. . . Or a Reasonable Accommodation Upset by the Court?


Reading the Kiryas Joel decision, one cannot help but feel a profound sense of sadness.

Sadness, first, for the 200 Hasidic children, who suffer from a range of physical and mental disabilities, and who will no longer be able to receive special education services in a setting that has proven conducive to their development. Barring any new developments, they will now be faced with a either to go without these critically needed services or to return to the public schools, where their parents said they experienced "panic, fear and trauma."

Those who are pleased by the Supreme Court's ruling sympathize with the plight of these children but point to the importance of maintaining strict separation between church and state. Religious minorities understand well the protection afforded them by the Establishment Clause and the need to be vigilant as to its enforcement.

The Constitution, however, abhors absolutism; church-state separation, like all First Amendment principles, must be applied with reason and care. The Kiryas Joel decision forces us to ask ourselves whether we are truly safeguarding the Constitution, whether we are truly safeguarding religious minorities, whether we are truly safeguarding religious liberty, when we use the Establishment Clause as a means to deprive severely handicapped children of the services for which they are eligible and of which they are in such desperate need.

But the sadness one feels after reading Kiryas Joel extends far beyond these Hasidic children or the boundaries of the village. Indeed, the decision should be disheartening to all Americans who cherish the free exercise of religion.

The Supreme Court in Kiryas Joel reiterated its frequently cited dictum that "government may (and sometimes must) # accommodate religious practices and . . . may do so without violating the Establishment Clause." And, so it is, religious communities have often looked to legislative bodies for accommodation of their special religious needs.

The threat now posed to the principle of "religious accommodation," as a result of the Kiryas Joel decision, is stark. The court's sweeping view of government neutrality toward religion makes it difficult -- if not impossible -- for religious practices to be accommodated without running afoul of the First Amendment.

Justice Souter writes that the New York statute creating the Kiryas Joel School District fails to pass constitutional muster because it gives no assurance "that governmental powers have been or will be exercised neutrally" or "that the next similarly situated group seeking a school district of its own will receive one." Simply put, a statute is invalid on its face if the guarantee of government neutrality was not written into the legislation when it was passed.

At first blush, Justice Souter's standard seems less than spectacular. But religious accommodation takes many forms, and not all are relevant to -- or are easily "made" applicable to -- all religions. Some religious groups have looked to the political process for accommodation of their dietary laws, others for accommodation of their Sabbath and holiday observances, still others for accommodation of their religious mode of dress. All these laws are aimed at accommodating the needs of one, or bTC several, religious communities.

In light of Kiryas Joel, will we now be faced with the frightening prospect of courts re-examing the validity of these legislative accommodations and looking for guarantees that, when the legislature passed these laws, similar accommodations -- whatever that might mean -- would be made to other groups? Will legislatures now refrain from granting new accommodations that have practical relevance to only some, but not all, religions?

The problem gets even more complicated when we ponder Justice Souter's assertion that government neutrality in accommodation must be assured for all groups, not just religious ones. In his words, government must not prefer 'religion to irreligion.'

But not all legislative accommodations involve the conferring of benefits that are "general" or "secular." As the examples above show, many -- perhaps most -- accommodations are strictly "religious" in nature. They involve ritual practices and observances. They are firmly rooted in religious law. Their very purpose is to provide a benefit to religious adherents. It is simply not feasible to draft these laws for all groups. How, then, would it be possible to enact religious accommodation laws at all?

There is a silver lining, however, to this very dark cloud. Five of nine justices have now expressly called for a reconsideration of the court's 1985 Felton decision, which prohibited publicly funded teachers from entering religious school premises for the purpose of providing secular remedial education services. It is that decision which has seriously plagued, both in terms of participation and quality, the provision of federal education services to religious school children, even when federal law mandates their equitable participation.

Perhaps ther is, after all, a glimmer of hope in the Kiryas Joel decision. If it signals the first step in recognizing that Establishment Clause protections are not enhanced by depriving our children of the services they need and deserve, then it is a step in the right direction.

Abba Cohen is Washington director and counsel for Agudath Israel of America, a national Orthodox Jewish group that filed a brief with the Supreme Court supporting the Kiryas Joel School District.

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