Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, May 3, 2020

Making students think ...

I find in teaching my Civil Liberties course that students generally sympathize with the Amish community in the case of Yoder v. Wisconsin. They tend to think the case--interpreting the Free Exercise Clause of the First Amendment to require conduct exemptions from truancy laws to enable Amish families to end the formal schooling of their children before high school--was rightly decided. When they then encounter the case of Employment Division of Oregon v. Smith, which undermines the theoretical basis of Yoder and severely limits its scope and precedential value, they are usually sure that Justice Scalia and those joining him in the majority were wrong. They think the constitutional standard, at least for religious minority communities such as the Amish, is that conduct exemptions from neutral laws of general applicability are required unless the laws can be shown to be necessary (and narrowly tailored) to advance a "compelling" state interest.

At the same time, most students these days are sympathetic to the LGBT movement and its beliefs and goals. While there are certainly some dissenters--even some who are courageous enough to express their dissent--students tend to arrive at the university with these sympathies and then have them reinforced in myriad ways.

So this suggests to me, as a professor--someone whose professional and moral obligation is to provoke students to think about civil liberties questions and not just rely on their feelings and sympathies--a (hypothetical) question along the lines of the one I am posting here. (It is a question I set for the final exam in the course a few years ago.)

Diltz v. Solanco Board of Education

     Ezra Diltz is a member of the Amish community in the Township of Solanco, which is in Lancaster County, Pennsylvania.  The particular Amish community of which he is a member allows its children to be educated in the local public schools all the way through to high school graduation.  The Amish students then take up their lives as Amish men and women engaged in dairy farming and various crafts.  This particular group of Amish has never sought any sort of exemption from the law requiring the education of children through their sixteenth birthdays.

     Mr. Diltz and his wife have eight children, six of whom have already graduated from high school and are working the land the Amish have farmed for generations.  Their youngest two are a sophomore and junior at the local high school.  Mr. Diltz has never had a problem with the education his children have received in the public schools, but in the past few years he has become increasingly concerned with what he views as the homosexual and transgender propaganda that permeates the curriculum.  Teachers and assembly speakers frequently speak of same-sex partnerships and transgender identity as things to be affirmed and treated as valid lifestyle choices, and on several occasions teachers and speakers have spoken of moral and religious opposition to these things as “bigotry” and “hate.”  No teacher or speaker in many years has spoken in defense of traditional Judaeo-Christian beliefs about marriage and sexual morality, and requests by Amish parents for the school to bring in Ryan Anderson or someone like him to explain and defend moral precepts more in line with their faith have been flatly rejected by the school’s administration.  “Our task,” school principal Herbert Villard wrote in reply to one request, “is to teach children to be open-minded and inclusive; it is not to expose them to out-of-date ideas that fuel prejudice, discrimination, and exclusion.”

     After failing to persuade school officials of the need to give what he called “a fair hearing” to alternatives to the viewpoint that is dominant in the school, and concerned that the result was the indoctrination of Amish children in an ideology that is hostile to their faith, Mr. Diltz convinced his Amish community of the need to withdraw their children from the school system at the high-school level.  Advised that the Commonwealth of Pennsylvania has no version of Religious Freedom Restoration Act [which is not true but to be assumed in this problem] but confident in the enduring strength of Wisconsin v. Yoder, Diltz files suit in state court seeking an exemption from the matriculation requirement at the high-school level, the violation of which is punishable as a criminal matter.  (Mr. Diltz has in fact been fined for removing his two children from the high school.) The trial court denies the exemption, and the appellate court and state supreme court affirm this denial, holding that the Commonwealth has a compelling interest in educating students to be accepting of same-sex sexual relationships and transgender identity.

    Pennsylvania and Mr. Diltz have stipulated that the Amish community is too small to support a private school and that parents themselves lack sufficient education to home school their children in a way that would meet the state’s educational standards for home schooled children.  If Diltz prevails in the litigation, the Amish children will not continue with formal education, but will remain at home with their parents working and learning in their family businesses.

     The United States Supreme Court has granted certiorari. You are the law clerk to Justice Owen Roberts, III, and he has asked you to prepare a memorandum analyzing the case.  Justice Roberts is respectful of precedent, but is always willing to consider departing from it when he believes previous decisions were incorrect as a matter of constitutional law. Where he relies on controversial precedents, he believes it his duty to say why he believes the precedent should be reaffirmed.


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