RLUIPA, the Feds, Religion and Fear
The threat of the U.S. Attorney’s Office involving itself in the lawsuit against Airmont is an important reason for electing a DA who is NOT beholden to the ultra-Orthodox Bloc leadership.
The Bloc leadership apparently has the political favor of N.Y.S. Governor Andrew Cuomo and N.Y.S. Attorney General Letitia James. Political favor is not the same as doing what is right, especially on the very complex subject of religious rights in our American democracy.
I am composing a letter to U.S. Attorney Geoffrey Berman explaining why he should be very reluctant to involve himself in the Congregation of Ridnik v Village of Airmont lawsuit, fully cognizant of the Village’s history of being at the losing end of religious discrimination lawsuits.
First, and foremost, the U.S. Attorney should not intervene on the side of the plaintiffs without first examining the full picture of what is happening here in Rockland County, and also communities like Kiryas Joel (now the new Town of Palm Tree) in Orange County, and in communities such as Lakewood, New Jersey.
A partial picture is that the non-Hasidic population is acting in a prejudiced fashion toward the ultra-Orthodox citizens (and certainly some such bias exists). Another picture is that the ultra-Orthodox citizens are perceived to be too often ignoring civil laws of general applicability (and certainly some lawbreaking exists). The full picture likely involves both of these other pictures, and much more.
The U.S. Attorney for the Southern District of New York fully understands that his office wields tremendous power. As a civil rights lawyer, I have no issue with that office using its power to protect individual's civil rights. In fact, as a civil rights lawyer I sue employers or governments who violate my clients’ civil rights.
For example, I represented a developer (now deceased) who sought to develop his property in Orange County. We felt that religious bias against members of the ultra-Orthodox community was a reason the town was obstructing him.
Most civil rights statutes allow for the recovery of attorney's fees, which assists my clients in vindicating their legal rights. As a citizen, however, I recognize that the civil rights laws can be misused. Attorneys might take a case for reasons other than the justice of the cause. The prospect of a large award of attorneys' fees provides an incentive to litigate, as does the prospect of future business from the person or organization being represented, and organized religion can be a very attractive client for a big law firm.
When a big law firm takes on a civil rights case against a small municipality, the municipality immediately faces a severe financial risk and possibly even financial ruin. We see this potential result with the huge attorney's fee award in the Congregation Rabbinical College of Tartikov lawsuit against the Village of Pomona. Likewise, we can foresee the potential for a large fee award payable by the residents of the Village of Airmont if it is compelled to settle for a significant sum of money, or worse, if it loses at trial.
If the U.S. Attorney's Office "double-teams" with the private attorneys for the plaintiffs, the odds become stacked against the municipality, even if it has a meritorious defense (and I state no opinion on the merits of the lawsuit, as that would be inappropriate as a DA candidate). Big law firms have the resources to undertake important pro bono civil rights work, and often do. But they can also be greedy.
Congress unwisely enacted a statute called RLUIPA (the Religious Land Use and Institutionalized Persons Act, pronounced “R lupa”). The American Planning Association opposed RLUIPA from the outset, arguing that it effectively changes “the playing field in favor of religious institutions” and puts local governments “in an untenable position.”
RLUIPA creates danger for the taxpayers of small towns and villages that don’t have the legal resources or power to defend against an RLUIPA predator, namely plaintiffs or their attorneys who use the RLUIPA statute to gain unwarranted advantages, not equal treatment and justice. Even the possibility of an RLUIPA lawsuit may coerce a municipality into favoring a “religious” land use that might not otherwise be permitted by applicable zoning or other land use laws.
RLUIPA poses significant risks for the citizens of Rockland County. Will there come a time when my small Town of Stony Point, or the nearby Village of West Haverstraw, or the Towns of Haverstraw, Clarkstown or Orangetown, or the villages in those towns, become paralyzed by the fear of a possible RLUIPA lawsuit? Will the Town Board or Village Trustees feel compelled to amend the municipal zoning to accommodate the religious group’s (potential plaintiff’s) land use demands?
I hear both Democratic and Republican politicians pledging “Vote for me, I’ll uphold sound zoning.” Well, folks, no municipality can long uphold ‘lawful’ zoning when the determination of ‘unlawfulness’ is in the eyes of government officials, and especially the judges who interpret the law. The federal courts appear very inclined to favor protecting organized religion these days, which means we have a problem here in Rockland because one religious group appears to be very well organized, as demonstrated by the so-called “Bloc vote.”
I am a civil rights lawyer. If an ultra-Orthodox couple were to come to me with sound evidence that village or town officials were attempting to keep them out because of their religion, I would take their case, and win. As a lawyer, and hopefully as your future District Attorney, I respect everyone’s right to equal treatment under the law.
But just as importantly, I respect the equally important clause of the Constitution’s First Amendment that prohibits the establishment of religion in the United States. Thus, RLUIPA (and also the Constitution’s equal protection clause) can in proper cases be used to protect against governmental bias based upon religious belief. But the Establishment Clause is a counterbalance, as it prohibits government from favoring or establishing religion.
As a civil rights attorney, I know the difference between the law protecting religious beliefs of individuals (the First Amendment’s Free Exercise Clause), and the laws protecting the larger society against the “establishment” of religion (the First Amendment’s Establishment Clause).
The ultra-Orthodox leadership (with the help of the local Party chairpersons) has apparently convinced the Governor and the N.Y.S. Attorney General that many Rocklanders are acting in a biased way toward the ultra-Orthodox communities.
I reject the idea that most Rocklanders are anti-Semitic. I grew up here, and do not believe that there are many anti-Semites (there certainly are a few, some just as there are racists and misogynists amongst us). I also reject the efforts of some local politicians, Democratic and Republican alike, to politicize the serious issues we face. Our political leaders should stop the name-calling, and start addressing the real, legitimate concerns of the residents of our county, for example, perceived overdevelopment, perceived violation of housing and fire codes, perceived corruption running rampant, and the perceived refusal to comply with the N.Y.S. Education Law.
If perception has a basis in fact, then it is reality. And our elected leaders should start dealing with reality. They should start with the reality that many citizens fear they may be forced to flee Rockland County, due to the perceived problems I mention above. There is a perceived fear of the ultra-Orthodox community. But does such fear have a legitimate basis, or is it founded in prejudice (a/k/a anti-Semitism)?
As to “fact or prejudice,” let me start with a perceived problem that I raised at the start of my DA campaign, namely, the apparent inadequate education of many ultra-Orthodox children in Rockland County.
From what I read from sources like YAFFED, in the recent Jewish Algemeiner’s piece by Rabbi Dunner “How Can So Many in the Orthodox Community Refuse a Basic Education to Their Children," and books like Shulem Deen's "Those Who Go Do Not Return" and Louis Grumet's "The Curious Case of Kiryas Joel," many ultra-Orthodox children are being denied even a semblance of an adequate education.
If this is true, then it is an outrage!
Moreover, we were taught by the U.S. Supreme Court many years ago, in Brown vs. Board of Education (1954), that in education, "separate is not equal." There is the perception that intentional segregation by the ultra-Orthodox community is as prejudicial towards its children as racial segregation was toward Afro-American children.
So are we being told fact or fiction about the poor education of many ultra-Orthodox children? If fact, citizens and politicians alike should have a serious discussion.
Sound education is needed for the welfare and future not only of the individual child, but also of the larger society. Is religion-based segregation any better than race-based segregation? It seems to me that a core American value is diversity, with people of all races, ethnicities and religions working together for a better society.
Segregation and insularity are not American values, it seems to me.
Is the federal government doing anything to protect Hasidic children and their right to a sound secular education? It appears that government at all levels is refusing to protect these children, denying them equal protection under the law! Through no fault of their own, it appears that many of these children are denied the learning necessary to become self-sufficient, productive and contributing citizens of the State and the Nation.
Denial of education is a profound civil rights deprivation. The ultra-Orthodox children have no vote, no voice, no ability to protect themselves and their future. Government's job is to protect the vulnerable, and in this it is failing miserably.
Denial of adequate secular education is the root cause of almost all the other perceived problems. We see perceived overdevelopment, combined with illegal spot zoning, housing and fire code violations. We see perceived non-transparency and corruption by local government officials, as evidenced by the Town of Ramapo officials who have gone to jail or prison.
The larger Rockland County community views the insularity of the ultra-Orthodox, and their large family sizes and attendant need for more housing capacity, with alarm. As a civil rights lawyer, I am not going to suggest that a woman does not have the right to have as many children as she desires. As a citizen, on the other hand, let me suggest that citizens have the moral and civic obligation to act responsibly, which means being able to support and nurture your children.
If the U.S. Attorney's Office, or the N.Y.S. Attorney General's Office, want to become involved in the Rockland County issues pertaining to the interactions between the ultra-Orthodox community and rest of the citizenry of Rockland, then these governmental attorneys should come prepared to address ALL the issues that relate to any fundamentalist religious group’s role and responsibility in our American system of government, especially if the group’s values system appears to conflict with our Nation’s constitutional values.
Federal authorities should come prepared to investigate and ascertain what perceptions (discussed above) are in fact realities. Sound secular education of children should be topic number one. Corruption in land use decision-making should be topic number two.
Perhaps the biggest perceived problem and cause for fear is ‘Bloc voting’ and the political power that accompanies it. Is it the out-sized political power that has caused New York's Governor, New York’s Attorney General, and now the U.S. Attorney's Office, to focus on Rockland County and the allegations of anti-Semitism?
If the federal government joins the N.Y.S. Governor and AG in supporting the Bloc, while failing to recognize that the ultra-Orthodox leadership is attempting to create a religiously dominant society that includes, for example, the de facto religious municipalities we see in Orange and Rockland counties, our constitutional democracy is in trouble.
If I am elected DA in Rockland County, I will do my best to convince both New York State and federal authorities that I will work with them to help create workable solutions to the serious issues that confront the people of Rockland, and to do so in a fair and non-discriminatory manner.
I understand civil rights and constitutional law. I will not hesitate to stand up for the people of Rockland, especially if it appears that the political power of the Bloc is unduly influencing the State Attorney General or the U.S. Attorney.
Anti-Semitism has no place in our society. I will prosecute hate crimes against any person because of their religion. But I will also prosecute people who use religion as a pretext for criminal conduct, particularly fraudulent, antisocial conduct.
In summary, I will stand up for constitutional values — both the Free Exercise Clause AND the Establishment Clause.
Mike Diederich Candidate for Rockland County District Attorney