(RNS) – Suppose, as I did in my last column, that Hasidic groups in New York will sue the state for trying to enforce a law requiring their yeshivas to give students a “substantially equivalent” education. to what public schools bring.
In this case, the relevant Supreme Court decision will be Wisconsin v. Yoder, in which a unanimous Supreme Court ruled 50 years ago that Amish children did not have to attend public schools after eighth grade.
The decision, written by then-Chief Justice Warren Burger, is widely understood to establish that parents’ right to free religious exercise outweighs the state’s interest in educating their children. But that view ignores the careful balancing of interests that Burger has undertaken.
“There is no doubt as to the power of a State, having a high responsibility for the education of its citizens, to impose reasonable regulations for the control and duration of basic education,” wrote Burgers. Out of respect for this principle, the decision clearly explained why the Amish religion was threatened by high school but not by elementary school.
The Amish objection to formal education beyond eighth grade is firmly rooted in these central religious concepts. They oppose high school and higher education in general, because the values they teach are in stark contrast to Amish values and the Amish way of life; they regard secondary education as an inadmissible exposure of their children to a “worldly” influence in conflict with their beliefs. High school tends to emphasize intellectual and scientific achievement, self-distinction, competitiveness, success in the world, and socializing with other students. Amish society emphasizes informal learning by doing; a life of “goodness”, rather than a life of intellect; wisdom rather than technical knowledge; community welfare rather than competition; and separation rather than integration with contemporary worldly society.
In contrast, writes Burger, “The Amish do not oppose elementary education through the first eight grades as a general proposition because they agree that their children should have basic skills in the ‘three Rs’. in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily business.
In reaching its judgment, the court reviewed the history of Amish beliefs and practices to determine that the plaintiffs did in fact meet the judicial requirement that they held their opinions sincerely. “It cannot be overemphasized that we are not dealing with a lifestyle and parenting style of a group claiming to have recently discovered a ‘progressive’ or more enlightened process for raising children for modern life,” Burger wrote.
This determination of sincerity risked running counter to the Establishment Clause in that it employed certain criteria to decide what amounted to a “legitimate” religion entitled to full First Amendment protection. A concurring opinion written by Byron White and joined by William Douglas and Potter Stewart acknowledged the risk.
“Ruling in cases like this and administering an exemption for Old Order Amish from the state’s compulsory school attendance laws will inevitably involve the kind of scrutiny and perhaps repeated scrutiny of religious practices, as evidenced by today’s opinion, which the Court has hitherto been keen to avoid,” White wrote. “But such entanglement does not create a forbidden establishment of religion where it is essential to implement values of free exercise threatened by an otherwise neutral agenda instituted to further an authorized, non-religious state objective.”
At first glance, it is hard to imagine Yoder’s court ruling in favor of the New York Hasidim. The New York Times finding that 99% of the boys in their Yeshivas failed state tests administered in grades three and eight (and barely knew any English) shows precisely that Hasidic schools are failing to provide the type of basic education which the court in Yoder ruled under the right of government mandate.
But that doesn’t mean today’s court would do the same. In the case following the Free Exercise case, a majority did not conduct any comparable investigation, considering all religion-based objections to the laws to be sincere enough. If you doubt that, just take a look at the court’s handling of recent requests for free exercise to be exempt from COVID restrictions.
Here is how the Yoder court justified its award of relief to plaintiffs:
Aided by a three-century history as an identifiable religious sect and a long history as a prosperous and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelation of creed with their way of life, the vital role that creed and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the dangers presented by state enforcement of a law generally valid for the others.
Should the court still require such a demonstration in cases of free exercise? One day, perhaps, it will.