Public Funds for Religious Neighborhood Force May Violate Establishment Clause
An Emory Law student’s paper on public funding of a Hasidic community police force has been cited recently for the issues it raises about community watch groups that act like a police force, but are not held to the same constitutional standards.
“When the Eyes and Ears Become an Arm of the State: The Danger of Privatization Through Government Funding of Insular Religious Groups,” by Sarah Sternlieb 13L will be published in the forthcoming Emory Law Journal.
Sternlieb analyzes the Shomrim, a community policing organization active in some Orthodox Jewish communities. Using the example of the Shomrim in Brooklyn, N.Y., she highlights the problems of government involvement with inherently religious organizations.
She questions whether government aid to the Shomrim is unconstitutional under the Establishment Clause and concludes that while that may be so, a better argument is that the Shomrim should be considered “state actors” and therefore subject to the same restrictions that apply to public police officers—e.g., nondiscriminatory treatment of minorities.
“Ultimately, she concludes that the most prudent path for governments might be to stop funding the Shomrim altogether,” said Emory Law Assistant Professor Alexander Volokh, who was Sternlieb’s advisor.
The Shomrim of Brooklyn came under scrutiny following charges of vigilantism, racial discrimination and a tendency to not report crimes allegedly committed by members of its community. The group is no mere neighborhood watch; it uses cars, uniforms and branding so close to the New York police force that members could be mistaken for NYPD officers.
“The Shomrim receive substantial government funding, maintain close ties and connections with the police and the state and perform a public function,” Sternlieb writes. “Because these connections constitute a ‘close nexus,’ the Shomrim’s actions are fairly attributable to the state. As state actors, the Shomrim would be held accountable to constitutional limitations, and would be prohibited from discriminating against outsiders.”
“The Shomrim rely almost entirely on government funds, and it may prove impossible to privately provide the funds necessary to continue,” Sternlieb writes. “This is unfortunate because other than their discriminatory actions, the Shomrim provide a valuable service to their community. Although defunding and removing the ties with the state is a dismal conclusion, it appears to be the only constitutionally permissible solution.”
Volokh praised Sternlieb’s work.
“Sarah's paper illustrates the high quality of the student comments published in the Emory Law Journal and our other journals,” he said. “Our students regularly publish not only in our own three journals, but also in outside journals, both student-edited and peer-reviewed.”
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