Columbia Law Review
In 1948, Rebbe Joel Teitelbaum founded the congregation Yetev Lev D'Satmar in Williamsburg, Brooklyn. Over the next twenty-five years, the Satmar Hasidic sect grew, and members started thinking about leaving the urban, heterogeneous setting for a place where they could live in relative isolation. In 1974, Satmar families began leaving Brooklyn for upstate New York. They purchased property in the Town of Monroe, and later, after a zoning dispute with the Town, incorporated as the Village of Kiryas Joel. As of 1990, approximately 10,000 Satmar Jews lived in or around the Village. The Satmars dress in conformance with a semiformal code; they speak Yiddish; they resolve most of their disputes in Satmar courts; their marriages are prearranged. Further, the Satmars educate almost all of their children in private, religious schools, with boys and girls educated separately. Public funds for educating handicapped children may not be used in those private, religious schools," so to qualify for such funds, the Satmars of Kiryas Joel experimented with sending their handicapped children to the heterogeneous county schools. But "the Satmar children had a hard time dealing with immersion in the non-Satmar world."' Parents of most of these children withdrew them from the Monroe-Woodbury secular schools, citing 'the panic, fear and trauma [the children] suffered in different." The Satmars then lobbied the New York legislature for a special school district. The Satmars did not argue that religious doctrine required separation; rather, they contended that separate schooling would alleviate the emotional trauma of their handicapped children. In 1989, the New York legislature responded by constituting the Village of Kiryas Joel as a "separate school district," granting "all the powers and duties of a union free school district."' Governor Cuomo indicated that the action was "a good faith effort to solve th[e] unique problem" faced by the Satmars. But in Board of Education of Kiyas Joel Village School District, Grumet [Kiryas Joel], the United States Supreme Court held the law unconstitutional. There is reason to believe, however, that the Court, by failing to pay proper attention to the partial exit problem, made two mistakes about equality, both of which stem from a similar brand of constitutional myopia-emphasizing the virtues of the unum while seeing only the destructive aspects of the e pluribus. The Court's first mistake about equality was to condemn the New York law for promoting segregation over integration; the Justices referred to the Establishment Clause, but seemed animated by broader Equal Protection Clause values. There are two aspects to the Court's concern with segregating citizens by religion. The first relies on the apprehension that citizens who share a common religion will exercise public power in an unconstitutional fashion. The second relies not on how such delegated public power will be used, but rather on the state's drawing a district line around a village known to be populated by a religiously homogeneous group of citizens. I respond to these concerns in Part I. First, in Part L.A, I set forth the "complete exit" model. Many people can accept a model of complete exit: A community should have a significant berth of religious freedom if it exits completely and seeks a purely private domain of action. I then turn to the partial exit problem: Even for those who accept the complete exit model, it is harder to accept a community's wanting the rewards of both the private realm (living separately as a religious community) and the public realm (receiving certain accoutrements of public power at the same time). If the Satmars truly want to be alone, one might argue (and Kiryas Joel seems to imply), then let them forgo governmental power that comes more appropriately to groups that accept the integrationist model. The first half of Part I.B responds to the concern that citizens who share a common religion will exercise public power in a religious way. The second half of Part I.B responds to the argument that states may not draw political lines around groups of citizens known to share a common religion, i.e., that states may not enact religious gerrymanders. Although a law favoring one religious sect over others should be invalidated, there is no evidence that New York's law exhibited such favoritism. This is the Court's second mistake about equality, which I discuss in Part II. Part IIA responds to the argument that relies not on the absolute unconstitutionality of a governmental benefit for the Satmars, but rather on the conditional concern that New York might not grant a similar benefit to other groups. Second, in Part II.B, I suggest that the Court's opinions on this point are best understood as relying on a more generalized concern with special governmental benefits for racial or religious groups. Part III sketches the contention that there are other, constitutional measures for combating voluntary religious or racial separation. The "government speech" model permits government great power to encourage people to live together in heterogeneous communities.
Abner S. Greene,
Kiryas Joel and Two Mistakes about Equality , 96 Colum. L. Rev. 1
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/387