Court Says No Establishment Clause Violation By Orthodox Jewish School Board Majority

In Incantalupo v. Lawrence Union Free School District, (ED NY, Aug. 24, 2009), a New York federal district judge issued an unusually strong opinion rejecting an Establishment Clause challenge to the Lawrence (NY) School Board's consolidation plan that would close one of the district's school buildings. Plaintiffs claim that the Orthodox Jewish majority on the school board took actions to favor Orthodox Jewish families who send their children to private religious schools rather than the public schools administered by the Board. (See prior posting.) In denying a preliminary injunction the court concluded that "plaintiffs have zero chance of success on the merits." The court additionally completely dismissed the complaint for failure to state a claim. It concluded that the School Board's actions have both a secular purpose and effect. The court wrote in part:

Plaintiffs’ contend, the Defendants’plan to sell a school and keep taxes low somehow establishes Orthodox Judaism as Lawrence’s official religion. This argument is completely frivolous....

Plaintiffs essentially complain about low taxes, alleging that these low taxes enable Orthodox Jews residing in Lawrence to afford parochial schools. But if, as in Mueller, tax deductions targeted at private education survive Constitutional muster, then untargeted lower taxes – which help individuals afford everything from parochial education to groceries to vacations – obviously must.....

[U]nder Plaintiffs' reasoning, no claim would lie against political conservatives who ideologically disfavor spending on public schools, or retirees who have no children in the public school system and want lower taxes to boost their discretionary income. Rather, Plaintiffs believe that the School Board’s actions are problematic entirely because the School Board members are Orthodox Jews who are motivated, in part, to help other Orthodox Jews pay yeshiva tuition by lowering their tax burden. In short, Plaintiffs seek to deny Orthodox Jews political rights possessed by every other group in the United States: the right to mobilize in support of religiously neutral government policies, and then have those policies enacted through normal democratic processes. And Plaintiffs seek to do so because, Plaintiffs allege, the School Board's religiously neutral government actions are motivated by the Jewish faith, instead of anti-tax sentiment generally.

Plaintiffs thus ask this Court to discriminate against Orthodox Jews by finding that lower taxes and smaller government are unconstitutional because many of the tax cut’s beneficiaries would choose to allocate their tax savings to Jewish education rather than secular pursuits. But if the First Amendment means anything, it is that the Government cannot prohibit individuals from spending their own money to fulfill the obligations of their religious faith.

Yesterday, both Newsday and Long Island's Jewish Star reported on the decision. [Thanks to both Benjamin Wolf and Joel Katz (Relig. & State in Israel) for leads.]