Copyright 1994 The Buffalo News  
Buffalo News (New York)
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July 14, 1994, Thursday, City Edition
SECTION: VIEWPOINTS; Pg. 3

LENGTH: 707 words

HEADLINE: ESTABLISHMENT CLAUSE TO GET FRESH LOOK

BYLINE: James J. Kilpatric, Universal Press Syndicate

DATELINE: WASHINGTON

BODY:
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.

To alleviate 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.

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.

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 v. 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.

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.

Children who attend religious schools are entitled to the same secular public benefits that are available to children in public schools.

LOAD-DATE: July 16, 1994