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.