Mark asks me whether Yoder was correctly decided. In some ways, this is a very difficult question for me. I think the grounds on which Yoder explicitly rests (communitarian view of free exercise, not a parental right generally) cannot be justified. If parents have a constitutional right to home educate children (after 8th grade, or 14 years old? Those were the Yoder facts), then the right should belong to all parents, with or without religious motivation, with or without a religious community behind them. And such parents should have to show they are making adequate provision for alternative education (as the Amish did, though it was gendered and very narrow).
In the wake of Yoder, after a number of unsuccessful constitutional claims in the state courts by other parents (some religious and some secular), pitched political battles led to a situation in which virtually every state now has some statutory or regulatory provision for home education (always requiring an education plan approved by state or local authorities). So the system has come around to a religion-neutral result, supportive of home education, though not by way of constitution law. And that seems like a good thing. I would guess that Yoder as a religion-specific precedent (a "hybrid rights" case) has not had much generative power. I''d be happy to learn of examples to the contrary, On Fri, Jul 6, 2012 at 3:13 AM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > Chip, setting aside whether the Court in Smith adequately distinguished > Yoder, was Yoder decided incorrectly? If it was correctly decided, how does > it fit with a regime under which we are to be indifferent to religious > motivations and are to ignore historically-recognized religious practices? > **** > > ** ** > > Mark**** > > ** ** > > Mark S. Scarberry**** > > Professor of Law**** > > Pepperdine Univ. School of Law**** > > ** ** > > ** ** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Thursday, July 05, 2012 2:45 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Parental rights and physical conduct**** > > ** ** > > If Smith's "hybrid rights" explanation of Yoder is all there is against my > argument that religious motivation should add or subtract nothing from > parental rights to engage in particular child-rearing practices, I'll > happily rest my case. All I'm suggesting is that once we have a general > set of constitutional rights to protect a practice, religious motivation > for the practice should add or subtract nothing. The Phelps (in Snyder v. > Phelps) would not be on weaker First A ground if their obnoxious protests > were wholly secular. > > The "children's rights" context may be the strongest one for rejecting > permissive, religion-specific accommodations, because of the third party > harms. But it's not the only such context, with or without other > enumerated rights in the picture (see Texas Monthly). **** > > On Thu, Jul 5, 2012 at 4:58 PM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote:**** > > If I recall correctly, the Court in Yoder relied on the free exercise > clause in holding that the Amish had the right to an exemption from the > otherwise applicable law with respect to sending children to school. > Religion does not seem, in the Court’s view, to be irrelevant to parental > rights. Smith even recognized this in the way it distinguished Yoder.**** > > **** > > It is strange to me that a specifically enumerated right to free exercise > of religion would be reduced to or made subordinate to a religion-neutral > unenumerated right of parents to control their children’s upbringing.**** > > **** > > Of course, if we want to focus on unenumerated rights, I believe the > Justice with the most restrictive view, Justice Scalia, is willing to > recognize rights that have been accepted throughout our history, as long as > we consider “the most specific level at which a relevant tradition > protecting, or denying protection to, the asserted right can be > identified.” See Michael H. v. Gerald D. **** > > **** > > Circumcision of male infants for religious or community-maintaining > purposes has never before, as far as I know, been challenged as being > something a Jewish family could be prohibited from doing. It has been > understood as a part of what is required for a religious community to exist > and for parents to bring their children into such a community. It is a very > specific practice that has been recognized in our traditions.**** > > **** > > Mark S. Scarberry**** > > Pepperdine Univ. School of Law**** > > Malibu, CA 90263**** > > (310)506-4667**** > > **** > > ** ** > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
