Copyright 1993 American Lawyer Newspapers Group, Inc.  
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December 6, 1993
SECTION: COMMENTARY; The Layman's Eye; Pg. 15

LENGTH: 832 words

HEADLINE: SECULARISM, SEPARATISM AND 200 HANDICAPPED KIDS

BYLINE: by William Murchison; William Murchison is a columnist with The Dallas Morning News and a regular contributor to Texas Lawyer.

HIGHLIGHT:
The judiciary's desire to make local religious activities a federal matter has created tension between church and state and could deprive some unfortunate children of a much-needed special school.

BODY:
Tension between church and state is built into American constitutional law. The U.S. Supreme Court's decision in the New York Hasidim case, whenever the decision comes, may alleviate but won't come near resolving that tension.

This is because most Americans are not one thing but two: They are citizens of the United States, AND they are members of religious denominations or groupings. Each affiliation carries with it specific privileges and immunities; sometimes these seem to clash. Seem, I say; not necessarily do.

But there is a second reason the tension will endure: The federal courts for 30 years, rather than trying to balance these privileges and immunities, have tilted noticeably against those with religious content.

Federal policy, with exceptions, such as coins that say "In God We Trust" and chaplains who pray (futilely, to judge by the results) for senators and congressmen -- federal policy is chiefly secular. This imbalance rubs many Americans the wrong way, creating extra, and mostly needless, social tensions at a time most would regard as tense enough.

The problem at bottom is the federal judiciary's decision, around midcentury, to involve itself in matters thitherto left chiefly to local people to resolve on a local basis. Once religion became a federal matter, the federal courts were stuck. All the minutiae of religion, when practiced outside the church (e.g., creches on courthouse lawns, public prayers at football games, crosses on local coats-of-arms) were bound to come up for federal adjudication.

Whenever this happens, don't feel sorry for the feds. They brought this sorry plight on themselves, through their meddling. Take from local people the right to resolve local matters, and meddlers end up resolving, solomonically, all the peoples disputes, world without end, Amen.

As with the Hasidic case. What we've got up here in Kiryas Joel, N.Y., is a law-abiding community of highly orthodox Hasidic Jews who take religion seriously. Their style of dress is somber and reserved. They try to preserve their children from the various and manifold taints of modern life. They are in that sense not unlike the Amish. The 200 handicapped children who attend the special school in Kiryas Joel enjoy public education as a federal constitutional right. Nobody questions this. The only question is, may the children have their own school?

Why would they want such a school? Because parents fear that, in the local public schools, their children would be ridiculed for the way they dress and the way they act. The Hasidic schools curriculum, by the way, is entirely secular. A New York appeals court was nonetheless horrified that the state should allow what the justices deemed "separatism" in preference to pluralism.

The U.S. Supreme Court, as if it didn't have enough to do running the country in our behalf, now undertakes to decide whether 200 handicapped Jewish children in a town 40 miles from New York City may have their own school. Repeat: Don't feel sorry for their honors. Their own presumption, and that of their predecessors, has laid upon them this dreary duty.

A Texan looking on from afar feels a sense of wonder, as if the Red Queen were in charge of these proceedings. He would put a basic question: What is the problem here? What is the matter with tax-paying Hasidic Jews having their own public school for the handicapped if that is what they want? Separatism? Oh, come on. We have separatism elsewhere in American life, and liberals applaud, so long as the separatists portray themselves as an oppressed minority.

Major universities set aside whole dormitories for ethnic groups -- a reversion to the segregation of pre-Brawn v. Board of Education days. Do liberals ever protest? At most, when the subject comes up, they studiously examine their shoes. But let a, God help us, religious group try to preserve its community witness, and the liberal secularists come unglued.

The problem is, of course, the religion. The modern liberal spirit is hostile to the beckonings of a realm it can neither see nor, especially, control. The American heritage is one of glorious entanglement with religion -- constantly, deliberately: Washington praying in the snow, the Pilgrims at Thanksgiving, that sort of thing.

But that sort of thing no longer suits the secularists, who view the state as messiah and Congress as the Five Hundred Thirty-Five Apostles. Federal judges are the Angelic Host, ready to swoop down and harry those who stand in the way of the secular kingdom. Such as 200 handicapped Hasidic Jewish children.

At a time when guns and drugs are as familiar to students as tests and texts, you'd think the secularists would value a school where handicapped children work hard and respect their eiders -- a place where worthwhile transformation takes place. Nope. But, then, did you hear me saying this was a sane and logical moment in history? .