The USCC & the rebbe.

David Tracy, in Plurality, and Ambiguity (Harper & Row, 1985), eloquently articulates his hope for the healing possibilities of religion in the contemporary world. He warns, however, that "any religion, whether past or present, in a position of power surely demonstrates that religious movements, like secular ones, are open to corruption....Whoever comes to speak in favor of religion and its possibilities of enlightenment and emancipation does not come with clean hands nor with a clean conscience." The United States Catholic Conference (USCC) and other religious bodies would do well to attend to this warning when they urge greater government support and greater political power for religion.

This past February the USCC filed an amicus brief that argues for both the desirability and the constitutionality of legislative accommodations of religion." The brief and eight others advocating greater government accommodation have been filed in support of the petitioners in Board of Education v. Grumet, currently before the Court. (The Catholic, Protestant, and Jewish groups filing amicus briefs for the petitioners include the Rutherford Institute, the Christian Legal Society, the National Association of Evangelicals, the Southern Center for Law and Ethics, the Family Research Council, the Institute for Religion and Polity, the Southern Baptist Convention, the Christian Life Commission, the Knights of Columbus, the Archdiocese of New York, the National Jewish Commission on Law and Public Affairs, the American Center for Law and Justice, and the Catholic League for Religious and Civil Rights.)

Board of Education v. Grumet concerns the constitutionality of a New York State law that created a new public school district coterminous with the village of Kiryas Joel, a separately incorporated Hasidic village in Orange County, New York. The school district was created to settle a longstanding local dispute over the provision of special education to children of Kiryas Joel, children whose parents would not permit them to attend the local public school because they believed that the appearance and customs of their children would be ridiculed by non-Hasidic children.

Hasidic Jewish communities in the United States are successors to those created in Eastern Europe during the eighteenth and nineteenth centuries. These communities were centers of a new and distinctive Jewish piety and social structure that stressed joy in the observance of the commandments and the need for devekut, a cleaving to God by each individual. This new piety liberated many ordinary Jews from the highly structured culture of the rabbinic Judaism of the time, but later became more structured itself as Hasidic communities developed into royalist courts that consciously resisted acculturation, assimilation, and adaptation to reforming and rationalizing tendencies within Judaism.

Hasidic communities are governed by a rebbe, a charismatic religious leader, who is regarded as having special access to God and who has far-reaching authority over the daily lives of the members of his court. In Kiryas Joel, which is a part of the Satmar Hasidim, the largest and most conservative Hasidic community in the United States, the rebbe decides, among other matters, who may marry whom, who may buy property, and who may run for public office. Dissidents are punished by being ostracized from the life of the community. The rebbe also determines which aspects of the members' lives are religious and therefore governed by Jewish law (as interpreted by the rebbe), and which are secular and therefore open to negotiation with secular law and culture.

By creating a public school district for Kiryas Joel, New York State has endorsed the decision of the rebbe of the Satmar Hasidim that Hasidic children in need of special education may be educated only in this specially created "public school" rather than in the village's religious schools, which the rest of the children in Kiryas Joel attend, or in the special education programs provided by Orange County's public schools. The state has also ceded the operation of the school district, a state entity, to a religious group. In effect, the New York law does not simply allow a religious community to practice its strongly held religious beliefs," as the amicus briefs would have it. It endorses the religious and political world view of a particular religious community, a world view that in Eastern Europe at once segregated Jews from the rest of society and permitted the creation of tiny theocracies.

The main concern of the United States Catholic Conference, as is evident from its brief, is to secure equal access to public funding for Catholic schools. An argument can be made for such funding--including evidence of the genuine public service provided by Catholic schools, especially in urban areas. But the USCC and other religious groups undermine their own case by supporting the continuation of the Kiryas Joel special school district. In choosing this case as a vehicle for the expression of its interests in public funding of Catholic schools, the USCC is making a broader and less defensible claim about the meaning of the First Amendment than its interests warrant.

The USCC argues in its brief that the parents in Board of Education v. Grumet, as a direct result of previous decisions by the Court (Aguilar and Grand Rapids) "have been forced into a 'cruel choice' between their religious faith and their children's education." It further argues that the First Amendment's Free Exercise Clause encourages" legislatures to avoid such cruel choices by accommodating religion because the clauses are intended "'not as a protection from religion, but rather as a protection for religion. '"

In contrast to the Kiryas Joel brief, which argues that the new school district is entirely secular and was created for secular reasons, the USCC brief is part of a larger argument pressing for a greater role for religion in American public life. There is a case to be made that religion is sometimes misrepresented and often misunderstood in the media and by other public institutions. I believe that the USCC and other religious groups, in their zeal to correct those misapprehensions, are unwise to choose this occasion to promote religion-in-general, rather than urging a greater appreciation for and understanding of the universality and vitality of religion, as well as the contributions that religious individuals and institutions make to the public good.

In its brief, the USCC repeatedly quotes pious dicta from previous cases suggesting that the First Amendment is intended to promote religion--not religious freedom, but religion-in-general--as an unqualified public good. On the contrary, the First Amendment protects the free exercise of religion while prohibiting the establishment of religion, thereby recognizing both the tendency of individuals and groups to practice and promote their religious beliefs, and the evident evils that have been produced by state efforts to insure religious conformity. But that is not the same thing as promoting--or even accommodating--religion. The First Amendment is a protection from religion as well as for religion.

The USCC's unqualified promotion of religion fails to acknowledge the deeply compromised history of all religious groups, increases the resistance of those opposed to an enlarged role for religion, and contributes to the already polarized and hostile tenor of this debate. The promotion of religion-in-general fails to acknowledge that it is not all religion, but only a certain kind of religion, that is being promoted. Thus, in its brief the USCC refers to the First Amendment's role in the protection of "legitimate" beliefs, and argues that "it is a demonstrated part of our history and tradition that government will adjust itself, if possible, to allow citizens to enjoy untrammeled religious expression." This seems an astonishing statement by a Catholic body. In the course of our own country's history, Catholic beliefs, and other unpopular religious beliefs, have often been regarded as illegitimate, and Catholics, and other unpopular citizens, have often been denied "untrammeled religious expression." Perhaps this historical amnesia is proof indeed that the immigrant Catholic church has come of age politically. It no longer sees its theology as a dissenting theology; it seems confident that it can control what religion is legitimate and should be given untrammeled expression.

On the whole, the theories of religion underlying current competing interpretations of the First Amendment have not been adequately examined. The USCC and its Catholic, Jewish, and Evangelical Protestant allies, in their apparent determination to rescue religion and Americans from secular humanism, have here supported what is in fact both a violation of the First Amendment and probably a subversion of their own theologies.

Government aid to private schools, religious or otherwise, is an entirely different enterprise from the creation of public schools that are designed to serve and are entirely controlled by one religious community and its understanding of the First Amendment. Public schools must serve the whole community and exist, among other reasons, and at their best, as common schools, modeling the American community as a whole and teaching students to respect religious and cultural differences.

The Kiryas Joel case is not the same as legislative accommodation or exemption from general laws designed to allow the free exercise of religion. The New York law advances the legitimation of a religious ghetto, a religious ghetto created by the laws both of New York State and of the Satmar Hasidic community--a religious community within which religious freedom is denied. The creation of the special school district says to the children of Kiryas Joel and to those of the larger community that New York agrees with their rebbe.

By supporting this version of an Hasidic world view, the decision of the USCC to file its amicus brief fails to honor the rich and varied spiritual tradition of Hasidic Jews. It also squanders the USCC's own pastoral and moral authority by undermining its efforts to secure equal access to public funding for private religious schools. WINNIFRED FALLERS SULLIVAN

Winnifred Fallers Sullivan has J.D. and Ph.D. degrees from the University of Chicago and is a post-doctoral scholar at the University of Chicago Divinity School.