Copyright 1994 Charleston Newspapers  
Charleston Daily Mail (West Virginia)
July 16, 1994, Saturday
SECTION: Editorial; Pg. P

LENGTH: 772 words

HEADLINE: JUSTICES RECONSIDER RELIGION MAYBE STATES CAN HELP HANDICAPPED ATTEND CHURCH SCHOOLS

BYLINE: James Kilpatrick

BODY:
WASHINGTON _ The important thing about the Supreme Court's

decision in the case of the Village of Kiryas Joel is that the key

opinions had little to do with the Village of Kiryas Joel.

The key opinions came from five members of the court who flashed

an unmistakable signal: Change is coming _ profound change _ in the

law that has governed church and state relationships for the past 23

years. A policy of hostile neutrality is about to yield to a policy

of benevolent accommodation.

High time! A better day is coming.

In the matter immediately at hand, the facts are almost

irrelevant. In 1976, a tightly knit community of fundamentalist

Jews, the Satmar Hasidim, formed the Village of Kiryas Joel in Orange

County, New York. Like other communities, the village housed

children who suffered from handicaps _ the deaf, the mentally

retarded, those with physical, mental or emotional disorders.

When Congress passed the Disabilities Education Act, the village

elders obtained services for the children at an annex to one of their

private schools. This arrangement quietly continued until July 1985,

when the Supreme Court handed down two 5-4 decisions, one from Grand

Rapids, Mich., the other from New York City. The decisions had the

effect of banning the very kind of arrangement the village had

created.

For a while the village sent its handicapped children to a

public school in nearby Monroe, but this proved unworkable. The

children were ridiculed for their dress, their language and their

Hasidic culture. To relieve the situation, the state of New York in

1989 designated the village as its own school district. Kiryas Joel

promptly created a public school for the handicapped, and the

children again received benefits.

The 1989 act promptly was challenged as a mere sham. Critics

protested that public benefits were flowing to a school that was not

really public at all. Lower federal courts agreed that the

arrangement violated the Establishment Clause, and on June 27 the

Supreme Court affirmed their decision. The special consideration

extended to the village was indeed unconstitutional.

Justice David Souter wrote the court's opinion. He was joined

by Justices Harry Blackmun, John Paul Stevens and Ruth Bader Ginsburg

. Justices Sandra Day O'Connor and Anthony Kennedy concurred only in

the judgment itself. Justice Antonin Scalia, Justice Clarence Thomas

and Chief Justice William Rehnquist dissented.

So much for the Village of Kiryas Joel. On July 2, New York's

Legislature passed two bills intended to get around Souter's opinion

. Critics already have dubbed the effort "Son of Sham." If Gov.

Mario Cuomo signs them, they too will be challenged.

Now to the real significance. In their separate and dissenting

opinions, five members of the court made one thing clear: Given an

appropriate case in the future, they are ready to overrule the

Michigan and New York decisions of 1985. They also are prepared to

discard the landmark 1971 case of Lemon vs. Kurtzman.

This would be a clean sweep. The Lemon case laid down a

three-part formula for determining when a state law does not violate

the Establishment Clause. The law must have a secular purpose; it

cannot advance or inhibit religion; and it must not foster an

excessive entanglement of church and state.

In her separate opinion of June 27, Justice O'Connor remarked

that the slide away from Lemon "is well under way." She was

unwilling to return to its famous three-prong test. She was ready to

"reconsider" the New York and Michigan cases of 1985.

Justice Kennedy was of the same mind. The 1985 decisions "may

have been erroneous." They were "unfortunate rulings."

The three outright dissenters, speaking through Justice Scalia,

have long been prepared to scrap the three regrettable precedents.

They believe the Lemon rules have been twisted from superficial

neutrality to outright hostility.

They look at the language of the First Amendment, and they see

no plausible risk in Grand Rapids, New York City, or the Village of

Kiryas Joel that an "establishment of religion" is about to be

state-created.

This is sound doctrine. Children who attend religious schools

are entitled to the same secular public benefits that are available

to children in public schools.

Justice O'Connor put the matter succinctly: "The Religion

Clauses prohibit the government from favoring religion, but they

provide no warrant for discriminating AGAINST religion."

Amen, Sister Sandra, amen to that.

LOAD-DATE: January 31, 1995