In the second of the three-part series on the Constitution and parenting, Jeffrey Shulman from Georgetown Law looks at Wisconsin v. Yoder, the Supreme Court “port” from which a number of religious parenting cases would be launched.
Part II: Wisconsin v. Yoder
The Supreme Court
Wisconsin v. Yoder (1972) is by all measures an odd case. Its facts are, to borrow a word that echoes throughout the decision, idiosyncratic. Its reasoning is a strange brew of romantic projection and conscious self-deception, something akin to infatuation from a court old enough to know better. Its holding is uncertain; it is limited to the facts of the case, yet the decision has been a steady prop for those seeking religious exemptions from generally applicable law.
Read Part One In SeriesDoes the Constitution protect a fundamental right to parent?
The Court considered a claim that Wisconsin’s compulsory secondary school attendance law violated the plaintiffs’ constitutional rights. The case was brought by members of the Old Order Amish congregation, who considered “their children’s attendance at high school, public or private, [to be] contrary to the Amish religion and way of life.” By sending their children to high school, it was believed, Amish parents “would not only expose themselves to the danger of the censure of the church community, but . . . also endanger their own salvation and that of their children.”
The Yoder Court was confronted with two relevant lines of cases: The Due Process Clause protects the right to parent, which includes the right to direct the upbringing and education of the child, and the Free Exercise Clause guarantees religious freedom. But neither line offered complete protection for religious parenting rights. The Court did rely on Meyer and
Pierce, but these cases had involved “nothing more than the general interest of the parent in the nurture and education of his children.” Pierce may stand, as the Court declared, as a charter of the right of parents to direct the religious upbringing of their children; nonetheless, it is a charter of parenting, not religious, rights, and where nothing more is involved, the Yoder court stipulated, “it is beyond dispute that the State acts ‘reasonably’ and constitutionally in requiring education to age 16 in some public or private school meeting the standards prescribed by the State.” A parenting claim, by itself, would not outweigh the state’s interest in universal compulsory education.
Besides, the prospect that any parent, for reasons however virtuous, could displace the state’s educational regime on due process grounds alone was surely an unacceptable outcome. Parenting concerns, even if they were based on purely secular considerations, could then be interposed as a barrier to reasonable state regulation of education. The Court knew too well that “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”
But why not resolve Yoder solely on free exercise grounds? The Court accepted it as settled that “only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion.” Yet the Court devoted little attention to cases based on the Free Exercise Clause, perhaps because there was little case law to which it could be devoted and perhaps because what case law existed was of little help. The controlling case, as the state argued, was Prince v. Massachusetts, and the Yoder Court was well aware that Prince “might be read to give support to the State’s position.”
Prince v. Massachusetts (1944)is well known for its conclusion that “the family itself is not beyond regulation, as against a claim of religious liberty.” In Prince, the Court stressed that the state is responsible for the general welfare of young people. (The Court upheld a child labor law that was used to stop religious pamphleteering by a minor, accompanied by her guardian.) As parens patriae (parent of the country), the Court reasoned, the state may go so far as to protect children against the misconduct of their own parents and guardians. And the state’s parens patriae authority, according to the Prince Court, is “not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience.”
Nearly half a century after Prince, the Supreme Court clarified that state action restricting religious practice is constitutionally permissible unless such action directly targets religious practice or discriminates against religious groups. This is the core principle—a controversial one, to be sure—of Employment Division, Department of Human Resources of Oregon v. Smith. Decided in 1990, Smith held that where state regulation burdens religious freedom only incidentally—that is, where the burden is the incidental effect of regulation that is neutral and generally applicable, restricting secular and religious activity alike—the courts will presume its constitutionality. Thus, a law that makes illegal the use of peyote because of safety and health concerns would be subject to, and would survive, rational basis review, even though it burdened the beliefs and perhaps effectively prohibited the practices of some religious groups.
Separately, neither the right to parent nor the right of religious freedom triggers strict scrutiny. Combined, however, these rights form a tough legal firewall that protects parents from state interference in the religious upbringing of their children. For the Court has also said that when the interests of parenthood are combined with a free exercise claim, “more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.” This is the core principle, also a controversial one, of Wisconsin v. Yoder.
Though Yoder was decided in 1972, its invention of a hybrid parenting/free exercise claim survived Smith, as did other variations on the hybrid rights theme. So, even after Smith, the First Amendment does require heightened scrutiny for claims that involve “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.” In religious parenting cases, by some abstruse constitutional calculation, strict scrutiny is the default standard of review, despite the fact that state action does not target religion or impinge upon a fundamental right. Under a strict scrutiny standard, courts will uphold state regulation of religious parenting only where “it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.”
Like Meyer and Pierce, Yoder reflects a profound disquiet about the state’s power to influence its children, but, really, here the Court was seeking to protect a religious community from nonstate forces. Compulsory secondary schooling, the Court feared, would bring “[t]he Amish mode of life . . . into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards.” Education beyond the eighth grade would involve “impermissible exposure” to worldly influences in conflict with Amish values:
The high school tends to emphasize intellectual and scientific accomplishments,
self-distinction, competitiveness, worldly success, and social life with other
students. Amish society emphasizes informal ‘learning-through-doing;’ a life
of ‘goodness,’ rather than a life of intellect; wisdom, rather than technical
knowledge; community welfare, rather than competition; and separation
from, rather than integration with, contemporary worldly society.
If the value of education “must be assessed in terms of its capacity to prepare the child for life,” the Court insisted, “the Amish alternative mode of continuing informal vocational education”—by which the Court meant, of course, no schooling at all—was equivalent to the schooling mandated by the state: “It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.” The Yoder majority turned a willfully blind eye to the suggestion—made by Justice White in concurring (joined by Justices Brennan and Stewart) and Justice Douglas in dissent—that the state’s interest encompasses more than preparing children for life choices that have been made for them. It has an interest in helping children develop the capacity to make life choices for themselves.
On the unique set of facts before it, the Yoder Court repudiated the time-honored trust model of parent-child relations. Where the Court’s seminal parenting cases established a due process right to direct the upbringing of children, Yoder grants much more authority than the word “direct” suggests. It gives religious parents a right to control the upbringing of their children—more specifically, to keep their children cut off from foreign ideas and influences. Yoder goes well beyond the rule of Pierce that the power of the state to regulate education must yield to the right of parents to provide an equivalent education in a privately operated system. The Amish parents claimed the right not to send their children to secondary school at all. To guard the Amish way of life against the pressures of modernity, Yoder granted religious parents not just the right to supplement the state-mandated curriculum (Meyer v. Nebraska, 1923, did that) or the right to choose a private educational option (Pierce v. Society of Sisters, 1925 did that), but an exemption from the fiduciary responsibility to provide an education that prepares young people for the “additional obligations” of adult life.
The Yoder Court made a heavy analytical investment in Amish faith and culture. The Amish way of life, so the Court reasoned, was itself an education suitable for children who were destined to live . . .—well, to live the Amish way of life.The Court’s sociological discursions were analytically necessary because it was going to grant the Amish, and only the Amish, a constitutional release from the Lockean duty to bring their children to a state of educational enfranchisement. The radical open-endedness of such a step had to be countered by an equally complete closure of this fiduciary loophole.
It was too much for the Court to hold that parents generally ought to be allowed to foreclose their children’s educational opportunities. It was even too much to suggest that religious parents generally can interpose rights-based objections (even on a hybrid rights ground) to compulsory schooling. Unable to escape these unacceptable conclusions, the Yoder Court made a fainthearted attempt to limit its holding to the specific and peculiar facts of the case before it. Thus, the Yoder Court solidified its holding by anticipating that “probably few other religious groups or sects” could make the showing necessary to secure an Amish-type exemption. Wisconsin’s compulsory education statute was a burden for reasons peculiar to one religious sect: an entire way of life inextricably bound to religious belief, the continued survival of a long-established and self-sufficient agrarian community, an informal mode of vocational education that precisely parallels state interests, etc. Strict scrutiny, the Court cautioned, is required “when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record.”
It is not unusual for the Court to make law that, in effect, benefits or burdens a specific religious group, but in such cases the law will have, if only in theory, a general application. It is a strange business for the Court to make what amounts to private constitutional law. By subjecting restrictions on religious parenting—or, at least, one subset of religious parenting—to strict scrutiny, the Yoder Court presided over the creation of a separate sphere of the law where some individuals enjoy a private right to be exempted from generally applicable civic obligations.
On its own terms, then, Yoder is essentially sui generis. For good reason. Writing for the Court in Smith, Justice Scalia cautioned that our society would be courting anarchy if every law or regulation of conduct that negatively affected someone’s religious belief had to be supported by a compelling state interest. To excuse conduct contrary to a general law, he stated (quoting the Court’s opinion in Reynolds v. United States (1879) upholding a state law prohibiting religious-based polygamy), “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Accordingly, the Smith Court discussed hybrid rights as an exception to general constitutional principles. Yet in the universe of religious parenting cases, the exception swallows the rule; because such cases are hybrid by definition, strict scrutiny becomes the norm.
The heightened constitutional status of religious parenting was novel law when the Court announced it in Wisconsin v. Yoder, and it remains doctrinally fragile. But the spirit of strict scrutiny, once summoned, would not be easily cabined. Yoder would become the precedential port from which a number of religious parenting cases would be launched, asking courts to apply a rationale that, in Scalia’s words, “contradicts both constitutional tradition and common sense.”
Jeffrey Shulman teaches constitutional family law at Georgetown Law. This piece is drawn from his new book “The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child” (Yale University Press, 2014).
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