The Supreme Court’s decision this week to review a case involving a New York Chasidic school raises the possibility of changing the legal doctrine that has governed the separation of church and state for 23 years.
Most Jewish organizations support the existing doctrine, named the “Lemon Test” after a 1971 case, which courts have used to determine to what extent state governments can accommodate religious practices without violating the Constitution. These groups see the doctrine as a protection from excessive government involvement with religion.
By agreeing to consider a New York court ruling based directly on the Lemon Test, the Supreme Court justices left open the chance that the standard could be altered, thus changing the way government interest in religion is judged.
Most say the doctrine is not endangered.
“It’s highly unlikely” the Supreme Court will change the Lemon Test, said Robert Peck, counsel for the American Civil Liberties Union.
The court left the doctrine intact last year in a case that also relied on that test and is likely to do the same in this instance, Peck said.
The present case involves a legislatively created school district for disabled students of a Chasidic community in Orange County, about 40 miles from New York City. The New York Legislature agreed to form the Kiryas Joel school district in 1989 to accommodate disabled students who did not attend other schools because of inadequate facilities and religious differences.
A New York court ruled in July against the district, saying it violated the constitutionally mandated separation of church and state.
JUDGES DISSATISFIED BY LEMON TEST
Nathan Lewin, attorney for the Satmar Chasidim of the Kiryas Joel district, said Tuesday that his first argument before the Supreme Court will be that the formation of the school district satisfies the Lemon Test.
Lewin said that if the justices decide the test was not met, he will argue to change it.
The Lemon Test, derived from the 1971 Supreme Court case Lemon vs. Kurtzman, states that a government action dealing with religion must have a secular purpose; its effect must neither enhance nor inhibit religion; and it must not involve excessive entanglement with religion.
The doctrine has long been criticized as vague, hard to apply and fostering inconsistency.
Orthodox Jewish groups have called for the doctrine’s reversal, contending it is too strict.
The mainstream Jewish community has defended it, saying that no viable alternative exists.
“The Lemon Test has worked fairly effectively in maintaining neutrality between government and religion to the benefit of all, particularly those in the religious minority,” said Steven Freeman, legal director of the Anti-Defamation League.
But groups opposing the test are encouraged that most justices now on the bench have written of their dissatisfaction with the Lemon Test.
“There are enough votes now to change the test” if the justices decide to do so, said David Zwiebel, general counsel of the fervently Orthodox Agudath Israel.
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