The
counties of Williamsburg and Borough Park in Brooklyn New York have an
interesting situation with their public bus system. Instead of using a government run public transportation
system, a Private Transportation Corporation has purchased the rights from the
city to act as a public bus system.
The buses look and function just like any public bus system. Although these buses may seem like all
public buses, there is one major difference. On these buses female passengers must sit in the back while
males must sit in the front.
Though a person’s initial reaction would
be to immediately declare this unconstitutional, it is more complicated than
one would think. The reason behind
the separate seating on the bus is that this line mainly serves the Hasidic
Jewish communities in the area.
The bus line has a board of rabbis consulting them on their operations,
and they advised a decree stating to institute gender segregation on the bus. The decree is based off of the deeply
held religious beliefs of the Hasidic Jews that prohibits contact between
sexes. This decree was put into
action and is a rule for all passengers. This case becomes especially tricky to determine governmental
establishment because it is a private company that has paid the city for the
right to operate in this area.
Though it is a difficult situation, I believe that this rule does
violate the Establishment Clause.
Before examining how the establishment clause applies to
this situation I will note that I believe the government would not be breaking
the free exercise clause by removing this rule from the buses. Wisconsin
v. Yoder places much importance on the validity of religious beliefs, and
gender separation is a deeply held belief of Hasidic Jews through their interpretations
of the Torah. Despite the fact
that this is a vital practice of Hasidic Jews, West Virginia Board of Education v.
Barnette determines that the government
can regulate actions that infringe on the “rights asserted by any other
individual”. I think it is clear
that a gender segregation rule on a public bus infringes the rights of all those
who wish to sit wherever they want. Thus, limiting this rule would be constitutional and is
within the government’s rights.
To
determine if this rule violates the establishment clause I will look to Lemon v. Kurtzman, and apply the Lemon
test to this situation. Before
going through the test it is important to understand that although the private corporation
is not directly controlled by the government and does not receive any
government money, it has been given the responsibility to perform a public governmental
public service. This means that in
the operation of the company’s duties it should follow the same laws that apply
to the government.
The first aspect to the test is to see whether this
religious rule by a private corporation that has purchased public
transportation rights from the city constitutes excessive governmental
entanglement with religion. In the
Lemon ruling, aide programs were declared unconstitutional for breaking the
excessive entanglement aspect of the Lemon test. Since law required the government to examine school records it
was determined to be excessive government entanglement. Though this
organization must follow the same rules as the government in the execution of
its responsibilities, since no government officials are directly involved in
the company’s functions it does not constitute as excessive entanglement of the
government Another important
aspect to this is that the company does not rely on taxes to perform its
duties. In Everson v. Board of Education, a New Jersey law was upheld that
provided state funding for bus transportation to parochial schools. If this did
not constitute as excessive entanglement, then this situation where tax dollars
are not used cannot be considered excessive entanglement.
Though
this case does pass this first part of the Lemon Test, the second part of the
test makes it clear that this is an example of violating the establishment
clause. The Lemon test requires
the law in question to have ‘a secular legislative purpose’. There is secular purpose for this. The counsel of rabbis that advised this
rule did so because gender interaction during transportation is “prohibited by Hasidic tradition”. This rule clearly violates the secular
purpose aspect of the Lemon Test, and this alone is enough evidence to declare
it as violating the Establishment Clause.
In Wallace v. Jaffree, several
bills were declared unconstitutional because the prime sponsor of the bills was
quoted saying that primary purpose of the bill was to ‘return voluntary prayer
to… public schools”. This alone
was enough evidence for the case to violate the purpose aspect of the Lemon
test and the bills were declared unconstitutional. In the same light, since the primary purpose of this law was
to follow the teachings of the Hasidic tradition, it breaks the Lemon test, and
should be considered a violation of the Establishment Clause.
This
case brings up many interesting questions, mainly those focusing on the responsibilities
of private organizations performing governmental. Since this organization is charged with performing a public
service, I think it should definitely be responsible to follow the government’s
obligations under the 1st amendment and this decree should be ruled
unconstitutional.
1 comment:
I do not agree with Casey that this is a violation of the Establishment Clause. The First Amendment states that: "CONGRESS shall make no law respecting an establishment of religion." (Emphasis added). While the bus line does provide a public service, it is owned and operated by a private corporation. As such, there can be no violation of the Establishment Clause. While the rule may be deemed a violation of other rules or rights, there is no governmental establishment of religion by having a private bus company in a small district of New York City enforce religious beliefs.
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