Earlier this year, The New York Times published an article describing the requirements for voting for the leadership of the Crown Heights Jewish Community Council in Brooklyn. The requirements are the following:“Jewish and religiously observant residents of Crown Heights, married, previously married or at least 30 years old, male.” The article raises the question of constitutionality of the gender discrimination in this policy, which I would like to explore further in this blog post.
The Crown Heights Jewish Community Council is described as a “social service agency” and receives annually about $2 million in government grants. Their service to the community includes distribution of food stamps and housing subsidies. While the council includes the word “Jewish” in its name and requires that voters for its leadership are “Jewish and religiously observant,” it is not a religious organization. The council’s reasons for not allowing women to vote for its leadership have ranged from female modesty to “marital tranquility”, to claiming that the discrimination against women is in fact a “one couple/one vote” rule. This specific community council has changed its policy since the publication of the article, but this is just one Hasidic community in a state that boasts the largest population outside of Israel. Hasidic Jewish communities can be found throughout Brooklyn and the “Borsht Belt” in upstate New York. This issue may come up again as more Hasidic women challenge policies that leave them disenfranchised in their own communities.
To challenge this type of policy, potential plaintiffs can argue under the Marsh v. State of Alabama rule that since the community council operates as a government body, it is subject to the restrictions of the constitution, including the Equal Protection Clause and Title VII of the Civil Rights Act. Because it accepts government grants to provide government-sponsored social services to its members, it is essentially performing as a government actor. The maintenance of these social services affects women as much as it does men, and perhaps even more so. Denying women the right to elect the officials who will be in charge of maintaining these services would not pass the gender-based intermediate scrutiny test found in U.S. v. Virginia. There is no rational basis for denying women the right to vote in these elections. Furthermore, the council does not consider itself to be a religious organization, but instead describes itself as providing services to special groups within the Brooklyn community. By denying its religious affiliation, the community council may have a difficult time asserting the same religious exception to the Title VII that allows the Catholic Church to deny women access to the priesthood.
The defendants of this type of policy would first want to argue that even if they don’t perform religious services, the language used in their title and their bylaws makes them a religious organization exempted from Title VII of the Civil Rights Act. This exception has allowed Catholic Schools to fire teachers for getting remarried and signing a pro-choice newspaper ad. They could argue that as a religious organization, they can conduct their business however they please because of the separation between church and state. Most religious organizations perform some form of discrimination against women as part of their belief system, and that interfering with the community council’s right to discriminate could set a potentially explosive precedent. However, courts have limited the use of the Title VII exception when it applies to employment discrimination based on out-of-wedlock pregnancies, as that form of discrimination can only apply to women. I think that the community council would have a difficult time arguing that denying women the vote on how food stamps are allocated is a central tenant of Judaism.
The best argument in favor of the community council may be found in Salyer Land Company v. Tulare Lake Basin Water Storage District. In that case, the court decided that since the election at issue was for a special, limited purpose that disproportionally affected landowners, that the “one-acre/one-vote” rule was not unconstitutional. The community council will argue that their election is so small and for such a limited purpose, that they are not subject to the same restrictions that uphold the one person/one vote rule and prevent discrimination in larger, more public elections. The council may have trouble with this argument however, because the council provides “general public services” and its distribution of food stamps and housing subsidies affect the greater community.
The Crown Heights Jewish Community Council may have changed their policy to allow women to vote in their leadership elections, but there are surely more insular religious organizations in New York that practice the same kind of discrimination. Hopefully each will react like the Crown Heights Council by changing their policy before a plaintiff is forced to litigate to assert her right to vote, but I would not be surprised to see similar cases reaching New York courts as the Hasidic community struggles to maintain it’s heritage against a need to uphold the law.