Kiryas Joel vs. The Pope -Reply

[Lupu, Ira (Chip)]

Abner Greene writes:


     This is probably just rehashing (one aspect of) Kiryas Joel, but why
should we require either a statute or executive action put in such general
terms?  Why not allow the specific action, and if the government fails to
take such action in a future case, allow a lawsuit by the injured party?
That is, when the government lifts a travel ban for a particular sect, why
not assume that the ban will be lifted for similarly situated groups, rather
than assuming the opposite?  I guess this is becoming a debate about the
constitutional necessity of a particular type of clear statement.  Chip's
argument is, I think, that government may act to benefit a particular sect if
in so doing it articulates a general principle of which this action is an
instance.  My argument is that we should assume such a principle --
assume the government will follow rather than violate the Constitution in
the future.
     Maybe I'm misunderstanding Chip.  What should we do if NY State
passes a law establishing the Village of Kiryas Joel School District, and
says in a separate section [using Chip's suggested language above,
amended]:  "we will [establish similar school districts] for all meritorious
requests."
     --  Abner Greene, Fordham Univ. School of Law


Abner and Michael and I (and others) have been around this track
before, and more than once.  But for the benefit of those who haven't
suffered through it earlier, my answer to Abner and Michael is
grounded in equal religious liberty and its components of process
as well as substance.  Abner, if the NY legislature creates a
district for the Village of Kiryas Joel and simultaneously
establishes 1) legitimate criteria to govern other local government
units seeking their own school district and 2) an administrative
process obliged to consider such requests and explain the reasons for
granting or denying them, then the Kiryas Joel outcome would be
different for me.  The legislature can bind the administration to
apply these criteria under these processes; but one legislature
cannot by ordinary legislation bind itself or its successors to act
under pre-established criteria and to give reasons for its actions.
And so a legislative "promise" that it will consider the next request
on the same terms as the KJ request is worth nothing, and remits the
next claimant to ordinary legislative politics.  In such an arena,
sects or groups which lack political influence will fare poorly
compared to those which have such influence.  And that, to me, is
the Establishment Clause problem --- permitting sectarian advantage
to turn on political influence.  Your approach to KJ -- the Satmars
won, let the next group try to do likewise with the legislature -- is
an invitation to irremediable discrimination (when, after all,
would legislative inaction inflict cognizable
constitutional injury) and sectarian jockeying for political
power and advantage, both of which seem to me to present Religion
Clause vices.


Ira C. ("Chip") Lupu
The George Washington University School of Law
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu