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The
Jewish community
always has been profoundly aware that maintaining a firm line of
separation between church and state is essential to religious freedom
and the religious voluntarism which fosters the creative and distinctive
survival of diverse religious groups, such as our own.
There always
has been an ebb and flow of attempts to breach the wall of separation
between church and state in America. Vigorous efforts to protect
the principle of church-state separation continue to be vital. A
long held principle of community relations is that the security
of Jews in America depends not only on the nature and extent of
overt anti-Semitism, but on the strength of the American democratic
process and those traditions and institutions that foster and protect
individual freedom. Therefore, in addition to our concern with manifestations
of anti-Jewish attitudes, the Jewish community relations field must
maintain vigilance against threats to an open, democratic, pluralistic
society.
Separation
of Church and State
Changing
Conditions
The
changing contours of the United States Supreme Court are expected
to strengthen the position of those on the Court who resist changes
to the "establishment clause," including the revision or recision
of the three-part Lemon test. The June 1994 ruling of the Supreme
Courtin Kiryas Joel v. Grumet reaffirmed the principle of neutrality
of the state with respect to religion. Passage of the Religious
Freedom Restoration Act was a landmark in the preservation of religious
liberty. The debate over the appropriate place of religion in American
society, and hence in the public sphere, deepened.
Background
U.S. Supreme
Court
The constitutionality
of the creation by the New York State legislature of a special school
district intended to provide remedial education only for children
of the Satmar Chasidic group living in a cohesive community in a
separate chartered township was tested by the United States Supreme
Court in Board of Education of the Kiryas Joel Village School
District v. Grumet. (Almost all of Kiryas Joel's school-age
children are educated in religious schools with private community
support.) The New York State Court of Appeals (the state's highest
court) upheld a lower court ruling invalidating the special school
district, ruling that the statute creating the school district violated
the Lemon test.
In a
6-3 decision in Kiryas Joel v. Grumet, handed down on June
27, 1994, the Supreme Court ruled that a public school district
created along religious lines for the handicapped children of the
village was a violation of the establishment clause of the First
Amendment. The Court found, in the words of Associate justice David
H. Souter, that the creation of the Kiryas Joel Village School District
was "an allocation of political power on a religious criterion,"
and therefore violated the establishment clause's requirement of
government neutrality toward religion. In his majority opinion,
Justice Souter asserted that the "fusion of governmental and religious
functions," specifically the delegation by the state legislature
of political power to a religious entity on the basis of religion,
was a facial violation of the establishment clause. Justice Souter
said that legislature's plan went far beyond permissible accommodation,
and that neutral and non-discriminatory alternatives were not considered.
The Supreme
Court in Kiryas Joel neither relied upon nor overruled the
Lemon test. Analysts suggest that most Supreme Court justices
would abandon the test in favor of other evaluative criteria; in
all likelihood the reason Lemon remains unreversed is that
the justices have not agreed on what those new criteria should be.
Kiryas
Joel raised difficult issues for the Jewish community relations
field. These questions were reflected in the interface of the field's
recognition both of the need for funding of Jewish religious educational
institutions and also the field's adherence to longstanding positions
on the separation of church and state. While the NJCRAC firmly opposes
government aid to religious schools, Grumet was not a standard "parochiaid"
situation. The very compelling circumstances of the Chasidic group,
involving its legitimate requirements for remedial education, make
this case a particularly troublesome application of the establishment
clause. Nevertheless, the NJCRAC has viewed the creation of a separate
school district for the Kiryas Joel community as sending a message
of unconstitutional endorsement of religion. Further, there is the
potential for opening the door to the creation of "religious" school
districts around the country. In the aftermath of Kiryas Joel the
Jewish community relations field will be called upon to consider
the issue of accomodating the secular needs of a cohesive community
sharing a common religious faith.
The NJCRAC
participated in an amicus brief prepared by the American Jewish
Congress. The American Jewish Committee, Anti-Defamation League,
and National Council of Jewish Women participated in a brief prepared
by Americans United for the Separation of Church and State.
During
1993, the U.S. Supreme Court ruled on two situations involving religion
in public schools, and one in which a threat to religious liberty
was addressed. In a 5-4 decision in Zobrest v. Catalina Foothills
School District, the Court ruled in June 1993 that government
provision of an interpreter to a deaf child at a sectarian school
was not violative of the establishment clause of the First Amendment.
Since "the Individuals with Disabilities Education Act creates a
neutral government program dispensing aid not to schools but to
individual handicapped children," to allow a child to be the beneficiary
of such aid at a sectarian rather than at a public school would
not violate the establishment clause, wrote Chief justice William
Rehnquist in his majority opinion, reversing a decision of the Ninth
Circuit Court of Appeals. NJCRAC member agencies were divided on
Zobrest. The American Jewish Committee and the Anti-Defamation
League joined in amicus briefs on the side of the school board,
arguing that spending tax money to provide an interpreter would
have a primary effect of advancing religion and would lead to excessive
government entanglement with religion. The Union of American Hebrew
Congregations and the American Jewish Congress supported the handicapped
child.
In Lamb's
Chapel v. Center Moriches Union Free School District,
the Court ruled unanimously in June 1993 that once public school
facilities have been open to community groups during non-school
hours, a local school board could not deny access to these facilities
to a religious group, in this case an evangelical Christian church
that wanted to use a high school auditorium to show a movie with
a Christian theme. The Court further held that permitting a religious
group such access did not violate the establishment clause. The
NJCRAC supports the fair-market rental of public school facilities
to any community group during evening and weekend hours.
Church
of the Lukumi Babalu Aye v. City of Hialeah, the
Florida Santeria "animal-sacrifice" case, was the first significant
Supreme Court decision concerning the "free-exercise" since Employment
Division v. Smith(see below, under Free Exercise, and
Joint Program Plan for 1993-94, for details on Smith).
The Court ruled that a Hialeah, Florida municipal ordinance
was not neutral in that it targeted members of a particular faith
community, which used animal sacrifice as part of its religious
ritual. Because the ordinance was found to be neither neutral nor
generally applicable, the Court held that, in order to be constitutional
under the free exercise clause, it needed to advance a compelling
governmental interest, which the Hialeah ordinance failed to do.
While all of the justices agreed that the Hialeah statute was illegal,
only Justice David H. Souter used the case as a vehicle for calling
for a complete re-examination of Smith. The NJCRAC joined
other Jewish and Christian groups in an amicus brief supporting
the Santeria and urged the High Court to reconsider Smith.
The appointment
by President Clinton of Judge Ruth Bader Ginsburg of the District
of Columbia Circuit Court of Appeals to fill the seat vacated by
the retiring Justice Byron White, and of Judge Stephen Breyer of
the First Circuit Court of Appeals to fill the seat of retiring
Justice Harry Blackmun, will have significance with respect to the
Supreme Court's stance on church-state matters. There is the likelihood
that the presence of the two new justices on the Supreme
Court will strengthen support of the establishment clause.
Nonetheless, challenges
to the establishment clause arising out of student-initiated graduation
prayer situations, the display of religious
symbols in "public forums," and increasing pressure for school voucher
programs and other school "choice" initiatives - situations tested
in federal courts, state legislatures, and ballot initiatives -
continue to pose dangers to church-state separation.
Free
Exercise of Religion
The Religious
Freedom Restoration Act, supported by an unusually broad coalition
of civil rights and civil liberties groups, including the NJCRAC,
was passed overwhelmingly by the Congress in 1993 and signed into
law by President Clinton on November 16. The legislation remedies
the effects of the April 1990 Supreme Court decision in Smith
v. Employment Division by codifying the principle that government
may not restrict a person's free exercise of religion absent a compelling
state interest. This "compelling state interest" test had been a
standard free-exercise test, and its removal by the Court in Smith
effectively eviscerated much of the free-exercise clause.
The significance
of RFRA, passage of which had been one of the highest legislative
priorities of the Jewish community relations field since Smith,
cannot be overestimated. More than 50 cases since April 1990
had been decided on the basis of Smith. The overwhelming
majority of these decisions in some way limited or infringed upon
the religious liberty of individuals or groups. Additionally, RFRA
represents a noteworthy exercise in the efficacious use of coalition
politics.
Free
Exercise: Religious
Accommodation
The Congress
is considering legislation introduced by Representative Jerrold
Nadler (NY), that would strengthen the religious accommodation provisions
of Title VII of the Civil Rights Act of 1964, and remedy the 1977
U.S. Supreme Court decision in TWA v. Hardison, and its 1986
decision in Philbrook v. Ansonia Board of Education. (NOTE: For
details of TWA v. Hardison see Joint Program Plan for
1978-79, page 30; and for Philbrook v. Ansonia Board of Education
see joint Program Plan for 1987-88, page 41.) The NJCRAC
views the Court's narrow interpretations in Hardison and
Philbrook of the employer's obligation to accommodate religious
practice to be departures from generally applicable Title VII principles.
Religious-accommodation legislation is supported by a broad coalition
of religious and civil liberties groups. The NJCRAC considers legislation
remedying Hardison and Philbrook to be a high legislative
priority for passage during the second session of the 103rd Congress.
Establishment
Clause/Religion in the Public Schools
Student-initiated
prayer at high school graduation exercises has been an area of concern
in recent years (see Joint Program Plans for 1992-93 and
1993-94). A federal district court decision in Harris v. joint
School District No. 241, upholding a school board policy permitting
graduating seniors in an Idaho high school to vote on whether to
include a prayer in their commencement exercises, has been appealed
to the 9th Circuit Court of Appeals. The NJCRAC joined in an amicus
brief filed on behalf of a coalition of civil liberties and
religious groups urging the 9th Circuit to reverse the district
court's decision. If the appellate decision in Harris conflicts
with the troubling decision reached last year in Jones v. Clear
Creek Independent School District (see Joint Program Plan
for 1993-94), the likelihood that the Supreme Court will revisit
the graduation prayer issue will be increased.
It appears
that the graduation prayer issue is developing on a nationwide basis
into a June variation of the "December Dilemma." The Jewish community
relations field will be called upon to express concern with respect
to graduation prayer and similar practices to school officials.
School
prayer legislation, a minimal factor in recent years in the U.S.
Congress, surfaced during the second session of the 103rd Congress.
Two bills related to public school education were vehicles for school
prayer amendments: the Administration's "Goals 2000" program (see
section on Public School Education for details) and the Elementary
and Secondary Education Authorization Act. In early February 1994,
the Senate passed an amendment to S. 1150, the "Goals 2000" education
reform act, offered by Sen. Jesse Helms (N.C.), that would cut off
funding to any state or local educational agency "which has the
policy of denying constitutionally-protected prayer in the public
schools by individuals on a voluntary basis. The House-Senate conference
on the "Goals 2000" bill rejected school prayer language in the
bill it sent back to both houses in March, and Senator Helms's efforts
at a filibuster were rejected on March 26.
Meanwhile,
the House of Representatives on March 21 approved by a 345-64 margin
an amendment to H.R. 6, the Elementary and Secondary Education Act,
offered by Rep. Sam Johnson (TX), that would withhold federal money
from states or school districts that prohibit "voluntary, constitutionally-protected"
school prayer. As of early July 1994, the education bill had not
come to the Senate floor for a vote, and there was the likelihood
that a school prayer amendment would be offered to the Senate bill.
School
prayer bills surfaced during 1993-94 in a number of states and municipalities.
In Georgia each house of the state legislature passed its own version
of school prayer legislation: the Senate's bill mandates a "moment
of reflection"; the House bill calls for "two minutes of silent
prayer." As of July 1994, the bills were in conference. In Washington,
D.C., a bill authorizing student-led, nonsectarian, and non-proselytizing
prayer reportedly had the support of a majority of the D.C. Council.
In Florida, a bill authorizing student-initiated and student-led
voluntary school prayer, when a majority of students vote for such
prayer, "during school-related noncompulsory student assemblies,
school-related sporting events, and school related commencement
exercises, " which had been deemed likely to pass, did not come
to a vote on the closing day of the state legislature. Testimony
in opposition to the bill, developed by the American Jewish Congress,
was delivered, in consultation with the NJCRAC, on behalf of the
Florida Association of Jewish Federations. In Maryland, a prayer
measure failed in the state legislature. The Maryland Jewish Alliance
delivered testimony on the bill. In Kansas, a measure designed to
insert the Christian religion in the public schools was defeated,
with the Kansas City Jewish Community Relations Bureau delivering
testimony in opposition. A bill was pending in the Ohio legislature
authorizing school boards to permit "non-sectarian and non-proselytizing
benedictions and invocations" at graduation ceremonies.
The NJCRAC
has a longstanding position in opposition to all forms of organized
school prayer, including silent prayer and "silent meditation,"
which the NJCRAC views as a subterfuge for school prayer. The position
of the organized Jewish community opposes prayer, whether led by
students or other, individuals, at graduation ceremonies, sporting
events, or at any other school related event.
Establishment
Clause/Kashruth Anti-Fraud Legislation
In September
1993, in Barghout v. Mayor and City Council of Baltimore,
a federal district court rejected a Baltimore municipal kosher-food
antifraud ordinance as an unconstitutional entanglement of church
and state, The Baltimore City Code criminally punishes any person
who markets food labeled "kosher" that is in fact not kosher. The
district court did not dispute the notion in Barghout that
if an item is sold as kosher, consumers should be able to rely on
that representation. The court also said that in order to determine
the kashruth or lack thereof "the court must answer questions
of Orthodox Hebrew dietary law ... since prosecution under the ordinance
depends on a secular court's interpretation of religious doctrine,
the challenged ordinance is unconstitutional." The Baltimore case
was the first of its kind to be decided in federal court. (Ran-Dav
v. New Jersey was decided in the New Jersey Supreme Court. See
Joint Program Plan for 1993-94 for details.)
The NJCRAC
has long viewed as a legitimate function of states the protection
of consumers against fraud, and has supported the passage of "kosher
laws" at the state and, in principle at the federal levels. Jewish
community relations and religious bodies will be called upon to
determine whether existing consumer fraud statutes conflict with
the First Amendment.
Educational
"Choice" and Voucher Plans
A hotly-contested
ballot initiative Proposition 174, that would have mandated a voucher-driven
educational "choice" plan in California, was soundly defeated on
Election Day 1993. It offered tax-financed vouchers toward tuition
at public and private or religious schools. Proponents of vouchers
indicated re-introduction of ballot initiatives could be expected.
Under legal challenge is a voucher plan in Milwaukee, currently
for public schools only, which would be opened to parochial schools
as well.
The NJCRAC
opposes voucher programs that provide aid to parochial schools as
violative of the establishment clause and as undermining public
education. (See NJCRAC Statement on Educational Choice and section
on Public School Education, Joint Program Plans for 1992-93
and 1993-94.)
Religious
Symbols on Public Property
While the unconstitutionality
of the placement of a religious symbol standing alone at the seat
of government, such as a city hall or state capitol, was uncontested,
still unclear in 1993 was the issue of such placements or displays
in a public park, which, as a public forum, was arguably subject
to First Amendment freedom of expression protections. The Jewish
community relations field views the placement of religious symbols
on public property, including a public park, or any sponsorship
by a governmental entity, as violative of the establishment clause.
The field works with Jewish groups and others to find prominent
places for display on private property for the erection of menorahs
and other religious symbols.
Religion
in American Society
In large
measure rooted in popular concern over increased lawlessness and
a perceived erosion of values in society, a major debate
has emerged over the appropriate place of religion in the society.
This debate has been fueled by the popularity of books such as Stephen
Carter's The Culture of Disbelief, and by support on the
part of President Clinton of the proposition that religion should
play a major role in public life. Among the issues raised is that
of the interface of the search for religious values and the requirements
of an open pluralistic society. This debate also will have implications
for interpretive stances by Jewish communal and other civil liberties
organizations on the separation of church and state.
The NJCRAC
has long held that a strong wall of separation between church
and state is required in order to assure religious liberty. At the
same time, the United States encourages individuals and groups to
bring religious perspectives to the public forum, allowing the articulation
of common civic values that describe the American polity. The organized
Jewish community will be called upon to be an active participant
in the growing debate over the appropriate place of religion in
American society. The NJCRAC would raise serious questions about
any approaches that would tend to weaken church-state separation,
and therefore religious liberty, in America. At the same time, the
Jewish community relations field views with warm encouragement the
private communal development of increasing support of Jewish education
and religious practice.
With
a number of states mandating teaching about religion within the
social studies or history curriculum, there is continuing concern
about how such study might compromise church-state separation. The
positions of the Jewish community relations field on teaching religion
and teaching about religion are articulated in the NJCRAC/Synagogue
Council of America 1971 policy statement Safeguarding Religious
Liberty. The Jewish community relations field will be called
upon to re-examine its stances in this area.
Priority Strategic
Goals
The Jewish Community
Relations Field Should
- convene a study process
that would explore the appropriate place of religion in American
society; continue to develop and strengthen the rationale for
the separation of church and state as the central bulwark of religious
freedom and therefore of Jewish security; and enhance the interpretive
efforts within the Jewish community surrounding church-state separation;
- evaluate those situations
that implicate both the separation of church and state and rabbinical
authority, such as get legislation, kashruth and
antifraud statutes, and other matters for the purpose of determining
appropriate intervention of community relations agencies;
- re-evaluate its position
on "teaching about religion," as articulated in the NJCRAC /Synagogue
Council of America policy statement Safeguarding Religious
Liberty;
- oppose efforts to
enact legislation providing aid to religiously related schools,
at federal, state, and municipal levels, including voucher systems
and other "choice" programs, and tuition tax credits;
- consistent with existing
policy opposing all school-sponsored prayer, continue to oppose
graduation prayer in the public schools, including student initiated
prayer, as violative of students' religious liberty and participate
as amicus in cases in the federal courts testing such situations;
- continue to oppose
public support, funding, and presence on public property of religious
displays, including menorahs, creches, and other religious symbols,
whether publicly or privately funded, including placement of religious
symbols in a public park or other public space or forum;
- working together
with coalition partners, ensure that the "compelling state interest"
test, now restored to free-exercise situations, is adhered to;
- continue respectful
dialogue with those in the Jewish community who hold views that
differ with the consensus positions of the Jewish community on
issues such as aid to parochial schools, tuition tax credits,
vouchers, menorah displays on public property, and other church-state
issues over which there may be differences.
[NOTE:
For additional strategic goals, see Joint Program Plans for
1992-93 and 1993-94.]
Dissent:
The
Union of Orthodox Jewish Congregations of America welcomes the call
for substantive dialogue on the question of the Jewish community's
response to Church-State issues. We believe deeply in the primacy
of Jewish day school education. The Orthodox Union believes that
properly drawn educational choice programs can constitutionally
and equitably provide funds for non-public school students and their
parents as long as there is no direct government funding of religious
instruction. The educational choice concept is long overdue given
the national need for creative education programming. Although the
Orthodox Union believes strongly in reinforcing the protections
provided by the First Amendment, we regret the wooden application
of the establishment clause reflected in the NJCRAC position. In
addition, the Union does not support litigation opposing the private
sponsorship of menorahs on public property.
Dissent:
The
Jewish War Veterans of the U.S.A. (JWV) believes that Kiryas Joel
presents a dichotomy for the Jewish community. While we oppose the
creation of separate school districts based on religion, we support
access to special programs for all handicapped children. The hasidic
children in need of special help should have the same availability
to such facilities, as any other child since it will aid in their
education and well-being. By opposing Kiryas Joel in this regard,
the NJCRAC abdicates its responsibility towards the Jewish community.
JWV further
dissents from the NJCRAC's strategic goal opposing school "choice."
JWV supports the notion of limited school choice for parents in
selecting the highest quality education for their children, even
if it would encourage Jewish children to attend parochial schools.
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