Amicus Curiae Brief — Wisconsin v. Yoder

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‘IN THE SUPREME COURT OFTHE”

7 or

UNITED STATES FILED

OCTOBER TERM, 1970 | - AUG 30 197) -

E, ROBERT SEAVER, CLERK

Srare or Wisconsin, Petitioner,

7 . Vs. 7 . |

Jonas Yover, Respondent. | | 7 es

> Sraite or Wisconsin, Petitioner,

: . Vs. : ° ie .

Apin Yutzy, Respondent. | oy

- STATE OF NIscoNsIN, Petitioner, , _ , Bs

| Ver | : .

_Wattace Muzer, Respondent.

- ON WRIT OF CERTIORARI TO THE

SUPREME: COURT OF. WISCONSIN

‘ BRIEF OF GENERAL CONFERENCE OF SEVENTH-DAY -° ~

| ' _ADVENTISTS AS AMICUS..CURIAE .

ors BoarpMAn ‘Nouann’. -

7000 Carro] Avenue

Takoma Park,. Maryland 20012

Ler Bootsy a

Administration Building

Andrews University |

Berrien Springs, Michigan 49104

Attorneys for Amicus: Curiae’

_ General Conference of —

_ Séventh-day Adventists

. ee ° : ; 7

"AMERICAN BRIEF AND RECORD COMPANY, FIFTY MARKET AVENUE. NW. :

- GRAND RAPIDS, ‘MICHIGAN 49502 — PHONE 458-5326" i —

LEELA A ILLES SEPM ALN SS OO ERE reeracnals een | ’ al ai

INDEX —

| <3 «Page

INTEREST OF AMICUS CURIAE oiccccccccne 1

~ SUMMARY OF ARGUMENT oes 2B

AGU chert ee 4-27

_ i... The Parent Has A Right And Duty To Deter-

mine. The Religious Upbringing Of His Child .. 4-15

A. ~The State’s position conflicts with constitu-

tionally protected right .......... Dcicescapnncs ies 45 -

B. The State cannot ipso facto statliats its |.

will for the will of the child or his parent «6-7

C. Courts have recognized the right’ of the ~

parerit to determine the religious unbring-

Ing Of his Child ~........-------co--ccieccossenseeeeceeseoes | 8-9

D. A parent has a compelling overriding inter-

est in educating his child according to his

religious’ precepts ap dinibveassowisindontectatiettpeecncnitve AUPE

E: The. State has no right to ‘disregard an in-

dividual’s' religions convictions simply. be-

cause it does not conform to the norms of -

the general educational community ............ 12-13

_F. The State here seeks. the authority to deter-

-mine how a religious sect exercises its re- |

ligious affairs .................-. ; 13-14

G. In considering the doctrine. of Parens Patriae

' the State .Supreme Court properly con- —

sidered the psychological tiarm that might

reguit. to.a.child forced to violate a cardinal -

_ precept of ‘his religious training ~................. 14-15

II.’ The Extent To Which ‘A Parent Is Permitted To

“Exercise His Religious Freedoms As Gwaranteed

By The Federal Constitution Should Be Uni- |

form Throughout The Nation see Not Limited

= State Boundaries

~P,,

| “OL ‘The State Court Wee Oarréét In ‘Determining

_ That The Wisconsin Compulsory School Attend-.

./-. anee Law Is Unconstitutional As Against The.

./ .° * Claim. Of~Respondents That Their Right To: .

- + Worship’ Freely Would. Be Violated If They. *

Were -Compelled To Send Their Children To -

A Secondary, School .n......l-,-00-+- psnfocverveersencensvensonee - 18-27

' Ay The test: announced in. ‘Sherbert applies to .

this case .........:.......... Siaieinhasnoas 18-21.

. B. The application of the Sherbert test to the

Oy ; instant’ case will demonstrate that this is.a

~ oo. 4) ease where ‘‘the burden on First Amend-

+ “~- ment values is not justifiable in terms of ©

oe the. Govertiment’s: valid I sc sascccnemnsaenis . 21-27

CONCLUSION - ct a alias Js

| _

+ |

- Prine v- Commonwealth of Massachusetts (1944)

ili

eas

Cases

Page

Abington. School District v. Schempp (1963) 874 0

USS. 203, 83 S.Ct. 1560, 10 L.Ed. 2d 844 ......... 12

; Barnett v. Rodgers (1969) 410 F. -2d 995 (D.C. :

| eceeh cocciantacesamnenes EN RTT Te 20, 26

ar Braunfeld v. Brown (1961) 366 6 U: S. 599, 6 L.Ed. 3 :

Brown v. Board of Education of Topeka (1954) 347

U:S. 483, 74 S.Ct., 20 L.Ed. 873 Necle windiadecintiei _ 6-7, 15

| Gillette v: United. States ( argh 8, 1971) ...... U.S. : 7

a , 91 S.Ct. ......, 28 LB 2d 168 22 = 20

Héilberg v. Fixa - (1964) 236 F. - Supp. 405, 408

| (CNSED. Coal SBD.) cane neces hacen 20, 26

Kovach -v. Maddux (1965) -238 . Fe ‘Supp. 835, 844,

— (MD Tenn.) pela nsniebap nism sine aaagsi inet elntacasini 20, 26

- McCollum v. Board of Education (1948) 333 U. 5.

- 203, 92 L.Ed. 649, 68 S.Ct. es et

People. ex rel Session (1936) 271 N.Y. 285, 2NE .

QE C60 as cecccccncecvssesesececcsoseuesveseseseesccnlnnuneedheseesecensees

Péople v.’ Woody. (1964) 61 Cal 2d 716, 727, 40

Cal Rep 69, 77,'394 P 2d 813, 821... _ 16,20

Pierce v. Society of ‘Sisters of-the Holy Names of

Jesus and Mary (1925) 268 a S. 510, 45 S.Ct. .

yp «| (| Rr

Presbyterjan Church: v. Hull Church (1969). 393

U.S. 440, 89 S.Ct. 601, 21 L.Ed. 658 ............

321 U.S. 158, 64'S.Ct. 438, 88 L.Ed. eo ........ 79,21 °°

Shelton v. .Tucker . (1960) 364 — 479, $ L.Ed. a

_ : 2d 231, 81 <0, A) | ce eee ene * 25, 26

Sherbert v. Verner (1963) - 374 U. 'S. 398, 83 S.Ct. ,

. 1790, 10 L.Ed. 2d ane Sen veces “Oy 17-27

| CITATIONS , |

State v. Yoder, et si (971) 49 Wis. 2d 430, 182

N.W..(2d) 539.2... ssnrnasbconsseiavs pada tonlareiaas -4,12°16 |

~Takahaslin v, Fish & Game Comm. (1948) 334 U.S.

410,92 L.Ed. 1478, 68 S.Ct. 1188 ‘17.

United States v. Ballard (1944) 322 U.S. 78, 88 co,

Lad. 1148, 64 S.Ct. 882 © ......... tosis trossanetsaustainh 12

United States v. Seeger (1965) 380 US. 163, 85 (oe

".. §.Ct. 860, 13 |e ” ¢ 12

| West Virginia Board of. Education v. Barnette

(1943) 31% U.S. 624, 63 S.Ct. 1178, | 87 L.Ed. .

1628 ele ecieas eae pn cebeoeinrraesidl pas vind Misuse psoncsaatlquccateomsetanes 9, 23

. Women Strike for Peace y v. Hicke (1969) 420 F.

2d 597 (D.C. Cir.) sages wom ievuelictnspiavondersnesvisevegsivetys 20 , >

Miscellaneous me

Bible, ane James Version ...........:- pensteneoeeesasen p+, «ae

- Black? s Law Dictionary, 4th Edition einen. 8.

29 Harv. L. Rev., 485. cect 815:

80 Harv. L. Rev, 1881. ..22.iceecseeeeene je

16 Kansas L, Rev., 423, 432 a eee is oleae

Kauper, Religion-and the Constitution ees 18 -

Thomas Jeffefson. and ‘Education, ‘McGraw

Hill, F980 .......cse--cncvsacecnosenaincecsesenccensenesessoDeosess 25

"White, The Adventist Home, Southern Publish- .

GN ecccsssssssncnnnececccenceeeeeeeetsttsfunintesssccseesseeceseeeeee, - 10.11

White, Counsels to Parents, Teachers and Stu- a

dents, Pacific Press Publishing Assoeia-. _ «

| ss viowa sdoubcasssavaioasiyuieeaninsedavnsseuniiicupenuptacuiss Ai

Writings of James Madison, Published by |

Order of. Congress | (Philadelphia (1865)

Volume i. ..... ar petangones esieqenenebcaineninaslecrercat

; ae See

IN THE SUPREME COURT OF THE

| UNITED STATES

OCTOBER TERM, 1970

No. 1536.

State oF Wisconsin, -Petitioner,

vs.

Jonas Yover, Respondent.

State or Wisconsin, - Petitioner,

VS. 7 .

>, . Avin Yurtzy, Respondent.

State,or Wisconsin, Petitioner.

vs. a

WALLACE MILLER, Respondent. :

“—_

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN ~

BRIEF OF GENERAL ‘CONFERENCE OF SEVENTH-DAY:

ADVENTISTS AS AMICUS CURIAE

tos INTEREST OF AMICUS CURIAE

The troneeal Conference of Seventh-day Adventists has

_ asked for and received the consent of both the appellant —

and appellee to file its brief amicus curiae. It does so not.

from any fear that the parties themselves will fail to

' effectively present their case before this-high court, but

rather to underscore the fact that the decision in- this

ease affects more than’ the State,of Wisconsin -and its ©

Amish citizens.

A careful reading of the Questions Presented. as set

forth in appellant’s Brief clearly indicates that the deter- .°

- mination of the issues there presented directly affect the

- rights of all parents to determine the religious upbringing

of their child. It further suggests that- minority religious. —

bodies.may.be forced: to move from one state to another

to find a haven for the free expression of their religious

beliefs. This amicus curiae feels that the questions herein

* raised ‘are of vital concern to, and directly affect the mem-

-bers of its church.

SUMMARY OF ARGUMENT

« The State has made assertions of authority that place

in jeopardy the right of a parent, to contro] ‘the religious |

upbringing of his child. Such a position conflicts with the

free exercise’ provision of the First’ Amendment of our ©

Federal Constitution.

- This Court has-on several occasions «held that when.

state or federal legislation conflicts with First Amend-

ment Constitutional rights the:state has the burden of

showing that any such governmental infringement be jus-

tified by some compelling governmental interest.

In order to sustain its burden, the State must present to

the Court -sufficient evidence as to:demonstrate that the

interest of the government is in fact, and not ‘merely | in

theory, substantial. o |

As this Court has announced, only the gravest abuses -

endangering paramount interests will permit such state

infringement.

The State has. attenspted to sidestep their evidentiary.

burden by claiming that. the doctrine of parens patriae -

somehow minimizes the government’s burden of meeting

the tests laid down by this court in religious exercise cases.

Such a position as.claimed by the State in its applica-

tion of parens‘patriae implies the desire on the part of the

State te employ concepts of state power reminiscent of-

_ down in our society is acknowledged as a major cause for

~ dividuals.

tained relief from the Court but should have been left: to

; Vernor ini 374 ews S. 398, 83 S.Ct. 1790, 10. L.Ed. 2d 965,

his parent who is charged with the sensitive responsibility

sixteenth century:English religious intolerance.

The courts in this country have long recognized - the

right and duty of a parent to teach his child moral values

and ‘further recognize that the parent has a cqmpelling

overriding interest in’ training and instructing the child

according to the parent’s religious precepts. This parental

right can not be taken lightly or.quickly ignored. _

The family i is the basic unit of government and its break-

our youth problem. A child should not, except for the

gravest causes, be forced to make the psychologically

harmful deeision of sobeying the religious precepts of

for moral and spiritual training of the child.

Under a government where the State is prohibited from

engaging in the religious instruction of its, young: people

the spiritual need of these children can only be met by: the

parent. The denial to.a parent of the right to contro] the

religious upbringing of his child is a denial of the parent’s

right to the free exercise of his religion.

The State Sapreme Court correctly: held that although '

education is a subject. within the power of the State: to’

regulate, based .on the record in this case however, there _

was not such a compelling interest shown to justify the

burden it placed on the free exercise of religion by the

Amish. ._The Court therefore declared the state’s com-

pulsory attendance Jaw unconstitutional as to these in-

The State claims ‘that the Amish should aot have ob-

the unpredicable fickle mercy of a legislature. This con-

t however, ignores the right of a person to live and |

practice his religious views in any state provided no over-

whelming governmental interest is violated.

Based on the record in this case the Wisconsin Supreme

Court correctly applied the tests set forth in Sherbert v.

ARGUMENT.

_I. The Parent Has A Right And Duty To Determine The =

Religious Upbringing Of HisChild ~

_A. The State’s position conflicts with constitutionally

protected ee

.The State of Wisconsin has, on page 4 of its brief,

stated one of the issues before this court to be: 5

‘‘Whether a minor child has a constitutionally pro-

‘tected right to an education superior to the ¢laim of

respondent .parents that’ education of their children ~

beyond: eighth grade violates respondents’ constitu-

tional right to worship freely.’

On page 14 of its brief the Staté answers its rhetorical

question by the flat assertion that: oo

“Wisconsin and the nation have a éoripeliing. interest

*in the establishment and.maintenance of a system gf

education’’ and ‘‘It is likewise clear beyond all doubt

that this interest overrides the religious interest of

the parents of children whose attendance at some

school, publie or. priy ate, is required. J)

The State however. does not pe the Wisconsin high .

court’s statement: ,

. There is no que: tion that, fond by the trial

court, the compulsory éducation law infringes upon

the free exercise of ‘religion by the “appellants with-

in the scope of the protection of the First Amend-

\-ment.’? State v. Yoder (1971) 49 Wis. 2d 430, 182

N.W. (2d) 539, 542. : |

It is. therefore: clear that the State is “arguing. that its

interest in compulsory education. is superior to the con-

‘ stitutional First Amendment rights of respondents. |

_ Such a declaration is disturbing to all who jealously op--

pose the Stafe’s invasion into matters.of religious concern, _

and. defenaght of individual constitutional r ights surely view

such a statement with alarm when. comparing it with the

First Amendment mand&e that there, shall be to law

‘‘prohibiting the free exercise’’ of. religion.

The State’s declaration makes clear its position that

in matters concerning compulsory education, the will of

the majority shall control over the conscientious religious

beliefs of an individual. ; |

Such a position would have surely shocked James Madi-

son who stated that:. °° Le

‘‘Because we hold it for a fundamental*and undeni-

able truth, tWat rengion, or the duty which we owe to

our creator, and.the manner of discharging it, can be

directed only by reason and conviction, not by force

or violence. The religion, then of. every man must be

left to the conviction and conscience of every man;

and it is the right of every man to exercise it as these .

may dictate. .This right is in its nature an unalien-.

able right, because the opinions of men, depending

only on the evidence contemplated in their own minds,

cannot follaw the dictates of other men. It is un-

alienable, also, becausé what is here a right towards.

men is a duty towards the Creator. It is the duty

of every man to-render tothe Creator such homage,

and such. only, as he'‘believes to be acceptable to him. |

This duty is precedent, both in order of time and in

degree of obligation; to the claims of eivil society.’ -

> —

The State has rested its argument on ‘historical nd

constitutional values that are responsible for the very

_ existence of our country”? and so do we. The historical

and constitutional ‘values of the doctrines that. are em-

bodied in our First Amendment Freedoms aré the very

cornerstones of our nation and the real cause for its ex-

istence. It was-for the defense of the unalienable rights _

of man that we broke from the British Crown.

>»

1: ‘Writings of Jai ames Madison, published by Order of Gon-

gress, a ag ne 1865) volume i, page 162 et seq.

— oo

- B. The State cannot ipso facto sabstitute its will for |

the will of the child or his parent

The State has in its brief (past 9) suggested that the

decision of the State Supreme Court ‘‘Ignores the right

of the state to insulate a child from the disease .of igno-

rance’’ and in addition ‘‘ignores the concomitant-right »

of the child to know.”’

One may well ask, however, when and-at what point -

. does the state have a right to interpose itself between the

child and his parent, and what exactly does the child have

a constitutional right to know?

__ It may seem rather strange that an educational oriented -

Teligious organization such as the Seventh-day Adventist’

Church should seek to file a brief in support of the Amish

position against compulsory education. The Seventh- day

‘Adventist Church, although relatively small im size, is~

strongly committed to education from the first grade

through college and professional school.?, It is therefore

readily apparent that its position more closely follows the |

prevailing notions of society as far as oe sada education

is concerned.,

The State has, however, made a serious and: potentially

dangerous attack on the parental jurisdiction over the

religious upbringing of their children.

Although the State has attempted to _ ae its dec-

laration of a child’s right to know upon the, authority of +

_ Brown v. Board of Education of Topeka (1954) 347 U.S.

483, 74 S.Ct: 686, 98 L.Ed. 873, it is clear that the dicta

of this case, viewed i in its. proper perspective, merely con-

firms the right of. the. representative. of a minor té insist

that the State provide to every child equal education

and equal access to all public educational facilities. |

In the case now before the Court the State seeks some-.

thing entirely different from Phat puaheespioted in the -

2. The Seventh- a Adventist Church has a world member- -,

ship of 2,051,864 and operates 4,045 elementary schools, = ="

808 high school level schools, 77 colleges and universities

. and 37 schools sal mureEng..

Brown decision. Here the State claims the right, under ”

‘the doctrine of parens patrige to intercede for and on be-..

half of the children whose parents were prosecuted by the ~°

State. .

In the instant case it is clear that neither the parents nor

legal guardians of the children were seeking to force the .

State to provide access to certain public educational facili-

‘ ties. It is also true that the children neither asked for .

nor otherwise sought: the State’s help.. This is purely and

> simply a éase where the State sought ” substitute its will

"for that of the child’s parents.

Even in Prince v. Massachusetts (1944) 321 US. 158,

64 S.Ct. 438, 88 L.Ed. 645, the Court was careful to point

out that:

“Tt is cardinal with. us thatthe enstody, care y and nur-

‘ture of the child reside first in the parents whose

+. primary function and freedom include preparation for

| obligations the- state can neither sypRly nor hinder.’

321 U. 8. 166.

« a

An nofed - the New York Appellate Court in 1 People

- ex rel Session 271 N. -Y. 285, 2 NE 2d. 660, 661 (1936) :

‘“The vast ‘majority of matters concerning the ap- |

_ bringing of children must be left to the conscience,

‘ patience and self restraint of father and mother...”

- Only when moral, mental and physical conditions are

_ so bad as seriously to affect the health or moral wel-

fare of children should the courts be called ‘upon to

_ act.”’ .

eo.

It iherefors aston clear that the State can@ot by

the mere use.of such magic words as “‘parens patriae’’

ipso facto determiné that the State’s concept of child bene-

fit be substituted for either the will. of the child or his’ -

parent. |

C. Courts have recognized the right of the parent to

determine the religious ‘upbringing of his child

While the State’ 8 entuities over the will of minors under

its jurisdiction is severely limited- by legal precedent. .in /

this ‘country, the broad powers of the minor’s parent have

been given recognition.

Not eyen the State.of Wisconsin 1as suggested that the

doctrine gf parens patriae is a gr@t of general and ab-

solute poWer to the State over its minor subjects. such

as exercised by the Spartans, Its primary use is to pro-

tect children from neglect, ee and abuse.

It is submitted that where the/issue has been as to the

religious upbringing of a minor, the courts have recognized

the right or power of the parent to control over that of the:

child-as ‘a proper exercise of not only his parental rights

or powers but also his parental duties.

' Historically, however, the parent_ did not always’ en-

- joy primacy in the determination of the religious-upbring-

ing of the child as opposed to the doctrine of, parens

patriae which literally translated means ‘father of his

- eountry’’ and in. England refers to,the king3-

During the sixteenth century when the doctrine of the .”

divine right of the king was in full bloom and the king

could do no wrong, the State did exercise its absolute will .

_ over the religious upbringing of its minor subjects.

As early as 1590 the Elizabethian government aimed at:

. the- suppression of Catholic education by enacting that

only schoolmasters who-repaired to the Established Church

might be maintained, followed ‘four, years later by a fur-

- ther statute which punished as a praemunire the sending

abroad of a child for Catholic education.

- In 1723 an English Court deprived a widow of the cus-

tedly of her minor children so that they might be brought .

up Protestgnts, although both. parents-were Catholic. “In ;

3. Black’s Law Dictionary, 4th Edition, 1951, page 1269

4. Friedman, The Parental Right to Contrgl the Religious ‘

= of& Child, 29 Harv. L. Rev. 485 (1916)

1724 an . English Court went so far as to order the separa-

tion: of the mother and her child of seven years even

though the Catholic mother was bringing ‘up her son as.

a Protestant according to the wishes of her late hysband.5

From this extremely strict concept of the re

parens. patriae a -more liberal “view fortunately took ragt.

American legal preéedent seems to recognize that it is,

the parent who. exercises the primary determination of the ™

_-Teligious upbringing of his child.. While adults are free

' to exercise their. consciences, children are free to. form Oo

theirs along the parental model. Thus in Illinois ex rel.

McCollum v. Board of Education, (1948) 333 U.S. 203, 92

L.Ed. 649, 68 §.Ct. 461, sttdents were only admitted to

. religious classes ‘‘upon express written request of parents, _

-and then only to classes designated by the parents. ’’ While.

the members of the Court differed,over whether a parent °

‘might thus affirmatively employ state instrumetitalities to

mold the religious conscience of his child, no one denied

that the parent had such a perogative. .

Although, in Prince v. Massachusetts (1944) 321 US.

158, 165-166, 64.S8.Ct. 438, 88 L.Ed. .645, this Court spoke

of the ‘‘right of children. to exercise their religion’’ as

‘having been accorded recognition in West Virginga Board -

of Education'v. Barnette (1943) 319 U.S. 624, 63 S.Ct. 1178,

87 L:Ed. 1628, and of the child’s right to receive religious

- schoolin having been sustained in Pierce v. Society of - :

Sisters of the Holy Names of Jesus and Mary (1925) 268

U.S. 510, 45 S.Ct. 571, 69. L:Ed. 1070. is clear that m-

neither Barnette nor Pierce did the chil@ bring the action.

In the.Barnette case the parent brought-the action and in

the Pierce case the school presented theyclaim. —

The courts have thus recognized the rights of parents to

-determiné : the religious upbringing of a child subject to

that parent’ s custody and control. in add

5. Ibid. at p. 486 ae

e of —

TT LER So

-10-

D. A parent has a compelling overriding interest in,ed-.

menting ; his child according to his religious precepts

A parent? S interest in the religiou& upbringing of his ..,

child is obvious. “A father teaches his child the law of -

God because the. Bible impos that. duty upon him as. hj

“* personal obligation on a par his own practice eo |

ecessary for his own salvation.®

In ition a father exercises a power which le holds in

= for his~ehild, believing that learning God’s law is

‘ficial to the child and necessary for its salvation.

ates at this point that the position of the Seventh-day

Adventist Church and fle respondents parallel. Seventh-_

day Adventists believe that «every child -brought -into the.

world is the property of Jesus Christ’’.and ‘Parents .

“ carry responsibilities that no one can bear’’ for them. It

is‘our position tHat the religious training of the child is -

a reapoRenenty that cannot be surrendered. q

I command thee this-day shall be in thy heart; and tou

shalt teach them diligently unto thy children ... .°’ :

Proverbs 22:6 ‘‘Train up a child in the way he should

g0; and when he is old, he. will not Separt from it.’’

1. White, Elen G., The Adventist Home: Pages 182, 183

‘*TIn his winder - the’ Lord has’ decreed that the family

‘Shall“be.the greatest of all éducational ‘agencies. It is in

the home that education of the child is to begin. Here is

his first. school.. Here, with his parents as instructor’, he is

to learn the lessons that guide him through life — lessons °

of respect, obedience, reverente, self-control .

“Tt is by the youth of today that the future. of society

‘is. to be determined, and what these youths and children

- shall be depends on ‘the home. To the lack of right home’ .

_ training may be traced the larger share of the diseases and: .

- misery and crime that curse humanity.”’

. Every child brought into the. world is the property of

- Jésus Christ, and should be educated by precept-and ex-

- ample to love ‘and obey God ,.. By pamstaking effort parents, .

- - are to watch the opening, ‘feceptive mind and make every-

thing in the home secondary to the positive aed enjoined

. 6." This commanded by Deuteronomy 6 :6,7 gna these =

It is clear from the record that the Amish believe that .. _

they have a compelling overriding’ interest to educate their

children mocontng, to their. own religious principles.

ie? s

G (Continued )— XN ee &

upon them by God — to train their children in the’ nurture a

and admonition of the Lord.”’ ;

‘Parents should not permit ‘business cares, wonlity

~ -eustoms and maxims and fashions to have a ‘controlling,

power over them, so that they neglect their. children’ ‘in

babyhood and fail to give their children — instruc-

tions as they increase in.years.’’

White, Ellen G., The Adventist Home: Page 187

‘‘Parents, you carry responsibilities that no one can

bear for you. As long as you live, gou are accountable to. :

God to keep His way... .’’~

. ‘Fathers and santhers: are responsible for ‘the: health,

the constitution,.the development of the character of their

children: No one else should be left to see to this work. In © °

- becoming the parents of children, it devolves upon you to-

cooperate with the Lord in educating them — in said prin-

ciples.’’ |

- White, Ellen G., Counsels to ‘Parealé: Teachers ‘and Stu- .

| dents :.Page 107"

“Upon all parents there rests. the obligation. of giving

physical, mental, and spiritual instruction. It should be the © 2

. object of every parent to secure to his child a well-balanced, ~ |

symmetrical character. This is the work of io small magni- —

. tude and impertance — a work requiring earnest thought

‘and prayer no less than patient, persevering effort. A right

‘ foundation must be laid, sa’ framework; strong ‘and firm, -

erected and then day by ‘day: the work of aaiaete polish-

ing, perfecting, must go ferward.’”’

. “Children must be, trained for the: servite, of sin or for

the service of righteousness. Solomon says; Train up a

‘ child in the way he should go; ‘and when he is old, he will

“not depart from it.. Proverbs 22. 6: This language i is posi-

tive. The training that Solomon enjoins is to direct, *edu-

cate, develop.’”’'

‘<By some, education i is placed next to religion, but true’ ee

education is religion. The Bible should be the child’s first

textbook ... Through the inculcation of its pane pies they

are to learn to do justice and judgment. _*

ths : r

‘The Wi isconsin Supreme Ooart 3 in ‘State v. Yoder (1971) ¥

49 Wis. 2d 430, 182 N. Wap(2d) 539, 541 states that:

“The: ier Amish . relieion dictates that. the

, Amish chi rom the inception of adolescence live

. according to the mode of life in the Amish ‘com-

munity”? and ‘that he should ypt-attend high school

_ ©sSinee any high school, public “Foi ci a

- deterrent to his salvation. ane ¢

The Coark also’ ‘found that the Amish religion requirés . s the

avoidance of worldly educational environment and im-

poses the duty: on . _

ft cei: ‘mature in wisdom different from what

> others: may regard as. =e oy

The Court specifically found that: a 2

. to the Amish, how long a child should: attend a |

formal school is a religious question.”’.

E. The State = no ‘right | to Sie an individual's

religious convictions simply because it does not con-

form to the norms of\the general educational com

| ty _ ‘

‘ The Wi isconsin Court saree stated the rule that the

Court is prohibited from evaluating a religious belief for

~-ecclesjastical purposes, citing Abington ‘School District v.

Schempp (1963) 374 U.S.. 203, 83 S.Ct. 1560; 10 L.Ed. 2d

844 and Presbytertan Church 'v. Hull Church: (1969) | 393 .

US. 440, 89 S.Ct. 601, 21 L.Ed. 658. -

In fact, in United States v.-Seeger, (1965) 380 U. S. 163,

: $5 S. Ct. 860, 13L.Ed. 2d 733 at page 180 the Court recog-

- nizes the diversity of conceptions of religion in,the United

States and the ‘‘ever- -broadening . understanding of the ( -

- modern religious ‘community.”’ : \

In United States v. Ballard (1944) 322 U.S. 78, 88 L. Ed.

1148, 64 S.Ct. 882-at-pages 86-87 the Court stated that the

= First Amendment does not select any one group or any ©

~ one: type of religion for preferred treatment. It puts

them all in that position. , |

Poo

It seems that the ‘thrust of the ‘State? S position now, :

however: is that the decision of the Wisconsin Supreme »

‘Court has somehow s regal the ‘‘disease of ignorance,’’ :

he. record not sonly. ‘does not. sipport any finding that

the ‘Amish way’’ is a way of ignorance, the Court nofed ©

in its opinion in State v. Yoder (1971) 49 Wis. 2d 430, 182. -

N.W. (2d) 539, 543 that: 3 | :

“che Amish claim, with compelling wait that their

education produces: as. good a product as’ two’ addi-

' tional years: compulsory high s ar education does.”’

"The Court noted in a footnote to its opinion testimony .

that the Amish were not on‘welfare, were not unemployed, -

did not lave illegitimate. births and .did not add: to the

social burdens of the taxpayers of Green County. Barer?

- these are not the fruits of ignorance. —

When. one looks at the current drug. snbeultare which

was bred inside the--best ef our educational facilities in °

.comparison to the Amish subculture, it-is somewhat ‘dif-_ -

ficult to swallow the State’s inference that Amish children

have been neglected by their parents.

Is the State serious in its assertion that Amish parents

_have neglected their children by refusing to permit the

State do offer their children the’ forbidden fruit of knowl-

‘edge 6f good and evil? If so, could the State in fact take ©

these ‘‘neglected’’ children from their ‘‘neglectful’’ nat-.

ural. parents and make them wards of the Court?

-The State cannat impose the norms of the general edu-:

—-eational_community_upon—its—eitizens—against ‘the- sincer¢

_ religious - conviction .of .an individual ‘without prov-

ing that failure to conforny to that standard is con-

trary to -.an overriding and compelling State interest as:

‘defined by the courts.

F. The State here seeks the authority to determine how —_.

a religious Sect exercises its religious affairs _

Equally disturbing is the attempt of ‘the State to tell

the Amish how to practice their religion. The dissenting

State Supreme Court judge in State v. Y oder (1971) 49 Wis.”

<P.

- “. |. for such period of time as iss conbonably re-

quired to properly organize and commenée operation

_ ; of an Amish ‘vocational school. At the commencement

of such operations? the judgment shouldbe. vacated

and the’ complaint dismissed. ‘¢ ;

mish how to exercise

Tf. the Amish db not. want to’ establish secondary

_ schools for their children,’’ says . ‘the State, .‘‘then

ry je 7 > ru ,

> aa — og 6 = 4 ot |

~ 22436, 182 N.W. (2d) 539, 551Avould have solved ‘the prob-

__ lem_by staying” the exepution of sentence (although af-

firming the criminal: conviction)

"This device would not only ignore the fr e exercise ° of °

. Teligion, it would plaee the court in a position of telling a

_. religious body how they" should practice their. religion. -

Encouraged by this lone dissenting position, the Stafé ~.

_ Attorney General elects to tell: nee

_ their religious affairs. (see page 20 of Appellant’ s Brief)

‘their children should be required to‘ go fo a more:

‘worldly’ public meena school.’??”

The State Attorney Gener al then flatly states, | _

“In failing to provide for secondary education for

their children,.the Amish are neglecting a parental

. duty and obligation to their children and heglecting

their . duty as citizens of a democracy from which

they have reaped.ample benefit.’’? (See pages 20 & eee

21 of. Appellant’s Brief): —

"Neither the courts nor the law enforcement agencies of

the State have any business telling any perren: or religious

sect now. it will worship or believe:

G: a considering the doctrine of Parens Patriae the |

State Supreme ‘Céurt properly consi

chologi ight result to ‘a child fcc.

“to violate a cardinal precept of his religious training

In ‘order to validly use the doctrine of parens patriae,

the State would have to demonstrate that the child is being

3 Go . c

‘ . wc : «.

- . harmed and that the action of the State will in turn not

- cause greater harm. ‘This doctrine is most generally used

by courts handling adoption, juvenile neglect : and. child -

custody: cases. .

In such cases the court gives ‘great weight to the psycho-

' . logical effect.on the child of any action, it might take in - .

exercise of its powers of parens patriae..:

.‘*Once the religious ‘education of the child’ has pro-

_ gressed so far that definite religious ideas have been |

- impressed upon its mind to the extent. that a change .

would unsettle its traquility and disturb its mental,

poise, the parents are precluded from further inter- .

ference with the cohtinued development of that re-

ligious education. which the child has thus acquired. 778

This concept was no. 5 doubt’? in the minds ‘of the majority

of the Wisconsin Supreme Court in State v. Yodér (1971) ©

49 Wis. 2d 430, 182 N.W. (2d) 539, 542, when it stated :

‘a8

ie unacceptable value system but they also seek to inte: '

grate ethnic groups into homogenized society, result-

‘To the Amish, secoridary schools not only teach an e -

ing in-a psychological alienatign of Amish children __

_ from their parents and great harm to the child. ~

The he impact: of’ psychological effects on chiens ek been

recognized by this Court as an important consideration in

a determination of this kind. In Brown v. Board of Edu-

cation of Topeka (1954) 347 U.S. 483, 74 S.Ct., 20 —_ .

873 the*Court gave enced to sah a factor.

}

- ©, Weiedman, The Parental Right to Control the Religious -

Education of a Child, 29 Harv. L. Rev. 485, 493. This ©

“author goes on to state on page 494, “There. are cases,

. no doubt in which a child has from ‘infancy until years

of discretion been brought up in one particular form of

eligion, where the Court may consider it dangerous to

compel such a child to be brought up in a different and. .

conflicting religion, lest the diverse and conflicting teach-

ings: should make ‘shipwreck of. the Sanat s faith, and

impair its moral character. ..’?

ate 916.

cise His Religious’ Freedoms As Guaranteed By The

The Nation And Not Limited By State ‘Boundaries

in the exercise of their religious convictions. -

_ lation exempted the Amish from compulsory education.

made exemption provisions by agreement. In-Michigan

. the question has been temporarily dealt-with h by: action of

- the State Board of Education.? 9 —=

GER R TR AOE Sc A Sst Bk

(1971) 49 49 Wis. 2d 430, 182 N.W: (2d) 539, 542°

to send their children to public schools; they sold their

farms and sought religious freedom elsewhere. ”

: In Possle v. + ade, 61 Cal.-2d 716, 727 40 Cal Rep 69, 77,

= $y, “304 > 2d 813, 821 (1964) the California Court said, .~

*. ‘however unique, of the individual and the-group be-

national life oye it depth.and bea

would force a citizen of this nation to ‘move fro Wis-

—

Petition for a Writ of Certiorari to. the Supreme Court

of t the United States, pages la-4a.

a . Federal Constitution Should Be Uniform Throughout ‘

.- We are told. by the appellants that the Amish must ak

ey to the . legislature of the various states to find. satan

- A few states such as Kansas and Iowa have by legis-

laws. Other states such as Indiana and Pennsylvania_have .

‘The impact: on. the Amish of education laws is so

severe that in other states where they: were required .

4 7 -eomes even more important. The varying currents. of

_ the subcultures that flow into the wom of our.

9. Appendix A, Brief for Respondents in ‘Opposition’ On

II. The seal To Which A Persoir Is heidi To Exers ,

As noted by the ‘Wisconsin ‘Court in State v. Yoder ” .

vam

‘In a mass society, whick presses at every point to-

ward conformity, the protection of a-self-expression,*

Iti isa disturbing, and we vealanil improper concept which | *

consin: to Kansas in’ ae to practice J his feligious. views |

and. to raise. his -children according- +6 ‘the dictates of his. | |

conscience. ,

The First Amendment-té is ‘abeabie ‘in all states of tha

nion. The Amish-have been guaranteed the right to the

free exercise’ “of their religion in Wisconsin as well as

| _Banest. :

Unless. the. State can show that the infringement of the

Amish people’s right: to the free exercisé of - religion’ is © .

. justified by an overwhelming governmental interest, it has

_ no right to enforce“ sugh a law which has.the effect of ‘re-

” quiring that person to either violate his conscience’ or move

to another-state.

In Takahaslin v. Fish. & Gaine Coain: (1948) “384 U. Ss.

’ 410; 92 L.Ed. 1478, 68 S.Ct. 1138 the Court recognized that.

‘the ‘Fourteenth Amendment embodies a-general poli¢y that.

all persons lawfully 1 in-this country have a right to live in .

“any state. It is submitted that so long as an overwhelming

- governmental interest is not in. conflict, ‘as determined by

‘the tests set out in Sherbert v. Vernor, (1963) 374 US. .

- 398, 83 S.Ct. 1790, 10 L.Ed. 2d 965, any person should be .

- permitted to live pe practice his religious views in any °-

state of this United States.

- Must any religious group collect intg large bands of a

_size significant enough within a state to gather the political.

force ‘necessary to compel a legislature to exempt them

from.a state imposed obligation that violates their religious’

beliefs? What if the small religious groups, although as

sincere and dedicated as those who. can compel state at-

tention, are not able to.gain the tolerance of the majority?’

. Are they thereforé left with no relief? Is this dilemma

not, the purpose of the First Amendment Freedoms? The

- argument of the State that the Amish must gain relief

through legislative exemption i is merely a claim that their

religious practice is not constitutionally @aranteed but®

may only be tolerated so yong as a political Biagory may ©

_-@etermine.

- s

| lL The State Court Was Correct In Determining That: The _

i, Wisconsin C sompulsoty School Attendance Law Is Un-—

constitutional As Against- The Claim Of *ccleiae

That Their Right To Worship Freely Would Be Vio-—

. lated If They Were Compare To. Send Their Children |

oof To. A Secondary School

A. The test announced i in ‘Sherbert sites to this case”

eee 3- » as

aie

The First Amendment provides: . : oleae

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise there-

egy United States Cgnstitution Amendment I,

: Of all pe Sonetitatioun! guarantees, the protean of re-

Hinidon liberty has been thé most exalted. See P. Kauper,

Religion amd the Constitution -19, (1964) (and the cases

. eited therein). And rightfully so, for perhaps to the in- .

_ dividual there can be nothing ‘more centrally controlling,

revered, and treasured than a sincere and deeply held re- .

- ligious eonviction. It was this consideration which moved

the drafters of the First Amendmenit to provide that govern-

' mental interference with the relation between an indtvidnal

‘and his God must be kept. to a minimum. ~~

The question arises — when may conduct prompted by*

a religious conviction be regulated by state law? The Su- . —

'. preme Court answered that question in its landmark deci-

. gion in Sherbert. v. Verner, <tPe) aoe U.S. 398, 83 S. Ct.

| 1790, 10 L.Ed. 2d 965.

. ¢ .

“In Sherbert,:a member of the Havenii. day Adventist _

Cenk was. discharged because she would not work on

‘Saturday, the Sabbath Day of her faith. Sherbert filed

a claim for unemployment compensation benefits ‘under a

_state statute which provided that a elaimant was ineligible

for benefits .if ‘she had ‘failed, without good cause, to ac-

cept available suitable work when: offered her. The State

deified Sherbert’s application on the ground thatfshe did 2

_ not accept suitable work when offered to her. The Court e

_ held that t6 disqualify Sherbert solely on the ground that |

she had refused 2 Ratercey: work, when the coenianet of

> 19 E: " ae Sd 7

\ ao

' such work Yaola have been santiben'y to ther. religious’ omy |

- liefs, was to impose an unconstitutional burden on the free’

* exercise of her religion. In so holding, this Court an;°

'., nounced a several Py gy test for, pens the 7 competing :

. interests: : ee Soy

1 Is there a. burden imposed on the exercise eof *re- -

ligion? | . ;

‘si. . the Meckaints of the (court belpW is: to with-

stalk ‘Appellants constitutional challenge, it must’ be

‘either because, her disqualification as: a beneficiary

represents nd infringement by the State of her. con-

—— rights of free exercise...” 374 U. S. at 403.

f if thine is such a burden, is the infriggeinplit justi-

°° fied by a heat e-2: governmental interest?

“We must... consider whether | some: contpelling

honatscnanials intérest. . . justifies the substantial .

_ infringement of Appellant’ 8 First Asypmdment Figen ign

~ 874 US. at 406. Saws! a

L 8. Is the governmental interest substantial ?

mount. interests, give occasion for permissible

- limitation...’? 374 US: at J 405 (citation, omitted) .

(emphasis added). !

b. Is this the sole method by which the govern- :

ment may attain its goal?

— «it would plainly be inevtmbent upon, = the iss:

| heed té demonstrate that no’ “alternative

forms ‘of regulation’ would ‘combat. such abuses |

- withdut infringing First: Amendment aa 4g

374 U. S. at 407 (rootnote, omitted). :

3. Would an exemption for those — with “religious |

. scruples im fact i impair the governmental interept? |

‘‘The Appellees suggest . oa than a pens =

. (that the government’s int would be impaired).

374 U:S..at 407 en added). . ee

. only the ‘gravee abuses, endangering. -para- —

= ar 7

aa ‘The test. einounoed 4 in Sherbért has been estated and bg

: plied i in ‘several recent casés : te ete NT

; “But the burden rests upon the Governmerit.to démon-

strate the compelling interest. requiring the restric-

‘tion of free expression and to show that the regulation

serves that interest with the least restriction: possible

on the: citizens - -ability to communicate his pohtical

dissent.’’) Women Strike for praee v. Hickel, 420

F. 2d 597,.at 605, (D.C. Cir, 1969). "

. Where governmental iA impairs individual

-ability to abide religious beliefs, two demonstrations *

become essential to its validity. (A showing of a com-. .

| pelling governmerital interest and) an equally con-

vincing showing that ‘no alternative forms of regula-

- +. tion wontd combat such abuses without infringing

. ‘ ” First Amendment Rights.’ ” Barnett + v. Rodgrsy

: _ ~ 410 PB. 2d 995, at 1000 (D.C. Cir., 1969).

“The Court in Sherbert thus utilized a twofold. analy-.

--sis which calls for a determination of, first, whether

the application of the statute imposes any ‘burden on

* religion, and second, if it does, whether some com-

pelling state interest justifies the infringement.”’ »

People v. Woody, (964) 61 Cal. 2d 716,. 719, 40 Cal. -

Rptr. 69.

“6 even if a onoutng2 state interest were shown,

: tie burden remains ‘on the state (to shdw no alterna-

' tive is available).’’ Heilberg v. Fixa 236 Fed. Supp.

_ 405, 408. (N.D. Cal. Sd. 1964) Cf. Kovach v. Madduz,

oo F. Supp: 835, 844, (MD Tenn. teh

And in dieta: the Supreme Court recently reaffirmed the ~

validity of the Sherbert test: .

“>. . as to neutral prohibitory or regulatory ieee

having secular aims, the Free Exercise Clause may —

tives of religion and conscience, when the burden on

_ First Amendment values is not justifiable i in terms of .

_ ~the -Government’s valid aims.’’ (citing’ Sherbert)

awe v. U. 8. S.Ct. 828, 842, 1M, 168 (1971).

AO Sy Apt E A ti isla eit el

3) . ‘ \

condemn eertain .applications clashing -with impera- —

“The State has placed almost all of its Goniidenss | in their

position on the opinion of ‘Prince v. Massachusetts (1944)

321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 which was hanged

down by this Court in 1944. This case came ‘many years

and ‘severa] decisions before the evolvement of the test

announced by this ‘Court in Sherbert.

It is clear that this Court has, in the past two decades’

. since the decision in Prince, given more careful. scrutiny to

the free exercise clause of the First. Amendment. ._— .

‘It is submitted that to this Court, religious liberty: as an

al .means essentially the absence.of governmental re-

straint on the activities of young” and old alike as they

seek God’s. will.

blinders as to the development of the law concerning First’

. Amendment rights in the light of the principles set’ forth :

in such recent decisions of this‘Court as Sherbert. ‘Even

the doctrint of, parens patriae must submit ts the balanc-

ing tests which this Court has adopted. The time when _

the doctrine of parens patriae was synonymous with the

concept of the divine’right of the State is in the past.0* .

a a

B. The application of ike Sherbert.- test to the instant

case will demonstrate that this is a case where “the

_ burden on First Amendment values is not justifiable

in terms of the Government’ : valid aimis”

The Court i in SherBert observed that where. a law having

uniform application has a discriminatory effect - upon an

individual’s religion, it is invalid :

“it is true that no’ criminal sanctions directly com-

pel Appellant to work a six-day week. But this is only

: . : . @

: +

10. See Grannella, Religious Liberty, Nonestablishment, and

Doctrinal Development, Part I. The Religious Liberty

Guarantee, 1967, Harv: L. Rev. May 1967, Vol. 80, No. 7;

-. Also. Compulsory High School Agendane ‘and The Old |

Order: Amish; A Commentary on State v. Garber, Casad,

16 Kansas L. Rev. 423, 432 (1968).

os ee)

LOE ALONE LES ALLY ONSAS

ees WO!

rye we gt a

the beginning, not the end, of our inquiry. For if the

purpose or effect of a law, is to impede the observ-

‘ance of one or all religions. or is to discriminate in-

_ vidiously between religions, that law ts constitu-

tionally invalid even though the burden may be. char-

acterized as being only indirect, Braunfeld v. Brown,

(1961). 366 U.S. 599, 6 L.Ed. 2d 563, 81 S.Ct. 1144.

‘Here not’ only is it apparent that ‘Appellant? s de-

clared ineligibility for benefits derives solely from the

practice of her religion —, but the ewe upon her to

forego that practice is unmistakeable. The. ruling

- forces her to choasé between following the: precepts of

her religion and forfeiting benefits, on the one hand

. and‘abandoning one of the precepts of her religion in

order to .accept work, on the other hand. Govern- .

mental imposition of such a choice puts the same

burden upon the free exercise of religion as would

a fine imposed against. Appellant for -her Saturday

worship.’’ 374 at 403-404 ee ers (em-

phasis added)

In comparing the dilemma presented in Sherbert ; v.

Vernor with the position in which the State has placed the

- Amish, if has been recognized that a more serious inter-

ference is present in the instant situation.

«<The interference here is clearly more serious thei

involved in Sherbert v. Verner itself. The burden

on free. exercise there was indirect. South Carolina

did not require Mrs. Sherbert to work on Saturday;

it only made it economically ‘disadvantageous if she

_. didnot. Here, the interference with both the parent’s ~

and the child’s right of free exercise (if a-child has

protectable: interest in his own right) was direct.’’!!

It is important to recognize that Sherbert imposes a

| test upon governmental regulation far more stringent.

ae 8 Giaed Robert C. Chenier High School Attendance

and the Old Amish; A Commentary on State v. Garber,

16 Kansas L: Rev. "423, 432° coaeel ;

than that applied in the absence of a First Amendment

infringement. In the ‘‘flag-salute’’ case of Board of Edu-

cation v. Barnette, (1943) 319 U.S. 624, 63 S.Ct. 1178, id

L. Ed 1628, the Court. observed:

“Th weighing arguments of the parties; it is impor-

tant to disinguish between the due process -clause of

the Fourteenth Amendment (here the Fifth Amend-

ment) as‘an instrument for transmitting the princi-

»... ples of the First Amendment and those cases in which

aa ‘it is applied for its-own sake. The test of legisla-

tion which collides with the Fourteenth Amendment,

‘because it. also collides with the principles of the

First, is much more involved. Much of the vagueness

of the due, process clause disappears when the spe-

cific prohibitions of ‘the First become its standard.

The right of a State to regulate, for example, for ex-

. ample, a public utility 1 may well include, so far as the.

due process test. is concerned, power to impose all

of the restrictions which a legislature:may have a

‘‘rational basis’? for adopting. But. freedoms of

speech and of press, of assembly, and of worship may

not be wmfringed on such slender grounds. They are

susceptible of. restriction only to prevent/grave and

immediate danger te-interests which the State may

lawfully protect. 319 U.S. at 639 (eniphasis added). — —

‘In Braunfeld v. Brown<(1961) 366 U.8..588, 6 L.Ed. 24

563, 81 S.Ct. 1144, Mr. Justice Brennan in.a eoncan se

and Se opinion observed: ;

. the values of the First Acnendtiont as suibedied

“in, . the: Fourteenth, look primarily towards the, pres-

vetvation of personal liberty, rather than towards

__ fulfillment of collective goals. ’? 366 U.S. 610. |

| In Sherbert, the Court announced that. the test first ap-

plied i in Barnette was to be an essential part of the balanc-

ing test applied in all frtare First Amendment aici

ment cases:

“Tt is basic that no iowind merely of a rational re-

lationship to some colorable state interest would

DRL aC Tm smarty

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24 of

‘suffice ; in this highly, sensitive constitutional area,

‘only the gravest abuses, endangering paramount:

‘interest, give occasion for permissible limitation.’ ”’ -

374 US at. 406 (citation omitted) (emphasis added),

The Braunfeld case, supra and the Sherbert case, supra, —

clearly require: the State to establish both the paramount .

governmental interest in denying religious freedom and

that the same paramount governmental interest is impos-

sible of attainment by granting a —, a a

- Neither was established i in this case.}2

1. The governmental interest as not substantial

~The conduct of the Amish presents no grave threat’ to

society. They,only ask to be exempt from sending their

children to secondary: schools. Their conduct: can hardly

be ‘said to threaten, ‘‘public safety, peaee or order,”’’ -

Sherbert, 8374 U.S. at 403. The governmental interest in

compulsory education irivolves | no such paramount inter-

* est.

The Appellant’s Brief, although ignoring the: balancing

test in Sherbert v. Verner. (1963) 374 U.S. 398, 83 S.Ct.

1790, 10 L.Ed. 2d 965 which places AW affirmative burden

on the State to show a compelling governmental interest,

does segm to make some attempt to justify the State’s

encroachment into the area of the free exercise of religion _

-by reference to education 4s 3 needed aid to the continuation

of a free nation.

The State quotes sev eral statements made by Thomas

Jefferson in their apparent attempt to demonstrate a

‘compelling interest’? of the State.. (See appellant’s

Brief pages 10 & 11) These quotations presumably are to

e replace the evidentiary burden: of the State under Sherbert —

which is missing from the record in this case.

It is submitted that such ‘historical ‘quotations are not

‘sufficient to: meet the requirement that the compelling in-

_ terest be against “only” the gravest abuses, endangering .

12. It i is maintained that Appellant has the burden of proof

in meeting this test. Sherbert, supra.

Si.

- 25 . |

; ae interests. si Sherbert v. Verner, 374 U. S. at-

However even Thomas J ehicteon gave adequate refuta-

‘tion to the position of the Appellants when he stated:

“Ts ita right or duty in society to take care ‘of. their

Ls infant members in opposition to the will of thé

ru aa +4 . parent? How far does this‘right and duty .extend?

; — to guard the life-of the infant, his property, his in- .

-~ structions, his morals? The Boman. father was su- -_..

- preme in all these:. we draw a line, but where? — ‘*. ..

public senfiment does not'seem to have traced it pre-. .

cisely. Nor is it necessary in the present case. It is -

‘better to tolerate the rare instance of a parent refus-

_ ing to let his ehild be educated than to shock the com-

mon feelings and ideas by the forcible ‘asportation |

and education of. the infant against the _ of me :

father.’’}8 |

‘se

4+) "2. The Government has ‘alternalive means avail- .

_ = able to attain its legislative goal

haacne the Appellant could prove some paramount -———

government interest, they must sti ve that the Govern- .

. _Mient_bea—no-ait ive means to attain its legislative

— ~~ goal, .

Court adopted the proposition enunciated in Shelton v.

a uanee (1960) 364 US. 479, 5 L.Ed. 2d 231, 81 S.Ct. 247:

. it would plainly be incumbent upon the (govern-

a) to demonstrate that no alternative forms of.

regulation would combat such abuses without infring-

ing First Amendnient rights.’’ (citing Shelton) (foot-

- note omitted) 384 U.S. 407. -

. 13. iPhone Jefferson and Education in a 1 Republic, Edited

: by Arrowood, page 61 (Citing ‘‘Harly History of the °

— Thomas fe of Virginia as Contained in the Letters of

~—-~- Thomas Jefferson and Joseph C. Cabell,’’ p. 97),

“s

+ 26

In striking down a state requirement that teachers file :

affidavits listing the associations of which they were mem-

_ bers, the Court observed:

“Tn a series of. decisions, this Court has held that even

oe though the governmental purpose be legitimate and..

- substantial, that purpose cannot be pursued by means,

that broadly stifle fundamental personal liberties when

the end can beé-more narrowly: achieved. The breadth--

of legislative abridgment must be viewed in the light

of less drastic means for athieving the same purpose.’

Shelton v: Tucker (1960) 364 °U.S. 4479, 5 I.Ed. 2d °

231, 81 S. Ct. 247 (emphasis added). 14 |

In Sherbert, the State argued that if it were made to

LA sa le Ap Bh ao ABN i ESR ERR UA DRL Bile WATE LENS AAI AER ica aT

grant an exemption to those who refused ‘ to work-oen™ |, —

carla because of religious scruples ther: \

. the filing .of fraudulent: claims by unseupulous

= slainaate’ feigning religious objections to’ Saturday

| : _ work might not only dilute the unemployment compen-

> sation fund, but also hinder the scheduling of em-

: ployers of necessary Saturday work ky 374 U. 8. at 407.

; ; , But since the state failed to show that the fund available

é . . for unemployment compensation could not be safeguarded

4 _ if Sabbatarians were permitted to refuse Saturday work;

: . the Plaintiff prevailed:

: . The Appellees suggest no more ‘than’ a possibilities

aan {het the government’s interest would be impaired). a

y ~. (emphasis bara Sherbert, 374 U.S. at 407. ,

14. For exanples of recent cases in* -which the government

-* “was required to demonstrate that it had no- alternative

- means available for attaining the legislative goal and

still protect. First Amendment rights; see: Kovach v.

Maddux, 238 F. Supp. 835, 844 (MD Tenn. 1965); Heil- . -

berg v. Fixa, 236 F. “Supp. 405, 408 (N.D. Cal. S.D.,

| 1969). Barnett v. Rodgers, 410 F. 2d 995, 1000 (D. C. Cir. .

1969 _° a

™

Im the inatant. case, the ‘Appellagy must prove that the -

granting of a religious exemption would substantially im-—

pair a paramount interest of the Government in promoting

- public safety, peace or order. _ a

" <The’ conduct or actioris so regulated have invariably

posed some substantial threat to public safety, peace - .

"or order’? Sherbert, 374 U.S. at 403.

foe, . in this highly sensitive ecinetitutional: area,

‘only the .gravest. abuses, endangering paramount

_ interests, give occasion for-permissible limitation ...’ ”’

ag Tho v. Collins) — added) Sherbert,

a. 3 CONCLUSION s

‘The State seems to acknowledge that, Anish penais are

‘‘fine, pious, industrious and thrifty’’ and can find noth-

ing in the practice of their religion harmful to -their fel-

lowman. Also the State must recognize that compulsory

education violates basic cardinal precepts of the Amish

religion and that it would tend to. destrey its continued

existence by the State through its education system driv-

“ing a wedge between parent and child.

The State overlooks the grave nayehologioal disturb-

ances that will inevitably spring from being taught by day

teachings that are religiously opposed. by the parent and

living by night under parental authority that. condemns the -

_ ‘child’s daytime activities as 8in. The resulting guilt -com-

‘plexes that would be experienced by the child are’ inevit-

able. Nevertheless the State ignores the realities. of life

and rests its case on. its desire to guaranteé: the Amish °

child the dubious advantage of our sick society.

Whether one accepts the above statement, an examina-

completely failed to show ‘that it has an overwhelming -

governmental interest of such a character and nature as ° .

to dictate and’ compel the Amish to either capitulate to -

aarennatl - ,

. , -* .

8 _~- ——

the State and compromise their religious conviction Or -

find. a new home where conscience is less restricted and

religious freedom is given greater respect. _

Respectfully submitted,

: ~ ". Boarpman Notann 7 *

: os | OARDMAN NoLanp _/~ . | _

| - Lez Boorusy F

| ae Attorneys for Amicus Curiae - oat

General Conference. of _ - ae

; ) | Seventh-day Adventists.

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