Amicus Curiae Brief — Board of Education of Monroe-Woodbury Central School District v. Grumet

Supreme Court brief1994

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Text

9 ) —— ae

No. 93-517, 527, 539

3 1994

IN THE OFFICE OF ic CLERK

——ů—

Supreme Court of the United States

October Term, 1993

BOARD OF EDUCATION OF THE KIRYAS JOEL

VILLAGE SCHOOL DISTRICT,

Petitioner,

LOUIS GRUMET and ALBERT W. HAWK,

Respondents.

[Caption Continued On Inside Cover]

On Petition For A Writ Of Certiorari

To The New York State Court Of Appeals

BRIEF AMICI CURIAE OF THE AMERICAN JEWISH

‘CONGRESS, NATIONAL JEWISH COMMUNITY RELA-

TIONS ADVISORY COUNCIL, PEOPLE FOR THE

AMERICAN WAY, GENERAL CONFERENCE OF

SEVENTH-DAY ADVENTISTS, AND THE UNION OF

AMERICAN HEBREW CONGREGATIONS

NORMAN REDLICH

Marc D. STERN

Counsel of Record

American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 360-1545

ELLIOT MINCBERG

JUDITH E. SCHAFFER

J. BRENT WALKER

Of Counsel

BOARD OF EDUCATION OF THE MONROE-

WOODBURY CENTRAL SCHOOL DISTRICT,

Petitioner,

LOUIS GRUMET and ALBERT W. HAWK,

Respondents.

THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK,

Petitioner,

LOUIS GRUMET and ALBERT W. HAWK,

Respondents.

INTEREST OF THE AMICI

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

TABLE OF CONTENTS

SUMMARY OF ARGUMENT ........ 226s

ARGUMENT

in et a a a an a - = = & & €& S&S & & F&F FS SE

I. A UNION OF RELIGIOUS AND CIVIL

POWER UNCONSTITUTIONALLY

ESTABLISHES RELIGION W

II. THE ACTUAL EXERCISE OF POLITICAL

POWER BY RELIGION WAS ONE OF THE

HISTORIC EVILS AT WHICH THE

ESTABLISHMENT CLAUSE WAS AIMED . .

A. A Brief History of Establishments

Continental Establishments

a. Pre- Reformation

b. Post- Reformation

English Histor.

The American Experience .....

-ii-

B. The Drafting of the Constitution

Shows An Intent to Exclude

Religious/Political Unions ....... 26

C. Subsequent History .........., 31

III. THE BACKGROUND FACTS LEAVE NO

DOUBT AS TO THE RELIGIOUS

NATURE OF THE SCHOOL DISTRICT .. 35

IV. THELEMON TEST SHOULD NOT

gf 40

A. Lemon Is Not Unwork able 45

B. The Lemon Rule Is Fully

Woven Into The Texture

a : +» & es & & 6 6's 6.0 @«« 48

C. Lemon Was Correctly Decided ..... 50

D. There Has Been Substantial

Reliance on Lemon 51

V. KIRYAS JOEL SCHOOL DISTRICT

IS NOT A PERMISSIBLE FORM

OF ACCOMMODATION ........4.. 52

VI. THE PRESENCE OF CONSTITUTIONAL

MEANS OF DELIVERING EDUCATIONAL

SERVICES DOOMS KJSD .......... 58

ee 8 Fi „„ a a ee or 62

R A1

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TABLE OF AUTHORITIES

Cases: Page(s)

Aguilar v. Felton, 473 U.S. 402 (1985) . 37, 38, 59,

Arizona v. Rumsey, 467 U.S. 203 (1984) ..... 43

Bames v. Cavazos , 934 F. 2d 912

(8th Cir. 1992) «ees tt te 60

Board of Education v. Allen , 392

D. ehh eee eseveeseececes 48

Board of Education v. Neider,

72 N.Y.2d 174, 531 N.Y.2d 889,

527 N.E.2d 767 (188660: 38, 58

Bowen v. Kendrick , 487 U.S. 589 (1988) ..... 45

Brown v. Board of Education,

O06 U.S. 1 // ce cece ere ses 4, 37, 62

Callahan v. Wood , 658 F. 2d 679

eb „ „ 56

Church of the Lukumi Babalu Aye v.

City of Hialeah , 113 S.Ct. 2217 (1993) ..... 13

County of Allegheny v. A. C. L. C.,

492 U.S. 573 (1969) %cGrꝛi1]t1itiii 11, 40, 45,

Edwards v. Aguillard, 482 U.S. 578 (1987) .... 14

Employment Division v. Smith ,

I 54, 55

-iv-

Cases: Page(s)

Engel v. Vitale, 370 U.S. 421 (1962) ..... 26, 53

Estate of Thomton v. Caldor, Inc.,

7 2 Oe 0) eee ee 55

Everson v. Bd. of Educ., 330 U.S. 1 (1947) . . 14, 26

Frost & Frost Trucking Co. v. Railway

Comm’, 271 U.S. $63 (1926) .... 2 eee 13

Gearon v. Loudoun County School

Board , 93-730-A (E.D. Va. 1993) ....... 46

Gomillion v. Lightfoot ,

be Se fe v ee ee 12, 13, 35

Grand Rapids School District v.

as Gee Welle SUP CUED bb Oe Oe eee ee 45

Hemandez v. C. I. R., 409 U.S. 680 (1989) .... 11

Jones v. Clear Creek I. S. D.,

977 F.2d 963 (5th Cir. 1992) 2777 46

Lambs Chapel v. Center Moriches

School District, 113 S.Ct. 2141 (1993)... . 39, 41

Lane v. Wilson, 307 U.S. 268 (1939) ....... 12

Larkin v. Grendel’s Den,

Gee UU... BEG CURBS) wc ce ee te eee ees 1, 2, 10,

11, 12, 13,

24, 31

Larsen v. Valente, 456 U.S. 228 (1982) ...... 37

—— —

Cases: Page (s)

Lee v. Weisman, 112 S.Ct. 2649 (1992) 16, 26, 34,

45, 46, 53

Lemon v. Kurtynan, 403 U.S. 602 (1971) . . passim

Lynch v. Donnelly, 465 U.S.

ot.) „„ 11, 39, 40,

Meek v. Pittenger, 433 U.S. 229 (1977) ...... 59

Miliken v. Bradley, 418 U.S. 717 (1974) ..... 37

Minneapolis Star Tribune v.

Minnesota Comm’r of Revenue,

s.. ee 37

Miranda v. Arizona, 384 U.S. 436 (19669) 46

Monroz-Woodbury School District v.

Weider, 72 N. v. 2d 174,

N.. 8. F )) ee ee 17

Mueller v. Allen, 463 U.S. 388 (1973) ...... 15

Oregon v. Rajneeshpuram ,

598 F.Supp. 1208 (D. Oregon 1984) .... 33, 34

Patterson v. McClean Credit

Union , 491 U.S. 164 (19890: 43

Payne v. Tennessee, 113 S.Ct 2592 (1991) .... 43

PEARL v. Nyquist, 413 U.S.

0 Oy ) 14, 27, 30

-vi-

Cases: Page(s)

PEARL v. Regan, 444 U.S. 646 (1980) ...... 45

People v. Rose, 92 Misc. 2d 429,

368 N. v. S. 2d 387

(Sup. Ct. Rockland County, 19759) 33

Planned Parenthood v. Casey,

112 S.Ct. 2791 (199ꝝ77 „4 43, 44

Pulido v. Cavazos , 966 F.2d 1056

(6th Cie. 10% P ꝰ¶̃F mn 60

School District of Abington Township

v. Schempp, 374 U.S. 203 (19633))) 49

Sherbert v. Verner, 374 U.S. 398 (1963) ...... 54

Society of Separationists v.

Whitehead , 1993 W. L. 521202 (Utah 1993) ... 32

State v. Celmer, 80 N. J. 405,

404 A.2d1(1979) .. 2.2. ee ee ee eens 33, 34

Texas Monthly v. Bullock , 489 U.S. 1 (1989) . 55, 57

Torcaso v. Watkins, 367 U.S. 488 (1961) ..... 29

U.S. v. Scotland Neck , 407 U.S. 484 (1972) ... 37

Waldman v. UTA, 147 Misc. 2d 529,

558, 558 N.E.2d 781

(Sup. Ct. Orange County, 1990) 55

Walker v. San Francisco U.S.D.,

761 F.Supp. 1463 (N.D. Cal. 1991) ...... 60

-vii-

Cases: Page(s)

Wallace v. Jaffree, 472 U.S. 38 (1985) . 14, 37, 54,

Walz v. Tax Comm'n, 397 U.S. 664 (1970) 5, 42, 49

Welsh v. Texas Department of Highways,

483 U.S. 468 (1987) .. m) e ev vre vse 43

Wisconsin v. Yoder, 406 U.S. 205 (1992) ... 53, 54

Wolman v. Walter, 433 U.S. 229 (1977) 6, 18, 15,

59, 61

Wright v. Council of City of Emporia,

407 U.S. 451 (1972) .. )))) 37

Statutes and Regulations:

COU.B.6. 0 „6 61

Utah Constitution, Article I, 1132 32

Other Authorities:

2 A. P. Stokes, Church and State in

the United States (1950)0 ᷑ !) 31, 32

4 Blackstome, 4. 1 21

The Founders Constitution 26, 28

H. Rep. 87, 2lst Cong., Ist Sesss 31

S. E. Ahlstrom, A Religious History

of the American People (197777774 24

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Other Authorities: Page(s)

P.V. Bonomi, Under the Cope of Heaven:

Region, Society and Politics In

Colo America (1986) ......... 23, 24, 25

C. Bridenbaugh, Mitre and Sceptre (1963) . 24, 25

T.E. Buckley, Church and State In

Revolutionary Virginia (1977) ....... 27, 28

S. Cobb, The Rise of Religious

Liberty in America (19700 18, 19

Cross & Livingston, The Oxford Dictionary

of the Christian Church (1989) ........ 19

T.J. Curry, The First Freedoms: Church

and State In America to the Pas

of the First Amendment (1986) .... 21, 22, 24,

25, 30, 51

J. Guy, Tudor England (1988) .......... 20

D. Laycock, Nonpreferential Aid to

Religion: A False Claim About

Intent, 27 Wm. & Mary L. Rev. 875 (1986) . 30, 51

L. W. Levy, Blasphemy (1993) ........ 21, 23

L.W. Levy, The Establishment Clause:

Religion and The First Amendment (1986) ... 51

J. Locke, A Letter on Toleration (1990) 16

W. Lowrie, W. Franklin, American State

Papers: Class VII (183) 31

Other Authorities: Page(s)

G.M. Marsden, Fundamentalism and

American Culture (1980) ............ 17

M.C. McConnell, Religion at the

Crossroads, 59 U. Chi. L. Rev. 115 (1990) ... 51

J. Mintz, Hasidic People (1992) ......... 55

St. George, Doctor and Students (ed. 1974) .. 20

Story, Commentaries on the Constitution

(R.D. Rotunda, J.E. Nowak, eds. 1987) ... 29

L. Strauss, J. Cropsey, History of

Political Philosophy (1987) ........... 18

wr’

“Xe

INTEREST OF THE AMICI

The American Jewish Congress is an

organization of American Jews founded in 1918 to

protect the civil, political, economic and religious

rights of American Jews. It has taken a particular

interest in the Establishment Clause, because in its

view the separation of church and state is an

indispensable safeguard for the religious liberty of

American Jews. Moreover, for reasons more fully

Stated below, it believes that invalidating the Kiryas

Joel district does not confront the Court with a choice

between a robust conception of non-establishment and

providing Hasidic children with serious handicapping

conditions an education at public expense.

2 „„

The National Jewish Community Relations

Advisory Council (NJCRAC) is an umbrella

organization including the following national member

organizations: American Jewish Committee, American

Jewish Congress, Anti-Defamation League, B'nai

B'rith, Hadassah, Jewish War Veterans of the United

States of America, Jewish Labor Committee, National

Council of Jewish Women, Union of American Hebrew

Congregations, United Synagogue of Conservative

Judaism, Women's League for Conservative Judaism,

Women's American ORT; as well as 117 community

member agencies representing all major Jewish

communities in the United States (listed in Appendix

A).

As the national planning and coordinating body

for the field of Jewish community relations, dedicated

to preserving the principles embodied in the Bill of

Rights, NJCRAC believes that the separation of

church and state is an essential bulwark in

maintaining the individual, group, and political

equality of all Americans. (The Union of Orthodox

Jewish Congregations of America, a NJCRAC member

agency, does not join in this brief because of its

belief that the Kiryas Joel School District was

established for an entirely secular purpose,

aiken ie ee ä — 25 N 5 - ö ; : 3 —

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-xii-

constitutes a legit'mate accommodation to a religious

group, and, consequently, does not violate the

Establishment Clause of the First Amendment. )

2 ¢ „

People For the American Way ("People For") is a

nonpartisan, education-oriented citizens' organi-

zation established to promote and protect civil and

constitutional rights, including First Amendment

freedoms. Founded in 1980 by a group of religious,

civic and educational leaders dev ed to our nation's

heritage of tolerance, pluralism and liberty, People

For now has over 300,000 members nationwide.

People For has frequently represented parties and

filed amicus curiae briefs in litigation seeking to

defend First Amendment rights.

People For has joined in filing this amicus brief

in order to help vindicate the important First

Amendment principles at stake in this case,

particularly the fundamental principle of the

separation of church and state and the prohibition on

tres

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state establishments of religion. As an organization

including numerous religious leaders and individuals,

People For strongly believes that the creation of the

Kiryas Joel School District violates these principles

and significantly threatens religious freedom in our

country, and that constitutional alternatives are

available to provide the children of Kiryas Joel with

special education services.

The Baptist Joint Committee on Public Affairs is

composed of representatives from various national

cooperating Baptist conventions and conferences in

the United States. It deals exclusively with issues

pertaining to religious liberty and church-state

separation and believes that vigorous enforcement of

both the Establishment and Free Exercise Clauses is

essential to religious liberty for all Americans. The

BJC's members include: Alliance of Baptists;

American Baptist Churches in the U.S.A.; Baptist

General Conference; Cooperative Baptist Fellowship;

~ ——— te

;

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National Baptist Convention of America; National

Baptist Convention, U. S. A., Inc.; National

Missionary Baptist Convention; North American

Baptist Conference; Progressive National Baptist

Convention, Inc. ; Religious Liberty Council; Seventh

Day Baptist General Conference; and Southern

Baptists through various state conventions and

churches. Because of the congregational autonomy of

individual Baptist churches, the Baptist Joint

Committee does not purport to speak for all Baptists.

2 *

The General Conference of Seventh-day

Adventists is the highest administrative level of the

Seventh-day Adventist Church, which has more than

7.8 million members worldwide, including some

760,000 in the United States.

The Church believes that Freedom of Conscience

includes the right to worship or not to worship, and

to profess, practice, and promulgate religious beliefs

or to change them. In exercising these rights,

€

—

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however, it admonishes that government should

respect the rights of all citizens, not just those of the

majority.

As the surest way of securing full religious

liberty, the Seventh-day Adventist Church advocates

the separation of church and state commanded by our

Lord, who said, "Render therefore unto Caesar the

things which are Caeser's; and unto God the things

that are God's" (Matthew 22:21). It believes: "The

union of the church with the state, be the degree

ever so slight, while it may appear to bring the world

nearer to the church, does in reality but bring the

church nearer to the world." Ellen G. White, The

Great Controversy, p. 264 (1974).

The state should never invade the distinct realm

of the church to affect, in any way, freedom of

conscience; or the right to profess, practice, and

promulgate religious beliefs. Conversely the church

must avoid the distinctive realm of the state, even in

the furtherance of an otherwise valued, public

—U— — —

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purpose. Upon these principles the Seventh-day

Adventist Church encourages each branch of

government to support a high degree of separation

between church and state; and a high level of First

Amendment rights for churches and their members as

they profess, practice, and promulgate their

religious beliefs.

2 ¢ „

The Union of American Hebrew Congregations

(UAHC) represents 1.5 million Reform Jews in 850

congregations nationwide. For over a century, the

UAHC has fought for religious liberty and tolerance,

believing these to be among the greatest gifts America

has bestowed upon the world. The UAHC has

staunchly supported reading the Establishment

Clause of the First Amendment of the United States

Constitution as constructing a wall of separation

between church and state, and believes this wall has

been crucial to the freedom we, as a religious

minority, have enjoyed in this country.

ö N

STATEMENT OF THE CASE

The amici adopt the Respondents' statement of

the case.

STATEMENT OF THE FACTS

Amici note that the facts are largely not in

dispute, and hence do not provide their own

statement of the facts.

SUMMARY OF ARGUMENT

1. The creation of the Kiryas Joel School

District (KJSD) presents a scenario unusual for this

Court -- an actual combination of church and state.

That union of civil and religious power runs afoul of

the most fundamental principle of the Establishment

Clause. The absence of the abuses historically

derivative of established religion cannot alter KJSD's

fundamental constitutional shortcoming.

2. Larkin v. Grendel’s Den, 459 U.S. 116 (1982)

is dispositive. There the Court invalidated a church

veto over the issuance of liquor licenses because "the

statute enmeshe[d] churches in the exercise of

-2-

substantial governmental powers contrary to our

settled interpretation of the Establishment Clause."

There was no evidence in Larkin that any church used

the statue to further sectarian ends. The defect in

that case, as in this one, is the co-joining of politics

and religion, of creating political constituencies along

religious lines.

3. The Larkin holding was firmly rooted in

history. The goal of most fully established churches

was to ensure that the entire polity shared the same

faith, either by coerced conversions of religious

minorities, expulsion of religious minorities, or,

especially in colonial America, creation of new

political jurisdictions founded and organized on

religious lines. The Founders were well aware of this

feature of establishments; it is at the very core of

what they determined, through the Establishment

Clause, to forbid.

The abuses that modern Americans associate

with established religions -- compulsory taxation or

2 ee

24 44 ane

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chapel attendance, prosecution of heretics and

blasphemers, official control of church doctrine and

liturgy, expulsion of non-believers from the political

society are not independent of this principle of

identifying church with state. Rather, they are

derivative of it, flowing naturally from the funda-

mental assumption that both church and the state

have a mutual interest in furthering a common

agenda.

4. The established churches of medieval

Europe, reformation England and post-reformation

Europe all shared a political theory which emphasized

the unity of religion and state. Thus, for example,

the European principle of cuius regio, eius religio, and

the commonlaw prosecution of heresy and blasphemy

both proceed under this assumption.

5. Several American colonies, such as

Massachusetts and Connecticut were organized along

religious lines. Elsewhere, "in the minds of royal

governors, religious and political centralization

blended into a picture of social order that must be

we a

-4-

imposed on the colonies." The franchise was limited

on the basis of religion.

6. The Constitution was drafted with

preventing both the multiple establishment in

existence and the earlier forms in which church and

state overlapped. The no-religious-tests clause

broke this identification of church and state, and the

First Amendment carried that break still further.

Subsequent events confirm that the First Amendment

was designed to prevent the creation of political

jurisdictions defined by religion.

7. Despite the nominal secular nature of the

school district, the underlying facts make clear that

the sole organizing principle of this District is

religion. This deliberate religious gerrymander is as

unconstitutional as the racial gerrymander condemned

in Brown v. Board of Education, 344 U.S. 1 (1954).

8. Lemon (which as the Court of Appeals

correctly held, invalidates KJSD) should not be

reconsidered. No special circumstances are shown to

—— 2 —

— — — eed

justify a departure from stare decisis. Lemon is not

unworkable, and surely not more so than any other

test would be in this difficult area of the law.

Petitioners' complaint is with the Establishment

Clause, not any particular test. Moreover, Lemon

itself was solidly rooted in prior cases, including Walz

v. Tax Comm’n, 397 U.S. 644 (1970), the case

Petitioners say lays out the correct constitutional

standard. By virtue of repeated adjudication Lemon

has become an integral part of the law. Moreover,

recent historical studies demonstrate that Lemon and

its predecessors correctly understood constitutional

history.

9. Lemon is not inconsistent with the principle

of accommodation. However, KJSD is not an accommo-

dation because it neither lifts any state imposed

burden from the shoulders of Hasidic children and

because, by creating a political constituency along

religious lines, it cuts at the very core of the

Establishment Clause. However the tension between

—— — — ee 2

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the Free Exercise and Establishment Clauses is

reconciled, the core value of each Clause must be

preserved.

10. Monroe-Woodbury could have, and should

now be ordered to, provide special services to

disabled Hasidic children on "neutral sites" such as

condoned in Wolman v. Walter, 433 U.S. 229 (1977).

Such sites neither create political constituencies

along religious lines nor otherwise violate the

Establishment Clause.

ARGUMENT

A UNION OF RELIGIOUS AND CIVIL

POWER UNCONSTITUTIONALLY

ESTABLISHES RELIGION

This case is about formally establishing religion,

a real unity of religious and political power.

Confronted with this paradigmatic establishment,

Petitioners and their amici are forced to offer a

conflicting hodgepodge of arguments for reversal.

Thus, for example, though Petitioners deny that any

religious mandate prohibits Hasidic children from

—

-7-

mixing with their non-Hasidic peers, they never-

theless insist that the separate school district is an

accommodation of Hasidic religious practice.

Petitioners Kiryas Joel School District ("KJSD")

and Monroe-Woodbury School District, joined by many

of their amici, also call for an overturning of the

three-part test of Lemon v. Kurtynan, 403 U.S. 602

(1971). They claim that Lemon is historically

unfounded, unworkable and leaves in doubt the

constitutionality of what are termed, in ipse dixit

fashion, ‘permissible accommodations' [Petitioner

Kiryas Joel Brief at 43-45; Petitioner Monroe-

Woodbury Brief at 47-791. By whatever tortious

route they travel, Petitioners’ case rests on the claim

that the sole test of whether this case involves an

establishment is whether religious instruction takes

place in the KJSD.

1. Significantly, Petitioner New York State does not join in

this call.

— — 3 = — a ee ae

-8-

Petitioners hold a myopic view of this case. In

the first place, as we will demonstrate in Point VI,

infra, the claim that affirmance would leave these

vulnerable children without special educational

services is simply incorrect. There are constitutional

alternatives available with which to provide services

to these children consistent with their religious

practices; specifically the use of neutral sites,

Wolman v. Walter, 433 U.S. 229 (1977). New York

did not need to create-- and could not

constitutionally create -- a public school district

coincident with a religious community in order to

provide these services. New York could have

required Monroe-Woodbury to implement one of those

constitutional alternatives.

KJSD is not a run-of-the-mill Establishment

Clause violation. This unusual case presents this

Court with a legal problem it has not often

confronted -- an actuai union of church and state. It

has not confronted it, not because it is a new problem

-9-

or one that arises from an unforseen intersection of

conflicting lines of authority, but because it involves

an old principle, one so old and so plainly settled,

and so fundamental to the organization of the political

life in the United States for over two centuries, that

it is rarely questioned. The dearth of case law

invoking this principle is as significant as is the

absence of decisions barring the rack and screw to

the interpretation of the Eighth Amendment.

KJSD purports to be a secular school district.

But KJSD (which offers no regular public school

instruction) is, and was intended to be, something

quite different. It is a political subdivision co-

terminus with a religious community. It is the

political embodiment of that reli ious community. It

is literally an establishment of religion whether or not

any of the abuses commonly associated with

establishments are present 5

2. In this facial challenge, plaintiffs have not yet had an

opportunity to prove whether KJSD engages in any of the

practices that historically accompany establishments.

-10-

Petitioners confuse the absence of those abuses

that historically are symptomatic of established

religion with the disease itself -- the joining of

religion and political power. KJSD argues that the

absence of symptoms proves the absence of the

disease. That claim is no more valid under the

Establishment Clause than in medicine.

Larkin v. Grendel’s Den, 459 U.S. 116 (1982), is

dispositive. In that case, Massachusetts allowed

churches to veto the granting of a liquor license

sought to be located within a specified distance of a

church. The constitutional defect was not in

protecting churches from the untoward behavior

often associated with liquor sales, but the way in

which the state accomplished that end.

Massachusetts unconstitutionally conferred political

power on churches by granting them the

unreviewable discretion to decide whether or not to

veto a particular liquor license.

Chief Justice Burger explained for the Court:

"This statute enmeshes churches in the exercise of

-11-

substantial governmental powers contrary to our

settled interpretation of the Establishment Clause."

And he continued:

Our contemporary views do no more than

reflect views approved by the Court more

than a century ago: The structure of our

government has, for the preservation of

civil liberty, rescued the temporal

institutions from religious interference.

On the other hand, it has secured religious

liberty from the invasion of the civil

authority. [citations omitted]

459 U.S. at 126.8

Justice O'Connor expressed a similar idea when

she explained in Lynch v. Donnelly, 465 U.S. 668, 688

(1984) (concurring opinion), that one of the purposes

of the Establishment Clause was to proscribe a state

from choosing to "foster the creation of political

constituencies along religious lines."

There was no evidence in Larkin that any church

had used its powers to further religious beliefs. The

3. In subsequent cases, Larkin has come to stand for the

proposition that government may not delegate political power

to religious entities. County of Allegheny v. A.C.L.U., 492 U.

573, 591 (1989); Hernandez v. CLR. 490 U.S. 680, 697 (1989).

New York has done just that by creating KJSD.

-12-

fatal constitutional defect in that case was the co-

joining of political power with religious prerogatives

and creating political constituencies along religious

lines, exactly the defect inherent in the creation of

KJSD, except that the power conferred, and hence

the constitutional violation, is greater here.

The only difference between Larkin and this case

is that here the legislature sanitized the statute of

references to religion. That does not change the

substance of what has been accomplished, see Point

IV, infra, nor should it obscure the magnitude of the

constitutional violation. What is true of the

Fourteenth and Fifteenth Amendments is no less true

of the First. The Constitution "nullifies sophisticated

as well as simple-minded modes of discrimination."

Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960),

citing Lane v. Wilson, 307 U.S. 268, 275 (1939).

This Court, for example, was unanimous in

invalidating a facially neutral anti-ritual slaughter

ordinance, holding that in fact it was motivated by

-13-

anti-religious animus. Church of the Lukumi Babalu

Aye v. City of Hialeah, 113 S.Ct. 2217 (1993). The

First Amendment, this Court said, "protects against

government hostility which is masked as well as

overt" /d. at 2227, for "it is inconceivable that the

guarantees embedded in the Constitution of the

United States may be manipulated out of existence,"

Gomillion v. Lightfoot, supra, quoting Frost & Frost

Trucking Co. v. Railway Comm’r, 271 U.S. 583, 594

(1926), by mere cleverness in drafting.

THE ACTUAL EXERCISE OF POLITICAL

POWER BY RELIGION WAS ONE OF THE

HISTORIC EVILS AT WHICH THE

ESTABLISHMENT CLAUSE WAS AIMED

The Larkin holding was anchored in history:

At the time of the Revolution, Americans

feared not only a denial of religious

freedom, but also the danger of political

oppression through a union of civil and

ecclesiastical control.

459 U.S. at 127, n.10.

-14-

That history, it is settled, has a particular

significance for interpreting the First Amendment.

PEARL v. Nyquist, 413 U.S. 756, 770-73; Everson v.

Bd. of Educ., 330 U.S. 1, 14-15 (1947); Edwards v.

Aguillard, 482 U.S. 578, 606 (1987) (Powell, J.,

concurring); Wallace v. Jaffree, 472 U.S. 38, 92

(1985) (Rehnquist, J., dissenting) .

The established religions with which the

Founders were familiar were premised on an alignment

between the political and religious orders. It was to

avoid a repetition of the lachrymose history of two

hundred years of wars and persecutions in England

and on the Continent that the First Amendment was

adopted.

The goal of most fully established churches was

to ensure that the entire polity shared the same faith,

either by coerced conversions of religious minorities,

expulsion of religious minorities, or, especially in

colonial America, creation of new political juris-

dictions founded and organized on religious lines.

-15-

The Founders were well aware of this feature of

establishments; it is at the very core of what they

determined, through the Establishment Clause, to

forbid.

In this century, of course, the full alignment of

religion with government is rare. Indeed, Justice

Powell went as far as to say:

lalt this point in the 20th century we are

quite far removed from the dangers that

prompted the Framers to include the

Establishment Clause in the Bill of rights.

The risk of significant religious or

denominational control over our democratic

processes -- or even of deep political

division along religious lines-- is

remote. . [citations omitted]

Wolman v. Walter, supra , 433 U.S. at 263 (Powell, J.,

concurring); Mueller v. Allen, 463 U.S. 388, 400

(1983). This case, however, presents not the risk,

but the actuality of what Justice Powell termed

"significant religious control over our democratic

processes." It is accordingly not necessary to apply

Lemon to know that legislation cloaking a designated

church with political power is unconstitutional, or

-16-

that coerced participation in religious exercises will

not pass constitutional scrutiny. Lee v. Weisman, 112

S.Ct. 2649 (1992).

A. A Brief History of Establishments

1. Theory

The fundamental idea behind established religion

is that the religious polity should and must be

identical with the political one. This idea is of

ancient lineage. Locke attributed it to the biblical

Hebrews. J. Locke, A Letter On Toleration

(Prometheus Books 1990) at 51-54.

Established religion addresses a fundamental

problem of political organization: how to bind

together in an effective common social bond

individuals who, left alone, will pursue their own

autonomous agendas and interests? A shared religion

is one candidate for use as a means of social

organization. Religion addresses a broad range of

issues, including the ultimate goods and goals of life.

Religious beliefs are deeply held and influence

behavior. The fear of offending God is a powerful

;

> 1 Fe

3 ee oe 1

eS ²˙

—

— ey

-17-

inducement for compliance with socially necessary

rules.

The abuses that modern Americans properly

associate with established religions -- compulsory

taxation or chapel attendance, prosecution of heretics

and blasphemers, official control of church doctrine

and liturgy, expulsion of non-believers from the

political society, such as the expulsion of the Jews

from Spain or the Huguenots from France -- are not

independent of this principle of identifying church

with state. Rather, they are derivative of it, flowing

4. For those religions that assert a special claim on truth, the

combination of church and state is also entirely logical. Why

should not the society function on the basis of God’s revealed

truth instead of stumbling along, groping for the best way to

regulate human affairs, when God has laid it out in the Bible,

Koran, or other sacred scripture? Following the dictates of

revealed truth avoids communal sin and calling down God's

wrath on the community.

At least some religions assert that they are divinely

commanded to attend to the social order, which necessarily

includes political affairs. Yet other religions are explicitly

national in character, such that the political unit is defined by

allegiances to national gods. The United States has not

escaped this last phenomenon by any means; American litera-

ture is full of references to God’s special role for America, or

America as God’s chosen instrument. See G.M. Marsden,

Fundamentalism and American Culture, 11-21 (1980).

= * - J SS a = vs _ „

—_ “= i

-18-

naturally from the fundamental assumption that both

church and the state have a mutual interest in

furthering a common agenda.

2. Continental Establishments

a. Pre-Reformation

Those who thought about theological and

political issues over the course of hundreds of

years -- Aristotle, St. Augustine, Thomas Aquinas,

Calvin and Luther -- all struggled with the respective

role of church and state.? These discussions

differed greatly on how to adjust relations between

the two, with some, like St. Augustine, insisting on

a close partnership between the two. The church and

the monarchs of medieval Europe regularly clashed,

not over religious liberty, but over who would control

the joint enterprise of church and state. See

generally, S. Cobb, The Rise of Religious Liberty in

America, (reprinted, 1970) at 19-66 (hereafter

"Cobb, The Rise").

5. For a general overview, see L. Strauss and J.Cropsey,

History of Political Philosophy (3rd. ed. 1987).

a oe! eee i n 9

-19-

b. Post-Reformation

With the Protestant Reformation, a method short

of war had to be devised to determine the religious

character of the newly emerging states at a time when

there was more than one Christian faith from which to

choose. The solution that emerged at the Peace of

Augsburg of 1555 was that the faith of the state, and

of its citizens, would be governed by the faith of the

prince, "cuius regio, eius religio, Cobb, The Rise,

supra, at 48; Cross & Livingston, The Oxford

Dictionary of the Christian Church (2nd ed. rev.

1989), p. 108. This settlement again assumed the

need for an overlap between the state (embodied in

the person of the monarch) and the church, and the

social cohesiveness that comes with having a common

communal faith.

3. English History

English ecclesiastical history from the time of

Henry VIII's reformation is particularly important for

an understanding of the religion clauses of the First

Amendment. At the very outset, Henry VIII's

-20-

Reformation assumed that the government "hath not

only charge on the bodies, but also on the souls of his

subjects," St. George, Doctor and Students (T.

Plunkett & J.L. Barton, eds., Selden Society, 1974),

cited in J. Guy, Tudor England (1988) 125-27. The

passage of the Supremacy and Treason Acts of 1534

allowed for religious dissenters to be punished as

traitors. The period of the English Reformation and

its aftermath reflects the assumption that church and

state had to work together, that the state had to

insist on religious uniformity for its own protection

and that of the society. The assumption was that

only persons loyal to the religion of the state could be

loyal to the state itself. It was this that James I

meant when he insisted, "No bishop, no king“, L.

Levy, Blasphemy (1993) at 96-97.

Dissenting ministers were often accused of

sedition when their religious views were inconsistent

with the state religion. L. Levy, Blasphemy, supra,

at 205-15; 235-36; 298-99; 307. Lord Hale explained

-21-

this conjunction in upholding landmark heresy

prosecution (Taylor's Case, 3 Keble 607, 621):

And. . such kind of wicked blasphemous

words were not only an offence to God and

religion, but a crime against the laws,

State and Government, and therefore

punishable in this Court. For to say,

religion is a cheat, is to dissolve all those

obligations whereby the civil societies are

preserved, and that Christianity is parcel

of the laws of England; and therefore to

reproach the Christian religion is to speak

in subversion of the law.

The harshness of the English establishment was

ultimately softened by the Toleration Act of 1689, but

it did not dispel the assumption that political and

religious power had to overlap. "The Act of

Toleration only recognized the rights of Dissenters to

exist. They remained second-class citizens devoid of

political rights in a country dominated by Anglicans."

T.J. Curry, The First Freedoms: Church and State

6. Even when blasphemy statutes were repealed, such prosecu-

tions (often for what is more properly called heresy) were

conducted under the common law on the theory that the

expression of heretical views undermined the state 8 security.

4 Blackstone, 4.1.1; See L.W. Levy, Blasphemy ( 1993), at 357-

358.

In America to the Passage of the First Amendment

(1986) at 54 (hereafter, "Curry, First Freedoms").

4. The American Experience

Several American colonies were founded on the

assumption that the political community should be

organized along religious lines. Massachusetts and

Connecticut are the most obvious examples. John

Winthrop told the Massachusetts settlers that for

their efforts to succeed they must "walk . . . humbly

with our God . . . we need be knitt together in this

worke as one man", Curry, First Freedoms, supra, at

6. As Curry summarizes it, the Massachusetts

colonists were "certain that their colonies, in order to

prosper, must be united in. . Truth“ as Congre-

gationalism saw it. /d. at 5.’ Those, like Roger

Williams or Anne Hutchinson, who refused to conform,

were expelled because they were, in Governor

7. For Connecticut, see Curry, First Freedoms, supra, at 3,

79-83.

-23-

Winthrop's words, “manifestly dangerous to the

state." L. Levy, Blasphemy, supra, at 247.

Seventeenth century Quakers who openly

challenged the official version of truth met a far

harsher fate -- several of them were executed. A

prominent Boston minister, in response to protests,

defended these persecutions on the ground that

Massachusetts was "originally a plantation religious,

not a plantation of trade." Curry, First Freedoms,

id. at 22.

It was not until 1691 that non-Congregationalists

had any political rights in Massachusetts, P.V.

Bonomi, Under the Cope of Heaven: Religion, Society

and Politics In Colonial America (1986) (hereafter,

"Bonomi, Under the Cope”) at 61-62, and then only

because the Crown felt obligated to protect the

political rights of those citizens of Massachusetts who

adhered to the established church of England © The

8. Somewhat earlier, recognizing the need to enfranchise some

of those who under the rigorous prevailmg Congregationalist

(continued...)

. Od

See a eae

-24-

new right to political participation did not extend to

Catholics. C. Bridenbaugh, Mitre and Sceptre (1963)

at 174.

Many of the other colonies had varying degrees

of identification of churches with political power.

[In the minds of royal governors, religious and

political centralization blended into a picture of social

order that must be imposed on the colonies." Curry,

First Freedoms at 58. The overlap of religion with

politics was substantial. Pennsylvania in 1705

excluded Catholics, Jews and non-believers from the

franchise, an exclusion that continued there and in

other states until the Revolution and sometimes

beyond. Bonomi, Under the Cope at 36 In colonial

8.(...continued)

(Calvinist) doctrines were not Church members, the leaders of

Massachusetts adopted the half-way covenant that allowed

greater numbers of citizens to be admitted to some sort of

membership in the Church and hence to the franchise. See

S. E. Ahlstrom, A Religious History of the American People,

158-60 (1972).

9. In Virginia, the Anglican Commissary sought to create

ecclesiastical courts to try offenses against public morality,

Bonomi, Under the Cope at 43, a proposal that met with great

(continued...)

-25-

South Carolina, church "parishes were becoming key

units of local government." Bonomi, Under the Cope

at 49.

Opponents of established churches were quick to

point out that one of the costs of organizing politics

along religious lines was the exclusion of potential

immigrants who would not go to those colonies in

which they were not welcome to participate in

communal affairs. Nevertheless, Virginia's

established church pushed non-conformists out of the

state into neighboring Maryland. Curry, First

Freedoms at 30, 42. Colonies like Georgia, which had

only the mildest of establishments eschewed more

rigorous forms precisely in order to encourage

immigration. Curry, First Freedoms at 38

(Maryland); Bonomi, Under the Cope at 31-33 (same

9(..continued)

resistance, as did other efforts to bring an Anglican bishop to

the United States, because it was perceived as an attempt to

recreate the hated partnership of church and state. Larkin v.

Grendel's Den, supra, 459 US. at 127, n.10; see C.

Bridenbaugh’s suggestively titled book, Mitre and Sceptre

(1963).

as to Carolina)”. See also 5 The Founders

Constitution at 58 (remarks of Patrick Henry).

B. The Drafting of the Constitution

Shows An Intent to Exclude

Religious/ Political Unions

The history of the efforts to draft a

constitutional doctrine that would prevent a

recurrence of the evils of establishment has been

recounted on many occasions in the opinions of this

Court, and need not be detailed here at length.“

That history demonstrates clear determination to

avoid the errors of the more distant past as well as

more recent forms of established religion.

The Virginia debate on the subject of religious

liberty was closely followed and widely influential --

and, as the Court has recognized, particularly

important to understanding the First Amendment

10. North Carolina’s 1669 Constitution did limit the privilege

of free holders to those who acknowledged God. 5 The

Founders Constitution at 51.

11. See, e., Everson v. Bd. of Ed., 330 US. 1 (1947); id. at

28 (Rutledge, J., dissenting); Engel v. Vitale, 370 U.S. 421

(1962); Lee v. Weisman, 112 S.Ct. 2649, 2669-76 (1992)

(Souter, J., concurring).

-27-

itself, PEARL v. Nyquist, 413 U.S., supra, at 770,

n.28 (1973); Engel v. Vitale, supra, 370 U.S. at 428.

In the end, Virginia swept away all vestiges of

establishment, including, notsbly, political

advantages for adherents of the established church.

T.E. Buckley, Church and State In Revolutionary

Virginia (1977) at 113-72.

Defenders of the status quo understood that

their opponents were not just attacking actual

political or religious oppression, but the assumption

that the unity of church and state was indispensable

for the social good. The status quo assumed that:

.. « [religion] needed public expression

not only for its own maintenance but also to

build the common basis of confidence and

trust among men. Believing in and wor-

shiping the same God would make men

cognizant of the fact that they were all

operating under the same general prin-

ciples. Consequently, the government

should be concerned to provide a

"competent provision" for those who had

devoted their lives to the promotion of

religious belief and the inculcation of moral

values.

T. E. Buckley, supra, Church and State In

Revolutionary Virginia at 142; see id. at 95.

Some of those who opposed ratification of the

Constitution decried the absence of a strong

guarantee of full equality for members of all faiths.

This was so despite the fact that the right to political

equality at the level of federal office-holding was

written into the body of the Constitution in the No

Religious Test Clause of Article VI. That Clause

itself marked a sharp break between the older system

of organizing politics on religious lines and the newer

secular politics. It was opposed and defended in full

recognition of the scope of that change. See 4 The

Founders Constitution at 633-46.

Justice Story summed up the change wrought by

Article VI in his influential treatise on constitutional

law:

This [no tests] clause is not introduced

merely for the purpose of satisfying the

scruples of many respectable persons, who

feel an invincible repugnance to any

religious test, or affirmation. It had a

higher objective; to cut off for ever every

‘a

— ee

pretence of any alliance between church

and state in the national government. The

framers of the constitution were fully

sensible of the dangers from this source,

marked out in the history of other ages and

countries; and not wholly unknown to our

own.

Commentaries on the Constitution (reprint ed. 1987,

R.D. Rotunda and J.E., Nowak, editors) at p. 690-

91.

The First * sendment carried this principle of

"cutting off any alliance between church and state"

still further, Tomaso v. Watkins, 367 U.S. 488, 491-92

(1961), so as to preclude any effort either to limit the

franchise on religious lines or to align religion with

political power. Alerted by a suspicious citizenry”

to the dangers to liberty of even a partial concord

between religious preachment and the exercise of

political power, the Framers were not prepared to

tolerate even partial combinations of political power

12. See, eg. 5 The Founders Constitution at 12 (protest of

New York ratifying convention); 18 (North Carolina).

-30-

and religion. The result was the Establishment

Clause.

Given this history, then, it is clear that those

who demanded, drafted and ratified the Establishment

Clause were fully aware of the danger of organizing

politics along religious lines and intended to foreclose

that possibility at the federal level. The Framers,

indeed, prohibited all practices tending toward --

"respecting" in the language of the Constitution -- an

established church. "A law may be one ‘respecting’

the forbidden objective while falling short of its total

realization." Lemon v. Kurtzman, 403 U.S. 602, 612

(1971), cited in PEARL v. Nyquist , supra, 413 U.S. at

770. A fortiori, it follows that the Founders would

not have tolerated a deliberate effort to facilitate

political power solely along religious lines, which is in

itself an establishment.

13. See, TJ. Curry, The First Freedoms: Church and State In

America to the Passage of the First Amendment (1986) 210-

14; D. Laycock, Nonpreferential Aid to Religion: A False

Claim About Intent, 27 Wm. & Mary L.Rev. 875 (1986).

-31-

C. Subsequent History

Because the issue was so decisively settled with

the adoption of the First Amendment, there are not

many subsequent events which test the principle.

But what there is is fully consistent with the holding

in Larkin. In the 1830s, Congress was urged to close

the Post Office on Sundays on the ground that its

opening on those days was inconsistent with

Christianity. A House committee rejected these calls

"to unite church and state“ or to "unite politics and

religion" and announced an understanding of the

First Amendment pertinent here. "All religious

despotism commences by combination and influence" ;

and "the catastrophe of other nations furnishes an

awful warning of the consequences. H. Rep. 87,

21 Cong., Ist Sess. , reproduced in W. Lowrie and W.

Franklin, American State Papers: Class VII (1834),

229-231. See 2 A. P. Stokes, Church and State In the

United States (1950) at 12-20.

The fight over the admission of Utah as a state

is also instructive. Here Congress sought to impose

Oo a

-32-

the non-establishment principles of the First

Amendment in the face of what was for a time a full-

fledged theocracy. Apart from the issue of

polygamy, many Americans opposed the creation of a

state organized along religious lines and controlled

entirely by the Mormon church, a position that

contributed to a denial of statehood for some time. 2

A.P. Stokes, supra, Church and State In the United

States at 46-47. Ultimately, Congress relented, but

to appease Congress, Utah's constitution provided

(and still provides) that "there shall be no union of

Church and State nor shall any church dominate the

State or interfere with its functions," Utah

Constitution, Article I, 13 (emphasis added).

The "no union of church and state“ proviso was

directly tailored to guard against what Justice Powell

termed the exercise of significant religious control

over democratic processes. That opposition to Utah

14. For a history of this provision, see Society of

Separationists v. Whitehead, 1993 W.L. 521202 (Utah 1993) at

7, 14, 17.

-33-

statehood reflects an understanding of the First

Amendment inconsistent with the actions of the New

York legislature in this case.

What few cases there are considering actual

unions of church and state also point in the direction

of the unconstitutionality of KSD.“ State v.

Celmer, 80 N. J. 405, 404 A. 2d 1 (1979) and Oregon v.

Rajneeshpuram , 598 F.Supp. 1208 (D. Oregon 1984)

are particularly instructive. In both these cases, a

group of people drawn together for religious

purposes sought or had attained municipal

incorporation. In each, the incorporation was

challenged as an establishment. In neither was the

15. In People v. Rose, 92 Misc2d 429, 368 N.Y.S2d 387

(Sup.Ct. Rockland County, 1975) the court invalidated a

judicial proceeding which was held im a girls’ religious school

in the town of New Square. Like Kiryas Joel, New Square is

a town composed exclusively of Hasidim. Among the grounds

for invalidating the proceeding was the fact that the hearing

took place in a Jewish parochial school in violation of the

principle that religion may not be closely associated with the

exercise of political power. &2 Misc2d at 431, 368 N.Y S2d at

391.

-34-

use of municipal power to further theological positions

at issue.

In Celmer, the New Jersey Supreme Court held

that the incorporation was invalid under the

Establishment Clause. The governing body of the

city was the governing body of the religious

corporation, the Ocean Grove Camp Meeting, a

Methodist establishment. And even though that was

not the case in Rajneeshpuram, the District Court

nevertheless refused to dismiss a claim that Oregon

could not constitutionally recognize the incorporation

of a township intentionally organized along religious

lines.

The only distinction between this case and these

precedents is a bare formality of legal form. KJSD is

not formally a religious body. But as this Court held

in Lee v. Weisman, supra, 112 S.Ct. at 2659, the

[Ilaw reaches past formalism" to protect religious

liberty.

-35-

III

THE BACKGROUND FACTS LEAVE NO

DOUBT AS TO THE RELIGIOUS

NATURE OF THE SCHOOL DISTRICT

It remains to demonstrate that the bar against

overlapping political and religious power is applicable

here. There is no room for dispute on this score.

KJSD embodies only the Village of Kiryas Joel, an all-

Hasidic community [Joint Appendix at 8-17], which

seceded from the larger town of Monroe. /d. at 10-

12. Kiryas Joel's boundaries were carefully drawn to

exclude all non-Hasidim, a sort of reverse Tuskegee,

Gomillion v. Lightfoot, supra. An earlier proposal to

create the Village was withdrawn because the

boundaries encompassed non-Hasidim. Id. at 13. It

is this Hasidic-only village -- and only this village --

that comprises KJSD.

Governor Cuomo's message approving the

legislation creating KJSD expressly noted that "the

Village of Kiryas Joel['s] . . . population are all

members of the same religious sect." Id. at 40-41.

The legislative sponsor acknowledged that the

-36-

District was created to serve "the Hasidic Jewish

community [which] holds firmly to its religious

tenets." /d. at 19-20. Similarly, Petitioner Monroe-

Woodbury School District, writing to the Governor to

announce it supported the legislation, noted that no

non-Hasidic family lived within the Village of Kiryas

Joel.“ Id. at 21-22}. From all of this, it is plain

that the rationale for the KJSD was solely religious.

No geographic, economic, class, historic factor other

than religion can explain the configuration of KJSD.

The presence of an intent to create a religious-

political enclave readily serves to distinguish this

case from the common happenstance in which some

religious group predominates in a community. This

distinction is entirely in keeping with general

principles of constitutional law, which provide that a

malignant purpose or an intent to further an illicit

16. Petitioner Monroe-Woodbury School District stated that

if any non-disabled child within KJSD wanted to attend public

school he or she would attend Monroe-Woodbury school, with

KJSD paying tuition. KJSD has no facilities for the non-

disabled student. Id.

-37-

purpose can invalidate an otherwise permissible act

because, as Justice O'Connor has explained, it

suggests an improper balancing of costs and benefits,

with illicit benefits weighed in the scales. Wallace v.

Jaffree, supra, 472 U.S. at 75 (O'Connor J.,

concurring).

A school district that happens to be all-white or

all-black as a result of no identifiable discriminatory

act is constitutional, Miliken v. Bradley, 418 U.S. 717

(1974); a district created to segregate is the

unconstitutional evil Brown v. Bd. of Education, 344

U.S. 1 (1954) struck down. See U.S. v. Scotland

Neck , 407 U.S. 484 (1972), Wright v. Council of City of

Emporia, 407 U.S. 451 (1972). Similarly, some

neutral regulations of charities are permissible;

regulations aimed at suppressing a particular

religious charity are not, Larsen v. Valente, 456 U.S.

228 (1982); a sales tax on newspapers is

constitutional; one aimed at suppressing political

-38-

criticism is not, Minneapolis Star Tribune v. Minnesota

Commr of Revenue, 460 U.S. 575 (1983).

The immediate impetus that triggered the

establishment of KJSD was the refusal of Petitioner

Monroe-Woodbury in the wake of Aguilar v. Felton, 473

U.S. 402 (1985) * to provide special educational

services to Hasidic children at sites other than its

own public schools. The violation identified in Aguilar

was that, under public control, public officials taught

in a parochial school. KJSD is a far greater violation

of the Constitution.

In its incarceration as KJSD, the Hasidic

community receives more than government assistance.

It exercises the power to tax any property within its

jurisdiction; it has the power to regulate any child

attending its school; it has the power to spend for

any purpose related to the school or its function; it

has the power to design curriculum and programs and

17. See Monroe-Woodbury School District v. Weider, 72

N.Y 2d 174, 531 N.Y S2d 889 (1988).

—

-39-

impose them on all families within its jurisdiction ; and

it has all the other political and governmental powers

of a public school district. It is a lesser violation of

the Establishment Clause to provide for special

education for the disabled in a private religious

school; it is far worse to turn a religious community

into a governmental entity and give it both public

money and governmental power.

The configuration of KJSD was solely religious,

just as colonial Massachusetts and Connecticut were

set up with religion as the organizing principle of the

political unit. In creating KJSD, New York

impermissibly "foster[ed] the creation of political

constituencies along religion lines." Lynch v.

Donnelly, supra, 465 U.S. at 688 (O'Connor, J.,

concurring). KJSD in fact is an unconstitutional

"state or local embrace of a particular religious sect."

Lambs Chapel v. Center Moriches School District, supra ,

113 S.Ct. 2141, 2151 (1993) (Scalia and Thomas, JJ.,

concurring).

en oe — =

7 —— —

5 5 ———

-40-

THE LEMON TEST SHOULD NOT

BE RECONSIDERED

The court below did not adopt the specific

theory we advocate in Points I-II of this brief.

Instead, a majority found that the legislation creating

KJSD had the impermissible effect of advancing

religion in violation of the second prong of the

tripartite test of Lemon v. Kurtzman, 403 U.S. 602

(1971). For the reasons assigned by the

Respondents, the conclusion that the legislation

creating KJSD is inconsistent with Lemon is

unassailabte. It need not be defended here either

under the traditional Lemon analysis or the

alternative understanding suggested by Justice

O'Connor in Lynch v. Donnelly supra , 465 U.S. at 688-

90, and assimilated into the Lemon test in County of

Allegheny v. A.C.L.U., supra, 492 U.S. at 593." The

18. We do note that it is difficult to translate a test designed

to identify cases in which government improperly identifies

itself by word or symboi with religion — the primary thrust of

(continued...)

-41-

Court of Appeals was bound by Lemon. Despite

criticism, Lemon has "not been overruled", Lamb’s

Chapel v. Center Moriches School District, 113 S.Ct.

2141, 2148, n.7 (1993), and is constantly applied in

this Court and lower state and federal courts.

Petitioners (other than New York State) in this

Court argue not only that KJSD's creation did not run

afoul of any of Lemon's three prongs, but that the

doctrine ought to be dispensed with entirely, at least

to the extent that it is applied to laws "designed to

remove barriers that prevent religious minorities from

practicing their religion." [KJSD Brief at 44-45;

Monroe-Woodbury Brief at 45-49]. They suggest that

the true purpose of the religion clauses is religious

IS. (continued)

Justice O Connors test in Lynch and County of Allegheny —

to this case, where the State of New York has in fact set up a

public school district along religious lines. While amici believe

that verbal or symbolic endorsements of religion can be

unconstitutional, such violations pale in comparison to the

magnitude of the violation here. Just as a jeweler’s scale

cannot be used to weigh a truckload of gravel without being

crushed, so too a test designed to check endorsements is

overwhelmed by a full-fledged established religion.

liberty and that accommodation, not separation, is the

essence of religious liberty. Amici on the other hand

believe that, while accommodation is an essential

element of religious liberty, separation is no less

integral to constitutional principle of religious

liberty.

Petitioners would have the Establishment Clause

limited to the “evils” at which the Clause was

directed -- “sponsorship, financial support, and

active involvement in religious activity .. ..

[KJSD brief at 44, citing Walz v. Tax Comm'n, 397

U.S. 664, 668 (1970).] We have already demonstrated

in Points I and II that this case, involving a joint

enterprise between church and state and a sharing of

political authority between them, presents the very

evils Walz identifies as targets of the Establishment

Clause. Because it is unnecessary to apply the

Lemon test in this case, there is no need to

reconsider that case here, for in any event,

-43-

Petitioners have not made out the requisite showing

to overcome a settled rule of constitutional law.

Stare decisis applies to constitutional decisions as

well as to statutory ones, Planned Parenthood v. Casey,

112 S.Ct. 2791 2808-09 (1992), for "the doctrine of

stare decisis is of fundamental importance to the rule of

law." Patterson v. McClean Credit Union, 491 U.S. 164,

172 (1989), citing Welsh v. Texas Department of

— ——

Highways, 483 U.S. 468, 494 (1987). Even in

2 —————eE

constitutional cases, stare decisis “carries such

persuasive force that we have always required a

departure from precedent to be supported by some

special jus tif ication““ Arizona v. Rumsey, 467 U.S.

203, 212 (1984), cited in Panne v. Tennessee, 111

S. Ct. 2597 (1991) (Souter, J., concurring).

In Planned Parenthood, the Court pointed to

several "prudential and pragmatic considerations

designed to test the consistency of overruling a prior

decision with the ideal of the rule of law." 112 S.Ct.

-44-

at 2808. The weight accorded stare decisis at a

minimum means that no case should be overruled

unless the outcome of the subsequent case would be

different. Overruling Lemon does not change the

result here. On any historically or precedently

grounded test, KJSD is unconstitutional.

The criteria to which the Court pointed in

Planned Parenthood are: 1) whether the rule is

unworkable in practical terms; 2) whether there is

some special kind of societal reliance on the prior

rule; 3) whether related principles of law developed

so as to leave the old rule a remnant of a repudiated

approach; and 4) whether social circumstances have

changed so as to leave the old rule without application

or justification. And although unstated in Planned

Parenthood , implicit in its discussion was the question

of whether the prior case was wrongly decided.

Applied to Lemon each of these criteria (which we

take up in slightly different order) negates the

existence of "special circumstances" which are a

-45-

necessary predicate to overruling a constitutional

decision.

A. Lemon Is Not Unworkable

One of the common criticisms of Lemon, echoed

by some of the Petitioners, is that the tripartite test

of Lemon is not workable, that it does not lead to

predictable results. Petitioners assert that their

proposed test will solve these problems. But

Petitioner KJSD's suggestion that the rubric of

"sponsorship, financial support and active involve-

ment in religious activity" is more readily applied

than the Lemon test does not withstand scrutiny.

Does funding religious based sex education

constitute "financial support" of religion? See Bowen

v. Kendrick, 487 U.S. 589 (1988). What of aid to

parochial schools in its various forms? Compare

Grand Rapids School District v. Ball, 473 U.S. 373

(1985) with PEARL v. Regan, 444 U.S. 646 (1980). Is

display of a municipal creche "active involvement in

-46-

religious activity"? Compare County of Allegheny v.

A.C.L.U., supra, with Lynch v. Donnelly, supra. Does

inviting a minister to offer a prayer at high school

graduation constitute “sponsorship... or active

involvement in religious activity"? Lee v. Weisman,

supra. What about permitting students to offer such

a prayer upon vote of their peers? Compare, Jones v.

Clear Creek ISD, 977 F.2d 963 (5th Cir. 1992) with

Gearon v. Loudoun County School Bd., 93-730-A (E. D.

Va. 1993).

Nor is certainty of adjudication materially

advanced by adopting a “coercion” standard,“ as

Justice Kennedy, joined, inter alia, by Justice Scalia,

suggested in County of Allegheny v. A.C.L.U., supra.

Justices Kennedy and Scalia themselves disagreed

over the application of that standard in Lee v.

19. The difficulty the courts had in admunistering the coercion

test prior to Miranda v. Arizona, 384 US. 436 (1966) is

instructive.

-47-

Weisman, 112 S.Ct. 2649 (1992), both finding it an

easy case, one confident that coercion existed, 112

S.Ct. at 2658-59, the other insisting the claim was

"incoherent." 112 S.Ct. at 2681.

The problem is not that the existing Lemon

Standard is unworkable, as Petitioners charge.

Lower courts have managed to apply Lemon for a

quarter of a century. Rather, it is the difficulty of

applying the Establishment Clause to a kaleidoscope

of fact patterns, each with its own unique twists,

that creates difficult cases. Cases reaching this

Court in particular are likely to be hard, and will

often call for careful line-drawing. Any test that

both takes the Constitution seriously and respects

democratic self-governance will require careful line-

drawing. Lemon does both.

Petitioners' quarrel is not with the Court's

formulation of a test; it is that the Court's decisions

take the Establishment Clause seriously. That

Clause, ata minimum, bars joint exercises of power

-48-

by religion and government, and it will, of necessity,

limit religion and religious institutions in at least some

ways not applicable to secular ideologies and

institutions.

B. The Lemon_Rule Is Fully

Woven Into The Texture

Of The Law

In calling for the overruling of Lemon,

Petitioners are challenging more than just its three-

part test. The Lemon test did not spring full blown

from the brow of Zeus. In announcing it, Chief

Justice Burger did not purport to announce a new

rule. Instead, he anchored the tripartite test firmly

in past decisions:

Three such tests may be gleaned from our

cases. First, the statute must have a

secular legislative purpose; second, its

principal or primary effect must be one

that neither advances nor inhibits religion,

Board of Education v. Allen, 392 U.S. 236

(1968); finally, the statute must not foster

an excessive government entanglement

with religion.' Walz, supra, at 674.

(emphasis added)

403 U.S. at 612-13.

-49-

Ironically, Chief Justice Burger, citing Walz,

said that this tripartite test was intended to flesh out

the "three main evils against which the Establishment

Clause was intended to afford protection:

‘sponsorship, financial support, and active

involvement in religious activity, 403 U.S. at 612,

the very test that KJSD says should take the place of

the three-part test. The grounding of Lemon in the

part of Walz to which Petitioners point was again

emphasized in PEARL v. Nyquist, supra, 413 U.S. at

770-73. The purpose _ effect branches of Lemon

were lifted in hac verba from School District of Abington

Township v. Schempp, 374 U.S. 203, 222 (1963). The

entanglement branch came directly from Walz, the

very case that Petitioners say reflects a truer

understanding of the Establishment Clause than

Lemon

20. Tellingly, Petitioners and their amici offer no single

alternative to Lemon. KJSD suggests language from Waiz, but

(continued...)

-50-

In sum, Petitioners take aim not just at Lemon,

but at all those cases whose holdings it subsumes.

Just as certainly, because Lemon is so firmly rooted

in all of this Court's modern Establishment Clause

jurisprudence, and because it has well served the

interests of religious freedom and peace that stare

decisis powerfully calls for its reaffirmation, not its

demise.

C. Lemon Was Correctly Decided

The Court has repeatedly canvassed the history

of the First Amendment, and concluded that it

embodies a principle of neutrality, not just non-

preferentialism, which has been the major alternative

offered by critics of Lemon. Although the Court's

20.(..continued)

as demonstrated, that language gave birth to the Lemon test.

Monroe Woodbury proffers either a non-preferential approach

inconsistent with the Clause’s history, or a general acceptance

of anything labelled accommodation. Amici supporting

Petitioners propose various alternatives, from abandoning the

effect test, to modifying it, to adoption of a pure coercion test.

The lack of a self-evidently better rule upon which all of

Lemon's critics can agree is further reason not to overturn

Lemon.

afte

accepted reading of the Establishment Clause as

embodying a policy of separation has been

challenged, R. Cord, Separation of Church and State

(1982), more recent historical research by scholars

such as Leonard Levy, 2 Thomas Curry” and

Douglas Laycock ,# proves that the non-

preferentialist approach is historically untenable, as

even scholars critical of "separationism"

acknowledge. M. McConnell, Religion at the

Crossroads, 59 U. Chi. L. Rev. 115, 146, n. 142 (1990).

D. There Has Been Substantial

Reliance on Lemon

Moreover, given Lemon's origin as a restatement

of prior law, its demise, particularly on the unusual

facts presented here, would cast doubt on every

prior decision of this Court, and of the lower courts,

21. L.W. Levy, The Establishment Clause: Religion and The

First Amendment (1986).

22. Curry, First Freedoms, supra.

23. D. Laycock, Non-Preferential Aid to Religion: A False

Claim About Intent, 27 Wm. & Mary L.Rev. 875 (1986).

-52-

all of which now, and for almost 25 years, have

regularly applied Lemon. Overruling Lemon would

not elucidate questions encountered by the courts

with greater frequency than the unusual one

presented here. Abandoning Lemon here would

gratuitously impose upon legislatures, state attorneys

generals and school boards the burden of re-

litigating issues long settled, certainly legally, and,

in large part, socially as well, and all to no point,

because the judgment below would in any event be

reaffirmed.

KIRYAS JOEL SCHOOL DISTRICT

IS NOT A PERMISSIBLE FORM

OF ACCOMMODATION

Some of Petitioners and their amici also urge that

Lemon should be overruled because it interferes with

the accommodation of minority religions and hence

does not respond to the changes in social reality of

late 20th century America. [KJSD Brief at 40-43;

Monroe-Woodbury Brief at 45-49.] They complain

-53-

that under Lemon, the Establishment Clause wholly

swallows up the Free Exercise Clause, and with it any

notion of accommodation. We agree that a reading of

the Establishment Clause that prohibited any

accommodation would be wrong. But Lemon does not

countenance, much less mandate, such a departure

from neutrality. The same court which decided

Lemon decided Wisconsin v. Yoder, 406 U.S. 205

(1972), perhaps this Court's most far reaching

application of the doctrine of accommodation.

Petitioners also fail to explain why their

proposals would not allow the accommodation doctrine

to swallow up the Establishment Clause, especially in

those cases where a particular accommodation is

discretionary, not mandatory, as concededly is the

case here. [KJSD Brief at 42.

Apart from the untenable nature of the

argument, which flies in the face of numerous

"accommodation" decisions, Petitioners’ accommo-

dation argument is also not new; practically every

-54-

practice that has been condemned by this Court as an

establishment has been defended as an accommo-

dation. See, eg., Engel v. Vitale, 370 U.S. 421

(1962); Wallace v. Jaffree, 472 U.S. 38 (1985); Lee v.

Weisman , supra. And while there may be somewhat

greater religious diversity now than when Lemon was

decided, the problem of accommodation was far from

unknown then, even for radically separatist sects.

Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v.

Verner, 374 U.S. 398 (1963). The difficulty of

reconciling accommodation and separation was also not

unknown before the Lemon test was formulated,

Skerbert v. Verner, supra , 374 U.S. at 422 (Harlan, J.,

dissenting) =

Defining the boundaries of permissible

accommodation has proven quite difficult for this

24. If there is a contemporary threat to accommodation — and

there is it comes from this Court’s decision m Employment

Dimsion v. Smith, 494 US. 872 (1990), a Free Exercise Clause

decision, not from its Establishment Clause decisions.

-55-

Court as the several opinions in Texas Monthly v.

Bullock , 489 U.S. 1 (1989) demonstrate. Amici are

quite certain that the solution does not lie either in

committing all accommodation to the unfettered

discretion of the legislature, as this Court

unfortunately did in Employment Division v. Smith,

supra , or in permitting anything that can plausibly be

called an accommodation to pass constitutional

muster, a proposition rejected in Estate of Thornton v.

Caldor, Inc., 472 U.S. 703 (1985).

This Court's cases suggest several limitations.

Accommodation imposing significant costs or burdens

on, or compelling religious conformity of, other

persons, will generally be impermissible. Estate of

Thorton v. Caldor, Inc, supra. There is some

evidence that religious conformity is insisted upon

here, J. Mintz, Hasidic People, supra; Waldman v.

UTA , 147 Misc. 2d 529, 558, 558 N. E. 2d 781 (Sup. Ct.

Orange County, 1990).

-56-

Justice O'Connor has suggested that an

accommodation must remove an active state-created

burden from the shoulders of the believer, and that,

absent such a burden, government support for

religion is an establishment, not an accommodation.

Wallace v. Jaffree, supra, 472 U.S. at 81-83. Since

Petitioners have disclaimed any separatist religious

doctrine that would, as a religious matter, prohibit

them from attending classes under secular control,

see KJSD Brief at 7, it is difficult to see what state-

created burden on religious practice the New York

legislature has removed by creating KJSD.™ Under

Justice O'Connor's Jaffree formulation, too, KJSD is

an establishment of religion.

25. Ami are not qualified to pass on the question of whether

the Satmar Hasidim have a forma! religious mandate requiring

separatism. They do note that religion consists of a mix of

formal beliefs, mandatory practices or ceremonies, and

customary observances. Each faith has its own nuanced

version of these principles, frequently unmtelligible to the

outsider, and always difficult to explam and delineate. These

various sources of practice, ceremony or belief may be all

religious for constitutional purposes, even if not formally

mandated. See Callahan v. Wood, 658 F 2d 679 (9th Cir. 1981)

-57-

The problem of accommodation arises from a

tension between the Establishment and Free Exercise

Clauses. It makes sense to accommodate religion in

ways that drain neither Clause of its core meaning.

That was the cautious approach taken by Justices

Blackmun and O'Connor in Texas Monthly v. Bullock ,

supra .

In Texas Monthly, the Court invalidated a sales

tax exemption for religious periodicals but not for

competing secular ones. After explaining why it was

so difficult to settle on a precise formulation of a test

for distinguishing permissible and impermissible

accommodation, Justice Blackmun explained that "a

Statutory preference for the dissemination of

religious ideas offends our most basic understanding

of what the Establishment Clause is all about and

hence is constitutionally intolerable.” 489 U.S. at 28.

An effort to "create political constituencies along

religious lines” is likewise "constitutionally

intolerable.” Creating such constituencies is not an

-58-

accommodation that a government bound by the

Establishment Clause can offer.

THE PRESENCE OF CONSTITUTIONAL

MEANS OF DELIVERING EDUCATIONAL

SERVICES DOOMS KJSD

The effort to label KJSD an accommodation of

religion despite its utter incompatibility with the

Establishment Clause falters for yet another reason --

it is an accommodation far more intrusive on

Establishment Clause values than need be to ensure

services to the disabled children of Kiryas Joel.

Such excessive intrusion leads inescapably to the

conclusion that KJSD was created not as an accommo-

dation, but rather as an advanceme t, of religion, as

the New York Court of Appeals held.

The record suggests that the gap between

Hasidic children and their public school peers was so

great that it was not educationally feasible to put

them in the same classroom. We accept for the moment

the truth of these claims. Monroe-Woodbury School

District had available to it a ready remedy that would

-59-

not have impinged on the Establishment Clause -- the

use of a so-called "neutral site," under the control of

the Monroe-Woodbury School Board, but serving only

Hasidic children. If selected for secular reasons,

such as ensuring the educational effectiveness of the

instruction provided, or providing bilingual

instruction in Yiddish, such neutral siting is

constitutional.

Wolman v. Walter, 433 U.S. 229 (1977) is

dispositive. There, the Court held that it would be

constitutional to provide remedial services to

parochial school students in off-premise facilities:

The fact that a unit on a neutral site on

occasion may serve only sectarian pupils

does not provoke the same concerns that

troubled the Court in Meek. The influence

on a therapist's behavior that is exerted by

the fact that he serves a sectarian pupil is

qualitatively different from the influence of

the pervasive atmosphere of a religious

institution. The dangers (of improper

effect and entanglement) perceived in Meek

arose from the nature of the institution,

not from the nature of the pupils.

433 U.S. at 244.

-60-

Aguilar v. Felton, 473 U.S. 402 (1985) reinforced

this rule, even as it emphasized that secular

instruction could not take place on the premises of

parochial schools. In her dissent, Justice O'Connor

explained the majority's ruling:

Our Establishment Clause decisions have

not banned remedial assistance to parochial

school children, but rather remedial

assistance on the premises of the parochial

school. Under Wolman .. the New York

city classes prohibited by the Court today

would have survived Establishment Clause

scrutiny if they had been offered in a

neutral setting off the property of. the

private school. (emphasis added)

473 U.S. at 420. The lower federal courts since

Aguilar have uniformly upheld off-premises arrange-

ments.

The difference between a neutral site and KJSD

is plain. The neutral site would create no political

entity along religions lines. No religious group

26. Barrnes v. Cavazos, 934 F 2d 912 (8th Cir. 1992); Pulido

v. Cavazos, 966 F 2d 1056 (6th Cir. 1991) (dismissing appeal on

procedural grounds; court below in accord); Walker v. San

Francisco U.S.D., 761 F Supp. 1463 (N.D. Cal. 1991), appeal

pending (9th Cir.)

controls the neutral site. Students who do not wish

to avail themselves of the neutral site, and who

prefer to participate in the regular school, are free to

do so. Given the existence of KJSD, a disabled

student in the Village of Kiryas Joel who desires a

public school education is coerced to attend a

religiously segregated public school, the equivalent

of state imposed racial segregation. And for the

reasons expressed in Wolman, the neutral site does

ad By contrast,

not otherwise establish religion.

KJSD does all of these forbidden things. It therefore

falls on the wrong side of the constitutional line.

27. The New York Court of Appeals recognized that neutral

sites were an available alternative, Bd. of Educ. v. Weider, 72

N.Y 2d 174, 531 N.Y 2d 889, 527 N.E 2d 767 (1988), but felt

itself powerless to order it. This Court, however, has the

power to enter such order “as is just“, 28 USC. 2106. In

light of ten years of litigation and the urgent need of the

Hasidic children for special education, it would seem “just” for

this Court to order Petitioner Monroe-Woodbury School

District to implement a neutral ite plan, or to cast its mandate

so that the New York Court of Appeals may do so.

-62-

CONCLUSION

These are perilous times for common school

education. The very idea of a common school is under

broad attack, and with it the premise, implicit in

cases such as Brown v. Bd. of Educ. , supra, that public

schools have an obligation to serve all children.

KJSD dismisses the unfairness of creating a

school district for this religious community. It

Suggests that no other group is likely to be as

seriously affected. [KJSD Brief at 46-47.] The claim

ignores the many religious communities intensely

dissatisfied with the public schools over creationism,

outcome based education, sex education and ‘secular

humanism’. They (and their opponents) would be

happy to create fiefdoms of religious or non-religious

homogeneity this Court confers its constitutional

blessings on KJSD.

-63-

When all is said and done, this is an easy case.

The judgment below must be affirmed.

February 23, 1994

—

Norman Redlich

Marc D. Stern

Counsel of Record

American Jewish Congress

15 East 84th Street

New York, NY 10028

(212) 360-1545

APPENDIX

APPENDIX A

MEMBER ORGANIZATIONS OF

THE NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL

Birmingham JCC

Greater Phoenix Jewish Federation

Tucson Jewish Federation of Southern Arizona

Greater Long Beach and West Orange County

Jewish Community Federation

Los Angeles CRC of Jewish Federation-Council

Oakland Greater East Bay JCRC

Orange County Jewish Federation

Sacramento JCRC

San Diego CRC of United Jewish Federation

San Francisco JCRC

Greater San Jose JCRC

Greater Bridgeport Jewish Federation

Greater Danbury CRC of Jewish Federation

Eastern Connecticut Jewish Federation

Greater Hartford CRC of Jewish Federation

New Haven Jewish Federation

Greater Norwalk Jewish Federation

Stamford United Jewish Federation

Waterbury Jewish Federation

JCRC of Connecticut

Wilmington Jewish Federation of Delaware

Greater Washington JCC

South Broward Jewish Federation

Greater Fort Lauderdale Jewish Federation

Jacksonville Jewish Federation

Greater Miami Jewish Federation

Greater Orlando Jewish Federation

Palm Beach County Jewish Federation

Pinellas County Jewish Federation

Sarasota-Manatee Jewish Federation

South County Jewish Federation

Atlanta Jewish Federation

Savannah Jewish Council

NJCRAC MEMBER ORGANIZATIONS A-2

Metropolitan Chicago JCRC of the Jewish

United Fund

Peoria Jewish Federation

Springfield Jewish Federation

Indianapolis JCRC

South Bend Jewish Federation of St. Joseph Valley

JCRC of Indiana

Greater Des Moines Jewish Federation

Lexington Central Kentucky Jewish Federation

Louisville Jewish Community Federation

Greater Baton Rouge Jewish Federation

Greater New Orleans Jewish Federation

Shreveport Jewish Federation

Portland Southern Maine Jewish

Federation-Community Council

Baltimore JCRC

Greater Boston JCRC

Marblehead North Shore Jewish Federation

Greater New Bedford Jewish Federation

Springfield Jewish Federation

Worcester Jewish Federation

Metropolitan Detroit JCC

Flint Jewish Federation

Minneapolis Minnesota and Dakotas JCRC-

Anti-Defamation League

Greater Kansas City Jewish Community

Relations Bureau

St. Louis JCRC

Omaha JCR Committee of Jewish Federation

Atlantic County Federation of Jewish Agencies

Central New Jersey Jewish Federation

Clifton-Passaic Jewish Federation

Delaware Valley Jewish Federation

Metrowest United Jewish Federation

Greater Middlesex County Jewish Federation

Northern New Jersey JCRC

Southern New Jersey JCRC of Jewish Federation

Albuquerque JCC

Binghamton Jewish Federation of Broome County

Greater Buffalo Jewish Federation

NJCRAC MEMBER ORGANIZATIONS A-3

Elmira CRC of Jewish Welfare Fund

Greater Kingston Jewish Federation

Northeastern New York United Jewish Federation

Greater Orange County Jewish Federation

Rochester Jewish Community

Syracuse Jewish Federation

Utica Jewish Federation

Akron Jewish Community Federation

Canton Jewish Community Federation

Cincinnati JCRC

Cleveland Jewish Community Federation

Columbus CRC of Jewish Federation

Greater Dayton CRC of Jewish Federation

Greater Toledo CRC of Jewish Federation

Youngstown JCRC of Jewish Federation

Oklahoma City JCC

Tulsa JCC

Portland Jewish Federation

Allentown CRC of Jewish Federation

Erie JCC

Greater Philadelphia JCRC

Pittsburgh CRC of United Jewish Federation

Scranton-Lackawanna Jewish Federation

Greater Wilkes-Barre Jewish Federation

Providence CRC of Rhode Island Jewish Federation

Charleston JCR Committee

Columbia CRC of Jewish Welfare Federation

Memphis JCRC

Nashville and Middle Tennessee Jewish Federation

Austin JCC

Greater Dallas JCRC of Jewish

Community Federation

El Paso JCR Committee

Fort Worth Jewish Federation

Greater Houston Jewish Federation

San Antonio JCR of Jewish Federation

Newport News-Hampton United Jewish Community of

the Virginia Peninsula

Richmond Jewish Community Federation

Tidewater United Jewish Federation

NJCRAC MEMBER ORGANIZATIONS

Greater Seattle Jewish Federation

Madison JCC

Milwaukee Jewish Council

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.