The ACLU v. Yom Kippur

On Law

Jewish World Review / Sept. 13, 1999 /3 Tishrei, 5760

The ACLU v. Yom Kippur

By George W. Dent, Jr. --
IT'S NO SECRET that some people think that Jews run America. What's surprising is that this absurd paranoid fantasy is espoused not only by the likes of the Aryan Brotherhood but also by the American Civil Liberties Union.

The Ohio branch of the ACLU has sued the Sycamore School District near Cincinnati because it closes school on Jewish High Holidays. The ACLU says it accepts closings on holidays when they are warranted by a sharp drop in attendance. However, Sycamore altered its policy to close only when absences exceed 21% and closed for Jewish holidays when absences were less than 15%.

Now you might think that 21% is not a magic number, that 15% may be equally or more reasonable, and that the board might also consider other factors, like the number of teachers absent. You might also think that even if the board's decision is silly (as political decisions often are), it's still not an issue for a federal court. But if you think that you are, in the opinion of the ACLU, a dupe or a knave because the real purpose and effect of these closings is to "establish" the religion of Judaism.


I'll now give you a minute to stop laughing. No, I'm not making this up. And no, this is not a single instance of a renegade local ACLU unit veering far from the views of the parent. In fact, this case resembles one that has been going on for years in New York.

A small town upstate has a large number of Satmar Hasidim. Because of their distinctive clothing and habits, Satmar children attending the local public school for the handicapped felt awkward and scared and were often mocked. At the request of the Satmar, the state legislature permitted the creation of a new school district. The new district was defined by geography, not by religion, but most people in the district were Satmar and thus the Satmar children would be in a school where they would feel comfortable and not be ridiculed.

Again, you might think that this was a logical and humane accommodation of a minority. And again you would be egregiously wrong in the eyes of the ACLU which considers this, too, an establishment of religion.

You probably need another timeout to guffaw. After all, the Satmar were not a majority seizing privileges at the expense of others. The Satmar are an unpopular minority of the Hasidim, who are an unpopular minority of Orthodox Jews, who are an often unpopular minority of American Jews. The idea that the New York legislature was making Satmar Hasidism the state's established religion seems ludicrous.

However, the ACLU not only spouted this view, it conned the Supreme Court into buying it. The ACLU pointed out that the law applied only to this community. The defendants admitted this was true, but only because no other community had asked for such treatment; they said the legislature would grant any other reasonable request for a similar accommodation.

Leiters Sukkah

In "Board of Education v. Grumet " (1994) the Court dismissed that claim; without evidence it simply assumed that the legislature would not be even-handed. The legislature later drafted a new law to accommodate the handicapped Satmar children but again the ACLU, scourge of oppressors and champion of the down-trodden, has attacked the law as unconstitutional.

Both these cases raise the question whether government can accommodate religious minorities. The crucial word, of course, is "religious." Addressing the concerns of specific groups is a large part of what governments do. The results are often desirable, as when the federal government forbids the use of federal funds to discriminate against racial or ethnic minorities. Sometimes the results seem to be silly or annoying pandering to interest groups. But unless the purpose of a government act is to disadvantage a constitutionally protected class, the act is not illegal.

Unless the group accommodated is a religious sect. The ACLU accepts making Martin Luther King's birthday a holiday, but to observe Yom Kippur is verboten. It condones the creation of minority-majority election districts, but creating a special district to accommodate the Satmar Hasidim is taboo.

What explains the difference in attitude? Secularism. This is a kind of don't-ask-don't-tell policy toward religion: you may believe what you please and may even practice religion -- if you do so only in private. Thus the ACLU opposes not only recitation of an officially chosen prayer in public schools -- a view that I share; it also opposes scheduling a minute during the school day when students may meditate, pray, or simply daydream, as they choose.

Again, religion is singularly disfavored. The ACLU would not oppose setting aside a period in which students could express themselves in any other way; only religious expression is beyond the Pale.

Most Americans accept Jefferson's ideal of separation of church and state -- they simply don't carry it to the same extreme as the ACLU does. The will of the majority is often thwarted because many judges and bureaucrats share the ACLU's secularism and the majority is too busy with and divided over other issues to unite to protect accommodation of religion and religious expression. However, more political figures are talking about religion of late.

Perhaps before long the majority will make itself heard.

JWR contributor George W. Dent, Jr. is Schott-van den Eynden Professor of Law at Case Western Reserve University School of Law. Let him know what you think by clicking here.


©1999, Jewish World Review