homeschooling and religious freedom

Upload: the-old-schoolhouse-magazine

Post on 04-Apr-2018

215 views

Category:

Documents


0 download

TRANSCRIPT

  • 7/29/2019 Homeschooling and Religious Freedom

    1/2

    Homeschooling and Religious Freedom

    Antony Barone Kolenc

    Many homeschoolers believe they have a parental duty and constitutional right to give their children a Godlyeducation or at least one free from the harmful influences they see in the public schools. And isnt that right protected by the U.S. Constitutions First Amendment, which guarantees the free exercise of religion? Not asmuch as you might think. That is why legal advocacy groups are urging homeschooling families to work at thelocal level to secure extra protections for religious freedom.

    Supreme Protection?

    If your state were to pass a law that forbade homeschoolers from teaching religion, the Constitution wouldvigorously protect you. But what if your state simply regulated the content of your curriculum by requiring allpublic, private, and homeschooled history curricula to include a unit about the gay civil rights struggle formarriage equality? Religious families opposed to same -sex marriage might be surprised to find thisreligion -neutral law much harder to attack under the free exercise portion of the First Amendment. Why?

    After a string of U.S. Supreme Court cases, beginning in the 1960s, most legal scholars believed that judgeswould strictly scrutinize any law that interfered with your right to freely exercise religion. But the SupremeCourt clarified in 1990, in Employment Division v. Smith , that strict scrutiny is not proper when a law that isneutral toward religion unintentionally impacts your religious practices. 1 In that situation, courts merelyneed to ensure the law is rational an easy standard to meet.

    The Smith ruling was bad news for those families who encounter a neutral homeschooling law that alsoimpacts religious freedom, such as one regulating the content of a curriculum. Yet legal advocates believethere may be a loophole in Smith s reasoning that provides extra protection for homeschooling families. Theyargue that judges must still apply strict scrutiny to neutral laws that impact hybrid rights where the freeexercise of religion has been combined with the right of parents . . . to direct the education of their children. 2 But this loophole may not be wide enough.

    The Failure of Hybrid Rights

    Homeschoolers have yet to score a maj or court victory using the hybrid rights argument, which has beenmarginalized or ignored by many courts. For instance, in 2008 several families challenged Pennsylvaniashomeschool law, arguing that it interfered with their hybrid religious right to d irect the education of theirchildren. These families felt that the states secular supervision of their homeschool programs conflicted withtheir belief that God had entrusted education exclusively to parents. A federal appeals court disagreed,finding th at the law was rational and did not impact their religious freedom. 3

    That same year, the hybrid rights argument fared only slightly better in California when a family challengeda judges order that forced them to stop homeschooling. In that case where a father had allegedly abusedtwo of his daughters homeschool advocates convinced an appeals court to strictly scrutinize the judgesorder. Despite this, the court upheld the order because of the states compelling interest in the welfare of children. 4 In sum, while the hybrid rights argument is still available to homeschoolers today, you cannot count on it to deflect neutral laws that impact your religious freedom. 5

    The Way Ahead: Religious Freedom Laws

    In the wake of the Supreme Courts ruling in Smith , Congress tried to increase religious protections bypassing the Religious Freedom Restoration Act of 1993 (RFRA), which would have forced both federal andstate courts to apply a stricter measuring rod to laws that impact religion. But the Supreme Court later struck down parts of RFRA, limiting the laws reach solely to the actions of the Federal Government. 6 In other words,

  • 7/29/2019 Homeschooling and Religious Freedom

    2/2

    your state and local governments are free to pass neutral laws regardless of their religious impact withonly minimal court scrutiny.

    With the federal RFRA severely limited, homeschool advocates are pushing for state-level RFRAs as a way tosecure extra protection for religious families. But these local laws only apply within your states own borders.Thus, to replace the federal RFRA, all fifty states must individually pass their own versions of the law.

    The push for local RFRAs has netted about a dozen victories, even in large states such as Pennsylvania, Texas,and Florida. A handful of other states, such as Kansas, Ohio, and Vermont, provide stricter scrutiny based onlocal court decisions. But the battle still rages. For instance, in 2010 Louisiana successfully passed RFRAlegislation, but Colorado failed to add the law to its constitution.

    Homeschool legal advocates are urging families to check the law in their own states and to work for passageof additional local RFRAs, either through legislation or amendment to state constitutions. In 2012, severalstates will be voting on this issue, such as West Virginia, New Hampshire, and North Dakota. If you are areligious homeschooler in one of those states, you will want to make your voice heard. And if your state stilllacks an RFRA, you will want to contact your local legislators and statewide homeschool groups to start theprocess to get one. These laws may not guarantee your religious freedom in every case, but they will give youa fighting chance in the courts.

    Endnotes:1. See Employment Division v. Smith , 494 U.S. 872 (1990) (upholding an Oregon statute criminalizing the use of peyote a Schedule Icontrolled substance even when used sacramentally by Native Americans as part of a religious ceremony).2. Smith , 494 U.S. at 881 82.3. Combs v. Homer-Center School District , 540 F.3d 231 (3rd Cir. 2008).4. See Jonathan L. v. Super. Ct. of Los Angeles County , 81 Cal. Rptr. 3d 571 (Cal. Ct. App. 2008).5. In January 2012, the United States Supreme Court unanimously ruled that the First Amendment prevented the government frominterfering with a churchs free exercise right to fire one of its ministers. See Hosanna-Tabor Evangelical Lutheran Church and School v.Equal Employment Opportunity Commission , 565 U.S. ___ (2012). This ruling did not change the state of the law regarding the rationalbasis test, however. 6. See City of Boerne v. Flores , 521 U.S. 507 [http://en.wikipedia.org/wiki/Court_citation ] (1997).

    Antony B. Kolenc (J.D., University of Florida College of Law ) is an attorney, author, and speaker. He and his wife have homeschooled their five children for over a decade. He is author of The Chronicles of Xan historical fiction trilogy, as well as several legal articles. Learn more about him at www.antonykolenc.com .

    If you have a legal-related question, please email [email protected] and Tony may get a chance to answer it in his monthly column!

    Copyright 2012, used with permission. All rights reserved by author. Originally appeared inthe April 2012 issue of The Old Schoolhouse Magazine , the family education magazine.Read the magazine free at www.TOSMagazine.com or read it on the go and download thefree apps a twww.TOSApps.com to read the magazine on your mobile devices.

    http://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://www.antonykolenc.com/http://www.antonykolenc.com/http://www.antonykolenc.com/mailto:[email protected]:[email protected]://www.tosmagazine.com/http://www.tosmagazine.com/http://www.tosmagazine.com/http://www.tosapps.com/http://www.tosapps.com/http://www.tosapps.com/http://www.tosapps.com/http://www.tosapps.com/http://www.tosapps.com/http://www.tosapps.com/http://www.tosapps.com/http://www.tosmagazine.com/http://www.tosmagazine.com/http://www.tosmagazine.com/http://www.tosmagazine.com/http://www.tosmagazine.com/mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://www.antonykolenc.com/http://www.antonykolenc.com/http://www.antonykolenc.com/http://www.antonykolenc.com/http://www.antonykolenc.com/http://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citationhttp://en.wikipedia.org/wiki/Court_citation