The free exercise of religion and public schools: the implications of hybrid rights on the religions upbringing of children.

• Author: Lechliter, Michael E.

TABLE OF CONTENTS INTRODUCTION I. WHY LOWER COURTS FAIL TO UNDERSTAND THE MEANING OF YODER & SMITH A. The Right of Parents to Direct the Religious Upbringing of Their Children B. Mere Dicta: Circuit Courts Denying the Existence of Hybrid Rights C. Independently Viable Claims: Circuit Courts Recognizing Hybrid Rights While Eviscerating Their Power D. Colorable Claims: Circuit Courts Searching for Meaningful Hybrid Rights Ground II. THE VIGOR OF THE FREE EXERCISE CLAUSE ACTING IN CONJUNCTION WITH PARENTAL RIGHTS A. Public School Policies Clashing with Free Exercise B. The Proper Standard for Courts to Use When Addressing Parents' Hybrid Rights Claims CONCLUSION

INTRODUCTION

Gurdev Cheema is a devout Khalsa Sikh. A central tenet of the Sikh faith requires Ms. Cheema and her three children to bear five symbols of their faith at all times: "kes" (long hair), a "kangha" (comb), "kachch" (sacred underwear), a "kara" (steel bracelet), and a "kirpan" (ceremonial knife). (1)

In 1994, the Livingston, California school district banned knives--kirpans included--from all public schools. Any student who failed to comply with the ban was threatened with expulsion. (2) Ms. Cheema's three children were all enrolled in Livingston public schools at the time, so Ms. Cheema faced three unattractive choices: (1) her children could violate a central tenet of their religion and attend school without their kirpans; (2) her children could violate their school's instructions and face expulsion; or (3) she could keep her children at home and file a lawsuit against the school in order to force the board to grant her children an exception. (3) She chose the last option.

Fortunately for Ms. Cheema, she eventually prevailed in court and her children were permitted to return to school with their kirpans. (4) Central to her success was the Religious Freedom Restoration Act (RFRA), which mandated that state governments may not burden a person's free exercise of religion unless the governmental action was the least restrictive alternative and served a compelling interest. (5) The Supreme Court subsequently struck down the part of the RFRA that applied to the states. (6)

Cases like Ms. Cheema's are expected to become even more common with the influx of programs which are likely to offend certain faiths, such as school uniforms (7) and sexual health courses. (8) With this potential increase in disputes there has been a decrease in judicial clarity on how to handle such cases. (9) The reason for the murkiness has much to do with a rapid reconfiguration of the First Amendment's Free Exercise Clause (10) jurisprudence over the past fifteen years and corresponding jousting between the Supreme Court and Congress.

From 1963 through 1990, the Supreme Court employed what was termed a "strict scrutiny" test for free exercise challenges. (11) The Court, in Employment Division Department of Human Resources v. Smith, abandoned this test in 1990 and replaced it with a much less restrictive one. (12) In Smith, the Court confronted the question of whether Oregon's criminal law against peyote use was constitutional as applied to members of the Native American Church who smoked peyote for religious purposes. (13) The Court found that the law was constitutional and held that the Free Exercise Clause does not relieve individuals of the obligation to comply with neutral laws that incidentally proscribe conduct mandated by the individual's religion or require conduct that is prohibited. (14) As long as a law is "generally applicable" and not designed with malice towards religious practice and is an area that the state is free to regulate, governments will not usually be required to provide exemptions to religious objectors. (15) The Court further noted that without such a rule, there would be a "system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs." (16) The Court implied that this rule was in fact not really "new" because in the past the Court only held generally applicable laws to be inapplicable when the Free Exercise Clause was acting "in conjunction with other constitutional protections." (17)

Eighteen years before Smith, in the archetypical free exercise case, Wisconsin v. Yoder, (18) the Supreme Court had held that Amish parents had a right to violate a state compulsory schooling law because the law violated the parents' free exercise rights. (19) With Yoder, the Court reaffirmed its view that even generally applicable laws must sometimes give way to individual free exercise rights. In Smith, Justice Scalia's opinion for the Court rejected much of Yoder's force and instead distinguished the case because it represented a "hybrid situation" in which both parental rights (20) and free exercise rights were at stake. (21) The claimants in Smith on the other hand, presented a "free exercise claim unconnected with any communicative activity or parental right." (22)

Smith completely changed the landscape of free exercise jurisprudence. (23) Although the Court created what has come to be known as a "hybrid rights exception," (24) it shed very little light on the scope of hybrid rights and how these claims should be treated in the future. (25) Congress, unhappy with the decision in Smith and unwilling to rely on any hybrid rights exception, decided to take action. In 1994, Congress passed legislation through the RFRA that intended to once again compel states to grant religious exemptions to generally applicable laws and return free exercise jurisprudence to the pre-Smith status quo. (26)

The RFRA was Congress's attempt to force courts to apply stricter scrutiny when states incidentally burdened religious freedom. (27) The RFRA evaded Smith by creating a statutory avenue through which a claimant could attack a generally applicable law independent of the Free Exercise Clause; (28) it was not so much an attempt by Congress to overrule the Supreme Court's Smith decision as it was an attempt to make the decision irrelevant. (29) This congressional sidestep was short lived. In City of Boerne, just three years after President Clinton signed the RFRA, the Supreme Court struck down the act as it applied to states as an unconstitutional overstepping of Congress's power under the enabling provision of the Fourteenth Amendment. (30)

After City of Boerne, parents like Ms. Cheema could no longer bring a free exercise challenge coupled with a RFRA challenge against a school board. A number of states, however, passed their own versions of the RFRA that have made it easier for parents and other claimants in those respective states. (31) Similarly, a few state supreme courts have held that their state constitutions require a stricter test for religious claims. (32) Nonetheless, in a state in which neither the court nor the legislature has recognized the need for higher scrutiny (which a strong majority have not), (33) parents are forced to rely on Smith's hybrid language when searching for a way to exempt their children from certain neutral school actions which infringe upon their free exercise of religion.

Parents wishing to assert their parental rights to direct the religious upbringing of their children must rely on Smith's discussion of Yoder and "hybrid situations." (34) In addition to the Free Exercise Clause, the second constitutional foundation of this hybrid stems from a substantive due process theory that parents have a right to direct their children's upbringing. (35) One form of this parental right is the "right[] of parents to direct the religious upbringing of their children." (36) This parental right was of course central to Yoder, but its history goes further back into the golden age of substantive due process, beginning with Pierce v. Society of Sisters. (37) Pierce concerned an Oregon act that mandated that children aged eight through sixteen attend public school. (38) The Court, relying on a parental right to direct the education of their children and send them to private schools if they wish, found the Oregon act unconstitutional, (39) Although Pierce did not rely on the Free Exercise Clause, (40) the Yoder Court specifically read Pierce as a "charter of the rights of parents to direct the religious upbringing of their children." (41) Smith did not attempt to overrule Pierce or Yoder; in fact, one of the two specific hybrid rights the Court noted was one concerning parental rights acting in conjunction with the Free Exercise Clause . (42)

Despite Smith's implications, lower courts have failed to universally embrace hybrid rights, and the courts that have accepted the idea have struggled to set forth a consistent understanding of when and how the constitutional right should apply. (43) The circuit courts have offered three very different general schools of thought on how to address a hybrid claim. (44) Some circuits do not accept hybrid rights at all. Even in those circuits that do accept hybrid rights, two distinct modes of analysis have developed. As a result, claimants, attorneys, and judges all appear deeply confused about how exactly to frame a free exercise hybrid rights challenge. Complicating matters, the Supreme Court has offered no further guidance on who is right or wrong.

This Note argues that parents have a fundamental right under the U.S. Constitution to direct the religious upbringing of their children and that courts interpreting Smith have systematically misunderstood and misapplied the Supreme Court's confusing hybrid rights language. Part I explains how Yoder and Smith create and preserve parents' right to direct the religious upbringing of their children. The essential point is that the free exercise right and the parental right are not examined independently and simply added together, but instead are incorporated together to provide a specific bite to the free exercise claim. Part I also examines the lower courts' treatment of...