Heather M. Good, "the Forgotten Child of Our Constitution": the Parental Free Exercise Right to Direct the Education and Religious Upbringing of Children

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 54 No. 1

COMMENTS

"THE FORGOTTEN CHILD OF OUR CONSTITUTION":¹THE PARENTAL FREE EXERCISE RIGHT TO DIRECT THE EDUCATION AND RELIGIOUS UPBRINGING OF CHILDREN

INTRODUCTION

A school system sponsors a program to pass out colored condoms to fifteen year olds.²The school board sponsors a school-wide assembly where high school students are told, "[y]ou are not having enough orgasms."³Parents are not given notice or a chance to opt their children out of a lewd and explicit ninety-minute sexuality presentation. The parents, offended because the presentation undermines their authority to instill religious values in their children, sue the school board.⁴Holding that the school board may enact any legislation rationally related to any legitimate state interest, the court dismisses the free exercise claim.⁵

In a neighboring jurisdiction, another school board enacts a mandatory uniform policy.⁶One parent wants to bring an action to exempt her child from the general policy, because she believes that uniformity is a "characteristic of the Anti-Christ." Holding that the state must assert a compelling interest for the uniform policy, and that the policy must be narrowly tailored to that interest, the court finds for the parent.⁷

Several policy issues are implicated here: whether and to what extent religious individuals should be required to conform to majority sentiment if they choose to educate their children in the public schools; whether and to what extent the public school board should conform to individual parental requests for religious accommodation; whether and to what extent a decision may affect minorities and low income persons; and whether and to what extent the majority should be forced to pay the costs for individual religious accommodations.

These two cases highlight an inconsistency in the lower courts resulting from the Supreme Court's First Amendment jurisprudence. With regard to the parental right to direct the religious education of children, confusion in and misapplication of Supreme Court precedent has led to three problems: (1) the parental right to direct the religious upbringing and education of children is not being consistently protected;⁸(2) the circuit courts have split over the appropriate standard of review in these cases; and (3) the ambiguity in Supreme Court precedent has relinquished to the lower courts and state legislatures the task of defining the contours of the constitutional free exercise right.⁹This Comment addresses and attempts to resolve these three problems by synthesizing Supreme Court precedent and analyzing its application in the lower courts. More specifically, this Comment examines the applicable standard of review for free exercise and parental rights claims as they relate to the education of minor children.

Part I of this Comment offers a brief overview of the applicable standards of review in First Amendment jurisprudence. Part II traces the early Supreme Court cases on parental rights and free exercise, which employed an unspecified but heightened standard of review. In Part III, this Comment addresses the Supreme Court precedent in Sherbert v. Verner¹⁰and subsequent cases. In Sherbert, the Court articulated a compelling interest (or strict scrutiny) standard of review for all free exercise claims. Part III further discusses the application of this compelling interest test in the case of Wisconsin v. Yoder,¹¹where the Court specifically addressed the issue of free exercise and parental rights.

Part IV discusses the Supreme Court's decision in Employment Division v. Smith,¹²where the Court retracted Sherbert and mandated a rational basis

Id. standard of review for free exercise cases. Further, Part IV investigates the highly debated hybrid rights doctrine, a product conceived from the Court's attempt to distinguish earlier precedent with a reference to "hybrid situation[s]."¹³The hybrid rights doctrine purports to create an exception to the rational basis standard of review for "hybrid situations," which involve a free exercise claim asserted in conjunction with another fundamental right. Additionally, Part IV addresses the Supreme Court's most recent parental rights jurisprudence that explores whether parental rights may be deemed fundamental.

Part V discusses lower court application of the hybrid rights doctrine, specifically when claimants allege both a free exercise and parental rights claim. Part V reveals the lower courts' predictable split over the mysterious and misunderstood hybrid rights doctrine. Recognizing the split, Part VI explores some of the policy ramifications of the application, misapplication, or in-application of the hybrid rights doctrine. This Comment concludes by taking the view that free exercise and parental rights claims cannot be dismissed under the bright line rule articulated in Smith. Rather, relying on the Court's own jurisprudence and good precedent, this Comment articulates a multi-factor balancing test for determining the validity of parental rights and free exercise claims under a heightened standard of review.

I. STANDARD OF REVIEW IN FREE EXERCISE CASES

Outlining the applicable standards of review in free exercise cases is a complex challenge¹⁴because the Supreme Court, in creating and articulating these standards, has not been clear or consistent in how and when to apply them.¹⁵In general, the "standards of review can be easily contracted or conflated."¹⁶Nevertheless, an understanding of the basic review standards is essential for the purpose of this Comment, or any study of constitutional law.

Under rational basis review (low-level scrutiny), the challenged law is deemed valid when: (1) the law is enacted in pursuit of a legitimate governmental interest; and (2) it is reasonably related to that interest. Under this standard of review, the legislature is accorded great deference, and the courts are hesitant to overturn government legislation or declare a government action unconstitutional. Generally, this means that rational basis review is less protective of individual rights and liberties.¹⁷If this standard of review applies, the parent is extremely likely to lose on her free exercise claim.¹⁸This is true because "rational basis scrutiny will validate all but the most irrational legislation."¹⁹

Historically, and even under the Court's more recent policy of legislative deference, the Court has recognized that alleged violations of fundamental rights merit a more critical review.²⁰These fundamental rights are accorded a heightened standard of review.²¹Under a compelling interest review (high- level or strict scrutiny) the challenged law is valid only when: (1) the law is enacted in pursuit of a compelling or overriding governmental interest; and (2) that law is narrowly tailored to achieve that interest, without intruding on the claimants' rights any more than absolutely necessary.²²Under this standard of review, a parent will probably win in almost all cases because strict scrutiny is likely to be "fatal in fact" to the legislation.²³

Finally, intermediate scrutiny, the compromise between the two standards of review, generally applies to gender discrimination cases.²⁴This standard accords less deference to the legislature than rational basis review, but is not quite as critical of laws as compelling interest review. Under this standard, a court upholds the law when: (1) the law is enacted in pursuit of an important or significant governmental interest; and (2) the law is substantially related to that interest.²⁵

II. LAYING THE FOUNDATIONS: EARLY SUPREME COURT CASES ADDRESSING

PARENTAL AND FREE EXERCISE RIGHTS

Early Supreme Court decisions addressing free exercise of religion and parental rights used an unspecified form of heightened scrutiny. The following section focuses on three early cases: Meyer v. Nebraska,²⁶Pierce v. Society of Sisters,²⁷and Prince v. Massachusetts.²⁸

A. Meyer v. Nebraska: Recognizing the Right of Parents To Educate Their

Children

As early as 1923, the Supreme Court recognized the parental right to direct the education of their children.²⁹Under a Nebraska law prohibiting teaching in any language other than English, an instructor at Zion Parochial School was convicted of teaching reading in German. Overturning the conviction, the

Court relied on the Due Process Clause, stating that while the parameters of the right were not yet defined, it included, at a minimum, the right "to marry, establish a home and bring up children, to worship God according to the dictates of [one's] own conscience . . . ."³⁰Recognizing that legislatures may properly exercise police power, the Court also noted that "it is the natural duty of the parent to give . . . children education."³¹

The stated purpose of the legislation by the Nebraska legislature was to ensure promulgation of the English language among all American citizens and to promote civic development. "That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected."³²The Court did not define the fundamental rights at issue or articulate an applicable standard of review. The Court simply said that the "means adopted . . . exceed the limitations upon the power of the [s]tate and conflict with rights assured to the plaintiff . . . . The interference is plain enough and no adequate reason . . . has been shown."³³Further, the Court found that the statute was "arbitrary and without reasonable relation" to a valid state purpose.³⁴

While the Court did use the "reasonable relation" language, it is clear that the rational basis test,³⁵as understood today, was not used in this case.³⁶

Under the Court's current rational basis test, the statute at issue in Meyer would most likely have been upheld.³⁷It seems the Court applied an unspecified form of heightened scrutiny-either intermediate scrutiny or strict scrutiny.³⁸The balancing test the Court...