This past Monday, Federal Judge Jed Rakoff of the Southern District of New York issued a major, press-worthy ruling in which he voided the $285 million settlement that the Securities and Exchange Commission had forged with Citigroup. Much less noticed was another decision by Judge Rakoff rendered the same day. He turned back efforts by a group of self-described "dissidents" to dissolve the community in which they live: Kiryas Joel, N.Y.
Kiryas Joel is a legally recognized municipality about 50 miles outside of New York City in Orange County. Its population of 22,000 residents is made up almost entirely of members of the Satmar branch of Hasidic Judaism. To the outside world, Kiryas Joel appears as an island of uniformity; bearded men wear dark suits and hats, and bewigged women wear long sleeves and skirts. Owing to the extraordinarily high birth rate, the community's children under the age of 18 make up an astonishing 60% of the population, three times the percentage in New York state. With this kind of demographic uniformity and density, the community has been able to inculcate the distinctive values of traditionalist Orthodoxy -- ritual stringency, endogamy and lifelong Torah education. The community's particular social norms are reflected in a welcome sign that greets visitors to Kiryas Joel, asking them to dress modestly, use appropriate language and even "maintain gender separation in all public areas."
In this regard, Kiryas Joel would seem to represent a great success story, indeed, the fulfillment of the vision of the community's first leader, Satmar Grand Rabbi Joel Teitelbaum (1887-1979), after whom the village was named. It was Rabbi Teitelbaum's dream to build a community outside of Williamsburg, Brooklyn, where he had settled in 1946 with several dozen followers after the Holocaust. There it would be possible not only to provide adequate housing to the rapidly growing families of the Satmar community, but to escape the seductions and dangers of big-city life in Brooklyn. Rabbi Teitelbaum's long-standing desire to create a "shtetl," by which he intended a site of insular purity, prompted his lieutenants to search out available property in the New York metropolitan area for decades. Finally, in 1974, land began to be purchased and the first Satmar settlers arrived in the Town of Monroe, N.Y. Initially, the community's leaders did not want to incorporate as a village, and thereby assume full responsibility for the social services and finances of Kiryas Joel. But constant tensions over zoning issues between Monroe Town officials and the new Hasidic residents ultimately led the Satmar Hasids to seek -- and gain -- incorporation in March 1977. At that point, a religious enclave, comprised of private landholders, became a legally recognized public square -- a local government of, by and for the community of Satmar Jews.
Abundant signs attest to the community's rapid growth, none more than the fact that it doubles in population every 10 years. But in certain key respects, the idyll of Kiryas Joel began to unravel shortly after its birth. Rabbi Teitelbaum died in 1979, setting off a series of bitter succession battles that now embroil two great-nephews, Aron and Zalman Teitelbaum. Over the course of those battles, the "dissidents," now loosely aligned with Rabbi Zalman, have sought to diminish the power of the mainstream establishment faction, now under the control of Rabbi Aron. These efforts have even prompted the dissidents to seek the formal dissolution of the Village of Kiryas Joel on a number of prior occasions, in 1994 and 1999-2000. Represented by former NAACP Legal Defense Fund lawyer Michael Sussman, the dissidents filed suit again in 2011 alleging that Kiryas Joel is a "theocracy" whose "very existence" stands in violation of the Establishment Clause of the First Amendment.
Judge Rakoff threw out the dissidents' suit on both procedural and substantive grounds. He reasoned that a number of claims advanced by the plaintiffs had already been heard and dismissed, and thereby failed the standard of res judicata. He also argued that a number of those alleging injury were in fact non-parties to the suit, and thus had no standing.
On the substance of the matter, Judge Rakoff wrestled directly with a series of interlocking claims that the Village not only permits, but is a form of state-based establishment of religion. The plaintiffs argued that the Village's "governmental affairs are impermissibly intertwined with those of Congregation Yetev (i.e., the synagogue of Chief Rabbi Aaron Teitelbaum)." All Village officials, they continued, are members of the Congregation. More particularly, the Village Mayor serves as Head of the Congregation, effectively erasing the boundary between state and synagogue.
The plaintiffs also alleged that the Village requires all developers of multi-family dwellings in the Village to construct a Community Room or else face a $5,000 per unit fine. The primary purpose of the Community Room law, the dissidents claim, is "to advance religion," since its serves principally as a venue for religious activities. Together, the plaintiffs claimed, the various actions on the part of local officials rendered the Village, in substance, if not in form, a "theocracy."
Judge Rakoff roundly rejected this claim. Responding to the argument about the permeable boundary between the Village and the Congregation, he invoked two earlier cases: McDaniel v. Paty, a case from 1978, in which the Supreme Court held that "the Establishment Clause does not bar an individual from holding public office simply because he is a member of the Clergy," and Kiryas Joel v. Grumet, a 1994 decision that addressed the constitutionality of municipal institutions in Kiryas Joel. Grumet struck down a New York statute creating a public school district in Kiryas Joel. It is often mistakenly viewed as having condemned the kind of fusion of religious and political establishments that exists in the Village. In fact, it did nothing of the kind. Rather, it affirmed the core principle of McDaniel -- that individuals are not barred from holding public office by virtue of their religious beliefs -- and extended it by explicitly stating that a community is not disqualified from establishing its own local government institutions merely because the residents of the community happen to be members of the same religious community.
Relying on these precedents, as well as the more recent case of McCreary County v. ACLU, in which a narrow majority of the Court struck down a public display of the Ten Commandments, Judge Rakoff dismissed the argument about the porous boundary between religion and politics in Kiryas Joel. He proved somewhat more sympathetic to the claim about the Community Room law, and left open the prospect for the plaintiffs to amend their suit to demonstrate actual injury issuing from the law. But, at the end of the day, and despite the hopes and expectations of the plaintiffs, Judge Rakoff upheld the legal validity of Kiryas Joel, New York. In doing so, he rejected the proposition that the Village constitutes an impermissible "theocracy," and affirmed, perhaps unintentionally, another well-established American tradition: the granting of government sanction to strong forms of religious sub-communities, even (or perhaps especially) those whose norms of governance and behavior are illiberal and seemingly in contradiction to American constitutional values and norms.
To be sure, the term "theocracy" is a loaded one in contemporary political discourse, largely because it is most commonly used to conjure up the fear of a radical, nuclear-tipped Islamic polity. The courts, certainly, have not given any fixed meaning to the term, and it remains unclear just what a "theocracy" is, let alone when, if ever, theocratic government is proscribed. What is clear is that American constitutional law does not necessarily condemn the establishment of governments by, for and of a particular (illiberal, religious) sub-community. American courts have repeatedly approved the formation of private self-governing enclaves by religiously homogeneous communities. Kiryas Joel thus falls into a long American tradition of robust support for religious sub-communities, a tradition that enables private communities to form and then, once formed, to translate their private power into political power. Judicial respect for the autonomy of religious sub-communities has been expressed in a number of important decisions, most notably, the case of Wisconsin v. Yoder (1972), in which the Supreme Court affirmed the right of the Amish to protect their insular, communitarian and pervasively religious way of life by not sending their children to school.
This is not to say that America's constitutional culture is unambivalently committed to protecting the rights of religious groups to form their own self-governing enclaves. Far from it, as the history of the Mormon Church amply illustrates. Indeed, the Mormons' history of confrontation with the federal government is the sharpest rejoinder to the claim that the Constitution protects the right of religious subgroups to form their own governments. From the moment of its inception, throughout the 19th century, the U.S. government waged a relentless campaign to stamp out the Mormon Church and, above all, to prevent it from establishing its own state government. The Supreme Court strongly sided with the government's actions. Despite this campaign, the Mormon Church not only survived, but thrived. More to the point, in the end it succeeded in founding its own state: Utah, a place not just of refuge from persecution, but of active self-governance through the formation of state and local government institutions that answer to the values and preferences of the local (Mormon) population.
Does that make Utah a "theocracy"? The answer to that question turns on semantics. Some who deny that claim will note that non-Mormons are free to live -- and vote -- in Utah. Similarly, non-Satmars are free as a matter of American law to live and vote in Kiryas Joel; nor is there a Village ordinance barring non-Satmars or denying them equal rights. That said, there is intense pressure within the community to avoid selling or renting to those who do not adhere to a strictly observant lifestyle. Moreover, there can be little doubt that the ultimate authority in matters spiritual and temporal is Rabbi Aron Teitelbaum. Defying his word has real consequences in the Village's civil and religious life, which indeed are so entwined as to be indistinguishable. We might say that this is a most regrettable violation of the vaunted doctrines of liberalism on which this Republic was built. But one must also ask whether Kiryas Joel does not in fact attest to another long-standing American tradition -- the potent strain of communitarianism -- which permits difference and segregation, not least religious difference and segregation. Seen from that angle, Kiryas Joel, N.Y., may be as American as apple pie.
Further Reflections on "Theocracy in America"
A number of readers' comments suggest to us that a key point in our recent post, "Theocracy in America?" may have been misunderstood. When we wrote that Kiryas Joel represents a decidedly American strain of communitarianism, marked by difference and segregation, we were describing an ironic and surprising feature of American legal and political history. We were not prescribing or condoning the kind of blurring of religious and political lines of authority that we notice in Kiryas Joel. Nor were we making the opposite normative claim, namely, that the establishment of the Village is necessarily in violation of the fundamental principles of liberty and equality that guide American law.
Our aim is not to take sides in the bitter dispute between the establishment faction and the dissidents in Kiryas Joel. Rather, it is to see the community as part of a broader legal-political phenomenon, of a piece with the same system that has permitted significant levels of racial and economic segregation to take rise in American society. This is what makes Kiryas Joel such an interesting case: it shines a spotlight on features of America, and the constitutional values "for which America stands," that many Americans consciously disavow. That there is an establishment faction in the Village associated with Rabbi Aron Teitelbaum that exercises heavy-handed control over political, legal and religious affairs is not in dispute. That there are a variety of dissident groups who seek to challenge that control and gain a measure of autonomy over their own religious affairs is not in dispute either. What is less clear, counter-intuitive as it may be, is that a religiously homogenous municipality that answers to a guiding religious authority is illegal under the American Constitution.
It is important to recall that Kiryas Joel came about when a group of individuals purchased property in Orange County, N.Y. According to New York State law, "a territory of 500 or more inhabitants may incorporate" as a village if it so chooses. There is no litmus test about political belief or religious practice involved in this state regulation, simply the requirement of five hundred people. The rapid shift from a group of private citizens to a Hasidic public square in Kiryas Joel was thus executed in full compliance with the law. This is one of the reasons for our intentionally ironic claim that Kiryas Joel, a community of Satmar Hasidic Jews, is "as American as apple pie."
In offering this rhetorical flourish, we do not mean to suggest that the charges alleged by the dissidents against the establishment regime in Kiryas Joel -- intimidation, violence and pressure -- are "as American as apple pie" or are acceptable in any form. These allegations are very serious and deserve careful attention. But they are not dispositive of the question of whether Kiryas Joel is a theocracy. Abuses of power can be committed by government officials regardless of whether their motivations are religious or secular. Whether the officials of Kiryas Joel have committed abuses of power is one question; whether their exercise of power is "theocratic" is another.
It is the latter question that engaged us in our initial post. What we maintained then and reiterate now is that the claim that Kiryas Joel is a theocracy and thus in violation of American law is more complicated than meets the eye. The very features of the community that are deemed by its critics to be disturbing (its self-segregation and its illiberal culture) and the mechanisms whereby the community has secured those features (primarily through the acquisition of private property and the exercise of private property rights) are not as abnormal as we might think. Ironically enough, they may well be typical in the long course of American history. We offer this assessment neither in praise nor in condemnation, but in the name of historical and legal elucidation.
David N. Myers is a professor and chair of the UCLA History Department. Nomi M. Stolzenberg is the Nathan and Lilly Shapell Professor at the USC Law School. They are writing a book on Kiryas Joel.