Freedom Writer - October 1994 [ref001] Kiryas Joel's impact on separation By Barbara A. Si

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Freedom Writer - October 1994 [ref001] Kiryas Joel's impact on separation By Barbara A. Simon, Esq. On June 27, 1994, the Court decided Board of Education of _Kiryas_ Joel_v._Grumet_ (No 93-517). It captured the interest of church-state observers because of concerns that the Court might use the case as a vehicle to announce a new test for deciding church-state cases, thus abandoning its 1971 standard of review, the Lemon test, described in _Lemon_v._Kurtzman_ 403 US 602 (1971). Under _Lemon_, a law must have at least one legitimate secular purpose, it must have a primary effect that neither advances nor inhibits religion, and it must not result in excessive governmental entanglement with religion. If the law or governmental action fails to meet any one of these three prongs, it violates the Establishment Clause, and is, therefore, unconstitutional. To the surprise of some, the Court neither affirmed nor discarded the Lemon test. Nevertheless, the opinion contained many references to the Lemon test. Three members of the Court expressed concern about the future of the Lemon test. In recent years, a majority of this Court has expressed at least some doubt about whether the Lemon test is the best approach for settling Establishment Clause questions. To date, there is no agreement on the Court as to whether the Lemon test should be replaced, and if so, how to replace it. At issue in the Kiryas Joel case was whether the Kiryas Joel Village School District, established by the New York State legislature in 1989 for the benefit of the village's Satmar Hasidic residents, violated the Establishment Clause. The Court, in an opinion written by Justice Souter, found that the law setting up the district amounted to impermissible favoritism toward religion in general and toward one sect in particular, in violation of the First Amendment's prohibition against the establishment of religion. Souter wrote that the state law violated a principal at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion. Where does the Village of Kiryas Joel Village School District go from here? Relying on Justice O'Connor's concurring opinion, New York's Governor Mario Cuomo and legislative leaders reached agreement on July 1, 1994, just four days after the Court decision, which would allow the Village of Kiryas Joel School District to keep operating. Legislators accepted Justice O'Connor's suggestion that the creation of the Village of Kiryas Joel School District might have been constitutionally permissible if it had been created through legislation applicable to any municipality, and not just Kiryas Joel. It remains to be seen whether the new legislation will survive judicial scrutiny. [ref002][ref003] Return to table of contents Copyright 1995 IFAS The Freedom Writer / ifas@crocker.com [ref001] ../banner.gif [ref002] index.html [ref003] ../../uparrow.gif This file is copywritten by the Institute for First Amendment Studies. Subscribe to The Freedom Writer and Walk Away news letters by writing to or telephoneing the Institute for First Amendment Studies: Post Office Box 589 Great Barrington, Massachusetts. 01230 Telephone: (413) 528-3800 E-Mail: ifas@crocker.com Web page: http://www.crocker.com/~ifas

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