Kiryas Joel and the Lemon Test

June 30, 1994

The Supreme Court left standing and perhaps even undisturbed the wall between church and state this week, in an opinion that would seem so routine as to escape attention were it not for the tenor of the dissent.

The case involved a New York state law that created a public school district specifically for practitioners of Satmar Hasidism, an extremely rigid and conservative form of Judaism. The Satmars living in the exclusive religious enclave of Kiryas Joel in Orange County speak Yiddish as their primary language, segregate the sexes outside the home and educate their children in private religious schools.

But those schools did not provide education for handicapped Satmar children who had to attend regular public schools. This proved unsatisfactory to them and their parents. All but one withdrew, to depend on private funds for special education or do without. That is when the state created by law a public school district just for the enclave. That law, Justice David Souter said for the court Monday, "violates the [First Amendment's] prohibition against establishment [of religion]."

In dissent Justice Antonin Scalia ridiculed Justice Souter's reasoning and, perhaps, integrity, for saying the law amounted to the "establishment" of the Satmars in New York State. He employed language that was scathing and uncollegial even by his standards of intellectual truculence. But the law is exactly what Justice Souter called it -- an "allocation of political power on a religious criterion." Therefore in a constitutional sense it is clearly unacceptable as a state establishment of a religion for educational purposes in one particular location.

It is not always easy to ascertain how and when and to what degree state action in the area of religion amounts to "establishment." For the last 23 years the court has used what has been called "the Lemon test" (because it was articulated in a case called Lemon vs. Kurtzman): "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.' "

Though this three-part test dates only to 1971, all three elements of it had been enunciated in earlier Supreme Court decisions. This is a long-standing approach to the church-state relationship. Still, many jurists -- including some justices -- find the formula unsatisfactory and have urged getting rid of it. Justice Souter did not rely on it as precedent, perhaps in order to get a solid 6-3 decision, including justices who have criticized Lemon.

But as Justice Harry Blackmun said in a concurring opinion, the ** principles upon which Monday's decision is based came straight from Lemon and subsequent decisions invoking it. There have now been 31 of those, which suggests to us that the Lemon test is no lemon, and those who would discard it should think again.

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