Copyright 1994 News World Communications, Inc.  
The Washington Times
July 3, 1994, Sunday, Final Edition
SECTION: Part B; COMMENTARY; EDITORIALS; Pg. B2

LENGTH: 950 words

HEADLINE: Losing your religion

BODY:


Would the Founding Fathers have objected to a public school created to cater to the special needs of a group of handicapped children? Supreme Court Justice David Souter and five of his colleagues certainly think so - at least if the children in question happen to be all of the same religion. This week, the Court determined in a 6-3 vote that the Kiryas Joel school district in New York State violates the Establishment Clause of the First Amendment.

Consider Kiryas Joel: a tiny village inhabited by members of the ultra-orthodox Jewish Satmar sect. The Satmar avoid contact with the secular world as much as possible: No television, no radio, no movies, no English language publications. Married women wear wigs to hide their hair; and all women dress with extreme modesty. Men and boys wear long sidecurls and keep their heads covered. Yiddish is the primary language. Satmar do not believe in secular education and teach their children in their own religious schools. But the physically and mentally handicapped children of the community have special needs, needs the Kiryas Joel religious schools had neither the funds nor the expertise to meet. For years, then, special education teachers from the local public school system came into the village schools to teach the disabled children.

That all changed in 1985, when the Supreme Court ruled in Aguilar vs. Felton that that practice threatened the separation of church and state. At that point, the disabled students of Kiryas Joel began attending classes at public schools outside their village. It was a total disaster. The children were taunted by their non-secular classmates; one boy even had a sidecurl cut off by a tormentor. The children spoke very little English, and their instructors spoke no Yiddish. Satmar parents ended up keeping their disabled children at home rather than send them into this inhospitable environment.

The local school district could have set up classes for Kiryas Joel's handicapped children in trailers near the sect's private religious academies; the Court in Aguilar had generously left that as an option. But the local school district declined to do this for Kiryas Joel. So the town petitioned to create a new school district within its boundaries. The New York State Legislature, and Gov. Mario Cuomo, agreed to accommodate the Satmar, and the district was created in 1989 and has been educating Kiryas Joel's handicapped children, as well as disabled children from other Orthodox Jewish communities in nearby Rockland County, ever since.

Until Justices Souter, Kennedy, Stevens, O'Connor, Ginsberg and Blackmun in their wisdom decided that what might seem to the untutored eye an accommodation of religion actually constituted an insidious threat to freedom of religion.

To quote the dissent of Justice Antonin Scalia (who was joined by Chief Justice Rehnquist and Justice Thomas): "The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their acetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an 'establishment' of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause which they designed 'to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters,' has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion. . . This is unprecedented except that it continues, and takes to new extremes, a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation's tradition of religious toleration."

There was a time when most Americans -including even most Supreme Court Justices -viewed the Establishment Clause ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof") as a protection against being forced to practice a particular religion and as a promise of freedom to practice the religion of their choice. The sad fact is that over the past thirty years or so, the Supreme Court has used the clause to put religious people on a shorter and shorter leash.

Ironically enough, the Kiryas Joel school district is the creature of that mindset. Five of the six justices who declared the district unconstitutional also declared themselves willing to reconsider the Aguilar case. Doubtless the parents of Kiryas Joel's handicapped children will not object to seeing Aguilar overturned -though it would have saved them a lot of time and anguish, not to mention money, if the restrictions hadn't been imposed in the first place. What those parents want is to provide their children with a decent education, while maintaining the cultural and religious traditions they believe in. Offensive as that may be to the modern sensibility - and to the modern Court - it seems to be precisely what the Establishment Clause is all about.

LOAD-DATE: July 3, 1994