# Amicus Curiae Brief — Wisconsin v. Yoder > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0363%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 406 U.S. 205 ## Text ‘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 — | 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. 2 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. o 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, _ 5 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.. 7 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- Na 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) aw a 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 q. 4 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 = nd 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.’”’' ‘ 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 a: 2 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.”’ f "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. 7 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.” 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) é ‘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 he 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. ..’? 7 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 2 | 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, 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. The decision in Prince cannit © in 1971 be! read: with. | 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 oe _ ~ 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). eo os ee) LOE ALONE LES ALLY ONSAS ees WO! rye we gt a ~ 29 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. « 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 ™ 87 -* 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 "