James Patterson is joined by Rita Koganzon of the University of Houston to talk about the Amish, the Satmar, and the puzzle of democratic education.

Brian A. Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org and thank you for listening.

James M. Patterson:

Hello, you are listening to Liberty Law Talk, the podcast for Law & Liberty. Today is September 29th, 2023, and my name is James M. Patterson. I’m a contributing editor to Law & Liberty, as well as professor and chair of the politics department at Ave Maria University, a fellow at the Center for Religion, Culture, and Democracy as well as the Institute for Human Ecology, and President of the Cicerone Society. Before I introduce today’s guest, I wanted to make a brief statement of mourning for Dr. Ellis Sandoz, who died on September 19th this past week at the age of 92, New Orleans native, father of four, 10 grandchildren, two great-grandchildren, but people who are familiar with Dr. Sandoz listening to Liberty Law Talk may know of his incredible contributions to the work of classical liberalism and political philosophy, including his edited volumes called the Political Sermons of the American Founding Era, 1730 to 1805.

These are two volumes of the most important sermons that helped shape the politics of their day, as well as reflect on the beliefs and standards for constitutionalism held by outstanding religious leaders of the period. He was also the founder of the Eric Voegelin Institute. Many of the people you’ll hear on Liberty Law Talk were participants in Voegelin Institute panels, including today’s guest. Before we move on to her, I just wanted to read from the foreword that Dr. Sandoz wrote in 1994 for the first volume of the political sermons. “Liberty is thus an essential principle of man’s constitution, a natural trait which yet reflects the supernatural creator. Liberty is God-given; the growth of virtue and perfection of being depends upon free choice in response to divine invitation and help in cooperative relationships. The correlate of responsibility is that liberty is most truly exercised by living in accordance with truth. Man’s dominion over the earth and the other creatures, his mastery of nature through reason, is subject to no restraint but the law of his nature, which is perfect liberty. The obligation to obey the laws of the creator only checks his licentiousness and abuse.”

Dr. Sandoz will be missed, and his contributions are many. And now, I’ll move on to today’s guest, Dr. Rita Koganzon, an assistant professor of political science at the University of Houston. While there, she teaches political theory and American politics. Her research focuses on the themes of education, childhood authority, and the family and historical and contemporary political thought. Her first book, Liberal States, Authoritarian Families, Childhood Education, and Early Modern Thought, examines the justifications for authority over children from Jean Bodin and Jean-Jacques Rousseau. Wow, that’s a pair. And explores how and why Locke and Rousseau departed from their absolutist predecessors by refusing to model the family on the state by nonetheless preserving authority, even extreme authority over children within the family, for the sake of liberty of adults.

She’s working on a second project that focuses on education from the early republic in the United States through the 20th century. But today, we’re talking about something a little different. We’re talking about her recent presentation at the 2023 American Political Science Association, as well as two things that she’s published recently on Judaism and religious liberty. The first is The Satmar Option, which she published for the summer 2023 edition of the Hedgehog Review, and her outstanding chapter from the book Religious Liberty and Education. It’s titled Pork Eating is Not a Reasonable Way of Life: Yeshiva Education Versus Liberal Education Theory. Dr. Koganzon, welcome to Liberty Law Talk.

Dr. Rita Koganzon:

Hi, thanks for having me.

James M. Patterson:

Sorry for the long preamble, but I’ll give you now plenty of time to describe this central insight that really has stuck with me since your presentation on the difference between what you refer to slightly paraphrasing here as the kind of Amish paradigm for religious liberty and religious minorities versus what you call the Satmar option. So who are the Satmar, and how are they different from the Amish?

Dr. Rita Koganzon:

Well, the Satmar are a Hasidic religious group. They are from Hungary originally, but they sort of crystallized, actually, in New York after World War II, the survivors of the Holocaust came and sort of reconsolidated the Hasidic group, and they were led by a rabbi. And they now live mainly in Williamsburg and in this independent community in Upstate New York called Kiryas Joel. It’s kind of complicated to define what exactly Hasidic Judaism is or how it is analogous to certain kinds of Christianity because the ecclesiology of Judaism is not really the same as Christianity. So people will often say, well, this is a sect, which I guess is fine as a description. I don’t know that they love it so much, but it’s a sort of Hasidic group that follows this particular rabbi who actually has passed away. And now they have a problem with figuring out who they’re following exactly.

And so they’re different from the Amish in a lot of ways, namely that they’re not Christian. But in terms of the political question, there’s been a kind of treatment of religious minorities in American constitutional law, and also, I think, in American public opinion, that is very sort of Christian-centric in terms of the way we think about religious descent from the mainstream. And so the Amish are a kind of radical form of religious descent from the mainstream in that they don’t want to live what we would consider a modern life, that they reject a lot of modern technology, that they reject living in cities. They live in their own rural communities that are based largely on agriculture. And so they look very different from sort of modern Americans in this respect. And they maintain a certain kind of separation from mainstream, secular, modern, whatever appellation you want to use, Americans.

And so then the question with them becomes, okay, well, when there are sort of generally applicable laws passed in state legislatures or by Congress or whatever, are they required to follow them if somehow following these laws would obstruct their ability to practice their religion? And this comes up in the 1972 case, most famously Wisconsin v. Yoder, where the question is if there are compulsory schooling laws in the state of Wisconsin, which are facially neutral, and they require everybody to go to school until they’re 16, do the Amish have to comply with this if for them going to school until they’re 16 would potentially disrupt their ability to remain in the Amish faith? And in 1972, the court decided that they don’t have to comply with these compulsory schooling laws because they’re a sincere religious minority and they have a First Amendment free exercise right to, in a sense, be exempted.

Although that’s not the technical legal understanding of what’s happening here, that is the practical effect of what’s happening here. They’re exempted from these compulsory schooling laws. They’re allowed to pull their kids out of public schools early. And as the Amish put it, in this case, they’re going to give them an Amish education at home, essentially an agricultural education and an education in their community. And so that is somewhat controversial, I guess. But as far as public opinion goes, that’s acceptable to Americans becomes the basis for a lot of subsequent homeschooling legislation and other sorts of exemptions from public schooling. And the thing about the Amish is that they’re very, I think, admirable to Americans in a certain way. They resemble kind of what America looked like at the founding or sort of what we imagine it looked like at the founding. And the important thing from the court’s perspective is that they’re self-sufficient in the sense that they don’t rely on any government assistance.

And not only do they not rely on any government assistance, they actually do not contribute to or draw from Social Security. And so there really are very sort of distinct from the government. And so what I’m calling the Amish paradigm is a way of thinking about the terms of religious liberty as a kind of contract in the United States. And so what the Amish offer a model of is this kind of contract between the majority and a dissenting religious minority where the majority, in a sense, is willing to let the religious minority have some autonomy over its own internal government and be sort of less beholden to the federal government or the state governments, or maybe beholden is not the right word, but maybe something more involved with, regulated by. That’s key. Secular government in exchange for their self-sufficiency. And they’re not calling on these secular governments for assistance.

And I think that has been sort of the mental model that we hold for justifiable religious exemptions from generally neutral laws, regulations, and things like that. And the challenge that the Satmar posts to this is that they’re urban. They are not self-sufficient in the sense that they’re not an agricultural community that grows its own food or anything like that. They live in Williamsburg, in Brooklyn, or in a suburb in Upstate New York, in New Jersey, in other very densely populated places. And they do receive government welfare and transfers. They receive a sort of direct aid like SNAP benefits and things like that. They also receive aid for schooling and things like that because they qualify for Title 1 funds. It’s hard to say that they’re poor. The issue is they have a lot of kids so even when they’re working and they make an income, it’s very hard to support eight kids or 10 kids on a single income or even both parents’ incomes.

And so they often qualify for federal and state poverty funds because those are based on family size. So they pose a different kind of dilemma, I think, for us because then the question is, well, how far are we going to allow them to practice their religion, especially to the degree that their religion is in conflict with mainstream norms when at the same time they are sort of reliant on federal and state aid. So they’re not self-sufficient, so shouldn’t we have some sort of control over them? And this comes up very saliently in the last few years. There’s been a conflict in New York City because they run their own private school system, and the allegations of the New York Department of Education and the New York City education bureaucracies that they are not doing a sufficient job of educating their children, that they don’t teach enough secular subjects, that they don’t teach English.

The Satmar speak Yiddish. And so should the state and the city governments be allowed to intervene in their school curricula and change them or bring them up to date or mainstream them, however, you want to think about it, on the grounds that this is a violation of their children’s rights and we’re paying for those schools? That’s the other salient thing. So that’s what I see as the contrast. There’s a kind of vision of a very self-sufficient, almost sort of noble agrarian group who’s practicing a divergent way of life in the United States. And we’re sort of willing to forgive that so long as they don’t depend on us or ask us for anything. But that’s not really a common model of how religious descent works in America anymore. Most people don’t look like the Amish. They look a lot more like the Satmar. They’re doing something out of the mainstream, out of the ordinary, but they are pretty much integrated into American society and are sort of entangled in government institutions and also are often recipients of transfers.

James M. Patterson:

The subject of the Amish as a kind of exemplar reminded me of one of the worst movies I’ve ever seen called For Richer or Poorer with Tim Allen and Kirstie Alley, about a man and a woman from New York who retreat from a scandal to live on Amish country. And there’s a kind of a rediscovery of what it means to be authentically human by living among the Yoders, which is, of course, one of the people in the Wisconsin v. Yoder case.

Dr. Rita Koganzon:

Well, I think that’s just an extremely common Amish Mennonite surname. They’re not all related.

James M. Patterson:

Oh, okay. They’re not related to fictional people.

Dr. Rita Koganzon:

No, it’s an extremely common surname. So you’ve been to UVA, right? If you drive just north of UVA, there’s a great children’s farm market thing called Yoders, where they have a petting zoo and everything. Those people aren’t related, either.

James M. Patterson:

That is actually a great recommendation. If you need to stop off with your kids, please go there. They were goats on a giant contraption that they’d built. It’s incredible fun. And the food is amazing.

Dr. Rita Koganzon:

Yeah.

James M. Patterson:

We are-

Dr. Rita Koganzon:

Unrelated Yoders.

James M. Patterson:

We are not endorsed by Yoders, but we will gladly take any shoofly pie they will send our direction. We have just a real rich chapter here, and there’s a lot that I want to talk about that Pork Eating is Not a Reasonable Way of Life. The thing that you point out first in this chapter is that the preoccupation that many post-Second World War liberals had was with the possibility of a Christian theocracy. You say here, the 1980s, 1990s, “Fear of Christian theocracy can no longer reasonably motivate our considerations when so many of those asking for considerations are not Christians.” So this older understanding that even by the nineties seemed to be pretty antiquated remains more or less enshrined in our laws. So, talk to me a little bit about what that liberalism was and why it was so preoccupied with this particular case of Christian theocracy.

Dr. Rita Koganzon:

Yeah, so I mean, the rise of the religious right and the election in 1980, I think sort of set off panic bells among many people on the left, that suddenly there is this insurgent movement of right-wing Christians who basically had not been heard from for a long time. I mean, not that they weren’t there, they just weren’t politically involved in the 1950s and 1960s. They started to become more politicized in the 1970s. And this takes a lot of sort of liberals, especially academic types, by surprise, and they become very worried.

And so if you think about Margaret Atwood’s Handmaid’s Tale, that’s a response I think is written in the early eighties, is a kind of fever dream or fever nightmare of what she thinks might happen if these people were really to come to power. And I mean, they came to power through Reagan, but they were just part of a conservative coalition that included obviously many other parts. And so the Wisconsin v. Yoder decision starts to look kind of nefarious or ominous to the left, and then there’s a second decision. I think this is just a circuit court decision. It doesn’t go all the way to the Supreme Court called Moser v. Hawkins in the early eighties, which deals with or involves a group of what we call fundamentalists, whatever that’s supposed to mean, who are challenging the secular humanist curriculum of their public school. Their argument is that actually secular humanism is its own religion, and it’s being imposed on us evangelical Christians as though it were neutral, but there’s actually nothing neutral about it. It’s a replacement for our religion, and that’s a violation of our religious liberty. They lose. The court ends up saying that this kind of secular humanist curriculum is not religious, but they make a really important point. Their political theorists, especially people working in the tradition of John Rawls, take this seriously as a real problem, that there are these people who think that even neutral secular education is a form of religion. There’s a lot of writing done around Wisconsin v. Yoder and Mozert v. Hawkins in the 1980s and 1990s by this kind of Rawlsian tradition of liberal education or democratic education.

They’re very concerned about, for them, the real question motivating a lot of this is: How can we neutralize religious rights? How can we prevent them from taking their kids out of schools entirely and homeschooling them into some kind of fundamentalist theocratic regime to promote such a regime or from developing their own schools that are going to promote this? Because their fear is that sort of the civic fabric is going to be rented by these people’s children who are educated in this really insular fundamentalist type education and who are going to grow up and come out of it basically ready to overthrow the liberal, republican regime of the United States. They write lots of theories of education, political theories of education that are mainly about how to constrain these sorts of people. What sort of public education is required and necessary so that everybody gets the same civic foundation implicitly/explicitly so that they don’t become fundamentalist theocrats when they grow up.

James M. Patterson:

The term that you use and that’s used among the people that you cite is the word autonomy. The autonomy standard is, as you point out, not neutral. Even though you may not, I think, necessarily identify with the Hawkins case or its results, there is all the same kind of, I don’t know how to put it, kind of acceptance that the religious right did have a point, you say. Although the autonomy aimed at by liberal education reports to give children a neutral or broad selection of lives, it is neither neutral nor broad in reality but highly normative and narrow. Although childhood exposure to diversity is intended to expand our liberty and capacity for independent thought as adults, it actually undermines the development of the very virtues necessary to exercise such independence. In fact, you point out later that this kind of education is really only beneficial to secular would-be elites, and the rest, more or less, have to suffer in silence.

Dr. Rita Koganzon:

Yeah, so I mean, the way that these political theorists who are concerned about the rise of right-wing theocracy or religious theocracy try to theorize this problem is to say, well, the kind of education that everybody needs is an education for an open future or an education for autonomy. That if we set this as a standard, we’re sort of guaranteeing that nobody can get this kind of theocratic fundamentalist education and get away with it. The idea of autonomy is that you should have the kind of education that allows you to continually revise your understanding of the best way of life. That if you’re sort of locked into one understanding that shows that you’re not really autonomous, that you’re hetero autonomous. In order to facilitate that, we need to expose you to diverse ways of life as a child as part of your education so that you can sort of rationally choose among them.

That’s the sort of prevailing assumption of this kind of theory that if you were exposed to a diversity of ways of life, then in a sense, your insular fundamentalist parents don’t have the kind of control over you that they can sort of determine how you turn out because you’re going to have the resources to decide for yourself. I think that’s sort of intuitively appealing to liberals. I mean, not just on the left, but just liberals broadly that that’s the case because sort of how public education understands itself or what it understands itself as doing often. The argument that I make is that there’s an assumption buried there that constantly revising your way of life, or at least frequently revising your way of life, demonstrates something about your virtue, but in reality, it’s very costly to do that in adult life.

You have to think about, okay, well, you have a religion, but you reconsider it. You leave your church, and you leave all the social connections there and all the social capital that you’ve developed there behind. You have a career, but you decide you want to do something else, so you’ve got to retrain, that’s also very costly. You have a marriage, and you decide, I actually would like to live a different kind of life, goodbye to my family. We can see the costs involved there. I mean, that’s a kind of extreme example, but that’s sort of part of the autonomy that they want to develop in people. When you think about, well, who can best afford that kind of life where you’re constantly changing things around, and there’s a lot of costs involved with those changes, the answer is basically people with elite educations, people who are white-collar professionals who make a lot of money and who just have more money to absorb these kinds of costs with.

Whereas, for the vast majority of people, the idea of moving around all the time, of changing up the way that you live, changing your career, changing your family can be really just devastating. It’s not clear that you can always recover from this and that you have the resources built up to be able to absorb those costs. In that sense, it’s not a neutral way of life. It’s a way of life and a kind of ideal of the best kind of life that is really suitable only for people or maybe mostly for people with elite degrees in elite professions with a high degree of geographic and social mobility, who are able to absorb the costs of making frequent life changes. Then, for other people, the good of staying in one place is rooted in being tied to your family or being tied to a community. Those look to people from Yale and Harvard as being tied down and having no choices. The kinds of capital that you build up that way can be very important for supporting you throughout your life if you don’t have the other kinds of capital that the people from Harvard and Yale have, literal financial capital, educational capital, and so on.

James M. Patterson:

A very strong passage, one of the ones that I marked with multiple stars, which means I have to talk about it, “liberal theory has no answer where neither choice causes harm, the choice being between eating pork and not eating pork, but the child needs answers about the best way of life. A negative standard like the harm principle does not suffice. Absent authoritative guidance from parents and teachers, the child will either make his choices on mere whim or find other perhaps salutary authorities who are less skittish about comprehensive worldviews to guide his choices.” This is a summary of the kind of education you’re describing is very bleak and you actually point to some ambivalence, maybe I’m misreading you on this, but with some ambivalence to the Satmars having an answer to this problem that liberalism creates. Maybe address if I’m right about the ambivalence, but also how stark the contrast is and the kind of education you get in a yeshiva.

Dr. Rita Koganzon:

Well, I mean, the kind of education you get in the yeshiva varies. The schools that are currently under investigation or were under investigation are kind of extreme versions of Hasidic schooling, and a lot of it has many more secular elements. What’s in question here is you have a very Jewishly rooted education. It’s an education rooted in Jewish law, often it’s taught in Yiddish, and it emphasizes what we would call in the secular world, Jewish values rather than secular values. It gives you a very clear picture of the best way of life as this community sees it. Liberal theorists tend to view that as coercive because you’re given this picture before you really have a chance to think through what for you would be the best way of life. I think the problem is that the assumption here is that the child is this rational thinker, is constantly working through the possibilities when another possibility is simply that you’re creating children who don’t really have a lot of, what you’re not reinforcing in children is sort of the virtues of self-control and the sort of ability to stick to a decision because you’re in fact, encouraging them to do the opposite, to constantly sort of change their mind or reconsider.

One possibility is that actually in childhood, it is better to have a concrete vision of the best way of life that is given to you authoritatively. I mean, children don’t see it otherwise. They see it as being sort of imposed on them, but then they also can come to like it. It doesn’t foreclose the possibility that in adulthood you will change your mind, that you will simply see this way of life as either impossible for you to follow or at least very undesirable and that you can leave. All of these communities within liberalism, we require all of these insular communities to have rights of exit as liberal theorists call them, right? That you can leave the Satmar, you live in New York City, just move to another part of New York City and try to start your life anew, secular, or maybe less observant than the Satmar. There’s a lot of different options.

Whereas, the public school view or the way that the liberal theorists would like public schools to work is to not privilege any possible way of life to say that all ways of life are basically good unless they’re criminal. Unless they violate the harm principle and that it’s really up to a seven or eight year old child to make their own decision, but they don’t have the resources to do that. They end up not necessarily in a better place than somebody who is given a more rigorous Hasidic or Satmar upbringing and gets to adulthood and either decides that they want to stay in this community or decides that they want to leave. In one way or the other has been given a much more, I think, complete sort of moral education than the kind that these liberal theorists are advocating for, which is largely a kind of abdication of making any claims about morality or about the best way of life out of this kind of defensive fear that if we say something is the best way of life, then we’re, of course, prejudicing ourselves against other possibilities that could be equally good.

The irony, of course, is that religious ways of life are not equally good because they’re heteronomous. Really it’s hard to, I mean, there is a kind of smuggling in of value judgments here. The value judgments tend to be against religious orthodoxies because religious orthodoxies are not open to non orthodoxies.

James M. Patterson:

I’ve done some work on the Catholics side to this history of education and religious liberty. It’s funny how parallel fundamentalist Protestants and now apparently the Satmar are to the same experiences that Catholics had, right down to Catholics complaining that public schools adopt what Dagger John Hughes, a bishop in the 1830s called “nothingarianism,” where there’s sort of a dogmatic imposition of vaguely humanitarian beliefs that would only encourage people to become atheists.

That way of constructing a kind of implicit dogmatic teaching in a school is actually quite a flimsy one for most students. I think you have a very strong, probably very controversial take on this in the chapter, namely that Yeshiva education for Hasidic Jews is actually really great when it comes to living in a contemporary social life. The Hasidic adolescent is in a stronger position to seriously engage with diversity than the secular one who’s exposed to a superficial parade of possibilities that hardly challenge his own weekly rooted preconceptions very deeply. He has not a naive personal preference, but 1,000-year-old tradition to weigh against the alternatives. He must also weigh the serious social and economic consequences of resisting the secular mainstream against the deep disapproval of his family and community if he joins it.

These are very high stakes, and that’s why there’s much more to the question whether to eat or not eat pork is this sort of development of the character of the student and their ability to maturely and almost independently make these decisions that purportedly secular education supposed to provide but doesn’t afford. What is it about this 1,000-year-old education that is so bracing?

Dr. Rita Koganzon:

Well, so I think there, I mean, I’m not actually singling Judaism out for this. It happens that Judaism is this 10,000-year old tradition. I mean, the Hasidic sects are not thousands of years old, but they’re following Jewish law, which is thousands of years old. What I’m trying to say there is that there’s a criticism from liberal theory that if you give your kids this kind of insular education where they don’t have exposure to diversity, they’re not going to be able to reasonably weigh the alternatives, because they’re going to be so biased by the experience that they had in their upbringings that they won’t be able to take seriously any alternatives. The point that I want to suggest here is that when you are a religious minority in a regime where the majority is very visibly lifestyle, everything economically different from you, it’s really hard not to notice that.

The presumption of liberal theorists is that these kids are simply oblivious, or that these people are totally oblivious to the fact that they are extreme minorities in a society that functions very differently than their communities do. I mean, that may be more true to some degree for the Amish because they actually live physically isolated, often from larger communities of secular Americans. That’s not really true of Hasidic Jews because they live in New York City. It’s really hard not to notice in New York City that you look really different than all these other people on the street. It’s true that the community can provide a lot of supports to make it feel normal to be Hasidic. That’s not a problem, but it just seems not to be the case that for an extreme minority of this kind, that you would never consider the alternatives.

It is precisely because there’s so much at stake with this question of the right of exit, of leaving a community for any individual who does it. You have to really take on a totally different way of life, and often you have to cut off connections with people that you knew in your childhood. I mean, that’s a very serious life decision. For them, the question of how will I live is kind of constantly presented to them on the streets of New York City in a way that it’s not to the secular student who is told, “Well, there’s lots of different ways of life. They’re all like …”

A student who is told, “Well, there’s lots of different ways of life. They’re all pretty good, and there’s some that are really just beyond the pale, so you shouldn’t consider those.” But then you end up with a situation like Buddhism, right? All of these kinds of secular people decide to be Buddhist for a while. And there’s no cost in that because it’s kind of fake, and it’s part of this mainstream one of the new age options for life. And you can pick it up and discard it without any changes to your existing life.

And so the idea that you’re autonomous because you’re choosing these sorts of things, you’re choosing to do yoga, you’re choosing to attend a church, now you’re choosing not to attend a church, these are all very low stakes decisions, and it’s not clear that you seriously understand the valence of different ways of life. Whereas to be an extreme minority like the Satmar and also like the Amish, and to contemplate leaving that community is to contemplate the question of different ways of life and different understandings of the good life really seriously because there’s a lot of cost.

James M. Patterson:

Yeah. You can see in that description you just gave how the approach to autonomy favors elites, especially people with a lot of money, because the decisions are low stakes if the money you spend on them is relatively disposable. So, for a particular kind of person, you can go to a sort of rich kid, Bali, hippie commune and get high on ayahuasca, and then you’ll be able to leave after you get sick of that. And I don’t know, go work as a vice president in your father’s software company or what have you, whereas others who don’t have those options instead simply consume media of people engaging in those options.

And all of that has that kind of shallow consumer model of religiosity that it seems very foreign to what the Satmar are dealing with. So there is a kind of history of litigation or of problems with the establishment clause that the Satmar have confronted. One of these includes the 1994 case Board of Education of Kiryas Joel Village School District v. Grumets. So, what’s the story behind this? This is sort of where the Satmar first start to, or at least the Hasidic communities start to really come into conflict, right?

Dr. Rita Koganzon:

Well, they come into conflict once they try to create a town. So this is actually described really nicely in the book that I reviewed for the Hedgehog Review called American Shtetl by Nomi Stolzenberg and David Myers. And they give the kind of extensive legal history of creating Kiryas Joel. So, there are kind of two problems with the First Amendment that these sorts of groups face. One is the free exercise clause, which is the Amish issue with taking your kids out of school, being exempt from a generally applicable law on the grounds of free exercise. But once you try to set up a town that is populated entirely by Satmar and governed by Satmar, this raises a question about whether that violates the Establishment Clause because you’re not supposed to have a religious government in the United States. And there are some interesting precedents for this. There’s like this ashram in Oregon that tries to do this too, and there’s shut down.

But what happens? So Satmar grows, they need space, they have a lot of kids, and the Rebbe approves the purchase of this land in, I think it’s Monroe County, it’s next to the town of Monroe, outside of New York City, and they start developing it and building on it. And they immediately come into conflict with their neighbors because they want to have really high-density housing. And this is a suburb of New York City, and people have single-family homes, and they’re single-family zoning. And they’re like, “Why are you building these apartment buildings in the middle of nowhere?” And there’s a kind of sense of, do we really want to have this group of very strange people who live in a totally different way and don’t really talk to us living in our town? And so there are all kinds of conflicts with the town of Monroe that actually lead to Kiryas Joel becoming independent, they break off and become an independent municipality.

So, the first set of conflicts is actually just creating Kiryas Joel as an independent municipality rather than a kind of subdivision of the town of Monroe. And then, as an independent municipality, they have no public school because they all send their kids to the private Satmar yeshivas, but they also have a problem, which is that they have some kids who have special needs and are not going to be well-educated in the conventional yeshiva. And so, the question is: Where do we send our kids with special needs? Should we send them to the public school in Monroe where they’re not going to get a kind of Jewish special needs education, they’re going to get the public school special needs education, or can we create our own special education program in Kiryas Joel that is intended to serve only students from Kiryas Joel.

And that’s the basis of this conflict. So they start doing this, they create their own public school. It’s a public school designed entirely for kids with special needs and only open to the residents of Kiryas Joel, who are probably 99.9% Satmar. I don’t know. There might be somebody who’s not Satmar living there. And does that violate the Establishment Clause because are they creating essentially a religious public school is the question? So this goes all the way to the Supreme Court and the Court decides against the school district that this is a violation of the establishment clause, that they are creating essentially a religious school, and that they can’t go forward. If they do go forward, they just find other ways around it. And the interesting thing about this decision, as the authors in American Shtetl note, is that it sort of signals the beginning of a shift in Supreme Court jurisprudence about the First Amendment towards sort of allowing the state… I mean, in this case, they didn’t allow the state to get involved in religion.

But after this, you start to see a lot more cases where the state is allowing more of what they call entanglement between government and religious groups. And at this point, we are at a point where there’s a possibility of even starting religious charter schools. So Oklahoma has started religious charter schools, and I think that’s going to be litigated, but it’s not thought that that’s totally beyond the pale. And there’s a lot more government involvement in religious schooling and government funding for religious schooling. And so the argument that the authors of that book make is that this is sort of the beginning of that shift and that the Satmar plays an important role in kind of provoking that shift because, and part of the reason has to do with the fact that they’re not the fundamentalist Christian bogeyman, they’re Jews, they’re a minority. They pose no threat to the majority.

And I mean, one of the things that’s interesting about Satmar, in contrast to the fear of Christian fundamentalism that motivated liberal theory for a long time, is that Satmar does not want to take over America. They have zero interest in governing non-Jews. So you could always have… Christianity is an evangelical religion. Christianity is a proselytizing religion. Christianity is a majority religion. So even though there are sects within Christianity and there’s a lot of sort of conflict within Christianity, there’s always the possibility that Christians want to actually take over and they want to govern, and that’s their real goal. And that when they’re asking for these exemptions and things like that, it’s part of the strategy for some larger long-term takeover. But you can’t really assume that that’s the case for the Satmar because their goal is not to govern any non-Jews and probably not really any non-Satmar, although that’s a little questionable.

So in that sense, they’re interesting because they don’t pose this threat, this political threat. And the question of exempting them from generally applicable laws or whatever, or carving out exemptions for them from regulation is not one where you can plausibly ever say that their goal, they have some larger scheme, a long-term scheme to use these little exemptions and carve-outs to gain power and take over. And so it’s really just a question of tolerating pluralism and how far we’re willing to go in tolerating pluralism.

James M. Patterson:

There’s a town in Michigan called Hamtramck, which has become majority Muslim, primarily from Bangladesh, and they have an all-Muslim city council that recently banned the use of pride flags in the city. The response from an LGBT activist and a former mayor was, “There’s a sense of betrayal. We supported you when you were threatened, and now our rights are threatened, and you’re the one doing the threatening.” There’s a sort of presumption among autonomy-based liberals that because they’re defending religious minorities, the religious minorities support autonomy-driven liberalism, and this just doesn’t seem to be the case.

Dr. Rita Koganzon:

Yeah, well, I mean, as I said, there’s a sort of limit to this in the case of the Jews, which is that they’re not trying to grow and take over, but there is a kind of analogous problem. So Ramapo County has this problem in which there are a lot of Hasidic Haredi Jews living there, and they won a majority of the school board seats, but they don’t send their kids to the public schools. And so there are all these accusations that they’re defunding, that they’re basically using the public schools to divert money into their private school system, that they’re defunding the public schools, that it doesn’t make sense for them to be on the school board of school system, which they don’t even support and which is competing with their school system.

And so I think there was a whole series of podcasts actually about this controversy. But yeah, I mean, there are ways in which it’s clearly going to come into conflict with secular government. If you create local majorities, you could have enough people to win school board seats. You could have enough people of your religious group to win city council seats. At a small sort of local level, you could take over the secular government. And then what’s going to happen to the people living there who are not members of your religious group? And what are the obligations of this dissenting religious group to sort of respect the now minority rights of the non-religious residents of this area?

James M. Patterson:

So the review has, and you told me this story as well, I think you may have even told it during your presentation for your paper, has this account for how the Satmar were actually able to essentially game the system for welfare benefits for low-income people. And they did so by more or less hacking an entitlement program, an entitlement program that was designed with the expectation, as it turns out, an expectation that I think you would agree liberals did not really imagine, that poor people would have low levels of social capital, but if you engineer a poor people with high levels of social capital, they’re actually able to sort of work against the original intentions of this welfare program. So, explain exactly how this works and why it was such a source of outrage.

Dr. Rita Koganzon:

Yeah, that’s a great story. So there’s kind of two objections to the Satmar currently that sort of arise from their difference and their minority status. So one is their schooling and the curriculum of their private schools. And the other one is that they’re welfare sponges. And so they do receive a lot of government transfers. The main reason for this is that they fall below the state poverty line often, even though they’re working and have an income because they also have a lot of kids. And the poverty lines are determined by family size, but they also have, on occasion, been convicted of fraud for gaming the system, as you say, for various government transfers. And that’s the reputation that they have in New York City. So you talk to New Yorkers about them, and they’re like, “Yeah, they do all this fraud.” It’s always hard to prove the fraud.

So I think there’s probably less conviction, but when there is conviction, the New York Times is very happy about it, and they write about it. And so they wrote, I think this was last year, about this case in which one of the Hasidic Yeshivas in New York in Brooklyn had come up with a scheme where they would pay their teachers, they would sort of sign contracts with their teachers where they would pay them just enough that they would be below the threshold of qualifying for supplementary welfare payments. So basically, they would be paid a certain amount, and then they would still be able to apply for other forms of welfare. I’m not sure exactly what forms of welfare, but they would be able to apply on an individual level for supplementary transfers, and the school would make up the difference in supermarket coupons for kosher grocery stores.

And so you would be getting a salary, which was money, supermarket coupons, and then you would have to go out and apply for welfare to supplement your salary. And this was discovered, and this was described in the New York Times, and this is a kind of bargain that it’s really hard to imagine anybody else in New York taking, right? I mean, imagine you’re given a job offer, and they tell you, “Well, we would pay you 50,000, but instead, we’re going to pay you 25,000, and we’ll give you 10,000 more in supermarket coupons, and then you can go apply for welfare and the government will cover the rest.” That requires a really high level of social trust to accept such an offer. Most of us would just be like, “Please give me the money, or I’m not going to work for you,” because we don’t have the social trust that we’re working for an employer that really has our interest in mind.

We just think we’re being scammed. In a way, the way we’ve structured welfare has kind of had this individualistic assumption that families will only use it when they really need it, that there’s a kind of shame associated with using it, that they’re not going to use it as a kind of tool of advancing their group because there’s no group involved. But the Satmar have way fewer scruples about using government funding. Their idea is that the government is giving people money, and we qualify for it, so why shouldn’t we be recipients of it just like everybody else? And part of that has to do with the experience that they had in Williamsburg in the 1970s and ’80s, where there was a kind of ethnic patronage system of welfare where different groups were sort of trying to get their share of what the city was giving out, and they were part of that.

And so they don’t have the same kind of objection that it’s immoral or shameful to receive government benefits. They think this is something that’s being given out and we qualify for it, and so why wouldn’t we take it? Plus, they’re much better organized in taking it. And so they have this ability to use welfare in these ways that are very difficult for other groups to do, to have a kind of organized employment system that simply incorporates welfare payments as part of the expected salary that you’re going to make. And I think another element of this that’s really interesting, and we’re thinking about, especially for people who are thinking about how to design welfare, right, it’s like, well, how would you prevent this fraud? Right? Well, you would have to, in some way, prevent people from qualifying on the basis that the Satmar qualify. So you have to change the rules in ways that would affect everybody. Are you going to impose, for example, child caps for the receipt of welfare transfers, right? So if you have more than four children, we’re not going to pay you. But that seems outrageous. And so it’s very hard to think about how to redesign the welfare system in a way that would prevent this kind of high solidarity community from taking advantage of it.

James M. Patterson:

Reading the Times‘ coverage of Hasidic welfare fraud, one gets the distinct sense that the reporters would be more relieved if all the public money that the Hasidim received was fraudulent then, except that so many of them are actually just poor. For them, it seems, poverty has not been as fatal to flourishing as it has for other Americans. It has not led to any of the social pathologies typically associated with it. This confounds the typical sociological explanations for these negative outcomes, which identify poverty as their root cause. In this respect, Hasidim confounds the right to since it more successfully models, in actual practice, the corrective or even alternative to liberalism that Christianity often inspires to be. Really just incredible stuff in this review. So, I have a couple more questions before you go. One is specific, and the other is going to be the most exciting one for me. But I’ll start with the more specific one, which is what’s the deal with this paragraph about those who are criticizing all of the Satmar being also Jewish?

Dr. Rita Koganzon:

Yeah, well. So, the difficulty of having an open discussion of this is that with religious minorities, there is a social fear of criticizing. So you don’t want to be accused of antisemitism. And a lot of Gentiles just don’t have any idea what Hasidism is, who the Satmar are, and so they just view this as a weird foreign people dress funny, eat weird food, right? I mean, they’re kind of on the level of other foreigners to a lot of American non-Jews. Whereas Jews feel a kind of personal stake in this question because these are our co-religionists and they represent us, and they represent us in ways that maybe we don’t want to be represented to the majority. And so the question about the Hasidim and where they fit in has long been a kind of subject of intra-Jewish warfare where the Gentiles have kind of stayed out because they don’t want to be accused of antisemitism because they really don’t understand anything about what’s going on. And they view this as just another weird minority group. America’s full of weird minority groups, and there’s no real interest in singling these people out.

And so the history of especially these legal battles over the Satmar, over Kiryas Joel, and now the Hasidic Yeshivas in New York City, if you look at who the main players are, many of them are Jews. And there are Jewish plaintiffs and Jewish defendants, and the lawyers taking these cases are Jewish. And because for the Jews, it’s a much more sort of salient question of their own identity. What do Jews look like in America? Do they look like Satmar, or do they look like Ruth Bader Ginsburg? And who is supposed to be the sort of representative of our people to the larger American population? So there’s a kind of identity conflict that motivates some of this, right? And I think that that plays out.

Oftentimes, the Hasidim will accuse the secular Jews of this kind of version of antisemitism, which is just like, “You hate us because we represent something more orthodox than you, and you’re afraid that people will see you in us.” And I think there’s some truth to that. But I do think also that there’s just a larger clash of visions, which is that secular Judaism for the second half of the 20th century really had a pretty cohesive constitutional vision of liberalism that does not tolerate the Haredi and the Hasidim in the way that they want to subvert the First Amendment by their lights. Where their view is that there needs to be a strict separation of church and state precisely because the Jews are a permanent minority, and they will never stand to benefit from any kind of effort to scale the wall between church and state because they’re always going to be persecuted.

If any other religious group gets hold of state power, which is much more likely given their numbers, the Jews will always be in a very weak and endangered position. And so the best position, this is what Judith Shklar calls the way of thinking of the permanent minority, the liberalism of the permanent minority, the best and safest position for a group like the Jews, which does not aspire to and likely never will be a majority, is to create a constitution, which creates a lot of defenses against state power, especially defenses against religious groups taking control of state power. And I think that that clash of visions is in some ways much more salient than this question of, well, are secular Jews just embarrassed about being connected to people who look like the Satmar, who wear the black hats and the big robes and things like that. I mean, I think there’s some of that there, but that’s not the main motivating thing. I think there’s a real fundamental clash of constitutional visions.

James M. Patterson:

So, the Kiryas Joel lost their decision, but we’ve seen some major decisions that have expanded not just religious liberty on public grounds but also access to public money. This is like the Trinity Lutheran case and the Kennedy v. Bremerton case. So the thing really that sank into me when you were presenting was that The Satmar Option is now increasingly the model that not just the permanent minorities like the Jews are adopting, but also sort of stationed minorities all over the United States because this sort of autonomy-based liberalism has been able to preserve such a control over mainstream education, that the length of time has actually produced lots of different religious minorities pursuing their own ways of doing things. And the result has been that they’ve created a constituency that seeks out, especially after these decisions, all kinds of access, and the way that the Haredi had been able to, and the Satmar has been able to.

And have in mind here Catholic traditionalists because that’s just the world that I’m more familiar with, but for example, graduate programs will actually request that graduate students in theology go on Medicaid. That way, it’s easier for them to cover other expenses for the graduate students. And here in the State of Florida, they’ve started to disperse multiple thousand dollars in grants to families for them to attend whatever schools they want. And the result has been a massive increase in attendance of more traditional Christian schooling and homeschooling options.

So the thing that was so important to me about your presentation is that The Satmar Option that you’re describing, framed by this permanent minority status and sort of putting away the Amish as the exemplars, really does introduce an entirely new paradigm for religious liberty cases in which the issue is not merely non-interference with religious practice, but also qualifications for access to entitlements. Is this really what you see as the future here?

Dr. Rita Koganzon:

Yeah. I don’t know. I don’t like to say I’m predicting the future. It seems to me that the Amish model is really anachronistic. I don’t know that it was ever really exemplary demographically, even in 1972 when the Yoder case was decided because most people don’t live like the Amish in the United States otherwise, they wouldn’t be so strange. But certainly now, there’s just the idea that people who are religious dissenters are going to separate themselves out and go live somewhere where nobody will see them, and they will see nobody is just not the way that religious minorities live in the United States, and it no longer seems to reflect the assumptions that they have. And you can see this definitely in the homeschooling movement, the shift, because in the 1970s and 1980s, when homeschooling started to become politically viable, and people were lobbying for changes to state laws that would allow them to take their kids out of public schools and not be subject to compulsory schooling laws, the whole argument is about removal, removing your kids from these influences, teaching them at home, the right to teach them at home to be able to sort of shield them from the larger influences of the mainstream culture.

Now, all the homeschooling battles are about inclusion. They’re about whether homeschooling students have a right to play on public school sports teams, right? Do homeschooling students have a right to use public school resources in a kind of pick-and-choose way without attending those schools without being fully enrolled? And so you can see the sort of shift in momentum from do we have a right to take our children out and keep them away from this system? To now, what are our rights to participate in this system on a kind of piecemeal basis or on an à la carte basis? And so you see, the shift in that momentum is indicative of where, in general, religious descent is going. It’s not so much about how far can we recede or remove ourselves from the mainstream to how far can we participate in the mainstream without being subjected to violations of our religious freedom because of government regulations that restrict certain services on secular grounds.

And so, in that sense, I do think that the momentum is shifting a lot more to sort of putting pressure on state, municipal, and federal government entities to be able to provide resources either in terms of school sports, welfare transfers, school funding, things like that to religious groups, and on what grounds can they provide those resources without violating the First Amendment. But the assumption is they will provide those resources, and it’s just a matter of hammering out how they can do that without violating the First Amendment versus to what degree can we remove ourselves from all government entanglement.

James M. Patterson:

The Satmar Option, Hasidic Judaism, The Future of Religious Liberty, the Summer 2023 Essay, and the Hedgehog Review, and the chapter in Religious Liberty and Education, Pork Eating is Not a Reasonable Way of Life, Yeshiva Education Versus Liberal Educational Theory. Thank you so much for coming on Liberty Law Talk, Dr. Rita Koganzon.

Dr. Rita Koganzon:

Thank you.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts.