In this paper, I explain why the creation of de facto local theocracies in Rockland County and in New York State is unconstitutional, and what can lawfully and morally be done to stop the creation of such religious enclaves by any religious group.
The genesis for this paper is an article published online by the Jewish Federation of Orange County (NY) entitled “How to Build an American Shtetl.”[1] A “shtetl” is a Hasidic village, and the shtetl-building could be used to create a religious community of any ultra-religious faith. All that is needed is the desire for insularity.
On first blush, it might seem entirely lawful for a group of people to seek to create their own religious enclave. After all, isn’t this as something protected by the First Amendment free exercise clause and the constitutionally recognized right of association. Adult citizens certainly have the right to associate with whomever they please, and likewise to join together in religious observations and worship services. The government has no business intruding into people’s religious beliefs and lawful associations.
Constitutional rights protect everyone, even members of religious or ideological groups (extremist or otherwise) that wish to remain apart from American society. But can intentional group insularity cross the line into impermissible theocracy?
We are all very familiar with moderate religious groups providing very sound education in their own private schools, whether these are Catholic parochial schools, Jewish yeshivas, Protestant or Christian-oriented academies, or other private schools. The Constitution grants parents the right to teach their children whatever religious or ideological doctrine they wish, even if very different from mainstream thought, and even if offensive to others. The Bill of Rights protects religious and ideological extremists and their right to associate with each other.[2] A jihadist or a neo-Nazi can permissibly seek to indoctrinate their children and others in their views, even if obnoxious.
Freedom of association, speech and belief is part of America’s heritage. American history began with religious extremism. The Mayflower Pilgrims who landed at Plymouth Rock in 1620 were extremist Puritans—separatists—who desired to create their own religious enclave.
But scroll ahead 156 years to our nation’s Declaration of Independence of 1776. By then the colonists’ thinking had evolved towards pluralism and tolerance. Our nation’s Founding Fathers’ vision for America rejected the notion of a country factionalized by of a bunch of competing religious sects.
The Declaration of Independence states that: “Nature’s God entitle[s] … all [mankind] … with certain unalienable Rights … Life, Liberty and the pursuit of Happiness, [and] to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, [and] whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it [to] effect their Safety and Happiness.”
This boils down to a secular, republican form of government, and most definitely NOT a government controlled by religious factions.[3]
The controlling value of the Founders is individual liberty, and a social compact among all to protect the whole society, the body politic. Individual liberty cannot be secured unless government secures that right. Individual liberty is impossible without free will, and free will is impossible without a sound education allowing the intelligent exercise of personhood.[4]
And herein lies the problem with the creation of religious enclaves. When children in religious enclaves receive only religious instruction and not a sound secular education, they are being improperly deprived of the ability to make knowing and intelligent choices regarding their lives and their future. They are being obstructed in their ability to exercise free will and when a government allows this, it is becoming “destructive to these ends” of securing the right to individual “liberty and the pursuit of Happiness.”
The Declaration of Independence sets forth the core principles upon which the United States was founded. Our Constitution, ratified in 1788, is the implementing document. The Bill of Rights, including the First Amendment, was adopted three years later in 1791. Because the Declaration sets forth when a government may justifiably be “alter[ed] or abolish[ed] to permit a new government, it is the controlling and superior document. Thus, the First Amendment’s rights of association and religious belief cannot be construed to override the Declaration’s requirement that government “secure” people’s “unalienable Rights” including “Liberty and the pursuit of Happiness.”
The Constitution, with its Bill of Rights, has built within it the means for protecting individual liberty. This includes, as argued below, the means for lawfully preventing the creation of theocracy in New York State and the nation. If a municipal theocracy, it is permissible to seek to “stop a shtetl.”
When And How Does A Local Government Become A Theocracy?
Let’s turn now to the problem of religious enclaves in the suburbs of New York City. Increasingly, we are seeing municipalities in which the local government is effectively run by the rule of the religious leader of the community, with local residents voting as the religious leader dictates. It is, of course, lawful for citizens to vote any way they wish, including following the (uncoerced) recommendation or directive of anyone, including a civic, business, union or religious leader. Thus, a group of people voting in the same manner, to preserve its religious enclave appears permissible on its face.
Yet one must ask: When does a homogeneous community become something more? When does civil governance end and religious governance begin? Has a local theocracy been created when a religious group controls local governance? The answers to these questions depends upon what the local religious electorate does with its local governmental power.
A local government is not theocratic if local governance involves no preference for religion, such that all local laws are neutral in application and non-discriminatory toward or against any religion or religious group. In fact, this could be regarded as a common scenario in America, as there are many places where a town is composed entirely (or almost entirely) of, say, Catholics in eastern Massachusetts, or Southern Baptists in Georgia. A municipality with a homogenous population perforce elects town officials of the same religion. As long as its governance does not favor or disfavor others based upon religion, it is not a theocracy.
However, when governance does favor or disfavor citizens based upon religion, the situation changes. It becomes constitutionally offensive.[5] And when one religious group dominates the local governance in a manner that prevents non-believers from moving in or out of town; or prevents or hinders its own members from living their lives apart from the religious group; or prevents or hinders the residents from being fully contributing members of the larger American society; or which causes what should be tax dollars to flow to the religious leadership, the local government is becoming theocratic.
Regarding particularly the Satmar Hasidic sect in the Village of Kiryas Joel, New York (and also the surrounding, newly formed Town of Palm Tree), as well as the (non-Satmar Hasidic) villages of Kaser and New Square in Rockland County, it appears that community life is so controlled by the religious sect that these municipalities can reasonably be viewed as de facto local theocracies. As such, these municipalities are operating in violation of foundational American law and core American values.
Consider the following:
First, the village residents (through, for example, the threat of community ostracizing and other social penalties) are being denied the individual liberty that government is required to secure under the Declaration. This deprives them of the equal protection of the law and substantive due process.
Second, the village residents and the larger citizenry are being deprived of the constitutional guarantee of a “republican form of government” under the rule of law.[6]
Third, the Establishment Clause of the First Amendment prohibits the establishment of religion in our country. The creation of a theocratic local government certainly violates the Clause.
Finally, if the children of the religious community are denied a sound, secular education, as is most certainly the situation as seen from all reports[7] concerning the Satmar sect in Williamsburg, Brooklyn, and Kiryas Joel in Orange County, as well as in other Hasidic sects, then the children are being deprived of their rights to liberty and to the equal protection of the law in violation of the Fourteenth Amendment.
How Does A Government Lawfully Stop The Formation Of An Unconstitutional Shtetl?
If a religious community is operating in a manner that is creating a theocracy, for example by depriving children of a sound secular education, then government must take appropriate action. Because of the political power of religious “bloc voting” and the fear bloc voting creates in politicians and elected officials, it may be difficult or impossible to implement what is necessary. Yet our democracy may depend doing what is necessary, which is taking principled governmental action.
The article “How to Build an American Shtetl” set forth 5 steps, which I recounted in my previous “Open Letter to … the Ultraorthodox Community.”[8] The tools set forth below will help government lawfully (and morally) help prevent the creation of “shtels” that are intended to be municipal theocracies. If the religious group knows that it cannot create an enclave that will become theocratic, there will be no need to:
a) look for land close to Brooklyn,
b) secretly buy land there, and
c) market only to the religious group.
Instead, it will permissibly ask local government to accommodate reasonable requests related to practicing religious faith (for example, allowing site for religious services within walking distance), which requests will not be unreasonably denied (lest a viable civil rights lawsuit follow[9]).
Sound Secular Education
America’s history is the history of immigrant groups coming to these shores, with foreign appearances and speaking no English. Their children went to public schools and became educated— including receiving an education in history, literature, science and civics — and then go on to success. “Assimilation,” to some religious leaders, is a dirty word—an objectionable concept because it potentially weakens the group. Yet instruction in the following core American values cannot fairly be viewed as unfairly compelling assimilation. Teaching values relating to civil governance certainly does not impermissibly violate the religious tenets or cultural traditions of group being assimilated. I say this because such “assimilation” in core American values:
1) Respects all citizens’ religious beliefs while at the same time requiring everyone to abide by values (and ultimately laws) that are neutral in application and non-discriminatory toward or against any religious group,
2) Promotes individual responsibility and self-sufficiency,
3) Values non-segregation and equal protection under the law,
4) Enables citizens to be informed, educated voters, and
5) Encourages service to the larger community, including service to the country in the military, if needed, to defend the nation.
With a goal of achieving the sound, secular education of all children in New York State, and particularly here in Rockland County, I have proposed local laws (which could be supported by state law) that require monthly inspection by the local public Superintendent of Schools of each private school. If any private school does not teach the N.Y.S.- required curriculum—the “sound secular education” mandated by law—then the certificate of occupancy of the private school must be revoked and the school closed. That will provide a strong incentive for the ultra-religious to moderate to the point that their sect’s children are not deprived of the education they are entitled to as citizens.
“Follow the Money” for Criminality
Many ideological or religiously extremist groups funnel money to their groups in unlawful ways. Sometimes it is through the improper use of not-for-profit or religious tax exemption status. Many times this may be criminal. If so, tax authorities have the ability to prosecute such activity and, if the criminal activity is sufficiently large, it would also be possible for the government to prosecute a criminal or civil case under RICO—the Racketeer Influenced and Corrupt Organizations Act.[10]
2. Abolish or widen the local government
Local governments are creations of state government. New York has allowed the creation of villages, and recently (due to bloc power) allowed the creation of the new Town of Palm Tree. What the State grants it can take away. This is one option. Another option is the formation of cities encompassing what might be two or several towns, where villages are not permitted to be formed within. Thus, in Rockland County the towns of Orangetown and Clarkstown could be merged to form the City of South Rockland. Likewise, the towns of Stony Point and Haverstraw could become the City of North Rockland.[11] School districts could be likewise aligned.
3. Better Supervision of Public Welfare Benefits
It is widely believed (accurately or not) that certain groups exploit public benefit assistance. Our society needs to ensure help to the needy. However, as explained in recent books such as A Fortress in Brooklyn and the Curious Case of Kiryas Joel, the Satmar sect has public benefit exploitation down to a science, and this is not fair to all the other groups of people who potentially have equal or greater need. It is difficult for many (if not most) hard-working Americans to approve of significant taxpayer largess going to parents (of any religion, race or ethnicity) who decide to have large families but are without the reasonable financial means to support such families. Responsible American citizens chose to live within their means.
Conclusion
We should recognize that there is a problem with the creation of religious enclaves in our state and region, especially those where the enclave’s children are denied a sound secular education, are kept apart from mainstream America, and thus may not easily become citizens willing and able to participate in the larger society (e.g., come to the defense of the state or nation if needed). Local government that permits children to be kept in intellectual cages and fed only religious dogma is no longer civil government, it is theocracy. As such, it is both unconstitutional and un-American. When religious control (for example, Hasidic) become so great as to create a de facto theocracies, the government must intervene to prevent the creation of a theocracy (to stop the shtetl).
Paper by: Mike Diederich, Jr. 10-17-2021 copyright 2021
[1] See, Uriel Heilman,How to build an American shtetl, available at https://jewishorangeny.org/jewish-life/wao-weekly-e-blast-news-articles/how-to-build-an-american-shtetl-see-bloomingburg-ny
[2] See, National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).
[3] See, The Federalist Papers.
[4] See generally, https://en.wikipedia.org/wiki/Personhood.
[5] Some scholars argue that the present U.S. Supreme Court is favoring religion over the secular. See, e.g., https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/264 and https://theconversation.com/the-supreme-court-just-expanded-the-ministerial-exception-shielding-religious-employers-from-anti-bias-laws-142248.
[6] See, U.S. Constitution, Guarantee Clause, Art. IV, § 4.
[7] See, YAFFED’s report “Non-Equivalent,” available at https://yaffed.org/wp-content/uploads/2021/01/Yaffed-Report-FINAL-one-up.pdf.
[9] The First Amendment, and several statutes protect individuals in the exercise of their faith.
[10] See, 18 U.S.C. §§ 1961–1968.
[11] I am not proposing this, as I love my town. This is a theoretical discussion.