Very interesting, and thanks very much! The Michigan case does
indeed rely on Yoder, in holding that the statutory requirement that the
homeschooling parents be certified instructors was unconstitutional, as to
parents who had a religious objection to providing certified instructors.
(“Because the DeJonges' faith professes ‘that parents are the ones that are
responsible to God for the education of their children,’ they passionately
believe that utilizing a state-certified teacher is sinful.”) The California
decision is very odd, though, and makes me wonder how it fits with the general
body of religious exemption law:
The sole United States Supreme Court case directly addressing home education
concluded that members of the Old Order Amish religion possessed a
constitutional right to exempt their children from Wisconsin’s compulsory
education law after the eighth grade. (Wisconsin v. Yoder (1972) 406 U.S. 205
(Yoder).) While the facts in Yoder are clearly different from the facts in this
case, we recognize that, if we interpret California’s compulsory education law
to prohibit home schools unless taught by a credentialed teacher, California’s
statutory scheme would present the same constitutional difficulties as the
scheme in Yoder if applied to similarly-situated parents to the Old Order
Amish. In other words, if the Yoder parents were subject to California’s
compulsory education law (and without taking into account any issue with
respect to a required curriculum – see fn. 35, post), the law would be
unconstitutional as to them if home schools were not private schools, but the
constitutional difficulty would disappear under the interpretation that home
schools may be private schools. As such, the interpretation we adopt avoids the
constitutional difficulty.
The point of religious exemption law, as I understand it, is that a
generally applicable statute can be generally constitutional, but courts should
carve out religious exemptions for the rare cases when a religious exemption is
both claimed and justified. Reading a statute to avoid constitutional problems
in the rare case brought by “similarly-situated parents to the Old Order Amish”
– as opposed to just saying that those similarly-situated parents would get
religious exemptions if they claimed them – seems to be a misreading of Yoder
and religious exemption law more broadly. Or am I mistaken on this?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, February 02, 2015 2:15 PM
To: Law & Religion issues for Law Academics
Subject: Re: Homeschooling, vaccinations, and Yoder
I'm skeptical that state legislators (for the most part) have formed any
informed views about the constitutionality one way or another. I think they are
motivated by the things legislators tend to be motivated by: constituents,
focused interest groups, the path of least resistance, calculations of
political cost, political priorities, what they understand to be good policy,
and what they think the courts might do based on what the interest groups tell
them. Paul is right that they could form an independent view based on their own
research and reading of the state and federal constitutions, but i sincerely
doubt they have.
The California case I previously referenced didn't explicitly read Pierce and
Yoder to categorically allow home schooling, but it came very close, saying
that to do otherwise would raise grave constitutional questions.
http://californiahomeschool.net/howTo/B192878August8.pdf
The Michigan Supreme Court construed Yoder and Smith to give a free exercise
right to homeschool under the US constitution.
http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html
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