Circumscribing constitutional identities.

• Author: Boyarin, Jonathan
• Position: Case Note

1. Introduction: Constitutional Ethnographies

   This Note examines the opinions and legal commentary on the Kiryas Joel(1) case decided by the United States Supreme Court in 1994. The case turned on the constitutionality, under the Establishment Clause of the First Amendment, of New York State legislation establishing a separate school district providing special education exclusively for Hasidic Jewish children. The Court deemed that legislation an unconstitutional establishment of religion.(2) However, in line with certain dicta of the Court, the legislation was redrafted in a fashion which, until August 1996, appeared to permit the separate school district to continue. At present the fate of the district is once again being litigated.(3)

   A substantial amount of commentary has already been written about Kiryas Joel. Student notes on the case are frequently concerned with the implications of Kiryas Joel for Supreme Court standards in deciding religious establishment cases -- an area of law that has been notoriously troublesome to the Court in recent decades.(4) Professors and other legal scholars have analyzed the case as an example of the current Court's secularist bias(5) and as an example of the need to examine constitutional issues from the perspective of minority groups.(6) The most exhaustive exchange on Kiryas Joel began with a 1996 article by Professor Abner Greene, who argued strongly for the right to semi-autonomy of groups that demonstrate their commitment to their own principles by separating themselves geographically.(7) Greene's article sparked responses from Christopher Eisgruber, who claimed that assimilation is a constitutional value,(8) and Ira Lupu, who was concerned that the current arrangement masks abuses of democratic process within Kiryas Joel.(9)

   This Note argues that the judicial opinions and the legal commentary on Kiryas Joel share a common underlying conception of the relationship between identity (the nature of the subject of rights) and polity (the constituency of the state). In that underlying conception, the polity is understood as consisting of all the citizens of a neutrally bounded territory (a municipality or state), while the subject of rights is taken to be the individual person.(10) This Note explores the ways in which the assumptions of neutral territory and the individual subject have shaped the literature on Kiryas Joel. It articulates an alternative underlying conception of political identity as organized around diaspora (primary orientation somewhere other than a group's present residence) and genealogy (family and group descent and upbringing). It claims that this alternative underlying conception animates the residents of Kiryas Joel in their search for the culturally acceptable provision of special education.

   This Note claims that jurisprudence on this case should attend to genealogy and diaspora as the cultural contexts of the Kiryas Joel dispute. Moreover, it claims that the search for principles of religious "neutrality" in constitutional jurisprudence is inseparable from Protestant traditions of individual liberty of belief and thus may be ill-suited to determining the religious rights of many Americans today. The argument is neither in favor of one of these conceptions of identity nor against the other; it seeks to demonstrate the contingency (rather than universality) of individualism and territoriality on the one hand and the coherence of genealogy and diaspora on the other.

   Part II of this Note discusses the origins of the dispute and the history of the legislation. Part III explains the contrasting conceptions of polity and identity informing discussions of Kiryas Joel. Part III also discusses Robert Cover's Nomos and Narrative,(11) an essay in jurisprudence that has influenced much of the existing literature on Kiryas Joel. Part IV looks closely at the rhetoric used in that existing literature to demonstrate how individualist and territorial assumptions subtly influence accounts of the case. Part V reviews the divergent processes that led to the creation of the Village of Kiryas Joel and to the creation of the Kiryas Joel School District from the alternative perspective of genealogy and diaspora. Part VI focuses on the dilemma of the community and the children, and suggests that the tension between the territorialist-individualist and the genealogical-diasporic frameworks of identity is perhaps most powerfully revealed in disputes involving jurisdiction over children. The Conclusion argues that satisfactory adjudication of the case may not be possible as long as the individualist and territorialist conceptions implicit within the Court's analysis remain unexamined.

2. The Place and the Case

   This Part of the Note briefly outlines the origins of the Kiryas Joel community and the conflict leading to the Kiryas Joel litigation.(12) The residents of the Village of Kiryas Joel in New York State are known as Satmar Hasidim. Their lifestyle and social organization are devoted to the observance of the Torah, Rabbinic teachings, and their ancestral communal traditions. They identify with other groups of Satmar Hasidim in the United States, Europe, and Israel, with related (and generally smaller) Hasidic communities, with all Orthodox Jews, and to a lesser extent perhaps, with all persons whom they regard as Jewish.(13) Their relations with the non-Jewish populations among which they live are, by contrast, often distant.(14)

   After World War II, Joel Teitelbaum, known as the Satmarer Rov or Rebbe,(15) settled in the Williamsburg section of Brooklyn, New York. He was a dynamic and charismatic leader who managed to reconstitute a community of Satmar Hasidim. In the decades following World War II, Williamsburg became a thriving center of Hasidic life, containing numerous Hasidic groups living in close proximity to each other.(16) As communities were reassembled and the survivors' families multiplied, that area of Williamsburg readily available to Hasidic residents became extremely crowded. This fostered the establishment of various "satellite" communities in upstate New York.(17)

   One such satellite was established by Satmar Hasidim in an area of Monroe, New York. Several years later, a zoning dispute arose, leading to the establishment in 1977 of the separate Village of Kiryas Joel.(18) The new Village was composed exclusively of Satmar Hasidim, substantially because neighbors did not want to secede with the Satmars.(19)

   Because of the universal preference for private religious schooling among the Satmar Hasidim in Kiryas Joel, particular arrangements have been made for the provision of publicly funded special education services to handicapped Satmar children there. For one year beginning in 1984, such services were provided by the Monroe-Woodbury School District at an annex to the Bais Rochel girls' school,(20) but this arrangement was ended(21) after the Supreme Court decisions in School District of Grand Rapids v. Ball(22) and Aguilar v. Felton.(21) Instead, the Monroe-Woodbury district offered special education for the Satmar children in regular public schools, which their families found highly unsatisfactory.(24) Ultimately, the New York legislature passed the statute at issue in Kiryas Joel, specifically naming the Village of Kiryas Joel as an independent school district with plenary powers.(25) Thus, unlike the Village, which was established by residents acting in accordance with existing state law, the school district was created by a special act of the legislature. Special education services have been provided to Hasidic children from Kiryas Joel as well as neighboring districts.(26) The head of the school is not Jewish, and the school's curriculum is thoroughly secular. Not all of the residents of the Village support this arrangement for the education of Kiryas Joel's handicapped children.(27)

   Justice Souter announced the judgment of the Court.(28) Finding anomalous the creation of the smaller school district when the general trend was toward consolidation,(29) and concerned that the residents of Kiryas Joel had benefited from a special act of the legislature, the Court held the legislation creating the District to be an unconstitutional establishment of religion.(30) Justice O'Connor's concurrence, however, suggested that government action accomplishing the same end but "implemented through generally applicable legislation"(31) would be acceptable. Promptly following the announcement, the New York legislature redrafted the legislation in terms that did not refer specifically to Kiryas Joel and purported to lay out neutral criteria under which a community could apply for separate school district status.(32) The new legislation was soon challenged, however. In August 1996, the Appellate Division of the New York Supreme Court held the new legislation unconstitutional, finding that "in enacting the current law, the Legislature simply resurrected the prior law by achieving exactly the same result through carefully crafted indirect means."(33) That court's reference to the earlier Supreme Court decision as "Kiryas Joel I"(34) perhaps anticipates that the litigation is likely to rise through the courts once again.

3. Frames of Juridical Identity

   This Part details the alternative concepts underlying different understandings of the relation between polity and identity. First I discuss the notions of individualism and territory. I then revisit Cover's essay Nomos and Narrative as a critique of the neutralist jurisprudence associated with individualism and territory. The last Section of this Part articulates the notions of diaspora and genealogy, which are absent from Cover's own account of jurisprudence, but complementary with and critical to his project.

   1. Individualism and Territory

      The notion of identity implicit in U.S. constitutionalist discourse relies on two interlinked principles. The first of these is the normativity of Protestant individualism...