By Samuel B. Hainbach
In 1983, Robert Cover challenged the U.S. Supreme Court’s approach to conflicts between the law of the state and the religious commitments of “insular communities.” Over 40 years later, Cover’s call remains urgent, and is of special relevance in New York. In Brooklyn and the Lower Hudson Valley, Hasidic yeshivas with tens of thousands of students seek dispensation from state policy that requires all students to receive a basic secular education. Meanwhile, federal religious liberty jurisprudence, significantly changed since 1983, still fails to satisfyingly arbitrate between the commitments of religious communities and the law of the secular state.
Part I of this Note sets the theoretical and doctrinal stage. It explains the intervention made by Professor Cover in Nomos and Narrative, outlines the free exercise maximalism of today’s Supreme Court, and proposes how Cover’s ideas could be used to redeem a religious liberty jurisprudence gone awry. Specifically, as part of determining when the law of the insular religious community must bend before the law of the state, Part I argues that courts should inquire into whether the state’s law is paideic (world-creating) or merely regulatory. Part II applies these ideas to the pressing case study of Hasidic education in New York. It provides the reader with an overview of Hasidic education and the current legal landscape. It also cautions that current doctrine is ill-equipped to handle the dilemma. Finally, Part III encourages New York government to articulate its compulsory education law as a world-creating commitment of the state and urges the courts to recognize the legitimacy and necessity of such a claim.