Attention, Legal Scholars: Is This Constitutional?

In my recent post on creeping fundamentalism in Israel, I included a picture but didn’t explain why. I wanted to talk about it some more, because it seems to me that what it depicts is a possible constitutional violation, and I was hoping I could get opinions from people better versed in constitutional law than I am.

This was taken in upstate New York, near where I used to live. The sign stands at the entrance to Kiryas Joel, a village founded by ultra-Orthodox Hasidic Jews in the 1970s. For years, the village has been clashing with the surrounding towns on one issue after another: KJ’s rapid population growth and attempts to annex surrounding land; the high proportion of residents on welfare; their tendency to vote as a bloc; their refusal to put their children on a school bus if a woman is driving (yes, really), and worse. One case, in which the state effectively created a separate school district just for the village, went to the Supreme Court, which ruled against it.

And now, there’s this sign. I saw it while I was visiting family a few weeks ago and took this photo with my phone.

So, my question is this: Is it constitutional to put a sign like this on public land? (I’m not positive whether the land under the sign is privately owned, but it’s just off to the side of a public road – and it certainly appears to be speaking on behalf of the village itself.) Can any community really tell visitors how to dress or request that they “maintain gender separation in all public areas”?

Obviously, this ridiculous demand doesn’t and couldn’t have the force of law behind it. But is it legal even to ask? You’ll notice that the sign makes this request “in keeping with our traditions and religious customs”, which is basically an admission that there’s no secular purpose for it, that it’s being requested to placate the beliefs of a religious sect. How could a sign like that not transgress the separation of church and state?

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Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • BJ Marshall

    I wonder if you could e-mail your question to New York law schools. In the case that no sufficient answer pops up in these comments, then there might be a chance that 1) a professor somewhere knows, or 2) it would be a good topic for some research assistant to take on.

    Of course, you run the risk (likely, in my opinion) of finding experts who fall on all sides of the argument. It’d be interesting to see how they justify their positions, though.

  • Siamang

    Is it Constitutional to put up a sign to ask that people behave a certain way?

    I’m going to say yes.

    I don’t know why you wouldn’t agree. It’s just speech, and not in any way that’s suspect (like inciting violence or yelling “fire” in a theater, or obscenity, etc).

    If it’s private land, then you’ve got zero issue at all. If it’s public, then it needs to be an open forum… see if you can get them to let you put up a flying spaghetti monster sign, and if not, sue ‘em.

    I wouldn’t follow any of their rules, though. Gender separation? Sorry.

    I almost never wear shorts… but when visiting there, I’d make an exception.

  • Brody

    (Not legal scholar here, but…)

    It’s possible Kiryas Joel is similar to a planned urban development, in which all homeowners pay a fee to a private association that provides community-shared facilities and infrastructure. In that case, the sign and requests are constitutional, provided the penalty is either expulsion for non-homeowners (being privately held land), or fines for community homeowners.

  • http://infophilia.blogspot.com Infophile

    The key issue here is who owns the sign and the land it’s on. If it’s owned by the government, then it’s clearly unconstitutional. Government speech doesn’t enjoy the protections that private speech does, and they can’t “kindly request” something that isn’t the law. And if it is the law, then it clearly falls afoul of the constitution.

    You noted that the sign appears to be speaking on behalf of the village itself, but not of the text I can read makes that explicit. It certainly may imply it’s speaking on behalf of the village, but it doesn’t cross the line into falsely representing itself as such. (The black bar at the bottom of the top panel may specify this, but I can’t read it from this picture.)

    So then we get to the question of whether it’s private or public property. If private, then there’s no legal or constitutional problem. Anyone is free to put up a sign “requesting” anything. The next building would be free to put up a sign saying “And I request that the makers of the other sign bite me.” That’s what free speech is about.

    If it’s public land, then it really depends on the specifics on the case. The most likely legal situation is that it counts as a limited public forum, which means that there can be no content-based restrictions, so, as Siamang noted, opposing speech must also be allowed there.

    So, to the main question of if this is unconstitutional, it is if it was put up by the city, or if it was put up by a private citizen in public land that doesn’t allow contrary messages to be placed.

    (Note that I’m not a legal scholar though; this is just my understanding after a lot of reading of posts at Ed Brayton’s blog, so take this with a grain of salt.)

  • Sarah Braasch

    I can’t get pulled into another lengthy debate right now, but very very quickly,

    if the sign is on public land and was paid for with public funds (and, especially if it is enforced with local law enforcement under color of law), then

    there is almost nothing, which is not unconstitutional about it, from a multitude of perspectives.

    However, that isn’t the reason why it remains standing.

    The reason why the sign remains standing is because there is no one with standing willing to challenge it (or who is not afraid to challenge it).

    If no one else but this cult lives in this town (and who else would want to live there?) and the inhabitants are all either too afraid or too brainwashed to realize the problem, then only visitors could challenge it.

    But, probably you would need someone who has to go to the town on a regular basis, because they do business with the town — with the local govt would probably be best — a woman probably.

    But, we have so brainwashed people in the US that this type of activity is entailed within the Free Exercise Clause of the Constitution, and that these types of constitutional violations need to be respected, because they are based upon ancient fairy tales, that probably it would be really hard to find someone willing to do so.

    So, the sign stands.

  • ildi

    The local news had a piece on this on August 31: Welcome To Kiryas Joel: Please Dress Accordingly

    The tradition in the village of Satmar Hasidic Jews is modesty. Even on the hottest of days, most residents cover up from head to toe. But visitors don’t necessarily follow that tradition, and now the main synagogue is asking them to comply.

    Congregation Yetev Lev posted signs at the village’s entrance – in both English and Spanish – asking outsiders to cover their legs and arms, use appropriate language and maintain gender separation in public.

    A village trustee pointed out the signs said nothing about consequences for violating these guidelines – because there are no consequences.

    “We’re not threatening anyone,” said Rabbi Jacob Freund. “Everybody is free to come in and be the same, like all other places in the United States.”

    The New York Civil Liberties Union said because the signs were paid for privately and are not on public land and they pass constitutional muster.

  • Brock

    Siamang’s comment makes me wonder, what would happen if a mixed gender group went sightseeing in KJ in their summer outfits. Would they be arrested by the Hasidic Taliban? If so could charges be made to stick on appeal? Can a municipality actually make laws based on nineteenth century Stetl mores, and expect visitors to abide by them? Can they even be enforced on residents? Thoughts?
    Note: I wrote this before reading comment no. 6. I think that addresses a few of my concerns

  • Sarah Braasch

    That is an interesting point, Brody.

  • Sarah Braasch

    “We’re not threatening anyone,” said Rabbi Jacob Freund. “Everybody is free to come in and be the same, like all other places in the United States.”

    But, it would be very interesting to know how they treat violators whom they consider to be part of their cult.

    Especially the women and kids.

    I’m sure that they think what they do with their own property is their own business.

  • Brock

    By the way, how do they define “appropriate language?”

  • Brian

    By the way, how do they define “appropriate language?”

    Just “don’t be a dick” ;-).

  • TommyP

    I would love to go there with some of my friends in full drag mode. That would be so epic. People putting up signs like this practically begs it.

  • ildi

    The Guardian had an interesting take on this: Welcome to Kiryas Joel, New York. Please behave – and don’t wear shorts

    Now, just for a moment, imagine that the good people of Kiryas Joel were not conservative Jews. Imagine them, instead, as Muslims. Muslims who had asked visitors to cover up when they come to their town. Muslims offended by the sight of any female flesh above the ankle or the wrist or below the neck. Muslims who wanted women and men passing through their community to stay apart. The outrage of America’s conservative classes could well be astonishing.

    The largely silent acceptance of Kiryas Joel’s wishes tells us much about America’s admirable tolerance for minorities. Just as the ugliness of the Ground Zero mosque debate tells us much about its fear over Islam.

  • http://www.daughtersofnarcissisticmothers.com Danu

    How can it be unconstitutional to request people to behave in a certain way. It would be no more unconstitutional (surely – I’m genuinely asking the question) to put up a sign saying, “Please buy my lemonade”.

  • http://steve.mikexstudios.com themann1086

    Assuming the above is correct, private sign on private land making unenforceable requests = constitutional. Sarah raises the truly salient point though: do they enforce it on each other? Technically, private groups dispensing punishment for its members violating its rules is allowable up to a certain extent, but ONLY under some pretty strict criteria that I sincerely doubt these guys meet.

  • bbk

    I would argue that upstate New York is full of weirdos.

  • Nes

    Infophile:

    (The black bar at the bottom of the top panel may specify this, but I can’t read it from this picture.)

    It reads: Sponsored By Congregation Yetev Lev Of Kiryas Joel

  • http://anexerciseinfutility.blogspot.com Tommykey

    Go there on a Friday night when they’re all indoors for Sabbath and plaster the signs with stickers that read “Orthodox Judaism Is A Mental Disorder.”

  • http://anexerciseinfutility.blogspot.com Tommykey

    But on a more serious note, the sign is probably constitutional, but attempting to enforce the restrictions on passersby is not.

  • http://www.daylightatheism.org Ebonmuse

    Thanks for that link, ildi (#6). I’m glad to see the NYCLU is on the case already – and if the sign is on private property, then it’s constitutional, as distasteful as it might be.

    That said, I’m sure that Kiryas Joel, like any good theocratic state, has its own private morality squads that are ready to “enforce” their dogmas on anyone who won’t willingly submit. There are numerous stories of village residents being bullied, harassed and their property vandalized for refusing to conform. I see no reason why outsiders would be exempt from the same treatment.

  • Kaelik

    It’s a perfectly constitutional sign that is trying it’s damn hardest to convince any visitors that it’s unconstitutional.

    “It’s on public land!” Yes, public land right next to the highway entering town, giving it an air of town welcome rather than personal welcome.

    “There are no consequences, because we don’t enforce it.” Yes, because you can’t enforce it, but if you could, you would. So instead you try to trick people into thinking it will be enforced.

    Ect.

    Basically, it’s a load of shit, where they try to give themselves the air of law in their request, to get people to comply without them having to actually write unconstitutional laws.

  • http://yokohamayomama.blogspot.com amy o in yokohama

    How is it different from a restaurant requiring patrons to wear a jacket and tie, or posting a sign saying “no shirt, no shoes, no service”?

    (that’s not a snarky comment–I’m really confused!)

  • Wednesday

    @ Amy – restaurants are private property, and the people putting the signs up would then be individuals as citizens. It’s different when it’s public land and/or the city (ie, government) putting up a sign. A restaurant owner can also use their property to endorse political candidates or a specific religion (although I’m not sure it’s legal for them to deny service based on religion), whereas a city cannot.

  • http://anexerciseinfutility.blogspot.com Tommykey

    How is it different from a restaurant requiring patrons to wear a jacket and tie, or posting a sign saying “no shirt, no shoes, no service”?

    Amy, here’s the different. A Hasidim has the right to travel in any neighborhood in the United States and not be harrassed for his or her mode of attire. But they seek to deny the rest of us the right to travel in their neighborhood in our mode of attire by harrassing people who deviate from their beliefs.

  • http://kagerato.net kagerato

    Ebonmuse @ #20:

    The reports in that link really put the Rabbi’s deception to light. Not threatening anyone? Slashing tires, tried to get kids expunged from school, hostile phone calls — uh, those are already beyond threats.

    It also says there was a factional dispute a decade ago involving assault, arson, and window-smashing. These are not peaceful designs.

    I love the comments on that blog. “Why don’t they just leave?” Ah, yes. The old “run away” gambit. That will really show those fundamentalists good.

  • anna

    I should think the sign cannot be enforced by law, but just putting up a sign requesting you please do this nonsense, rather than forcing you to do it, seems legal. Stupid and wrong, but legal.

    What is the deal with women not being allowed to drive schoolbuses in Kriyas Joel? Never mind the sign, that is a clear violation of employment discrimination law.

  • Elizabeth

    All I know is that this sign makes me want to go there and stroll down the main roads buck naked! While swearing!

  • Jerryd

    Someone needs to put up a sign nearby: “Glenn Beck followers, and others demanding the end of our secular republic, move to Kiryas Joel and try the waters.” As they say, be careful, you might get what you ask for.

  • Sarah Braasch

    You might still be able to challenge the sign as unconstitutional.

    This is very similar to the cases of crosses, etc. on public land, and then the locality “sells” the square foot plot of land beneath the cross to a private citizen and grants them an easement.

    I know — totally shady.

    In my opinion, this is pretty much the same thing.

    Probably the best way to challenge it is to have someone buy the private land adjacent to this sign and put up an identical sign that “Welcomes Visitors to KJ.” And, asks them to dress scantily and provocatively and use foul and obscene language.

    If the local government does nothing — then fine.

    If they react — then you have something you can work with.

  • http://www.daylightatheism.org Ebonmuse

    It’s a perfectly constitutional sign that is trying it’s damn hardest to convince any visitors that it’s unconstitutional.

    Well said, Kaelik. :)

    How is it different from a restaurant requiring patrons to wear a jacket and tie, or posting a sign saying “no shirt, no shoes, no service”?

    I think a better analogy, Amy, would be a restaurant putting up a sign which read, “No Jews, Please”. No business that serves the public can discriminate on the basis of race, gender or religion. Nor can any government entity act in such a way as to send a message that one particular religious belief is preferred and that those who don’t conform are disfavored outsiders. Even if the KJ sign isn’t technically breaking either of those two laws, it’s clearly trying its hardest to come right up to the edge of that line.

  • jack

    If they really believe in their omnipotent Yahweh, and that they are His Chosen People, then they shouldn’t need a sign. They should all just pray to Yahweh to vaporize with bolts of lightning anyone in their little town who wears shorts, who touches someone of the opposite sex, or who mumbles ‘shit’ when they stub their toe.

    I wonder why they haven’t thought of that solution?

  • http://kagerato.net kagerato

    They probably have thought of it, jack. Yet their faith is apparently not strong enough to allow God to enforce his own laws.

    It doesn’t help that the holy books are full of decrees that adherents should or must do X or Y. They take such statements quite literally.


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