Categories and Cultures in Religious Discrimination

Jay Michaelson
December 20, 1995

Outline


I.  Introduction
     A. On defining our Terms
     B. The Airmont Case
II. Religion and Culture
     A. Anti-Hasidism is not Anti-Semitism
     B. Objections
          1. Culture as deriving from religion
          2. Self-identification
          3. The courts as sociologists
III. Two definitional problems
     A. Religion and culture as categories
          1. History
          2. Judaism, Hasidism, and the Secular
     B. The target of 'intent'
IV. Conclusions
     A. Summary
     B. On reading too closely

I. Introduction

A. On defining our terms

Supreme Court constitutional jurisprudence often rises or falls on hermeneutics, on how the Court chooses to interpret terms such as "speech," "due process," "free exercise," or "establishment." Yet the central term in First Amendment cases -- "religion" -- has eluded definition, as reams of scholarship have discussed. Suggesting a new definition of religion will not be our project here. Rather, this paper focuses on the subset of "religion questions" wherein discrimination against a religious group is alleged, and suggests that our conceptual framework, applied carefully, protects less than one might initially suppose.

The point of departure for this paper is a recent free exercise case involving zoning law, Le-Blanc Sternberg v. Airmont. Though the appeals court ruled that there was impermissible religious discrimination against the Hasidic Jews who were the plaintiffs in the case, it is unclear whether Jewish religion was actually the target of the discrimination, or whether the target was instead Hasidic culture, with its insular, distinctive, and seemingly anachronistic social mores. The dichotomy between religion and 'something else' is an important one, for it may decide whether a practice is protected, or like Frank Africa's MOVE-related requirements in Africa v. Commonwealth of Pennsylvania, it is not.

In Airmont, the religion/other question is central, though not discussed at all in either the district or the appeals courts' opinions. If the discrimination manifested by the Airmont zoning board is against a religious group, the case looks similar to Church of Lukumi Babalu Aye v. City of Hialeah in which an animal rights ordinance was struck down for being clearly motivated by discriminatory intent against a religious group. To most, discrimination against Hasidic Jews certainly fits this mold. But if the Hasidim were discriminated against not as Jews but as Hasidim, as members of a particular cultural group, the religion-based discrimination essential to a Babalu Aye case may not be present. Certainly disparate impact would be present, but as noted in Airmont itself, the outcome of such a case is unclear under present constitutional caselaw.

Religious discrimination in the constitutional context thus leads to the unpleasant investigation of what is going on in the discriminator's mind -- whether religion or culture is the object of discrimination -- in addition to the unpleasant task of having to draw the religion/culture line to begin with. This paper suggests that the religion/ culture line, while essential for constitutional jurisprudence, may be more appropriate for some religious traditions than others, and is thus itself fraught with possibilities for unequal treatment of religio-cultural groups like the Hasidim, adherents of MOVE, and others. We conclude, then, by returning to the "religion" question and proposing not a solution to the problem but a skepticism regarding such solutions, suggesting that there is no text to which we can be "true" other than our predetermined notions of equity and fairness.

B. The Airmont Case

Conceptually, Airmont looks at first like a slight variation on a garden variety, Babalu Aye style accommodation case. The facts, though involved and somewhat tangled, fairly clearly fit into the accommodation mold. The relevant facts for our purposes center around a zoning ordinance in the town of Ramapo which forbids houses of worship on less than two acres of land. The ordinance poses a problem for Orthodox Jews, who, because they do not use automobiles on the sabbath but require a quorum of ten men to worship, tend to form small congregations known as shteibels, which frequequently meet in the home of one of the congregants, and a similar rule was in fact the subject of earlier litigation, Grosz v. City of Miami Beach. Because of their size and lack of financial resources, shteibels almost never have a large building of their own, certainly not on two acres. To accommodate the Orthodox and Hasidic Jews' religious needs in light of this problem, the town of Ramapo routinely allowed shteibels in residential areas through a loophole in the zoning code which allowed for home professional offices.

The source of the lawsuit sprung from the efforts of one neighborhood within Ramapo -- Airmont -- to secede from the town with the express purpose of enforcing the zoning code and banning shteibels. The Airmont Civic Association (ACA), which led this effort and ultimately succeeded, was overtly anti-Hasidic both before and after secession; the trial record includes statements such as "Everybody knows . . . why the Airmont Civic Association was formed. What does the Airmont Civic Association and the proposed village plan to do to keep these Hasidum [sic] out?" and references to Orthodox Jews as "foreigners and interlopers" who were "an insult to" the community. The day after secession, several Hasidic Jews filed suit under the First Amendment and the Fair Housing Act.

The trial history then becomes somewhat complex, with the government filing one action against the town of Airmont in a bench trial, and the Hasidim filing an action against the town and against individual members of the town council in a jury trial. First, in what was characterized by the trial court as a "compromise verdict," the jury found for the Hasidim in their action against the town, but for the individual defendants in the action against them. Two days later, the court ruled for the town in the government's action against it, and proceeded to issue judgment as a matter of law for the town in the Hasidim's action, claiming that the verdict was both internally inconsistent and inconsistent with the law as the court found it. On appeal, the circuit court upheld the jury's verdict, reversed the decision against the government in its action, and reversed the JMOL decision.

The circuit court held that Airmont was an "easy" accommodation case, like Babalu Aye, because the ACA's discriminatory intent was clear. Setting aside the complex Fair Housing Act and timing questions which occupied much of the circuit court's attention, the theory under which a constitutional violation was found is relatively clear: "that the Village adopted a zoning code that was intended to, and would be interpreted to, curtail home synagogues," and that the law, or its application, was based on "religious animus."

Restating, then, the circuit court found for the Hasidim because Airmont was motivated by religious discrimination. This case, like Babalu Aye, dodges the bullet of whether a facially neutral law is unconstitutional, because even if the zoning rules here were not constructed with the animus that motivated Hialeah's animal rights statute, it was certainly clear that they were meant to be a tool to "keep those Jews from Williamsburg out of here." But what sort of animus is this?

II. Religion and Culture

A. Anti-Hasidism is not Anti-Semitism

An accommodation case is "easy" "if the object of a law is to infringe upon or restrict practices because of their religious motivation" because "[a] law targeting religious beliefs as such is never permissible." So stated Babalu Aye, upon which the circuit court in Airmont relied. Yet the discrimination in Airmont is quite different from that in Babalu Aye. In the latter case, the city of Hialeah sought to restrict a religious practice deliberately, and narrowly tailored a statute to do so. In Airmont, the intent of the ACA was not to attack the use of shteibels, but rather to attack Hasidim, to keep them out of the neighborhood. Certainly, ACA is manifesting ignoble discrimination. As suggested earlier, though, this discrimination may not be entirely on religious grounds. The practices that would be abridged are religious in nature; shteibels are houses of worship designed to meet particular religious needs. But impact is not intent. And almost every mention of discrimination in the court record is against "Hasidim" not "Jews."

Hasidim, as anyone who has come in contact with Hasidic sects knows, are not "mere" Jews. Their rich and diverse cultural heritages stem from the towns and provinces of Poland and Galicia, where Hasidism began as a quasi-populist revival movement based on ecstatic prayer, emotional involvement with the Divine, and the leadership of charismatic rebbes. Most apparent to the outsider are the Hasidim's distinctive appearances. Many men wear black hats and black coats, some even wear fur-lined shtreimels; all are bearded and with payos, sidecurls of one length or another, depending on the custom of the community. Women typically keep their hair covered, and wear modest, conservative dresses. These forms of dress, however, while bearing some connection to an interpretation of Jewish law, are primarily cutural traditions -- minhagim, in the Hebrew. Covering the head is (almost) a matter of law; wearing a hat is a matter of custom.

Deeper aspects of Hasidic sociology are similarly matters of culture as well as religion. Hasidic families tend to be very large, birth control being discouraged in the community on the basis of religious law. Gender roles are strongly maintained, in some areas on the basis of religious law (e.g. the synagogue), others on the basis of cultural tradition. [FN to studies of this, or do my own.] Communities tend to be extremely tightly-knit, not because of any religious law, but because of the distinct history and sociology of Hasidic sects. Communities are exclusive, both for religious reasons (e.g. fear of intermarriage) and cultural ones (e.g. preserving the Yiddish language). Collectively, what distinguishes Hasidim from gentiles also distinguishes them from other Jews: language, social structure, dress, the role of tradition.

It is these sorts of customs which seemed most disturbing to Airmont residents. One ACA supporter said in a written statement, "[W]hat would be better, for us to loose [sic] our homes for a religious sect or for us to live as we have lived for the past 25 years . . . Instead of giving up for what we've worked very hard for, to a bunch of people who insist on living in the past. I am not prejudice [sic] in any way, shape or form but i [sic] will not have a hasidic community in my backyard." Airmont's counsel, in an article published shortly after the district court's ruling for his clients, described the situation as "akin to a rolling snowball, as more came, the kosher food vendors, yeshivas and places of worship that opened attracted still more people." Even the district court's background facts differentiated between the ritual and legal bonds characterizing all "Orthodox Jews" and the "distinctive dress style" and veneration of the "Grand Rabbi" that distinguish "Hasidics."

This sort of vague parochialism suggests that a more accurate reading of the ACA's prejudices would be to call them anti-Hasidic, not anti-Semitic, and certainly not targeted at any religious practice as such. Quiet, normal looking assimilated Jews were not the focus of the ACA's hatred. Nor were the particular rituals or observances of the Hasidim. Rather, the target was the "foreigners" who dress foreign, speak foreign, act foreign, and keep to themselves. There is certainly a dynamic of "Us and Them" in Airmont; but are "They" protected by the First Amendment?

To suggest the negative invites several criticisms -- how the courts are to play amateur sociologist and tease apart religion and culture, whether culture that derives from religion may still be protected, what Airmont residents "actually" think -- but before turning to these criticisms, I wish to state the negative case more fully. That is to say, if we say that there is no line between protected religious groups and unprotected cultural groups, the First Amendment becomes quite unwieldy. Several examples help develop this point.

If there is no line between religion and culture, two types of difficulty emerge: regulating the cultural activities of religious groups, and (as in Airmont) discriminating against cultural groups themselves. Because it is not the fact pattern in Airmont, the first type of problem interests us less; in Airmont, and Babalu Aye, and Africa, religious behaviors were impacted, directly or indirectly. But surely some religious groups manifest non-religious behavior. For example, most would agree that a town could not ban the eating of communion wafers even with non-discriminatory intent; this is clearly a religious practice essential to Catholicism. Could a town also not ban outdoor fish fries, which are equally essential to a given Catholic community's culture? Could a town not ban Sunday picnicking in certain areas essential to the same community? Or, for a second example, can a landlord not refuse to rent an apartment to an extended Hindu family because it is a Hindu cultural tradition to have many people live together? The purpose of these examples is to suggest that some behaviors of a religious group -- even those peculiar to that group -- are not religious.

Discrimination against groups is a much more live issue, however. It is worth remembering that the Constitution does not exist in a vacuum; Airmont itself was more concerned with the Fair Housing Act than the First Amendment. But speaking consitutionally, it cannot be the case that all groups are protected by the First Amendment. Airmont's hatred can easily be seen as a form of xenophobia, as a subset of generalized hatred of "foreigners," which is how the ACA's members saw the Hasidim. What if the hatred had been against not Hasidic Jews but Yemenite Jews, whose insular nature, family structure, and personal hygiene the ACA found offensive and foreign? To the Yemenite, the use of olive and other oils is tied to his general cultural tradition, which he received from his family. But there is no religious basis for its use. Is it religious discrimination? One may even imagine a town council, faced with a large and growing Yemenite Jewish population in their midst, seeking to preserve the cultural character of their neighborhood from the radical otherness represented by the Yemenite Jews. "What are you going to do to keep the Yemenites out?" one member might ask. Racial discrimination, perhaps; religious?

In the Yemenite hypothetical, there may be no anti-Semitism (although the inappropriateness of the term is demonstrated by its use here; Yemenite Arabs and Jews are both Semites) on the part of the town council. There is anti-Yemenitism, on the basis of the Yemenites' cultural traits, which range from personal grooming customs to language, family, and religious practices similar in form (but not in substance) to those of the Hasidim. Indeed, one can easily imagine the same discrimination being exercised against a Yeminite Arab, with presumably no Free Exercise ramifications. If the exact same intent can be present -- discrimination against Yemenites -- the fact that the set of Yemenites in question happens to be Jewish seems utterly beside the point. Recall that the Airmont opinion based itself on a theory of discriminatory animus, that the key was not that the facially neutral zoning ordinance would affect the Hasidim, but that the ordinance was being adopted for a discriminatory reason, i.e., to keep them out. It is not the ordinance's effect on religious observance that is central; it is the reasons that motivated its adoption. And just as he Judaism of the Yemenite is merely incidental to the actual target of discrimination in that hypothetical, i.e., Yemenite-ness, the Judaism of the Hasid is merely incidental to the actual target of discrimination, i.e., Hasidism.

Finally, it may be noted that many Jews are themselves anti-Hasidic, levelling their charge not on religious grounds (e.g. they have misinterpreted the Law) but on cultural grounds (e.g. they are living in another century). Indeed, the cultural clash between Hasidim and other religious Jews is frequently more pronounced than the gap between religious and non-religious Jews. Whatever normative conclusions we may draw from the situation, it would not be so implausible to find Jewish supporters of the ACA. Indeed, before some more aggressively anti-Hasidic figures joined the organization, many Jewish residents of Ramapo supported it. To be sure, the fact that some Jews may be anti-Hasidic does not itself render all anti-Hasidism non-religious discrimination. It is merely evidence that there may be targets in Hasidism other than Jewish religious ones. The hypothesis here, though, is stronger; as stated above, the theory is that Judaism is probably only incidental to the anti-Hasidism manifested in Airmont.

B. Objections to the Thesis

It must be admitted that something seems immediately wrong about claiming that anti-Hasidism is not anti-Semitism. Three primary objections to the claim will be dealt with here: that Hasidism, if not itself religious, is so intimately related to religion as to qualify for protection (as might the cultural practices of the Amish), that Hasidim themselves would say that their practices are religious, and that in any event, the courts should not play amateur sociologist by deciding what strange practices are "religious" and what are not.

Postponed for the moment is the objection that the discriminators themselves -- the ACA, in Airmont -- did not themselves work out the distinction as carefully as I am attempting to do. This is not to say the issue is not a live one. True, they did not argue the point in court -- the strategies appeared to center around the unripeness of the Hasidim's complaint -- but counsel did suggest later that the district court case represented a victory for towns seeking "self-determination" of their characters, suggesting that some form of discrimination was considered by defendants to be acceptable. Yet such questions about the discriminator's mindset are part of a larger issue: whether discriminatory intent and purpose is itself a coherent doctrine for First Amendment religious cases, or whether it is in fact "impact disguised," as will be discussed in Part III.

1. Culture as Deriving from Religion

Hasidism qua Hasidism may not be a strictly religious phenomenon, but no one would deny that it stems from and continues to depend upon Jewish traditions which are certainly religious. The particular garb and language of the Hasidim may be cultural phenomena, but even they derive from "definitely religious" precepts regarding modesty and assimilation. Perhaps, this objection runs, discrimination against Hasidim is basically discrimination against Jews, because only Jews are Hasidim, and but for their Judaism, the Hasidim in Airmont would not have been discriminated against. Culture may derive from religion, and when that derivation is clear to everyone, one cannot discriminate against Hasidim and be innocent of anti-Semitism anymore than one can discriminate against people who wear turbans and be innocent of hatred of Sikhs.

The Sikh analogy is instructive, however, because it points to the flaw in the objection. We are dealing with the culture/religion question insofar as it relates to discriminatory animus -- i.e., what is in the mind of the discriminator, what motivates his actions. It is plausible to suggest that most Americans do not even know what Sikhism is, where Sikhs are from, what they believe, or what the relationship is between their beliefs and Sikh men's wearing of turbans. If it were the case that the wearing of turbans were in fact an exclusively cultural trait, and someone who sought to ban the wearing of turbans did so only because of cultural prejudice against foreigners generally, where exactly would the "religious" nature reside? Of course, there is a direct correlation between the Sikhism in this example and the wearing of turbans, but for our argument we have suggested that there is not a causal relationship between them. Similarly, the cultural mores of Hasidim stem from their Judaism, but might not be any more caused by Judaism that cultural traits we would expect to go unprotected -- Jewish (as opposed to kosher) food, for example. And, unlike the Sikhs, who, even if the turban itself was a cultural more, are defined by their religion, the Hasidim are defined -- as against other Jews, and in the expressed motives of the ACA -- by their culture. In sum, a but-for test yields far too much protection for religiously-derived practices.

2. Self-Identification

One of the more immediately appealing objections to the non-protection of Hasidic practices as religious is that the Hasidim themselves would certainly say that they are, in fact, religious. Yet self-definition has not been shown to be adequate for the courts. Just as the Hasidim would have to say that what is being discriminated against in their case is religious, Frank Africa said that what was not being accommodated in his case was religious in nature. It is worth remembering, as has been stated above, our inquiry is not about whether some affiliation is a religion or not but whether some practice manifested by a religious community is necessarily religious. But just as some religiously-oriented practices are not protected by the courts because they are not "essentially" religious, despite claims to the contrary from the aggrieved parties, some religiously-oriented practices may be discriminated against because they are also not "essentially" religious, whatever the Hasidim may claim.

Whatever standard they may employ in deciding what counts as religious, courts must in some cases be the arbiters of the question. Pure deference to the aggrieved party would indeed be a slippery slope. In the church-building cases, an evangelizing church might claim that building an edifice of sufficient size and shape is essential to their religious mission. In religious taxation cases, self-interested entrepreneurs could claim tax exempt status as disingenuous religious entities. The slippery slope extends to discrimination-based claims; aggrieved parties are likely to select expansive definitions of whatever class they are seeking to fall within. Self-definition may be a factor in the court's decisionmaking process, to be sure, but it cannot be the sole determinative one.

3. The court as sociologist

Such arbitration will necessarily put the courts in yet another mission for which they are ill-suited: that of sociologists trying to pinpoint the object of discriminatory animus. As discussed below, the task is more complicated than it is in cases of racial discrimination. In cases of alleged racial discrimination, the improper targets and motivations are clear. There is no legal disagreement that anti-black discriminatory intent, for example, is impermissible -- the question is only whether such animus was manifested in the case at issue. Here, however, the court is being asked to identify what aspects of the offended party's status is an impermissible grounds for discrimination, as well as whether that aspect of status was the actual motive in the case.

Uneasy though this may make us, it must be recognized that courts engage in this sort of amateur sociology all the time in close religion cases. Though reticent, the court in Africa was forced to use criteria for evaluating whether a set of practices was religious or not. And in cases like Malnak v. Yogi, which developed the criteria, courts have been sociologists of religion circumspect enough to make Mircea Eliade and Joseph Campbell proud. Making difficult calls is what judges do all the time. It cannot be the activity in which the courts are engaging that bothers us.

In fact, I do not believe that any objection that stays within the conceptual parameters as I have drawn them -- discriminatory intent aimed at a cultural or religious practice -- will succeed. The categories with which courts must decide religious discrimination cases are, when thought about carefully, simply unable to protect a complex religio-cultural group such as the Hasidim. Of course, we can apply them loosely, and this may be the role for judges to take on. But I now wish to turn to criticizing the categories themselves: how it is that the religion/culture dichotomy and the post-Babalu Aye emphasis on discriminatory purpose fail to protect "atypical" groups like the Hasidim in Airmont.

III. Two definitional problems with discrimination against religion

A. Religion and culture as categories

Uncertainty over religious and cultural boundaries, which I have tried to develop above, suggests that our interpretive machinery -- the categories we use to identify practices and ideas -- may be in need of some revision. Remember again the nature of the question: it is not whether practices affected by an action are religious or not (e.g. the building of churches) but whether practices/aspects of life that motivated an action are religious or not. I have suggested that in cases like Airmont, it is at best not clear that the discrimination involved was motivated by the religion of its targets, but was instead driven by other aspects of the target community which may be labelled "cultural." Because culture is not protected by the First Amendment, Airmont's decision to preserve its neighborhood character should be respected as a legitimate choice.

As an aside, it is worth noting that despite the legitimately suspicious connotation the word "discrimination" has taken on in American society, the type of neighborhood preservationism which may be being practiced in Airmont is lauded elsewhere. Neutral culture-discrimination seems to be the goal of many preservationist causes ranging from Chinatown in San Francisco to Italian Wooster Square in New Haven. Of course, Airmont's culture is not endangered in America, but it is certainly a minority culture in Ramapo, where Hasidic neighborhoods indeed growing at a rapid rate. Indeed, community self-determination was praised by Airmont's lawyer after the district court's decisions were handed down.

This legitimate choice of the Airmont community is defensible insofar as they were not practicing religious discrimination, and this paper has attempted to suggest that it is plausible to suggest that they were not. Yet this seems cruelly unfair to Airmont's Hasidim. Certainly they were discriminated against, and, as discussed above, those aspects of their lives which were the ostensible motive behind the discrimination were certainly religious to them, if not to an "objective" reading of the facts. On the other hand, as suggested above, we cannot say that all discrimination aimed at Jews is a violation of the first amendment: it may be no more religiously motivated than discrimination aimed at any other ethnic cultural group.

The suggestion here is that the difficulty posed by cases like Airmont stems from the fact that not all religions treat their boundaries in the same way. Indeed, even within a single religious tradition there may be vastly differing approaches to what the borders of "religious" practice are. This definitional problem must be an essential trouble for constitutional jurisprudence, much as the question of what is "speech" has been in free speech cases. Yet the religion problem is more pronounced, because while a court can claim to present an "objective" reading of speech that can hold across cases, the remainder of this paper hopes to show that a similarly "objective" standard for what constitutes "religious" may not be possible to achieve.

Let me reiterate that the question here is not whether an affiliation or belief community is a "religion," a question that has been dealt with extensively in the literature. Rather, the question is whether characteristics of a group may be seen as "religious" for the purpose of labeling the type of discrimination practiced against that group.

1. Religion and culture

It has been suggested that the greatest of the revolutions wrought by the Protestant Reformation was the creation of the idea of the "secular," that which is Other to the religious. It was the creation of this secular 'sphere,' runs the argument, which enabled independent nationalisms, zones of personal and economic concern that were not the affair of religion, and may have paved the way for the scientific revolution and its epistemological counterparts by moving the ground of authentication from the communal church to the individual.

Such a move, some religious scholars have suggested, is more a recovery of an essential element of Christianity generally which had been lost with the conversion of Constantine and the institutionalization of the church as a omnipresent political entity. Though we cannot rehearse the entire argument here, the gist of the claim is that Christianity developed as a missionary religion, in contrast with the religio-nationalities which were common throughout the ancient Near East. One could not be a "Jew," for example, without being an Israelite; religion and nationality were identical. All aspects of life were under the purview of religion, because religion was wedded -- even under Roman occupation -- to civil law and civic life. Christianity, on the other hand, was able to succeed precisely because it allowed proselytes to retain their nationality (and sometimes even elements of their prior religious practice) and still accept Jesus as saviour and be a part of the Christian church. "Rendering unto Caesar what is Caesar's" became, in this view, Christianity's fundamental success, because it suggested the possibility of coexistence in 'spheres' of religion and nationhood, religion and culture.

Such prehistory is relevant only as background and precursor to the forms of Protestantism prevalent during the founding of the United States. The notion of the secular polity -- albeit one guided, shaped, and maintained by religious norms and religious people -- is one that is inseparable from the Protestantism of the Founders. Before the Second Vatican Council and Dignitas Humanitore, such a notion was officially repellant to the Catholic Church, which had viewed the separation of religion and political life as an utter impossibility. Nor is the secular polity a coherent doctrine for the religious Muslim, whose Koran teaches the goal of unifying the sacred and the temporal. Of course, for Jews -- now as at the Founding -- the secular polity represented something of an improvement, and Jewish law had long since adopted the principle that the laws of whatever state in which a Jew resided were binding on that Jew's actions.

Whatever its consequences, it seems relatively clear that a secular polity cannot be said to have any autonomy if those expressions not confined to some essentially 'religious' purpose are still privileged or protected within that polity. The issue was not as much a live one for the Founders who, it has been well demonstrated, considered the religious zone the protected sphere. For most of the Founders, what motives and actions took place in the "secular," political realm were not of central concern to the First Amendment. These were almost universally acknowledged to be bound up with religious affiliations and concerns. Rather, the motives and actions in the religious realm were of central concern, and it was seen as centrally important that the State not interfere in that protected area.

Today, for better or for worse, the "protected" zone has shifted to the secular-political, with questions being raised more about whether religion is being instantiated there than about whether the State is involving itself in religious life. Thus, the religion/not-religion dichotomy, which would have been less relevant to the Founders, has become more important. The "protected garden" analogy, first drawn by Roger Williams, may be useful. The role of the courts has always been to protect weeds from encroaching on the plants in the garden. If the garden is now the state, not the church, the courts must determine whether encroachments are weeds (religious) or neutral other plans (culture, etc.). Creches are not allowed in public squares; Santa Claus displays are. The lines between culture and religion grow more prominent.

Additionally, as America has become a more diverse society, the identification of religious practices and religions themselves has become more difficult. In 1789, it would be fairly easy to identify the institutions and practices who must not be disturbed by government, controversies over Catholicism notwithstanding. Today, religions which do not fit the Protestant mold pepper the landscape, and the Supreme Court has recognized as religions affiliations which would have seen quite unreligious to most Founders. Litmus tests, once irrelevant, become a necessity.

2. Judaism, Hasidism, and the Secular

For the vast majority of American Jews, these trends do not pose any serious conceptual problems. It is clear for most Jews what is religion and what is not. Many Jews have taken to identifying themselves as "cultural Jews," maintaining the literary, artistic, and culinary traditions of Judaism but rejecting the theistic and ritual teachings, yet one doubts that these cultural Jews would consider a discrimination against bagels and lox to be actionable under the First Amendment. More seriously, manifest antipathy to Jewish culture, from George Burns to Isaac Bashevis Singer, may be unpleasant, but surely may also be the root and intent of legislation or policy without constitutional challenge. For most American Jews, like most Protestants, there is culture, and there is religion.

Not so for Hasidim. Religion for Hasidim is not something confined to the synagogue or even to what might be identifyable as a 'religious sphere' of life. Indeed, there is no pre-modern Hebrew word for religion at all. Moreover, religion and culture are intimately connected, even when the former does not, strictly speaking, control the latter. The example of Hasidic dress may be an instructive one. There is no halacha, no law, regarding the traditional black coats and hats of male Hasidim; there is only minhag, custom. But in terms of Jewish/Hasidic identity, these cultural customs are at least as important as religious observances. Insofar as Hasidism is an intrinsic part of Jewish identity for Hasidim, anti-Hasidism is to them anti-Semitism, and must be part of what is constitutionally prohibited.

This variability of parameters leads to several unpleasant conclusions. First, it seems to give those groups which include more in their self-conception of religion more protection. Why can one discriminate against ethnic Italians but not ethnic Hasidim, simply because Hasidim count Eastern European culture as part of religion but Catholics do not do so for Italian culture? Second, it moves us yet again away from a true discriminatory intent standard. "I have nothing against Jews," an ACA member might legitimately claim. "I just want to keep out these backward Hasidim." We must secondguess the discriminator's prejudice based on some higher understanding of religion and culture in Hasidism, yet this gives the discriminator too much credit; perhaps she is not having as much trouble with categories as we are, and is simply engaged in ordinary religious hatred. But most troubling is that the impossibility of demarcating a single religion/culture boundary that can apply to all traditions is that the category of religion breaks down at one of the places it is most needed: a border. If xenophobia is not unconstitutional, but discrimination against religion is, the inability of a conceptual framework to tell us the difference should be somewhat troubling.

B. The target of 'Intent'

The second major difficulty posed by the existing standard of discriminatory purpose or intent in religious accommodation cases is that posed by its use in any type of case: how to determine what the intent is. In this instance, however, the problem is amplified by the definitional ambiguity discussed above. If it is intent we are after, should we use the discriminator's definition of religion, or the target group's, or the court's own? Assuming we do not allow discriminators to define away their prejudices and escape judgment, it seems that the court is not really after intent as it was in the discriminator's mind. Effectively, it must tell her, "You may think you were after X, but in fact you were after Y." Not a pretty epistemological picture.

The problem is compounded further by the lack of clarity in the discriminatory purpose doctrine as applied in religion cases. In Babalu Aye, for example, the purpose which was found to render the animal rights statute at issue unconstitutional was not discrimination against practitioners of Santeria, but rather discrimination against the practice of Santeria. Thus even if it was not Santeria as a religion but Haitians as ethno-cultural group that was the target of Hialeah's animus (as may very well have been the case), the fact that the ordinance was attacking a religious practice deliberately was sufficiently unconstitutional. It is worth restating the language of Babalu Aye: "[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law . . . is invalid unless it is justified by a compelling interest and is narroly tailored to advance that interest."

Discriminatory purpose in religion cases, then, is somewhat more complex than discriminatory intent in, for example, race cases. It should be easy to see why this is so. There is no "practice of blackness" that is itself more "racial" than the state of being black itself. For discriminatory intent purposes, there is no practice in which black people engage that is seen as the target of illegal discrimination: the illegality stems from the intent to discriminate against blacks. Babalu Aye is different. The statute there was voided not because it discriminated against Santerians, but because it discriminated against the practice of Santeria.

In the Airmont case, the ordinance at issue appears to have been a zoning rule which prohibited houses of worship on lots less than two acres in size, effectively prohibiting home-based shteibels, which are in widespread use among Hasidim. The village of Airmont was formed with the express intent of enforcing this zoning ordinance, and close a loophole through which the greater town of Ramapo had allowed shteibels to exist. At this point, the 'target' question becomes unclear. The Circuit Court discussion of the point is extremely brief. Yet every discussion of the ACA's discriminatory animus refers to its members' hatred of Hasidim generally, and wish to keep their neighborhood free of the "interlopers." It would appear that the Airmont court, unlike the Babalu Aye court, viewed discriminatory intent against the Hasidim as persons as central, not the discriminatory intent against Hasidic shteibels as religious institutions.

The theoretical point has practical significance, because it further underscores the distance between Airmont and Babalu Aye. Were the discrimination in Airmont seen as being directed against shteibels as religious institutions -- singled out for discrimination among religious buildings generally -- we might have dodged the religion/culture issue, because synagogues certainly serve a religious function. But it seems clear, both from the circuit court's reasoning and the factual record of the case, that what Airmont's residents were really doing was trying to keep out Hasidim, not shteibels. A religious practice was not the target of their discriminatory animus; a cultural-religious group was.

Once again, being careful with categories has led to a situation wherein tailoring your discrimination carefully seems to evade the law. Of course, the whole point of discriminatory intent tests is to separate identically-effective measures according to the principles which decided them. So it would seem such "tailoring" should be permissible. In any case, existing doctrines of "discriminatory purpose" do not make clear which target is to be impermissible: the people or the practice.

IV. Conclusions

A. Summary of the problem

If the foregoing discussion is correct, it seems that if we are careful with our definitions -- of "religion," of "purpose," and so on -- we end up with the Hasidim not being protected, despite the immediate appearance of some form of religious-based discrimination. Let us remember that the discrimination is clear: "the reason of forming this village is to keep people like you out of this neighborhood," ACA's first president said to a Hasidic developer. Yet the conceptual framework we have to deal with the discrimination -- identifying discriminatory animus against a religious group -- requires that several unpleasant questions be answered at trial: what the religious person thinks, what the discriminator thinks, what function the practice has in the communities in question, and so on. In other words, the criterion depends on the outcome of the case. Surely this cannot be a guide to judicial decisionmaking.

If the term 'religion' is construed too narrowly, marginal possible religions such as MOVE may be restricted and practices that are not seen as distinct from religion by their practitioners -- Hasidic dress, for example -- are split apart by a religion/ culture dichotomy foreign to the tradition at issue. Yet if religion is too widely defined, charlatans and cultists may derive undeserved benefits, and legitimate but non-religious cultural activities may be needlessly protected, at the expense of communities seeking control over their characters. For this last reason, we cannot simply protect groups as religions by virtue only of association: this is to effectively remove discriminatory intent entirely and replace it with disparate impact.

Perhaps to do so would be desirable. Courts have rightly been extremely reluctant to second guess the interior thoughts of parties in litigation, and it is easy to predict how most litigants will define themselves and their discrimination if the outcome of the case is at stake. Even clear evidence of discrimination, like that present in Airmont, can be read in many ways. Yet eliminating the discriminatory intent standard because it is unclear in hard cases seems like throwing out the proverbial baby with the bathwater. Disparate impact alone probably "accommodates" too much; at any rate, the Court has not decided the issue. Surely a middle ground, which attacks obvious discrimination like that in Babalu Aye, is possible, and so, in easy cases, religious discrimination is well curtailed by attacking it directly.

In harder cases, Greenawalt is correct that religion is a "complex concept," eluding a definition made up of a single set of conditions. To find a single essence of religion is, this paper has tried to show, fruitless. The phenomenon and its parameters both vary across cultural contexts. Originalism either in a separationist or nonpreferentialist program is, in this view, a suspect project. The Founders could not be expected to have in their mind forms of human experience with which they had no experience, which defy any definition of "religion" a group of 18th Century Protestants (and some Catholics) could have been reasonably expected to produce. Indeed, had a seer proposed a Tillichian "ultimate concern" or even a Welsh "religious role" conception of religion, it would not have functioned as a useful definition for the Framers. It would not have drawn meaningful lines around what needed protection from the state's intrusion. "The" definition of religion cannot be read out of the motives and documents of the Framers, because religions today do things the Framers could not have supposed.

If the definition of a criterion changes from application to application, it is not truly a criterion. What is needed, then, is a new approach not to the terms in the First Amendment but to how to read those terms. Again remembering the limited scope of this paper's project, the question we ask is what function religious discrimination can be supposed to have insofar as it is proscribed by the First Amendment.

B. On Reading too Closely

As promised earlier, this paper will not attempt to provide a new definition of religion or religion-culture which will protect what we want to protect and exclude what we want to exclude. It is striking, though, that such a motivation seems to guide so much of law-and-religion scholarship in the contemporary period. Frequently, new theoretical approaches will stem not from a perceived contradiction in the application of existing theories but of a "wrong case," like Smith, that suggests that something, somewhere must have gone wrong.

This outcome-driven scholarship initially seems quite strange. Posing a constitutional question in terms such as "What interpretive approach do we need in order to protect the Native Americans in Smith or Lyng" suggests a peculiar inversion of the way law is supposed to work. Supposedly, the constitution sets down basic principles, and the court interprets them in accord with their wisdom on the subject, and we then apply those interpretations to particular cases. Yet with every application, someone is displeased as to the disposition of the case. When enough people feel that something has gone awry, as in Smith, we try and change the rules of the game.

But what determines that displeasure? It seems that the chorus of disapproval after Smith basically approximated the phrase "This can't be right." Right according to what? The conclusion to this paper is too confined a space to fully discuss notions of equity in constitutional law, but that seems to be what is going on. Religious discrimination appears to be less a matter of what the Free Exercise clause yields than a question of whether basic rules of fairness have been broken. Indeed, it seems as though basic ideas about equity are the engines behind not just Smith's discontents but the revision and destruction of the recent court's most notorious First Amendment hermeneutic, the notorious "Lemon Test" for Establishment Clause cases. In a way, the Lemon Test was too successful; it could justify anything. Anything could be said to have a secular or religious purpose, advance or not advance religion, and entangle or not entangle the government and religion. It became pure rationale, justifying a judge's intuition equally well on both sides of any argument.

Perhaps the Lemon Test, then, was ideal. If religion cases really are quasi-equity appeals to an almost aesthetic sense of propriety, then maybe a test so malleable it could justify anything was entirely appropriate. It does not seem an exaggeration to characterize First Amendment religion jurisprudence in this fashion. How else can one reconcile tge Court's pronouncement that "This is a Christian nation" with contemporary ideas of religious freedom and any idea of separation? One might as well look for common ground between Dred Scott and Brown.

It is hard to say what drives notions of equity and fairness, why most people with an opinion on the matter think Smith was wrong but Babalu Aye was right, why the House of Representatives can open with a prayer but not the county high school. One thing that does not seem to matter is what hermeneutical approach the Supreme Court happens to be taking to the clauses of the First Amendment.

Returning to Airmont, it seems the case that proposed interpretive solutions must begin from where they should end: the desired outcome of the case. If one wants to protect the Hasidim from overt discrimination on the part of the ACA, one may propose a "nexus test" between the object of discrimination and a religious group or simply refuse to split hairs as I have done in this paper. If one wishes to grant Airmont residents more freedom to preserve the character of their neighborhood, one may stay true to the categories of culture and religion and hold that there simply is no abridgement of the right to freely exercise religion and no discriminatory animus directed against it. One call call Airmont an "accommodation" case, and decline to force municipalities to accommodate some non-conforming land uses in the name of the First Amendment. Whatever interpretive framework is selected, in this paper or by the Supreme Court, it seems clear that it will spring from the proposer's desired outcome of the case. The framework can then be tested in other cases. If we always like how the cases turn out, the framework can be approved.

Is it the case, then, that we don't know what religion is, but we "know it when [we] see it"? Such a reading seems quite cynical, and gives little hope to members of marginal possible religions like Frank Africa that the First Amendment offers any more protection than the court feels like providing. Yet as the use of the Lemon Test suggests, it may be accurate. If we read very closely the language and categories of First Amendment jurisprudence, it seems unlikely that the Hasidim should be protected. If we are more loose in our reading, they almost certainly would be. The principles that guide this choice of reading, however, remain as mysterious as the creed of any other religion, constitutionally protected or not.

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