The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_517/93_517.zc3

Text File | 1994-06-27 | 20.8 KB | 416 lines

SUPREME COURT OF THE UNITED STATES
--------
Nos. 93-517, 93-527 and 93-539
--------
BOARD OF EDUCATION OF KIRYAS JOEL VIL-
LAGE SCHOOL DISTRICT, PETITIONER
93-517               v.
LOUIS GRUMET et al.

BOARD OF EDUCATION OF MONROE-WOODBURY
CENTRAL SCHOOL DISTRICT, PETITIONER
93-527               v.
LOUIS GRUMET et al.

ATTORNEY GENERAL OF NEW YORK,
PETITIONER
93-539               v.
LOUIS GRUMET et al.
on writs of certiorari to the court of appeals of
new york
[June 27, 1994]

  Justice Kennedy, concurring in the judgment.
  The Court's ruling that the Kiryas Joel Village School
District violates the Establishment Clause is in my view
correct, but my reservations about what the Court's
reasoning implies for religious accommodations in
general are sufficient to require a separate writing.  As
the Court recognizes, a legislative accommodation that
discriminates among religions may become an establish-
ment of religion.  But the Court's opinion can be
interpreted to say that an accommodation for a particu-
lar religious group is invalid because of the risk that the
legislature will not grant the same accommodation to
another religious group suffering some similar burden.
This rationale seems to me without grounding in our
precedents and a needless restriction upon the legisla-
ture's ability to respond to the unique problems of a
particular religious group.  The real vice of the school
district, in my estimation, is that New York created it
by drawing political boundaries on the basis of religion.
I would decide the issue we confront upon this narrower
theory, though in accord with many of the Court's
general observations about the State's actions in this
case.

                      I
  This is not a case in which the government has
granted a benefit to a general class of recipients of
which religious groups are just one part.  See Zobrest v.
Catalina Foothills School Dist., 509 U. S. ___ (1993);
Bowen v. Kendrick, 487 U. S. 589 (1988); Witters v.
Washington Dept. of Services for the Blind, 474 U. S.
481 (1986); Mueller v. Allen, 463 U. S. 388 (1983).  It is
rather a case in which the government seeks to alleviate
a specific burden on the religious practices of a particu-
lar religious group.  I agree that a religious accommoda-
tion demands careful scrutiny to ensure that it does not
so burden nonadherents or discriminate against other
religions as to become an establishment.  I disagree,
however, with the suggestion that the Kiryas Joel
Village School District contravenes these basic constitu-
tional commands.  But for the forbidden manner in
which the New York Legislature sought to go about it,
the State's attempt to accommodate the special needs of
the handicapped Satmar children would have been valid.
  -Government policies of accommodation, acknowledg-
ment, and support for religion are an accepted part of
our political and cultural heritage.-  Allegheny County v.
Greater Pittsburgh ACLU, 492 U. S. 573, 657 (1989)
(Kennedy, J., concurring in judgment in part and
dissenting in part).  Before the Revolution, colonial
governments made a frequent practice of exempting
religious objectors from general laws.  See McConnell,
The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harv. L. Rev. 1409, 1466-1473
(1990) (recounting colonial exemptions from oath require-
ments, compulsory military service, religious assess-
ments, and other general legislation).  As early as 1691,
for instance, New York allowed Quakers to testify by
affirmation rather than oath in civil court cases.  T.
Curry, The First Freedoms: Church and State in
America to the Passage of the First Amendment 64
(1986).  Later, during the American Revolution, the
Continental Congress exempted religious objectors from
military conscription.  Resolution of July 18, 1775,
reprinted in 2 Journals of the Continental Congress 187,
189 (1905) (-As there are some people, who, from
religious principles, cannot bear arms in any case, this
Congress intend no violence to their consciences . . .-).
And since the framing of the Constitution, this Court
has approved legislative accommodations for a variety of
religious practices.  See, e.g., Selective Draft Law Cases,
245 U. S. 366, 389-390 (1918) (military draft exemption
for religious objectors); Zorach v. Clausen, 343 U. S. 306
(1952) (New York City program permitting public school
children to leave school for one hour a week for religious
observance and instruction); Gillette v. United States,
401 U. S. 437 (1971) (military draft exemption for
religious objectors); Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483
U. S. 327 (1987) (exemption of religious organizations
from Title VII's prohibition of religious discrimination);
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872, 890 (1990) (exemption from drug
laws for sacramental peyote use) (dicta).
  New York's object in creating the Kiryas Joel Village
School District-to accommodate the religious practices
of the handicapped Satmar children-is validated by the
principles that emerge from these precedents.  First, by
creating the district, New York sought to alleviate a
specific and identifiable burden on the Satmars' religious
practice.  The Satmars' way of life, which springs out of
their strict religious beliefs, conflicts in many respects
with mainstream American culture.  They do not watch
television or listen to radio; they speak Yiddish in their
homes and do not read English-language publications;
and they have a distinctive hairstyle and dress.  Attend-
ing the Monroe-Woodbury public schools, where they
were exposed to much different ways of life, caused the
handicapped Satmar children understandable anxiety
and distress.  New York was entitled to relieve these
significant burdens, even though mainstream public
schooling does not conflict with any specific tenet of the
Satmars' religious faith.  The Title VII exemption upheld
in Corporation of Presiding Bishop, supra, for example,
covers religious groups who may not believe themselves
obliged to employ co-religionists in every instance.  See
also Walz v. Tax Comm'n of New York, 397 U. S. 664,
673 (1970) (-The limits of permissible state accommoda-
tion to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause-);
accord, Smith, supra, at 890 (legislatures may grant
accommodations even when courts may not).
  Second, by creating the district, New York did not
impose or increase any burden on non-Satmars, com-
pared to the burden it lifted from the Satmars, that
might disqualify the District as a genuine accommoda-
tion.  In Gillette, supra, the Court upheld a military
draft exemption, even though the burden on those
without religious objection to war (the increased chance
of being drafted and forced to risk one's life in battle)
was substantial.  And in Corporation of Presiding
Bishop, the Court upheld the Title VII exemption even
though it permitted employment discrimination against
nonpractitioners of the religious organization's faith.
There is a point, to be sure, at which an accommodation
may impose a burden on nonadherents so great that it
becomes an establishment.  See, e.g., Estate of Thornton
v. Caldor, Inc., 472 U. S. 703, 709-710 (1985) (invalidat-
ing mandatory Sabbath day off because it provided -no
exception when honoring the dictates of Sabbath observ-
ers would cause the employer substantial economic
burdens or when the employer's compliance would
require the imposition of significant burdens on other
employees required to work in place of the Sabbath
observers-).  This case has not been argued, however, on
the theory that non-Satmars suffer any special burdens
from the existence of the Kiryas Joel Village School
District.
  Third, the creation of the school district to alleviate
the special burdens born by the handicapped Satmar
children cannot be said, for that reason alone, to favor
the Satmar religion to the exclusion of any other.  -The
clearest command of the Establishment Clause,- of
course, -is that one religious denomination cannot be
officially preferred over another.-  Larson v. Valente, 456
U. S. 228, 244 (1982); accord, Smith, supra, 494 U. S.,
at 886, n. 3.  I disagree, however, with the Court's
conclusion that the school district breaches this com-
mand.  The Court insists that religious favoritism is a
danger here, because the -anomalously case-specific
nature of the legislature's exercise of state authority in
creating this district for a religious community leaves
the Court without any direct way to review such state
action- to ensure interdenominational neutrality.  Ante,
at 15.  -Because the religious community of Kiryas Joel
did not receive its new governmental authority simply as
one of many communities eligible for equal treatment
under a general law,- the Court maintains, -we have no
assurance that the next similarly situated group seeking
a school district of its own will receive one; . . . a
legislature's failure to enact a special law is itself unre-
viewable.-  Ante, at 15-16 (footnote omitted).
  This reasoning reverses the usual presumption that a
statute is constitutional and, in essence, adjudges the
New York Legislature guilty until it proves itself
innocent.  No party has adduced any evidence that the
legislature has denied another religious community like
the Satmars its own school district under analogous
circumstances.  The legislature, like the judiciary, is
sworn to uphold the Constitution, and we have no
reason to presume that the New York Legislature would
not grant the same accommodation in a similar future
case.  The fact that New York singled out the Satmars
for this special treatment indicates nothing other than
the uniqueness of the handicapped Satmar children's
plight.  It is normal for legislatures to respond to
problems as they arise-no less so when the issue is
religious accommodation.  Most accommodations cover
particular religious practices.  See, e.g., 21 CFR 1307.31
(1993) (-The listing of peyote as a controlled substance
. . . does not apply to the nondrug use of peyote in bona
fide religious ceremonies of the Native American
Church-); 25 CFR 11.87H (1993) (-[I]t shall not be
unlawful for any member of the Native American
Church to transport into Navajo country, buy, sell,
possess, or use peyote in any form in connection with
the religious practices, sacraments or services of the
Native American Church-); Dept. of Air Force, Reg.
35-10, -2-28(b)(2) (Apr. 1989) (-Religious head coverings
are authorized for wear while in uniform when military
headgear is not authorized. . . .  Religious head cover-
ings may be worn underneath military headgear if they
do not interfere with the proper wearing, functioning, or
appearance of the prescribed headgear . . . .  For
example, Jewish yarmulkes meet this requirement if
they do not exceed 6 inches in diameter-); National
Prohibition Act, 3, 41 Stat. 308 (-Liquor for nonbever-
age purposes and wine for sacramental purposes may be
manufactured, purchased, sold, bartered, transported,
imported, exported, delivered, furnished and possessed-),
repealed by Liquor Law Repeal and Enforcement Act, 1,
49 Stat. 872.  They do not thereby become invalid.
  Nor is it true that New York's failure to accommodate
another religious community facing similar burdens
would be insulated from challenge in the courts.  The
burdened community could sue the State of New York,
contending that New York's discriminatory treatment of
the two religious communities violated the Establish-
ment Clause.  To resolve this claim, the court would
have only to determine whether the community does
indeed bear the same burden on its religious practice as
did the Satmars in Kiryas Joel.  See Olsen v. Drug
Enforcement Admin., 878 F. 2d 1458, 1463-1465 (CADC
1989) (R. B. Ginsburg, J.) (rejecting claim that the
members of the Ethiopian Zion Coptic Church were
entitled to an exemption from the marijuana laws on the
same terms as the peyote exemption for the Native
American Church); Olsen v. Iowa, 808 F. 2d 652 (CA8
1986) (same).  While a finding of discrimination would
then raise a difficult question of relief, compare Olsen,
878 F. 2d, at 1464 (-Faced with the choice between
invalidation and extension of any controlled-substances
religious exemption, which would the political branches
choose?  It would take a court bolder than this one to
predict . . . that extension, not invalidation, would be
the probable choice-), with Califano v. Westcott, 443
U. S. 76, 89-93 (1979) (curing gender discrimination in
the AFDC program by extending benefits to children of
unemployed mothers instead of denying benefits to
children of unemployed fathers), the discrimination itself
would not be beyond judicial remedy.

                     II
  The Kiryas Joel Village School District thus does not
suffer any of the typical infirmities that might invalidate
an attempted legislative accommodation.  In the ordinary
case, the fact that New York has chosen to accommodate
the burdens unique to one religious group would raise
no constitutional problems.  Without further evidence
that New York has denied the same accommodation to
religious groups bearing similar burdens, we could not
presume from the particularity of the accommodation
that the New York Legislature acted with discriminatory
intent.
  This particularity takes on a different cast, however,
when the accommodation requires the government to
draw political or electoral boundaries.  -The principle
that government may accommodate the free exercise of
religion does not supersede the fundamental limitations
imposed by the Establishment Clause,- Lee v. Weisman,
505 U. S. ___, ___ (1992) (slip op., at 8), and in my view
one such fundamental limitation is that government may
not use religion as a criterion to draw political or
electoral lines.  Whether or not the purpose is accommo-
dation and whether or not the government provides
similar gerrymanders to people of all religious faiths, the
Establishment Clause forbids the government to use
religion as a line-drawing criterion.  In this respect, the
Establishment Clause mirrors the Equal Protection
Clause.  Just as the government may not segregate
people on account of their race, so too it may not
segregate on the basis of religion.  The danger of stigma
and stirred animosities is no less acute for religious line-
drawing than for racial.  Justice Douglas put it well in
a statement this Court quoted with approval just last
Term:
     -When racial or religious lines are drawn by the
State, the multiracial, multireligious communities
that our Constitution seeks to weld together as one
become separatist; antagonisms that relate to race
or to religion rather than to political issues are
generated; communities seek not the best represen-
tative but the best racial or religious partisan.
Since that system is at war with the democratic
ideal, it should find no footing here.-  Wright v.
Rockefeller, 376 U. S. 52, 67 (1964) (Douglas, J.,
dissenting) (quoted in Shaw v. Reno, 509 U. S. ___,
___ (1993) (slip op., at 17)).
I agree with the Court insofar as it invalidates the
school district for being drawn along religious lines.  As
the plurality observes, ante, at 11, the New York
Legislature knew that everyone within the village was
Satmar when it drew the school district along the village
lines, and it determined who was to be included in the
district by imposing, in effect, a religious test.  There is
no serious question that the legislature configured the
school district, with purpose and precision, along a
religious line.  This explicit religious gerrymandering
violates the First Amendment Establishment Clause.
  It is important to recognize the limits of this principle.
We do not confront the constitutionality of the Kiryas
Joel Village itself, and the formation of the village
appears to differ from the formation of the school
district in one critical respect.  As the Court notes, ante,
at 15, n. 7, the village was formed pursuant to a
religion-neutral self-incorporation scheme.  Under New
York law, a territory with at least 500 residents and not
more than five square miles may be incorporated upon
petition by at least 20 percent of the voting residents of
that territory or by the owners of more than 50 percent
of the territory's real property.  N. Y. Village Law
2-200, 2-202 (McKinney 1973 and Supp. 1994).  Aside
from ensuring that the petition complies with certain
procedural requirements, the supervisor of the town in
which the territory is located has no discretion to reject
the petition.  2-206; see Decision on Sufficiency of
Petition, in App. 8, 14 (-[T]he hollow provisions of the
Village Law . . . allow me only to review the procedural
niceties of the petition itself-).  The residents of the
town then vote upon the incorporation petition in a
special election.  N. Y. Village Law 2-212 (McKinney
1973).  By contrast, the Kiryas Joel Village School
District was created by state legislation.  The State of
New York had complete discretion not to enact it.  The
State thus had a direct hand in accomplishing the
religious segregation.
  As the plurality indicates, the Establishment Clause
does not invalidate a town or a state -whose bounda-
ries are derived according to neutral historical and geo-
graphic criteria, but whose population happens to com-
prise coreligionists.-  Ante, at 14, n. 6.  People who
share a common religious belief or lifestyle may live
together without sacrificing the basic rights of self-
governance that all American citizens enjoy, so long as
they do not use those rights to establish their religious
faith.  Religion flourishes in community, and the
Establishment Clause must not be construed as some
sort of homogenizing solvent that forces unconventional
religious groups to choose between assimilating to
mainstream American culture or losing their political
rights.  There is more than a fine line, however, be-
tween the voluntary association that leads to a political
community comprised of people who share a common
religious faith, and the forced separation that occurs
when the government draws explicit political boundaries
on the basis of peoples' faith.  In creating the Kiryas
Joel Village School District, New York crossed that line,
and so we must hold the district invalid.

                     III
  This is an unusual case, for it is rare to see a State
exert such documented care to carve out territory for
people of a particular religious faith.  It is also unusual
in that the problem to which the Kiryas Joel Village
School District was addressed is attributable in no small
measure to what I believe were unfortunate rulings by
this Court.
  Before 1985, the handicapped Satmar children of
Kiryas Joel attended the private religious schools within
the village that the other Satmar children attended.
Because their handicaps were in some cases acute
(ranging from mental retardation and deafness to spina
bifida and cerebral palsy), the State of New York
provided public funds for special education of these
children at annexes to the religious schools.  Then came
the companion cases of School Dist. of Grand Rapids v.
Ball, 473 U. S. 373 (1985), and Aguilar v. Felton, 473
U. S. 402 (1985).  In Grand Rapids, the Court invali-
dated a program in which public school teachers would
offer supplemental classes at private schools, including
religious schools, at the end of the regular school day.
And in Aguilar, the Court invalidated New York City's
use of Title I funding to pay the salaries of public school
teachers who taught educationally deprived children of
low-income families at parochial schools in the city.
After these cases, the Monroe-Woodbury School District
suspended its special education program at the Kiryas
Joel religious schools, and the Kiryas Joel parents were
forced to enroll their handicapped children at the
Monroe-Woodbury public schools in order for the children
to receive special education.  The ensuing difficulties, as
the Court recounts, ante, at 2, led to the creation of the
Kiryas Joel Village School District.
  The decisions in Grand Rapids and Aguilar may have
been erroneous.  In light of the case before us, and in
the interest of sound elaboration of constitutional
doctrine, it may be necessary for us to reconsider them
at a later date.  A neutral aid scheme, available to
religious and nonreligious alike, is the preferable way to
address problems such as the Satmar handicapped
children have suffered.  See Witters, 474 U. S., at
490-492 (Powell, J., concurring).  But for Grand Rapids
and Aguilar, the Satmars would have had no need to
seek special accommodations or their own school district.
Our decisions led them to choose that unfortunate
course, with the deficiencies I have described.
  One misjudgment is no excuse, however, for compound-
ing it with another.  We must confront this case as it
comes before us, without bending rules to free the
Satmars from a predicament into which we put them.
The Establishment Clause forbids the government to
draw political boundaries on the basis of religious faith.
For this reason, I concur in the judgment of the Court.