to the respect status as a sectarian or grantee’s secular institut purely Bullock, ion.”8 See also Texas Inc. v. Monthly, U. S. organizations The Court used to refer “sectarian” akin to this school they operated district in in religious were a secular manner but had a affiliation; recognized government aid not flow to an institution “ pervasive ‘in portion which is so that a substantial of its func- (1989) for exclusively down sales tax (striking exemption id., id., at 14-15 (plurality opinion); publications); J., Estate 27-28 concurring judgment); (Blackmun, Caldor, Inc., (1985) Thornton 472 U. S. (O’Con (statute “sin J., concurring judgment) impermissibly nor, without out Sabbath observers for special... protection gles similar accommodation to ethical and be according cf. Witters liefs and of other practices private employees”); Washington Dept. Blind, Servs. 481, 492 474 U. S. (1986) (Powell, J., Here the benefit flows concurring). sect, to a but this small single aiding single, religious group causes no less a follow constitutional than would problem whole, from a sect with more members or as a aiding religion Valente, see Larson v. 228, (1982), 456 we U. S. 244-246 are forced to conclude that vio the State of New York has lated the Establishment Clause.

C In that 748 violates the of finding Chapter requirement governmental the benefit of a neutrality by extending franchise, we do not the Constitution allows the deny State to accommodate needs religious by alleviating special cases burdens. Our leave no doubt that in neu commanding Clauses do not trality Religion require government to be oblivious to impositions exercises of legitimate state on power may belief and place religious practice. Rather, there is room under “ample the Establishment Clause for ‘benevolent which neutrality will permit exercise to exist without and without interfer sponsorship Corporation Presiding Bishop ence,’” Church Jesus of of of Latter-day Christ Amos, Saints v. (1987) 483 327, 334 U. S. supra, Comm’n, Walz v. Tax (quoting 673); “government (and must) sometimes may accommodate religious practices and . . . do so without the Establishment violating tions are religious mission,’” subsumed in the S., (quoting at 610 McNair, Hunt v. 734, (1973)). 413 S.U. 743

706 Comm’n Appeals Hobbie v. Unemployment

Clause.” Fla., 144-145 The fact that Chapter 480 S. U. is not what renders religion facilitates the practice Weisman, Lee v. unconstitutional establishment. Cf. (“That (1992) (Souter, J., concurring) govern- U. S. ment in matters of does not must remain neutral into account”); foreclose it from ever School taking religion at 299 S., Dist. v. U. Abington Township Schempp, would (Brennan, J., concurring) (“[Hjostility, neutrality, characterize the refusal chaplains places provide for and soldiers cut off the State from worship prisoners communion”). all civilian opportunities public limits, But accommodation is not a without principle to the what seek is an Satmars’ reli- petitioners adjustment that our cases do not counte- giously grounded preferences9 Prior nance. decisions have allowed communities and institutions their own interests free from pursue interference, see governmental Corporation Presiding Amos, at 336-337 allow Bishop supra, (government may to favor their own in hir- adherents religious organizations even for secular Zorach ing, Clauson, employment); (1952) U. S. 306 allow schools to re- (government may public lease students the to receive off-site reli- during schoolday gious education), but we have never hinted that an otherwise unconstitutional to a delegation political power religious could be saved as a group accommodation. Petition- religious ers’ accommodation proposed out a reli- singles particular sect for treatment,10 and gious special whatever the limits accommodations permissible legislative be, may compare The Board of Village Education of the School District explains prefer together that the Satmars to live “to facilitate individual social, observance and maintain religious values,” cultural and it “‘against religion’ but that is not their to interact with others.” Brief 93-517, p. for Petitioner No. n. 1. Larkin, respect, goes beyond In this even transferring political authority single religious group to a any rather than to church or school. Monthly, supra Inc. Bullock, Texas down law (striking v. taxation), from only religious publications exempting Corporation Presiding supra Bishop Amos, v. (upholding it is clear VII), law from Title exempting religious employers honored. must be See neutrality among religions supra, Valente, Larson at 244-246.

This conclusion does the not, however, par- Satmar bring ents, district, the school or the State of Monroe-Woodbury end New York to the of the road in seeking ways respond in Larkin ob- to the concerns. Just as Court parents’ served that the State’s interest meet- protecting means,” could be other ing places “readily accomplished by atS., U. there are several alternatives here for pro- and bicultural education to viding bilingual Satmar special children. Such services can well be offered to vil- perfectly children lage through Central School Monroe-Woodbury District. Since Satmars do not claim that separatism mandated, their religiously children receive bilingual and bicultural instruction at a school run already public if district. Or Monroe-Woodbury educationally ap- should turn out to propriate offering by Monroe-Woodbury be a separate program and bicultural education bilingual aat neutral site near one of the schools, village’s parochial this Court has made it clear that no Establishment already Clause would inhere in difficulty scheme, such a adminis- tered in accordance with neutral that would not principles Wol- confine necessarily treatment to Satmars. See Walter, man S., U. at 247-248.

To be sure, on whether parties services disagree in the late Monroe-Woodbury actually 1980’s were provided tailored to the appropriately children, needs of Satmar but this is of dispute limited relevance to the question whether such services could have been had ad- provided, been justments made. As we understand law, New York who are parents dissatisfied with their child’s handicapped have program recourse administrative review through pro- (a ceedings process appears not to have run its course prior Chapter to to resort see Board Ed. Monroe- Woodbury Wieder, Central Dist. v. 72 N. 2d, School Y. at 770), Legislature 180, 527 if the 2d, N. E. at and New York responsiveness should remain dissatisfied certainly legisla general district, local it could enact school tightening the mandate to school districts on matters of tion bilingual offerings. or bicultural education and

Ill gladiator “the once cast the dissenter as Justice Cardozo making against Cardozo, last the lions.” B. Law and stand certainly is dissent Literature Justice Scalia’s gladiator, he of his own but thrusts lions the work homogeneous religiously imagining. do not disable a We power on exercising political conferred it without group from post, religion. Unlike the States regard at 735-736. to Cf. (which according to were laid out Mexico and New Utah methodologies taking lines of political account of traditional topographical features, U. S. longitude see latitude of the United Zandt, Boundaries Dept. Interior, F. Van Survey (Geological States 250-257 the Several States 1212,1966)), line chosen for the the reference Bulletin sep purposely drawn to Village District was one School impugn the do we Nor from non-Satmars. arate Satmars post, Legislature, 737-740, cf. York of the New motives com the Satmar accommodate to doubt intended which no we sim violating Clause; munity the Establishment without one that aids ignore the method chose ply refuse App. 19-20 community, such, see as particular Act’s beneficiaries (Assembly sponsor thrice describes groups community), all rather than children the “Hasidic” pro schooling. dissent separate similarly interested ” “ not tailor ‘up a statute front’ that novel to insist it is tests post, religious group, at 747- apply one benefits its Monthly, have Inc., would so, were Texas if this 748, but

709 S., turned out differently, see 489 U. at 14-15 of (opinion id., at Brennan, J.); 28 J., concurring judg- (Blackmun, ment), and in Walz v. Tax New language Comm’n York of atS., 673, Kendrick, City, S., Bowen v. U. 608, to on breadth the the purporting rely statutory have Indeed, schemes would been mere under surplusage. if dissent’s New York were to a law theory, pass provid- school buses ing only for children Christian attending day schools, we be would constrained to the statute uphold Establishment against Clause attack until faced by request from a non-Christian under family equal treatment law. Cf. Everson patently unequal v. Board Ed. S., at Ewing, 330 U. school bus service (upholding pro- vided all And to on the end with which pupils). point Jus- begins, license he takes in suggesting tice Scalia the Court holds the Satmar sect to be York’s New estab- lished church, see post, one his symptom to the fact this inability accept Court has held that long the First Amendment classic, reaches more than 18th- century Watkins, establishments. See Torcaso S., U. at 492-495.

Our job, course, would easier if be the dissent’s position had prevailed with Framers and with this over Court An Establishment years. Clause to diminished the dimen- sions acceptable could be enforced aby Justice Scalia rules, few simple and our docket would see never cases re- quiring of a like application principle neutrality toward as well as But among religious sects. that would as be blind to history precedent, difference between Justice and the Court turns on accordingly Scalia the Court’s recognition that the Establishment Clause does comprehend such principle courts to obligates exercise the judgment necessary it. apply

In these cases we are clearly constrained to conclude that the statute before us fails the test of It dele- neutrality. this gates power Court has said “ranks at the very apex Yoder, 406 U. S. State,” Wisconsin of a the function be- common defined to an electorate (1972), to foreclose that fails in a manner lief and practice, line from permissible crosses It therefore favoritism. The judg- establishment. to impermissible accommodation York New of the State of Appeals of the Court ment accordingly

Affirmed. Blackmun, concurring. Justice and Justice Souter reasons stated Justice For the York that the New I I agree Stevens, join, whose opinions Establishment Clause review violates the under statute note my I write separately only Amendment. the First decision sig- that today’s with any suggestion disagreement Lemon described in the principles from nals a departure of the Court The opinion Kurtzman, U. S. II-A) relies (and upon to Part with respect of the plurality Den, Inc., Larkin v. Grendel’s decisions, including several the criteria set rested on (1982), that explicitly 459 U. S. on which the the two Indeed, in Lemon. principles forth Act is consti- conclusion that the legislative bases its opinion third Lemon are the second and invalid essentially tutionally Larkin, S., at 126-127 ante, 697; 459 U. criteria. See ” “ functions’ and religious ‘a fusion (finding governmental S., at 125-126 “entanglement” prong); under Lemon’s “‘effective means of guaranteeing’” a lack of any (finding will under neutrally employed be that governmental power ” “ effect’ Lemon’s ‘primary prong). ‘principal’ O’Con I no with the observation Justice have quarrel of constitutional 718-719, nor, application post, Lemon, in must be those articulated including principles, I remain convinced of sensitive to contexts. But particular Lemon, in of the basic stated validity the general principles deci- which have this Court’s Establishment Clause guided in Weisman, See Lee sions over 30 cases. 505 U. S. (1992) (Blackmun, J., n. concurring). Stevens, Justice with whom Justice Blackmun and Ginsburg Justice join, concurring.

New York created a district for the school members in of the Satmar sect concern response parental that children fear trauma’” when suffered “‘panic, “ whose their own community people ‘leaving being ” Ante, at 692. To meet those con- were so different.’ ways chil- have taken to alleviate the cerns, State could steps to be tolerant and dren’s fear their schoolmates by teaching Action of that kind would customs. Satmar respectful further the no constitutional concerns and would strong raise interest diversity understanding promoting public schools. public a that affirma- Instead, solution the State responded itself interest in a sect’s segregating supports tively with their its children from associating and preventing while it children, The of these may pro- isolation neighbors. trauma,” from fear also unquestionably tect them “panic, that would remain within increased the likelihood they of their faith. By faithful adherents fold, parents’ religious is intended to a school district that specifically creating have with others who “different children from contact shield at- to cement the official the State support provided ways,” It is tell- faith. adherents to tachment particular young full-time of the school’s two-thirds in this regard, ing, from outside children Hasidic are handicapped students far school thus serves population village; than defined less than the by geography wider village —one ante, 701-702, n. 5. See religion. in of this char- aid of state action segregation Affirmative benefit distribution of is unlike the evenhanded public acter stu- school service, a “release time” program public or or a funds, no decision dents involving public premises grant general exemption from a burdensome It is, rule. fairly establishing, believe, I characterized as rather than merely accommodating, religion. For this reason, as well as opinion, per- the reasons set out in I am Justice Souter’s suaded New York law at issue in these cases violates the Establishment Clause of the First Amendment.

Justice O’Connor, in concurring part concurring the judgment.

I question The at the heart of these cases is: What government consistently do, with the Establishment Clause, people’s religious history to accommodate beliefs? The Orange County especially the Satmars in instructive on this, because have been they involved in at three least ac- problems, commodation of which these cases are most recent. problem zoning shortly first law, related to and arose early

after the Satmars moved to the town of Monroe in the Though they 1970’s. the area in which lived was zoned for single-family homes, the Satmars subdivided their houses apartments, apparently part into several because of their traditionally family groups. close-knit extended The Sat- mars buildings also used basements of some of their synagogues, according schools which to the town was zoning also a violation. See Times, N. Y. 17, 1976, Oct. sec- p. App. tion 1, 53, 1; col. 10-14.

Fortunately for the Satmars, New York state law had a way accommodating their concerns. New York allows virtually any group incorporate of residents to their own vil- lage, powers self-government. with broad The Satmars incorporating followed community this course, their as the village Kiryas zoning problems, Joel, and their at least, were solved. Ante, at 691.

The Satmars’ next need for accommodation arose the pervasively mid-1980’s. Satmar religious, education is and But, though provided through entirely private schooling. children, the could afford to of their Satmars educate most the busi- is a and educating difficult handicapped expensive Moreover, ness. it is a business that the government gener- funds, with tax from the ally that come Satmars moneys well as from else. In Monroe- 1984, therefore, the everyone Central handi- School District Woodbury began providing education to the children annex capped services Satmar at an to the the en- Satmar school. The curriculum and vironment were were They services secular. entirely sort the same of services available to students handicapped at secular public schools private throughout country.

In 1985, however, we held that funded on classes publicly school violate premises the Establishment Clause. Rapids Aguilar School Dist. Ball, Grand 373; 473 U. S. Felton, decisions, U. S. 402. Based on these Central School District Monroe-Woodbury stopped providing site, services at chil- Kiryas Joel the Satmar required dren to attend public This, schools outside the how- village. ever, was a satisfactory Satmars, for the arrangement because the part Satmar' children had hard time dealing with immersion in the non-Satmar world. one By only child handicapped Kiryas was to the going public school—the others were either funded getting privately services or no education at all. Though Satmars tried to reach some other with the Monroe- arrangement Woodbury Central District, School was not problem resolved.

In response these difficulties came the third accommo- dation. In 1989, the York New a statute Legislature passed to create a special school district covering only village Joel. This school could, district of course, only oper- ate schools, secular Satmars therefore wanted use to provide education for the But be- handicapped. cause the district provides this education in the village, Satmar children could take of the district’s serv- advantage encountering problems they faced when

ices without they Monroe-Woodbury It is the were sent out to schools. constitutionality creating we are of the law this district that now called on to decide.

II light impor- The three situations outlined above shed on an aspect tant of accommodation under First Amendment: through Religious that are needs can be accommodated laws regard religion. living The ar- neutral with Satmars’ rangements by right right their were accommodated —a religious through- or communities, not, shared with all other incorporate village. themselves as a out New York—to handicapped children’s 1985, From 1984 to the Satmar edu- by special cational needs were accommodated education programs handicapped like those available to all children, religious examples or not. Other of such accommodations itself, instance, abound: Constitution accommodates religious opposed desires of those who were to oaths allowing any any religion, officeholder—of or none—to take § either an oath of office or an II, 1, 8; affirmation. Art. cl. 3; see also VI, Likewise, Art. cl. Arndt. 4. the selective provide exemptions objectors service laws for conscientious objection whether or not the is based on beliefs. (1970)(Harlan, States, Welsh v. United 398 S. J., U. result). concurring in again government gen have time and

We held that the erally may people differently not treat based on the God gods they worship, worship. or do not “The clearest command of the Establishment Clause is that one officially preferred denomination cannot be over another.” Larson Valente, U. S. “Just as we subject exacting scrutiny to the most laws that make classi strictly gov fications based on race ... so too we scrutinize religion.” Employment ernmental classifications based on Dept. Div., Human Resources Smith, Ore. v. 494 U. S. (1990). “[T]he prohibits 872, 886, n. 3 Establishment Clause from ... to favor abandoning secular government purposes or any adherents sect Gil- religious organization.” States, 437, lette v. United 401 U. S. 450 “Neither nor the State Federal can constitutionally [the Governments] laws or all impose which aid as pass requirements religions non-believers, and neither can aid those against religions on a belief in based the existence God as those against on Watkins, founded religions different beliefs.” Torcaso v. (1961) (footnote omitted). 495 488, 367 U. S. also See Texas (1989) Inc. v. Monthly, Bullock, 1, 8-9 U. S. (plurality id., 26, opinion); J., 28-29 in concurring judg- (Blackmun, ment); Welsh, (Harlan, supra, J., Walz v. concurring); Tax York, Comm’n New U. 696-697 City S. (1970) J.). (opinion Harlan,

This on is, think, I emphasis equal treatment eminently sound In view, approach. Clauses —the my Religion Free Clause, Exercise Clause, Establishment the Reli Clause, Test VI, cl. gious Art. Protection Equal as Clause applied with one on religion speak voice —all this Absent the circumstances, most unusual point: one’s reli not affect ought one’s gion or duties legal rights benefits. As I have noted, previously “the Establishment Clause is when the infringed government makes adherence to religion relevant to a person’s standing political community.” (1985) Wallace v. Jaffree, 38, 69 U. S. (opinion concurring in judgment).

That is government to accommodate acting should not this generally change What makes ac- analysis. commodation even permissible, is not that the praiseworthy, is government life easier for making some reli- particular as gious group Rather, such. it is the government held accommodating belief. deeply Accommodations may thus justify those who treating share this belief differently from those who do not; but do not they discrimina- justify tions based on sect. A state law prohibiting consump- tion of alcohol may exempt wines, sacramental but it may not by Catholics but wine use not sacramental exempt but conscientious objectors, A may exempt law Jews. draft whose objections objectors conscientious exempt (such as belief as Quakers) opposed based are on theistic Buddhists) (such or atheistic belief. See nontheistic belief result); see Welsh, (Harlan, concurring S., J., at 356 398 U. inter- result on statutory id., this (reaching at 335-344 also Seeger, S. 163 United States grounds); pretation “nondiscrimina- (same). (1965) The Constitution permits Smith, at 890 supra, exemption[s],” tory religious-practice ones. not sectarian added), (emphasis Ill the II-B, II-C, III of Court’s I, opinion I Parts join a accom- law, being general I rather than because think this a for favor- modation, religious group out particular singles the this history The Court’s analysis able treatment. scheme, ante, at 699- surrounding statutory law and of this. me 701, persuades benefits one residents group its this statute face,

On —the this this benefit was to given group Joel. Because to treat it on it seems as a legisla- based its religion, proper I realize this is a close drawn classification. tively who the Satmars be the may because group question, accommodation. The legisla- need this currently particular if without so that acting any favoritism, ture well be may to ask for a similar district, another came group group on the same terms as the But it Satmars. might get it be makes to legislative process impossible nature ad- sure of A unlike the or legislature, judiciary many this. decisionmakers, has no to obligation ministrative to respond for A a law any group’s requests. group petitioning a “no” not never a definite or based get response, may get on the business the lack press merits but on other a act of an influential Such refusal sponsor. legislative be these would reviewable court. Under normally by dangerous appears circumstances, it seems what validate religious preference. to me a clear way Our invalidation of statute in this no means that the nothing Satmars’ needs cannot be There accommodated. improper legislative about a intention to accommodate reli- gious group, long implemented through generally so as it is applicable legislation. may, New York instance, allow all villages operate their own school If it districts. does not broadly, may want to act so set forth neutral criteria that village must meet to have a own; school district of its these applied by agency, criteria can then be a state deci- by judiciary. sion would then be reviewable A district generally applicable created under a scheme would be ac- ceptable though village even it coincides with a that was con- sciously created its voters as an enclave for their group. opinion contrary. I do not think the Court’s holds the

I also think there is one other accommodation would entirely permissible: be the 1984 scheme, which was discon- Aguilar. Religion tinued because of our decision in prohibit government favoring religion, Clauses from but they provide discriminating against religion. no warrant for handicapped government- All children are entitled law to g., funded See, education. e. Individuals with Disa- § seq. bilities Education gov- Act, 20 U. S. C. 1400et If provides public ernment this education on-site at schools and private only provide nonsectarian schools, it is fair that it it on-site at sectarian schools as well. thought Aguilar,

I this to be true in see 473 U. at 421- S., (dissenting opinion), 431 today. and I still believe it The hostility Establishment religion, Clause does not demand religious people, ideas, schools. Cf. Chapel Lamb’s v. Center Moriches Union Free School Dist., (1993). 508 U. 384 S. It is the Court’s insistence on disfavor- ing religion Aguilar in that led New York to favor it here. proper Court prepared should, in a case, be to reconsider Aguilar, bring in order to juris- our Establishment Clause

718 govern- I think is proper back to what prudence track — toward animosity, religion. ment impartiality, IV cases is worth in these the Court’s opinion aspect One cases, Lee Weis- in two recent v. Like the noting: opinions Foothills Zobrest v. Catalina (1992); 577 man, 505 U. S. I think is most (1993), case Dist., 509 U. S. School Valente, (1982), these, Larson v. S. relevant on the Establishment Clause does not focus opinion Court’s Kurtzman, in Lemon 403 U. S. we set forth test test, look for a Grand single always It is appealing resolve all the cases that may that would Theory Unified is, all, There after one Clause. arise under particular Clause, Free one Fourth Clause, one Speech Establishment Protection See Craig one Clause. Amendment, Equal (1976) (Stevens, J., Boren, concurring). S.U. same constitutional principle may operate very But the have, instance, We for no in different contexts. differently We have different tests for one Free Clause test. Speech restrictions, for content-neutral content-based speech speech restrictions act- restrictions, imposed by government fora, in and so for restrictions nonpublic ing employer, reflects the on. This simply necessary recognition to the Free Clause interests relevant Speech inquiry per-— an informed citizenry, government efficiency, sonal liberty, order, and so on—are different present degrees public each context.

And forth a test for a broad set of cases setting unitary sometimes do more harm than test good. Any must deal with situations risks so being widely disparate as to be useless. I one can that the suppose say gen- vague test for all free cases is “a eral valid speech regulation if the interests asserted are by government stronger listeners,” than the interests of the and the but speaker this would be a serviceable hardly Similarly, formulation. Lemon has, some been criticized on this justification, score.

Moreover, new into a test that does shoehorning problems not reflect raised problems concerns those tends to deform the of the test. language Relatively simple like effect . that neither advances phrases “primary . . nor supra, Lemon, inhibits and religion” “‘entanglement,’” 612-613, more and more definitions acquire complicated which ever from stray further their literal Distinc- meaning. tions are drawn between statutes whose effect is to advance and statutes whose effect to allow or- g., Corporation See, e. to advance ganizations religion. of Presiding Bishop Latter-day Church Jesus Christ of of Amos, Saints v. (1987); id., U. S. 336-337 at 347 J., this concurring (discussing judgment) (O’Connor, Assertions are made point). churches authorizing veto sales in areas be liquor “can seen surrounding having ” Lar effect ‘primary’ ‘principal’ advancing religion. Den, Inc., kin v. Grendel's 459 U. S. 125-126 is discovered in “[Ejntanglement” monitor- public employers ing performance public employees surely proper — function —on enough parochial school premises, public with the school on employees cooperating class sched- Aguilar Felton, uling and other administrative details. to Lemon suffer from a simi- atS., 413. Alternatives lar when lead us failing they to find “coercive pressure” when a school asks pray listeners —with no threat legal sanctions —to stand remain silent during graduation supra, Lee Weisman, prayer. 592. Some the re- sults and even perhaps some of the in these reasoning cases may have been I right. above, two the cases cited joined Lee, Larkin and continue to believe were they correctly decided. But I think it is more useful to the rele- recognize vant concerns in each case on terms, their own rather than them trying squeeze into language does not really to them. apply

720

Finally, danger keep another to ismind that the bad may good. taking oppor- test drive out the than Rather tunity precise to narrower, derive more tests from the case continually patch try up law, test, courts tend to to the broad amorphous making This, it more and and distorted. I more happened afraid, am has with Lemon.

Experience proves Clause, like the that the Establishment single Speech easily test. Clause, cannot be reduced to Free categories of Establishment Clause are different There may approaches. cases, different Some cases, which call for targeted government particular involve actions these, like giving spe- groups, imposing duties or or individuals speech involving government on reli- Cases cial benefits. supra; Allegheny g., Weisman, topics, gious e. Lee v. see, Union, Pitts- County Greater American Civil Liberties v. (1989); Donnelly, Lynch 465 Chapter, burgh U. S. (1980), (1984); seem Graham, 449 U. 39S. Stone v. U. S. 668 analy- require category different fall into a to me to disapproves or speech endorses focusing on whether sis government action is on whether the religion, than rather County, Allegheny religion. regard to See neutral with concurring part and con- supra, at 623-637 J., (O’Connor, judgment). curring in gov- category encompasses in which cases

Another religious matters about make decisions ernment must Eastern Orthodox religious Serbian law. See doctrine Milivojevich, and Canada States Diocese United Lemon). (1976) (which apply These not also did S. 696 U. neu- application otherwise arise in the cases, which often institutions, principles property or contract tral present in other situations. questions complicated involve aspects (looking of reli- at some g., S., See, e. church, but refus- the structure gious law to determine ultimate religious law to resolve into ing to look further power delegations dispute). Government category. itself up yet As Larkin may another make bodies suggested, government religion may towards impartiality not be all in such situations: A law that bars alcohol enough sales within some distance of church, school, hospital be valid, but an each evenhanded law equally gives institution over sales not discretionary power be. may supra, Larkin, at 123-124. Of there well be course, may additional or more to draw the categories, places opportune lines between the categories.

As the shows, Court’s the slide from opinion today away Lemon’s is well under A return to unitary approach way. Lemon, even if would futile, be possible, likely regardless where one stands on substantive Establishment Clause questions. I less think a a better unitary provides approach structure for If each test covers a narrower and analysis. more area, the more homogeneous tests be may precise therefore easier to There more apply. be may opportunity to pay attention to the specific nuances of each area. There also I might be, more each of consensus on the narrow hope, tests than been on there has a And broad test. abandoning the Lemon framework need not mean some of abandoning the test insights reflected, nor the of the insights cases that it. applied under

Perhaps eventually this we structure indeed may distill a or at unified, unified, least a more Establishment Community test from the cases. Cf. Clark Clause for Creative Non-Violence, (1984) 288, 298-299 S. (uniting two doctrine). strands of Speech Free Clause But it seems to me that the case will law 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 to be asked; have but will they be asked within a more tailored and carefully less distorted framework.

[*] ^{[*] [*]} For the stated, reasons I would affirm the judgment Court of Appeals State of New York. Kennedy,

Justice in the concurring judgment. The Court’s that the School ruling Dis- Village trict violates the Establishment Clause is in view correct, my but reservations about what the Court’s my im- reasoning for are accommodations sufficient plies general to As the Court separate require writing. recognizes, accommodation discriminates reli- legislative among become establishment But gions religion. be can that an accommoda- Court’s interpreted say opinion because of the tion invalid religious group particular will the same accommoda- risk that legislature grant bur- some similar tion to another religious suffering group without in our This rationale seems me den. grounding and a needless restriction upon legislature’s precedents of a reli- to the unique problems particular ability respond district, esti- real vice of the school my group. gious it York created mation, by political is that New drawing I would decide the issue basis of on the religion. boundaries in accord this narrower theory, though confront we upon the observations about of the Court’s general with many this in actions litigation. State’s

I has in the granted which not an action government This is of which of religious class recipients to general a benefit Foothills v. Zobrest Catalina See one part. are just groups Kendrick, 487 U. S. v. (1993); 1 Bowen Dist., 509 U. S. School Blind, Servs. Dept. v. (1988); Washington Witters for of Allen, 463 U. S. (1986); Mueller 474 U. S. to seeks alle in which the an action government is rather It of a the particu on practices burden religious viate specific accommodation that a I religious agree group. lar religious not so burden does to ensure scrutiny careful demands as to other religions or discriminate against nonadherents however, with I establishment. disagree, become con School District that the Village suggestion for But commands. basic constitutional these travenes in Legislature sought forbidden manner which New York go attempt spe- it, to about the State’s to accommodate the handicapped cial needs of the Satmar children have would been valid. policies acknowledgment, accommodation,

“Government of political support accepted part of our for are an and heritage.” Allegheny County American cultural Pittsburgh Chapter, 492 Union, U. S. Liberties Greater Civil (1989) judgment part concurring in J., 573, 657 (Kennedy, gov- part). dissenting Revolution, colonial Before frequent exempting practice of ernments made Origins general objectors McConnell, from laws. See Religion, Understanding Free Exercise and Historical (1990)(recounting colonial 1409,1466-1473 103Harv. L. Rev. military, compulsory requirements, exemptions oath from legislation). general religious assessments, other service, early instance, New York allowed Quakers As in civil court cases. testify than oath rather affirmation in America Curry, Freedoms: Church and State The First T. (1986). Later, Passage the First Amendment Congress during Revolution, the American Continental military conscription. exempted objectors from reprinted July in 2 18, 1775, Journals Resolution 1905) (Library Congress Congress ed. 187,189 Continental (“As religious principles, people, who, from some there are Congress any this intend no vio- case, arms in cannot bear .”). framing And since consciences . . lence their approved legislative Constitution, has accom- this Court the variety practices. g., religious See, e. Se- for a of modations (mili- (1918) 366, 245 S. Cases, Law U. 389-390 lective Draft exemption religious objectors); tary Zorach for draft (1952)(New City program per- 306 York Clauson, 343 U. S. for hour mitting public to leave school one school children instruction); religious and Gillette v. week observance for (1971)(military exemption draft 401 U. 437 States, S. United Presiding Bishop objectors); Corporation for of of Amos, Saints v. Latter-day Church Jesus Christ of of from (1987) of religious organizations U. S. (exemption discrimination); Employ Title of religious VIPs prohibition Smith, 494 Resources Ore. v. ment Human Div., Dept. of of (1990) laws for sacra from drug U. (exemption S. use) (dicta). mental peyote Village in York’s object creating

New of religious practices accommodate the School District —to children —is validated by princi- Satmar handicapped First, from these precedents. by creating that emerge ples York to alleviate a and iden- district, specific New sought tifiable burden on the Satmars’ religious practice. strict reli- which out their life, Satmars’ way springs with mainstream beliefs, conflicts in respects gious many do not watch television or listen to American culture. They not radio; Yiddish in their homes do read they speak have a distinctive publications; they English-language and dress. Attending Monroe-Woodbury pub- hairstyle schools, lic where were to much different they ways exposed children understand- life, caused the Satmar handicapped able York was entitled to relieve distress. New anxiety burdens, these even mainstream though public significant tenet of the does conflict with schooling any specific Satmars’ faith. The Title VII exemption upheld covers Corporation Presiding Bishop, supra, example, who not believe themselves religious groups obliged instance. See also Walz every employ coreligionists (1970) York, Tax Comm’n New 397 U. S. City (“The limits of state accommodation to permissible are no means man- co-extensive with the noninterference by Smith, dated Clause”); accord, Free Exercise supra, at 890 accommodations even when (legislatures may grant not). courts may

Second, district, New York did not by creating impose non-Satmars, increase burden on to the any bur- compared den it lifted from the Satmars, the dis- might disqualify supra, Gillette, as a trict accommodation. In the genuine Court draft even the upheld military though exemption, (the on without burden those war in- religious objection chance of creased drafted and forced risk one’s life being Corporation Presiding battle) was And in substantial. of Bishop, the Court the Title VII even upheld exemption it discrimination non- though permitted employment against the There of faith. religious practitioners organization’s be sure, at which an accommodation point, may impose a burden on nonadherents so that it becomes estab- great g., Inc., Caldor, e. Estate Thornton See, lishment. (1985) 703, Sabbath U. S. 709-710 mandatory (invalidating when the “no honoring off because day provided exception sub- observers would cause dictates Sabbath employer when the compli- stantial economic burdens or employer’s burdens on ance would significant imposition require of the Sabbath to work in other employees required place however, observers”). on action has not been This argued, burdens from suffer that non-Satmars any special the theory District. School Joel Kiryas Village existence to alleviate the of the school district the creation Third, children Satmar born handicapped burdens favor the Satmar alone, to for that reason said, be cannot com- “The clearest other. to the exclusion any course, “is one Clause,” of of the Establishment mand over an- be cannot officially preferred denomination Valente, 456 U. S. accord, (1982); Larson other.” supra, however, with the Smith, n. I 3. disagree, this com- breaches that the school district conclusion Court’s ais dan- favoritism The Court insists that religious mand. nature of here, case-specific because “anomalously ger this creating exercise of state authority the legislature’s without leaves Court community district to ensure inter- state to review such action” direct any way Ante, the reli- “Because at 703. neutrality. denominational new did receive its gov- gious community ernmental as one of communities authority simply many for treatment under a law,” the Court eligible equal general maintains, “we have no assurance that next sit- similarly uated a school district of its own seeking will receive group one;... failure to enact a is law itself legislature’s special Ibid, (footnote omitted). unreviewable.” This reverses usual stat- reasoning presumption and, in essence, ute is constitutional the New York adjudges until it itself No innocent. proves Legislature guilty party that the has denied an- has adduced evidence any legislature like the Satmars its own school other religious community The circumstances. under legislature, district analogous Constitution, is sworn to uphold like judiciary, the New York reason to Legisla- have no we presume similar accommodation in a the same would not ture grant York out Sat- that New singled fact future case. other than indicates treatment nothing for this mars children’s Satmar plight. of the handicapped the uniqueness as to they for respond problems normal legislatures It is accommodation. the issue so when religious less arise —no practices. cover particular accommodations Most g., (1993) (“The See, e. § listing peyote 1307.31 CFR the nondrug . . does substance . apply a controlled of the Native ceremonies in bona fide use peyote (“[I]t (1993) shall not §11.87H Church”); 25 CFR American American Church of the Native for member any be unlawful or use sell, possess, buy, into country, Navajo to transport religious practices, connection in form in any peyote Church”); American the Native services of sacraments 1989) (“Re- 2-28(b)(2) 35-10, Force, (Apr. ¶ of Air Reg. Dept, for wear while are authorized head coverings ligious Reli- is not authorized.... headgear when uniform military worn underneath military be head coverings gious with the interfere proper wearing, do not if they headgear . .. of the prescribed headgear. or appearance functioning, example, yarmulkes requirement For Jewish this if meet diameter”); they do not exceed 6 inches National Prohibi- § (“Liquor nonbeverage purposes tion Act, 3,41 Stat. 308 purposes may and wine for sacramental be manufactured, purchased, imported, transported, exported, sold, bartered, possessed”), repealed by Liquor delivered, furnished and § Repeal They Law and Enforcement Act, 1, Stat. 872. thereby do not become invalid. is it

Nor true that New York’s failure accommodate an- religious community facing other similar burdens would be challenge insulated from in the The courts. burdened com- munity contending could sue the York, State of New that discriminatory New York’s treatment of the two communities the violated Establishment Clause. To resolve claim, this the court would have to determine whether community the does indeed bear the burden same on its reli- gious practice Kiryas did Satmars in Joel. See Olsen Drug v. Admin., 1458, 2dF. 1463-1465 Enforcement (CADC 1989) (R. J.) Ginsburg, (rejecting B. claim that the Ethiopian Coptic members of the Zion were Church entitled exemption marijuana to an from the laws on the same terms peyote exemption Church); as the for American Native (CA8 1986) (same). Iowa, Olsen v. F. 2d 652 While a finding question of discrimination would then raise difficult (“Faced compare relief, Olsen, 878 2d, F. at 1464 with the choice between any invalidation and extension controlled- religious exemption, substances political which would the branches choose? It would take a court bolder than this one predict. to . extension, . that invalidation, would be the probable choice”), with Westcott, U. S. Califano (1979) (curing gender 89-93 discrimination in the Aid to Dependent Families program by with extending Children unemployed benefits to deny- children mothers instead of ing unemployed fathers), benefits to children of the discrimi- beyond nation itself judicial remedy. would not be

II does not District thus School Village that invalidate might infirmities any typical suffer case, In the ordinary accommodation. attempted legislative the bur- has to accommodate York chosen the fact New raise constitu- would no to one unique religious group dens York evidence that New further tional Without problems. bear- to religious groups denied the same accommodation has could from the burdens, we not presume particu- similar ing the New York Legislature of the accommodation that larity intent. discriminatory acted cast, however, on when This takes a different particularity draw government politi- the accommodation requires boundaries. “The cal or electoral principle government not su- religion the free exercise does accommodate may Estab- limitations imposed by fundamental persede Weisman, Lee (1992), 505 U. S. Clause,” lishment such fundamental limitation is that gov- view one my not use as a criterion draw political ernment or not the is accommo- or electoral Whether purpose lines. or not similar government provides dation whether faiths, of all Establish- gerrymanders people to use ment Clause forbids the as a government religion In the criterion. this Establishment line-drawing respect, Protection Clause. as the Clause mirrors Just Equal not on account of their segregate government may people race, so too on the it basis of may segregate religion. is and stirred animosities no less acute danger of stigma for racial. than for Justice religious line-drawing Douglas it well in a statement quoted this Court put approval last Term: just drawn State,

“When racial or lines are religious by the multiracial, communities that our multireligious Constitution seeks to as one become sepa- weld together ratist; that race relate to or to antagonisms than communi- rather issues are political generated; ties seek not the best but the best racial representative or that at war with Since partisan. system the democratic ideal, it should find no here.” footing (1964) Wright Rockefeller, 52, 376 U. S. (Douglas, Reno, J., Shaw in dissenting) (quoted 509 U. S. (1993)). 648-649

I with the Court insofar as it invalidates the school agree district drawn being lines. As the along religious plural- observes, ante, ity 699-700, the New York Legislature knew that within the was everyone Satmar when village drew the school district and it deter- lines, along village mined who was to be included in the district by imposing, effect, test. There is no serious question the school legislature configured district, with purpose This precision, along religious line. explicit religious violates the First gerrymandering Amendment Establish- ment Clause.

It is the limits of important this recognize principle. We do not confront of the constitutionality itself, and the formation of the village to dif- village appears fer from the formation of the school district in one critical ante, As the Court respect. notes, 7,n. the village was formed to a pursuant religion-neutral self-incorporation scheme. law, Under New York with at least 500 territory residents and not more than five miles be incor- square porated upon at least 20 petition by of the percent voting residents of that the owners territory of more than 50 percent real territory’s Law property. N. Y. Village §§2-200, 1994). 2-202 1973 and (McKinney Aside Supp. from ensuring the petition with certain complies proce- dural requirements, of the town in supervisor which the is located territory has no discretion to reject petition. §2-206; see Decision on Petition, 8,14 Sufficiency App. (“[T]he hollow provisions Law Village . . . allow me only to review itself”). the procedural niceties of the petition upon incorporation the town then vote the

The residents of (Mc- § Village petition 2-212 in election. Y. Law N. 1973). By Kiryas Village Kinney contrast, the Joel School by legislation. The of New District was created state State complete discretion not to enact it. The State thus York had religious segregation. accomplishing the had a direct hand plurality the Establishment Clause does indicates, As the “whose boundaries are de- invalidate a town or State geographic according criteria, to neutral historical rived coreligionists.” happens comprise population but whose religious Ante, People who share a common 6. n. sacrificing lifestyle may together live without the or belief rights self-governance that all American citizens basic rights long they those to establish enjoy, do not use so community, Religion religious flourishes faith. their construed as some must not be Clause the Establishment reli- homogenizing that forces unconventional solvent sort of assimilating to mainstream gious groups to choose between rights. losing political There is their American culture voluntary associ- however, between line, a fine more than community comprised people political leads to a ation that separa- religious faith, and the forced share a common who political explicit government draws occurs when tion that creating the In peoples’ faith. the basis on boundaries crossed District, York Village New Kiryas School Joel. invalid. district hold the we must and so line, Ill exert rare to see State for it is action, unusual is an This territory people of a out to carve care documented such prob- in that unusual It is also faith. particular was ad- Village Kiryas School District Joel to which lem I believe to what measure in no small is attributable dressed rulings this Court. unfortunate were children of handicapped Satmar Before village within private schools attended other Satmar children Because their attended. handicaps in (ranging were some cases acute from mental spina palsy), retardation and to deafness bifida and cerebral provided public special the State New York edu- funds of these at cation children annexes to the schools. companion came the Dist. Then cases School Grand (1985), Rapids Aguilar Ball, Felton, U. S. Rapids, In invali- 473 U. S. 402 Grand Court public program in offer which school teachers would dated private including supplemental schools, classes at Ag- regular schoolday. inAnd schools, at the end of the City’s Title I York use of invalidated New uilar, Court public teachers who funding pay school the salaries of educationally fami- deprived low-income taught children of city. cases, the these parochial in the After schools lies at spe- suspended its Monroe-Woodbury SchoolDistrict Central religious schools, Kiryas program the Joel at education cial handi- their Kiryas parents forced to enroll were and the Joel Monroe-Woodbury public schools capped children en- special The education. to receive for the children order 692-693, recounts, ante, at led suing difficulties, as the Court Village District. School creation to the may Aguilar have Rapids and The decisions Grand us, in the light action before In erroneous. been doctrine, it constitutional of sound elaboration interest at a later date. necessary to reconsider them for us be nonreligious religious scheme, available neutral aid A as the way problems such preferable address is the alike, Witters, See handicapped have suffered. children Satmar (Powell, concurring). But for Grand J., 490-492 S., U. no need have had Aguilar, would the Satmars Rapids and district. school or their own accommodations to seek course, to choose unfortunate led them decisions Our described. I have the deficiencies with compoundingit however, for misjudgment excuse, is no One litigation be- as it comes confront this We must another. us, fore without rules to free the from a bending Satmars into which we predicament them. Establishment put Clause forbids the to draw boundaries government political on the reason, basis of For this I concur in religious faith. judgment Court. Scalia,

Justice with whom The Chief Justice and Justice Thomas join, dissenting. Be,

The finds that the Powers That in Al- today Court up have to effect an establishment of the bany, conspired Safmar I do not know Hasidim. who would be more surprised this the Founders of our or discovery: Nation Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after brutal escaping perse- cution and to America with the modest reli- coming hope toleration for their ascetic form of gious Judaism, Satmar had become so so allied with powerful, Mammon, as closely to have become an “establishment” of the State. Empire And the Fathers would be Founding astonished to find that the Establishment Clause —which “to insure they designed that no one sect or combination of powerful sects could use or political governmental power punish dissenters,” Zor- Clauson, (1952) ach 343 U. S. (Black, J., dissent- been ing) employed prohibit characteristically —has American admirably accommodation of the religious prac- (or tices more precisely, cultural peculiarities) mi- tiny J, nority sect. however, am not Once this surprised. Court has abandoned text and history guides, nothing prevents it from calling religious toleration the establishment religion.

I Unlike most of our Establishment Clause cases involving education, these cases involve no however public funding, or slight indirect, to private religious schools. do not They involve schools private at all. The school under is a scrutiny school public specifically designed provide public secular education to The students. handicapped superintendent school, Hasidic, who is not is a veteran 20-year York in the New school City public system, expertise bicultural, area of The teachers bilingual, education. at the school all live outside the therapists village Joel. While the are schools village’s private pro- classes at sex, foundly religious strictly segregated by school are co-ed and the curriculum public secular. school, school has the bland of a building appearance public unadorned and the school by religious symbols markings; with the laws and all other complies regulations governing New York State schools. There is no public suggestion, moreover, that this school has too far in public making gone to the special adjustments needs of its students. id., Cf. at 312-315 (approving program permitting early release of school public students to attend instruc- tion). In sum, these cases involve aid to a school only public that is as can be. The public distinctive about only thing the school is that all the students share the same religion.

None of our cases has ever there is suggested any- In thing wrong fact, that. has Court specifically approved education of students of a on a single religion neutral site to a adjacent private school. Wol- religious See (1977). man Walter, U. S. case, 247-248 In that the Court rejected argument that iso- “any program lates the sectarian pupils id., impermissible,” that, held fact that “[t]he a unit on a neutral site on occasion serve may only sectarian does not pupils provoke [constitu- concerns,” id., tional] at 247. And last just Term, the Court held that the State could permit to assist public employees students in a Catholic school. See Zobrest v. Catalina Foot- hills Dist., (1993) School 509 U. 1,S. 13-14 (sign-language student). translator for deaf If a State can furnish services to a of sectarian group students on a neutral site adjacent a private religious school, or even within school, such a how can there be defect in any those same educating students in Wolman, school? As the Court noted in the consti- public tutional of establishment arise “from the nature of dangers the institution, S., not from the nature of the pupils,” at 248. There is no students danger educating religious in a school. public reasons,

For these very good opinion Justice Souter’s school, does not focus but upon rather the school upon district and the New York that created Legislature it. His sometimes arguments, are that re- though intermingled, two: in the posing governmental Joel school district power is the same as in a reposing governmental power and that in the statute group; district, enacting creating York New State was Legislature on the discriminating basis of e., i. the Satmar Hasidim religion, over oth- favoring I ers. shall discuss these in turn. arguments

II For his thesis that New York has con unconstitutionally ferred governmental authority sect, Satmar upon Jus relies extensively, virtually exclusively, tice Souter Den, Inc., Larkin v. Grendel's upon 459 U. S. 116 Jus believes that the present litigation “resembles” tice Souter GrendeVs Den because that case “teaches that a State may not its civic delegate to a authority chosen group according to a criterion,” ante, added). at 698 (emphasis That (which misdescribes both what that case taught is that a State its civil delegate to a authority church), and (which what these cases involve is a chosen group according characteristics). to cultural The statute at issue there gave churches veto over the power State’s a authority grant license to liquor establishments the vicinity church. The Court had little difficulty the statute finding unconsti tutional. “The Framers did not set a system of up gov ernment in which important, discretionary governmental powers would be to or delegated shared with insti religious tutions.” S.,U. at 127. “presented concedes that GrendeVs Den

Justice Souter example religious authority, of civic estab- united an rarely straightforward found in such form in mod- lishment uniqueness Ante, at em America.” 697. The of the case grant power directly governmental from stemmed of religious opinion institution, and the Court’s focused on remarking authority fact, that the transfer was to of (10 times), body “governing “churches” of churches” (twice), (twice), “religious “religious institutions” bod- (once). Astonishingly, however, ies” dis- Justice Souter government misses difference between a of transfer power opposed to citizens who share a common organization” its to “the officers of sectarian critical —the unique “rar[e]” factor that made GrendeVs Den —as being form, Ante, “one of substance.” 698. steamrolling of the difference between

Justice Souter’s authority by authority civil held church and civil held breathtaking. accept of members a church is it, To one must large portions authority believe of the civil exercised during history most of our unconstitutional, were and that merely much more of it than school district today. history populating is unconstitutional The story groups North America is in no small measure the people sharing religious heritage a common and cultural striking g., out to form their own See, communities. e. W. Story Religion pre- Sweet, in America It posterous suggest that the civil institutions of these com- separate munities, constitutionally from their churches, were suspect. they surely And if were, cannot Justice Souter mean that the inclusion of one two nonbelievers community enough would have been to eliminate the consti- governmental tutional If power upon vice. conferral (rather upon institution as such than American institution) belong citizens who to the is not the invalidity, test of why GrendeVs Den there is no reason giving power body overwhelmingly to a that is dominated

736 to invoke not suffice would one sect members of the entire have made might That Clause.

Establishment at the time unconstitutional Mexico and New States Utah undoubtedly and would Union,1 to the of their admission unconstitutional of local government make units many today.2 to the novel down quite boils position Souter’s

Justice the residents of (say, of citizens any group proposition not if but Joel) with political power, invested can be course such Of to the same religion. all belong they disfa- voring to the purposes antagonistic of religion positively In before. and we have Clauses, rejected of the Religion Paty, a state (1978), we invalidated McDaniel 435 U. S. all per- that would have permitted amendment constitutional conventions, ministers. except in political sons participate could not view that the State James Madison’s We adopted “ of a civil with the privation a religious profession ‘punis[h] ” Id., 5 Writ- J.),C. quoting at 626 Burger, (opinion right.’ 1904). (G. Or as Justice Hunt ed. Madison 288 of James ings Utah, granted to 1906,10 years statehood was in after 1 Acensus taken Mexico, in showed that Utah granted to New years before it was and 6 Mormon, in Mexico 88.7% of and New church members were 87.7% of all Census, See Bureau of the Roman Catholic. church members were all (1910). I, Bodies, p. Part Reports, Religious Special comprehensive data is level, unit for which county the smallest At the overwhelming in which the ma available, are a number of counties there (100% County, single religion: Rich Utah jority churchgoers are of a (100% Catholic); Emery County, Mormon); Kennedy County, Roman Texas (99% (99.2% Counties, Mormon); and Madison Idaho Utah Franklin (93.7% Mormon); Baptist); County, North Carolina Southern more Graham Catholic). (92.6% Bradley, M. N. County, Roman Mora New Mexico Jones, McNeil, Membership Green, Lynn, Churches and Church D. M. & L. 112-113, 246, 265, 283, 365, 380, 1990, pp. 46, in the United States the adherents of the indicated In all of these counties majority, over a 95% majority, a substantial some cases constitute govern units of the total population. If data were available for smaller counties, point I doubt I could to hundreds of towns ment than have no by today’s opinion. placed jeopardy it in

Brennan his concurring “Reli- put opinion judgment: no less than of other gionists members any group enjoy full of association, measure afforded protection speech, political S., 435 U. at see also activity generally.” 641; Vincent, Widmar I no S. 263 see reason it is less a why any pernicious to rather than deprive group an of individual its of because its rights simply religious beliefs. for

Perhaps startling our appreciating implications constitutional jurisprudence the distinction be- collapsing tween religious institutions their members, Justice to tries limit his “unconstitutional conferral civil Souter out authority” holding by several features pointing suppos- edly unique cases: that lines present “boundary according to of the school district divide residents ante, affiliation,” added); at 699 that the school dis- (emphasis ante, trict was created “a by Act of legislature,” and that the 700; formation of the school district ran coun- ter to the trend legislature’s districts in re- consolidating ibid. (and cent all years, these to be true Assuming points not), are they would they bear whether certainly upon had an legislature motivation in impermissible cre- (which next the district ating point, Justice Souter’s the discussion of I which shall to these reply arguments). But have to do they with whether conferral of nothing power upon can group citizens be the conferral of power upon It religious institution. if it can, cannot. Or our Estab- lishment Clause jurisprudence has been transformed.

Ill I turn, next, to Justice second justification Souter’s finding establishment of his religion: facile conclusion that the New York Legislature’s creation of the Kiryas Joel school district was religiously But in motivated. the Land of the Free, democratically adopted laws are not so im- easily peached unelected judges. To establish the unconstitu- of its mere basis law on the neutral facially tionality (or effects— discriminatory) preferential religiously asserted our it in conformity precedents— least establish of a the absence “must able show be Souter Justice States, United Gillette law. basis” for the neutral, secular (1971); Heights Arlington v. Met- 401 S.U. see also Corp., Housing Development ropolitan U. S. (1977) invalidated on the laws can be race-neutral (facially on other if “unexplainable grounds their effects basis race”). than possible of a secular basis here. no doubt is of course

There Kiryas unique problem Legislature in faced York The New nonhandicapped community the children in which all Joel: a mentally physically private dis- schools, and the attend public additional school suffer the who attend abled children handicap It would be trouble- distinctiveness. of cultural peculiarly handicapped enough stu- dressed, if these some accompanied by the their town, sent to next dents were unimpaired similarly But all the unim- clad classmates. but Kiryas private paired school. The attend children of Joel handicapped trauma children suffered sufficient emotional kept predicament parents their them home their from prob- Surely target legislature this the could from school. provide public students, in the these education for lem, unique way by needs of addressed, law, a similar the same hospital. g., See, e. 1970N. Y. children institutionalized in a (authorizing union free school district for the Laws, ch. 843 Hospital). by Blythedale area owned Children’s presence neutral, of a secular basis ren- Since obvious inadequate preferential the asserted effect of this law ders required is it, invalidate come forward Justice Souter objec- preference with direct evidence that was scarcely It consists, tive. His case could be weaker. briefly, People The of New York created the this: Village District in order to further the Satmar School religion, any proper purpose, because rather than secular (1) created district they extraordinary by manner — Act rather than under State’s legislature, (2) general laws school-district governing reorganization; district creation of the ran counter to a state trend toward (3) districts; consolidation of school the district includes indictment, adherents Satmar this religion. On no would convict. jury

One it is not the first is that true. difficulty point There was really so about the formation of nothing “special” a school district an Act by New York Legislature. g., e. The created districts, see, State has both school large Laws, N. Y. ch. the Gananda School Dis- (creating districts), trict out of land other two and small previously children, see, school districts for specialized institutionalized g., e. Laws, N. Y. ch. 559 a union free school (creating district for the area owned House), Abbott these through But in all special Acts. event that the any first point proves, and the second point well the trend toward (countering consolidation),3 that New York Joel as a regarded Kiryas says “[e]arly development public Court on in the education York, rejected in New the State highly localized school districts for New City they promoted York when were way separate as a schooling allow Ante, for Roman implication Catholic children.” at 704. Both the that rejection this general of localism was state policy, implication and the that (like the prohibition today) Court’s purpose localism it had the and ef fect of religious neutrality, simply are not faithful to cited the source. The 1841proposal not to differently, City was treat New York schools in order Catholics; to favor Roman code, it was the pro “that state’s school which moted a system district taxing authority, structure with local be extended to New York R. City.” Sedlak, Church & M. in the Education United States 167 And rejection proposal the of that triumph was not a keeping for public schools; sectarian out of some it triumph was a keeping King for the James version of the public Bible in all schools. The that datory money.” the Catholics to do but to Court’s selected source concludes: year ^[1842] Id., any at 168-169. schools and made sharing build their Bible these monies. reading “[T]he own —the parochial Whigs swept There was King James version —man system the nothing with their own city elections left for think it I should measures. case, requiring special special But have. that it should obvious did, obvious that created had never before if York Legislature even the New (which true), and is not statute a school district by special districts school but consolidate nothing even if it had done (which true), how could depar- is not for over a century that the demonstrate possibly ture from those past practices It could not. in mind? favoritism had religious legislature no there is no treatment there is sure, special To be when not favoritism; sug- but it is logical of religious possibility there is proof treatment when there is special that gest favoritism. the statute comes down case against Souter’s Justice the fact that his third more, therefore, point: than nothing District School Village the residents of the all dress, wear unusual residents also But all its are Satmars. have not much to do civic customs, have unusual (The Court different from them. who are culturally people ‘to facil- to live together that “the Satmars prefer recognizes social, and maintain cul- observance itate individual religious ‘ it is not their values,’ but “against tural and religious Ante, 9, n. quot- to interact with others.’” religion” 1.) what 93-517, n. On p. Brief for Petitioners No. ing that it is the conclude theological basis does Justice Souter the cultural distinctiveness distinctiveness rather than The normal the basis for York State’s decision? was New latter, it was the since it was not would be that assumption and cultural alienation that dress, but language, theology educational for the children. problem posed Justice he does not adopt logical assumption, Souter the benefit of does not even New York give Legislature is the level of his analysis: the doubt. following needs of the children in this com- “Not even Act, can unusual munity explain legislature’s to the concerns of the State could have responded Ante, other at 702. Satmar parents [by means].” legislature words, In other we know been mo- must have by religion, tivated the desire to favor the Satmar Hasidim by because it could have met the needs of these children place separate method that did not the Satmar Hasidim in a argument proving school district. This is not a rational reli- gious favoritism; is rather a novel Establishment Clause principle objective may pur- to the effect that no secular be by might religious sued a means that also be used for favorit- ism if some other means is available. I have little doubt that Justice would laud this Souter legislation

humanitarian if all of the distinctiveness of the Kiryas students of Joel were attributable to the fact that parents nonreligious their were commune Amer- dwellers, or gypsies. special, ican Indians, or The creation of a one- culture school district for the benefit of those children would pose problem. neutrality by Religion no demanded requires indulgence Clauses the same towards cultural char- accompanied by religious acteristics that are “The belief. government Establishment Clause does not license to treat religion practice simply by and those it, who teach or virtue subject unique of their such, status as as ... disabilities.” Paty, (Brennan, concurring McDaniel v. 435 S., J., U. at 641 judgment). successfully Even if Justice could establish that Souter the cultural distinctiveness of the Joel students (which addressed) problem Legislature is the the New York part was an essential of their belief rather than merely accompaniment of their belief, discharge heavy would not his burden. In order to invali- facially date a neutral law, Justice Souter would have to legislators show not were aware that problems caused the legislature’s addressed, but also that the proposed by disadvantage solution was motivated a desire to (i. religious group or benefit a disadvantage e., to or benefit religion). them because example, city their For if the knowing potential problems Hialeah, health raised were to sacrifice, animal of religious practice the Santería municipal gar- more frequent, ordinance special, by provide would animals, dead we carcasses of collection for the bage the council city because down just not strike the ordinance the problem produced that a religious practice was aware Babalu Lukumi addressed. See Church ordinance the (1993). Here a 520, 543-545 Hialeah, 508 U. S. Inc. v. Aye, benefit to the an educational statute extends neutral facially Whether distributed. effectively it was not one area where had ineffective distribution any- the reason for the or not stretch to say it is a remarkable to do with religion, thing favor or disfavor a desire to the Act was motivated that The analogy Chapter religious group. proper a particular law school providing 748 is not Court’s hypothetical ante, but a law students, see buses to Christian (which districts buses to rural school happen extra providing to be Southern Baptist). predominantly he intimates, though

At various times Justice Souter dis- that the boundaries of the school does not say, precisely He drawn on the basis of religion. trict were intentionally of the fran- refers, for to “the State’s example, manipulation , the sect exclusive control chise for this district. . . giving ante, at that the subdivision,” of the political implying 698— ob- to the sect was the “giving” political power no evidence of There is that. ject “manipulation.” district was created to meet educa- special children, tional needs of distinctive and the handicapped geo- boundaries selected for that district were (quite graphical for those that existed It logically) already village. sometimes the shady appears though “manipulation” Jus- has mind is that which occurred when the tice Souter formed, was so that of its boundaries village drawing infected the coterminous boundaries of the district. He is that those who says, example, undisputed “[i]t boundaries when negotiated village gen- applying eral statute drew them so as to exclude village incorporation Ante, It But non- all but Satmars.” 699. indeed. (as intimates) excluded, were he because Satmars describes, their but —as religion, clearly Justice O’Connor ante, at 712—because of their lack of desire for see favored. It was a classic Satmars zoning high-density secular lines on the basis of gov- communality drawing desires, not What ernmental communality religion. hap- what is in fact in the creation of village precisely pened district, so that in the creation of the school happened latter, infect the as Justice former cannot possibly Souter reasons secular (zoning tries to Entirely suggest. district) for the school alienation of students cultural village, to share whose members a unit happened produced political (indeed, no no evidence There is plausi- the same religion. the Satmar desire to favor ble legislature’s suspicion) needs to distinctive secular meeting religion, opposed If there to be Satmars. desires of citizens who happened must instead, he so; would were, say Souter Justice insinuate. merely

IV intended to create if 748 were But even Chapter (not their because religion for the Satmars arrangement of of conferral I, in Part gov as I have shown any including, be a it would per religious entity), ernmental power upon “This Court has recognized accommodation. long missible must) (and accommo sometimes government without violat do so and that may date religious practices Hobbie v. Clause.” Unemployment the Establishment ing (1987). More 136, 144-145 Fla., 480 U. S. Comm’n Appeals of of accommodation room for over, “there is ample Clause,” Presiding the Establishment Corporation under Saints Christ Latter-day Church Jesus Bishop in the (1987), and for Amos, 327, joints U. S. “play reli which will of a benevolent neutrality permit productive without in and to exist without exercise sponsorship gious York, 397 New Tax terference,” Walz v. Comm’n City more- (1970). is permissible, Accommodation U. S. with religion, statute deals over, specifically even when the g., Clauson, e. Zorach and even S., 312-315, see, Free Exer- commanded by when accommodation is not g., supra, at 673. Walz, e. cise Clause, see, particu- to accommodate religion, When a acts legislature best of our traditions.” “it follows the sect, larly minority supra, Zorach, itself contains The at 314. Constitution VI, Article cl. prescribes accommodation of sorts. officers of the Federal executive, judicial legislative, bind themselves support shall State Governments members Although or Affirmation.” Oath “by Constitution no difficulty swearing found of the most populous religions refused Moravians, and Mennonites God, Quakers, an oath “swear not 5:34’s injunction oaths based on Matthew to take was added to accommo- of affirmation at all.” option their members and enable date these minority religions Stokes, Church State serve in See A. government. from its earli- 524-527 Congress, United States refund- sessions, accommodating religion by laws passed est of churches the upon importation duties ing paid by specific (1813), 116 vest- Bibles, the of see 6 Stat. for plates printing bells, Con- ments, (1816), Stat. 346 Stat. also church from the tax assess- gress exempted property Columbia; ments it levied on residents of the District of supra, Walz, at all 50 States have had similar laws. See 676-678.

This has also the permissibility Court long acknowledged In one of our Establish- accommodation. legislative early ment we York release cases, early Clause New upheld City’s which be released allowed students to from program, public school school hours to attend instruction or during supra, Zorach, devotional at exercises. See 312-315. We determined that release “accommodates early program needs,” service to and noted . . . public spiritual it unconstitutional would “show a callous finding indifference S., Walz, at we 314. In religious groups.” swpra, a tax upheld property religious organizations, exemption that it was part tradition observing salutary “permis- sible state accommodation Id., 672-673. religion.” And in we of the Presiding a section Bishop, supra, upheld Act of Civil from the Rights exempting religious groups antidiscrimination of Title concluded provisions VII. We “a that it was permissible to alleviate legislative purpose sig- nificant governmental interference of reli- ability to define and out gious organizations carry their religious Id., at missions.” 335.

In today’s opinion, however, Court seems uncomfort- able with this of our constitutional Al- aspect tradition. it though accommodation, acknowledges concept out that it is “not a quickly points limits,” without principle ante, and then reasons gives case why present exceeds limits, those reasons which do hold water. simply never have the Court hinted,” “[W]e “that other- says, wise unconstitutional to a reli- delegation political power could be gious saved as a group religious accommodation.” Ibid. aside Putting inherent to a circularity referring as “otherwise delegation unconstitutional” its when constitu- on turns whether is an tionality accommodation, there if this true, statement is it is because we have never hinted delegation political to citizens who share a power par- ticular could be unconstitutional. This simply replay we argument Part rejected II, supra. The second and last reason the Court finds accommodation is, impermissible the mere astoundingly, risk that the State will not offer accommodation to similar future, in the group and that will neutrality not therefore be Return- preserved. to the ill fitted ing crutch of GrendeVs Den, the Court sug- gests that by this acting through special statute the New York has Legislature eliminated “‘effective means any guaranteeing’ governmental power will be and has been neutrally Ante, at employed.” 703, GrendeVs quoting in That language misleading. How

Den, at 125. S., (as not the concern Den was an expression Grendel’s the courts’ about suggests) is quoted in context which but about neutrality, future legislature’s to assure the ability of the neutrality assure the to ability legislature’s the power. legislative had transferred which it to churches about no doubt here; there is is inapposite That concern in a pub- what transpires to control capacity the legislature’s lic school. of neutrality” argu- “no bottom, guarantee

At Court’s control the of this Court’s inability is an assertion ment accom- denial of comparable future York Legislature’s New “that assurance,” says, the Court have “no We modation. school district seeking group situated similarly the next “a failure one,” since legislature’s will receive its own Ante, see 703; unreviewable.” law is . . . enact a special in and con- ante, J., concurring part at 716 also (O’Connor, in the technical That is true in judgment).4 curring irrelevant) denied an accom- (and that the later group sense first accom- challenge grant need to modation denial, later rather than challenging modation light another, “even if But one or way directly. the denial obliged agency empowered is] administrative [an to a audience. judicial would be entitled act, litigant] [a to ad- the courts cannot escape obligation Ultimately, is mandated [sought] the exemption dress plea [a] clauses.” Olsen v. Drug first amendment’s 1989) (CADC Admin., 2dF. Enforcement (R. J.). B. Ginsburg, ante, hints, allayed been if that its fears would have The Court Legislature previously created similar school districts New York had each of them would have so, minority religions. But had it done

for other (and invalidated) for the same reason as this one: because been attacked way I am sure the Court has in mind some around it had no antecedents. Perhaps legislature chicken-and-egg problem. could name the this pectore. first four school districts

747 “up of a neutral The Court’s demand for front” assurances system is at war with both accommodation doc- traditional judicial supra, described, trine and the role. we at As have Congress’s exempted 744, earliest accommodations duties paid by specific g., particular churches on See, items. e. (1826) imported (exempting by “bishop Stat. 346 vestments Bardstown”). of Moreover, most efforts at accommodation problem applies seek to solve a that one to members religions. every religion or a few uses Not wine its sacra- exemption but ments, that does not make from Prohibi- impermissible, tion for sacramental wine accord, use Church Aye, Lukumi Hialeah, Babalu Inc. v. S., concurring judgment), require J., n. nor does (Souter, granting exemption explain the State such an in advance every dispensation how it will treat other claim for from its every religion Likewise, controlled-substances laws. not peyote suggested legis uses services, in its we but have exempts peyote lation which the sacramental use of from generally drug applicable only permissible, laws but Employment Dept. desirable, Div., see Human Resources (1990), any sug Smith, Ore. v. S. U. without gestion “up legislative guarantee equal that some front” by treatment for sacramental substances used other sects provided. must necessary be The record is clear that the guarantee provided, can and will be after the fact, g., Drug courts. See, e. Olsen v. Admin., Enforcement supra (rejecting peyote exemption requires claim that mari juana exemption Ethiopian Church); Coptic Zion Olsen v. (CA8 1986) (same); Iowa, Kennedy 808 F. 2d 652 v. Bureau (CA9 1972) Dangerous Drugs, Narcotics and 459 F. 2d 415 (accepting peyote exemption claim that for Native American requires peyote exemption Church religions for other sacraments).5 use that substance in their 5The Court likens its “up demand for front” assurances the Court’s focus on narrowness of the statute it Monthly, in Texas down struck Bullock, Inc. ante, 489 U. S. 1 Monthly See at 708. Texas

Contrary suggestion, ante, to the Court’s 708-709,1 do prohibits formally not think that the Establishment Clause nothing have established “state” churches and more. I al- my ways opinions are consistent with the believed, all prohibits favoring view, that the Establishment Clause respect, is of over In this it the Court one others. I of What attack is the Court’s that attacks lions straw. “up procedural requirements on imposition of novel front” (and making exceptions) Making legislatures. law one state adjudication through through or time, at a whether case particularized rulemaking legislation, violates, ex highly neutrality equal protection, or principle fairness, of ante, no all fu- simply in advance how it does announce because (and disposed If exceptions) be of. will all future ture cases proceeding of this itself would of Court did, it the manner presumptuous for this to It is Court be unconstitutional. against prohibition nowhere—an unheard-of impose of—out Legislature upon of New York proceeding in this manner anyone principle, has of nor heard such I never State. again. Unlike what ever be heard of nor will it else, rule to Legislature done, this is has York New govern Hasidim. the Satmar

V concurrences: to the in separate response A few words that is cases, a rationale for these Stevens adopts, Justice wrong and it was except that also today’s opinion, no resemblance bears York, 397 U. S. New City Comm’n v. Tax Walz misinterpreted it also J., treat (Scalia, The tax S., dissenting). 33-40 (1970), see by an across-the- governed in Texas was publishing companies ment nonreligious pub whether any question There was never rule. board religious publishers; tax accorded exemption get would lishers discrimi rule not, that because Court struck down and the they did rule school contrast, existing adjustments By religion. in favor nated decision, including Texas by case. No case New York are done districts in a case- accommodations approaching that suggests remotely Monthly, Clause. the Establishment violates automatically manner specific separate Kiryas dis- school limit. The without almost “[t]he isolation problematic because in his view trict ‘panic, may protect fear from them children, while it these unquestionably the likelihood increased also trauma,’ they faithful adherents fold, within the would remain parents’ So much Ante, at 711. faith.” their any family action state If the forbids values. Constitution incidentally helps parents in their their children to raise program a release faith, it would invalidate own religious- permitting public to attend school children we parents’ program choice, of sort of their instruction laws Zorach;6 invalidate state approved indeed, it would physical parents children, according over their control church little fellows to that is used to take the least insofar as legal synagogue. is less statement Stevens’ Justice surpasses analysis It mere secularism. than a manifesto of positive rejection hostil- accommodation, and announces values, ity unlike all other noncriminal to which,— transmitting parents their must not assist the State offspring. approach “political-line-drawing” Kennedy’s

Justice that the own terms. He concedes Constitu- founders on its forming prevent people share a faith from who tion does not suggests villages towns, and and that the forma- their own village Kiryas Ante, was free from defect. tion of the Joel polit- also that are free draw all Establishment claims, ante, Clause at 721. I have pre- documented viously the Court’s convenient with relationship Lemon, which it cites when only useful, see Lamb's Chapel v. Center Moriches Union Free Dist., School 384, S. (1993) 397-401 J., in concurring judgment), and I no (Scalia, take longer comfort in any the Court’s failure to on it in rely as I any particular case, once did, see Lee mistakenly v. Weis- man, (1992) 505 577, U. S. J., But dissenting). (Scalia, the Court’s snub (it of Lemon receives today two “see also” citations, in the course of the opinion’s description Den) all three because Grendel’s noteworthy is particularly (who Court are not free to ignore Supreme courts below (also will) bound it, on and the parties relied precedent law) to the over 80 of briefing our case dedicated pages of the Lemon test. In ad vitality and continued application Lemon, see, reasons for abandoning dition to the other sound (1987) e. Edwards 636-640 Aguillard, U. S. g., Wallace S. Jaffree, J., U. dissenting); (Scalia, (1985) ineffi J., 108-112 seems dissenting), quite (Rehnquist, relies Court, which in its decisions cient for this reaching extent, and, to a lesser on heavily briefing parties lower courts and courts, of lower to mislead par opinions ante, about the relevance of the Lemon test. Compare ties Lemon reliance), lower courts’ with p. (ignoring despite Lemon Lamb’s Chapel, supra (applying failure despite it). lower court to mention I would not however,

Unlike Justice O’Connor, replace Lemon with and let the case law “evolve” into a nothing, series of rules on reli- speech situation-specific (government etc.) benefits to topics, government particular groups, gious ante, influence,” unconstrained at 721. The by any “rigid of) (and Lemon has not been that it with the allure problem is but rather it has been “rigid,” many applications result utterly meaningless, whatever Court validating would desire. See Lamb’s J., Chapel, supra, at 399 (Scalia, Wallace, (Rehn- 110-111 supra, concurring judgment); Lemon J., To is quist, dissenting). replace nothing to announce that we are now so bold that we no simply feel the need even to that our longer pretend haphazard course Establishment Clause decisions is governed by any The foremost I would principle. principle apply fidelity to the traditions of our which longstanding people, surely of treatment that Justice O’Connor provide diversity seeks, but do not leave our own us to devices.

[*] ^{[*] [*]} today astounding. Chapter The Court’s decision 748 in- public private volves no aid schools and does not mention religion. In it, order to invalidate Court aside, casts on strong presumption validity the flimsiest of evidence, the facially that attaches to neutral laws, invalidates the present accommodation because it does not trust New York accommodating to be religions (presumably toward other Hasidim) powerful those less than the Satmar in the future. unprecedented except This is that it continues, and takes — tendency opinions to new extremes, a recent of this repealer Court turn the Establishment Clause into a our Nation’s tradition toleration. I dissent. at He notes States 729-730. history geography. Ante, at the basis ical lines on drawn to mir- see, I not how a school district then, 730. do (an existing village existing geo- ror boundaries line), graphic infirm, which itself is not can violate the Con- purports Thus, while Kennedy to share stitution. Justice (Part my unprecedented supra) IV, criticism Court’s Legislature insistence that the New make its York accommo- per program Justice Stevens’ bald that be statement such would ante, 711-712, missible, opinion, see at exclude it the reach of can from his logic. but from the reach of his ante, dations see only by general legislation, 722, 726, his own is little He approach different. is con- says village (albeit stitutional because it was formed members of a sect) single under a New York general law; but he finds the school district unconstitutional because it was the of a product end, enactment. In the his specific analysis no different from the Court’s. Kennedy the view that expresses School Dist. Justice Ball, Grand 478 U. S. 373 Rapids (1985), Aguilar (1985) Felton, U. S. that cases created the —the need for the legislation unconstitu- by holding tional state provision educational supplemental services in sectarian have been “may erroneous,” and he schools— that “it suggests be for us to necessary reconsider them at a later Ante, date.” at 731. goes Justice O’Connor even further and expresses the view that should Aguilar be Ante, overruled. I 717-718. heartily that agree these cases, so hostile to our national tradition of accommodation, should be overruled at the earliest but opportunity; mean- while,- today’s opinion causes us to lose still further ground, and in the same antiaccommodationist direction. Finally, observes that the Court’s Justice O’Connor does not opinion focus on the so-called Lemon test, see Kurtzman, Lemon v. (1971), U. S. 602 she urges test be abandoned, at least as a “unitary approach”

Case Details

Case Name: Board of Ed. of Kiryas Joel Village School Dist. v. Grumet

Court Name: Supreme Court of the United States

Date Published: Jun 27, 1994

Citation: 512 U.S. 687

Docket Number: 93-517

Court Abbreviation: SCOTUS