Sunday, March 27, 1994 The Times Herald Record page 3 Reconciling church and state by Edwa

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Sunday, March 27, 1994 The Times Herald Record page 3 Reconciling church and state by Edward F. Moltzen, Staff Writer Ten years ago, Nathan Lewin tried to convice the U.S. Supreme Court that a Jewish airman should be allowed to wear a yarmulke along with a uniform. The case was one of several in which the lawyer sought to persude the nine justices on the nation's highest court to chip away at the wall erected by the legal system between church and state. If the airman could walk around in a yarmulke that wasn't regulation, asked Associate Justice Byron White, what was to stop him from walking around in, say, a toupee? "Well, because he's not bald," said Lewin, as the tradition- bound, serious courtroom broke into snickers. The justices ruled against Lewin anyway. Now he has another crack at the tangled question of church-state relations. This time, the justices may be more sympathetic. Oral arguements are schedulaed for Wednsday in a case that will decide the constituionality and the future of the Kiryas Joel School District. Lewin will try to convince the court that the state Legislature was in within it's rights to create a public school district for the village of Hasidic Jews in Orange County. The decision could make life and schooling more difficult for more then 200 disabled children who now go to classes there. However, it could also have repercussions beyond the village of 10,000. Numerous commentators have speculated that the justices could use the widely publicized case to allow governments to do more to accommodate religion and religious groups across America. "It's a case that could have very broad implications for the seperation of the church and state," says Paul Rothstein, a professor at Georgetown Law School. In a few ambiguous, the Constitution guarantees freedom from religion to all Americans. It also prohibits government from promoting religion in general or any other paticular church. In a 1971 case called Lemon vs. Kurtzman, the Supreme Court interpreted the Constituion to mean all laws must be secular in purpose, not have a primary effect of advancing religion, nor create an excessive government entanglement with religion. Because of the Lemon ruling, states cannot provide aides to parochial schools. [School-lead] Prayer has been banned at high school graduations. Towns think twice before displaying the [a] nativity scene. Several justices have hinted that that the time is right to overturn the Lemon precedent, which has been law of the land for a generation. The law for the next generation could come from Kiryas Joel. Bottom of the ninth The Kiryas Joel School District was created by an act of state Legislature in 1989, after years of what is considered "intractable" religious disputes. Parents in the close-knit, all-Hasidic community refusted to send their disabled boys and girls to classes offered by the Monroe-Woodbury public school district. They said the experince would be too traumatic for their children. The Hasidic boys faced taunts because of their yarmulkes, side curls and ultra-orthodox lifestyle, their parents said. The girls face similar problems. But Louis Grumet, executive director of the New York State School Boards Association, sued almost immediatley after the new school district was created. Long an opponent of government financing of parochial schools, Grumet says it's unconstitutional to create a new public school district for religious reasons. He says that such a precednt could open the door to religion- based school districts across the country, draining government resources from non-religious public schools. Three state courts have sided with Grumet, including New York's highest, the Court of Appeals. The U.S. Supreme Court case represents the bottom of the ninth for the Kiryas Joel district. Written arguements as a preview Religious groups as diverse as the Roman Catholic Church and fundamentalist Protestants have called for the overturn of Lemon. But the lawyers in the case are downplaying that possibility. "When you litigate in the Supreme Court, the main focus has got to be on getting the majority of the court, getting five votes," Lewin said. "There may be five votes to overturn Lemon vs. Kurtzman there." "But if I'm representing a party that's interested in winning the case, I can't put all my eggs in that basket. And I've got to take the ground that's the most narrow, and likely, to appeal to five justices on the court." Lewin, in written arguements, has said that the justices could leave Lemon precedent in place and still rule in Kiryas Joel's favor. The district doesn't violate the precedent anyway, he says. Rather he is ready to argue that disabled Hasidic children should not be prohibited from a public school education just because virtually all the people in their community belong to the same religious cult. Jay Worona, who represents the School Boards Association, has conceded that the court could use the case as an excuse for a new consitutional departure. But he has written in his arguements that nothing the court can change the fact that the Kiryas Joel district is "consitutionally infirm" because it was created to favor a single religious community. Worona also repeated his contention before the state Court of Appeals last year that the courts should be even more strict when church-state issues involve schools, as with Kiryas Joel. "All of the Supreme Court cases dealing with public education have told us that there's even more of a problem with impressionable minds," Worona said then. Several of the justices have hinted, or said clearly, that they think the Lemon case should be tossed. Leading that charge is Associate Justice Antonin Scalia, who has likened the precedent to a creature that will not be killed even though it is repeatedly stabbed. Lewin knows Scalia well - they were classmates together at Harvard Law School and worked on the Harvard Law Review together. "We were friendly," Lewin recalled. But he also noted, "I finished sixth in my class. I know the five people who are ahead of me, and none of them is Antonin Scalia." Scalia's remarks on the Lemon precedent have drawn fire from Associate Justice Ruth Bader Gunsburg, who said at her U.S. Senate confirmation last year that calls to eliminate the precedent are "disingenuous" without a workable alternative. Ginsburg may be the swing vote when a final decision is reached, probably in June, in the Kiryas Joel. As the battle takes shape in the marble halls of the court this week, the work of teaching children will continue in Kiryas Joel. "I have to admit there's a level of anxiety," said Kiryas Joel School Superintendent Dr. Steve Benardo. "There's a level of that we've done is right. What we've done is appropiate. The community as well as the school staff believes the court will hear that." Benardo said he will be present at oral arguements with School Board president Abraham Wieder and Malka Silverstein, a mother of a disabled child who has attended both Monroe-Woodbury and Kirays Joel schools. "We felt a parent should be there when the case is argued", Benardo said. If Kirays Joel loses the case, the state will be forced to dismantle the district. The responsibility for teaching its children will shift to Monroe-Woodbury. The children could be taught in private schools or Monroe- Woodbury. Some might be kept home. "This is a stoic community," Bernardo said. "They take what is given to them and move forward."

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