Michael Farris, J.D., LL.M.

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Banning homeschooling does not violate rights: U.S. Attorney General’s office

Michael Farris, J.D., LL.M.
By Michael Farris LL.M.

Editor's Note: Michael Farris is the Founder and Chairman of the Home School Legal Defense Association.

February 12, 2013 (HSLDA) - Having immersed myself for about eight days in writing a brief for the Romeike family (a German homeschooling family who fled to the United States for political asylum), I wanted to share some insights I gained into the view of our own government toward the rights of homeschooling parents in general.

You will benefit from some context.

The U.S. law of asylum allows a refugee to stay in the United States permanently if he can show that he is being persecuted for one of several specific reasons. Among these are persecution for religious reasons and persecution of a “particular social group.”

In most asylum cases, there is some guesswork necessary to figure out the government’s true motive—but not in this case. The Supreme Court of Germany declared that the purpose of the German ban on homeschooling was to “counteract the development of religious and philosophically motivated parallel societies.”

This sounds elegant, perhaps, but at its core it is a frightening concept. This means that the German government wants to prohibit people who think differently from the government (on religious or philosophical grounds) from growing and developing into a force in society.

Dressed-up Totalitarianism

It is thought control. It is belief control. It is totalitarianism dressed up in politically correct lingo.

But my goal today is to not belabor the nature of German repression of homeschooling; rather I seek to reveal the view of the United States government to all of this.

The Romeikes’ case is before the United States Court of Appeals for the Sixth Circuit. The case for the government is officially in the name of the Attorney General of the United States. The case is called Romeike v. Holder. Thus, the brief filed by the U.S. Department of Justice is filed on behalf of the attorney general himself—although we can be reasonably certain he has not personally read it. Nonetheless, it is a statement of the position of our government at a very high level.

We argued that Germany is a party to many human rights treaties that contain specific provisions that protect the right of parents to provide an education that is different from the government schools. Parents have the explicit right to give their children an education according to their own philosophy.

While the United States government argued many things in their brief, there are three specific arguments that you should know about.

No Homeschooling? No Problem.

First, they argued that there was no violation of anyone’s protected rights in a law that entirely bans homeschooling. There would only be a problem if Germany banned homeschooling for some but permitted it for others.

Now in reality, Germany does permit some people to homeschool, but it is rare and in general Germany does ban homeschooling broadly—although not completely. (Germany allows exemptions from compulsory attendance for Gypsies and those whose jobs require constant travel. Those who want to stay at home and teach their own children are always denied.)

But, let’s assess the position of the United States government on the face of its argument: a nation violates no one’s rights if it bans homeschooling entirely.

There are two major portions of constitutional rights of citizens—fundamental liberties and equal protection. The U.S. Attorney General has said this about homeschooling. There is no fundamental liberty to homeschool. So long as a government bans homeschooling broadly and equally, there is no violation of your rights. This is a view which gives some acknowledgement to the principle of equal protection but which entirely jettisons the concept of fundamental liberties.

A second argument is revealing. The U.S. government contended that the Romeikes’ case failed to show that there was any discrimination based on religion because, among other reasons, the Romeikes did not prove that all homeschoolers were religious, and that not all Christians believed they had to homeschool.

Targeting Individual Rights

This argument demonstrates another form of dangerous “group think” by our own government. The central problem here is that the U.S. government does not understand that religious freedom is an individual right. One need not be a part of any church or other religious group to be able to make a religious freedom claim. Specifically, one doesn’t have to follow the dictates of a church to claim religious freedom—one should be able to follow the dictates of God Himself.

The United States Supreme Court has made it very clear in the past that religious freedom is an individual right. Yet our current government does not seem to understand this. They only think of us as members of groups and factions. It is an extreme form of identity politics that directly threatens any understanding of individual liberty.

One final argument from Romeikes deserves our attention. One of the grounds for asylum is if persecution is aimed at a “particular social group.” The definition of a “particular social group” requires a showing of an “immutable” characteristic that cannot change or should not be required to be changed. We contend that German homeschoolers are a particular social group who are being persecuted by their government.

The U.S. government says that Germany’s ban on homeschooling does not meet this standard because, of course, the family can change—they can simply stop homeschooling and let their children go to the public schools. After all, the U.S. government says, the children are only in public schools 22-26 hours a week. After that the parents may teach what they want.

Faulty Understanding

There are two main problems with this argument. First, our government does not understand that families like the Romeikes have two goals when they chose homeschooling. There are things they want to teach and there are things they want to avoid their children being taught in the government schools.

Does anyone think that our government would say to Orthodox Jewish parents, we can force your children to eat pork products for 22-26 hours per week because the rest of the time you can feed them kosher food?

Freedom for the mind and spirit is as important as freedom for the body and spirit.

This argument necessarily means that the United States government believes that it would not violate your rights if our own government banned homeschooling entirely. After all, you could teach your children your own values after they have had 22-26 hours of public school indoctrination aimed at counteracting religious and philosophical views the government doesn’t like.

The second problem with this argument goes back to the definition of immutability. Immutable means a characteristic that cannot be changed or “should not be required” to be changed.

No one contends that homeschooling is a characteristic that cannot be changed. We simply contend that in a free nation it is a characteristic that should not be required to be changed.

Germany has signed international treaties which proclaim that parental rights are a prior right over any views of the government when it comes to education. In fact, the movement for the adoption of these treaties came in reaction to the world’s horror at broad-ranging attack on human rights that Germany perpetrated in the events surrounding World War II. Nazi Germany believed that the children belonged first to the state. The world community answered that and said, no, parental rights are prior to those of the government.

Eliminating the Right to Choose

When the United States government says that homeschooling is a mutable choice—they are saying that it is a characteristic that a government can legitimately coerce you to change. In other words, you have no protected right to choose the education for your children. Our nation could remove your ability to homeschool and your choice would be mutable—since the government has the authority to force you to implement their wishes.

The prospect for German homeschooling freedom is not bright. But we should not reserve all of our concern for the views of the German government. Our own government is attempting to send German homeschoolers back to that land to face criminal prosecutions with fines, jail sentences, and removal of custody of children.

We should understand that in these arguments by the U.S. government, something important is being said about our own liberties as American homeschoolers.

The Attorney General of the United States thinks that a law that bans homeschooling entirely violates no fundamental liberties.

It is important that Americans stand up for the rights of German homeschooling families. In so doing, we stand up for our own.

Reprinted with permission from the Home School Legal Defense Association.


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Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome described themselves as "happy." Shutterstock
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‘Sick and twisted’: Down’s advocates, pro-life leaders slam Richard Dawkins’ abortion remarks

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By Dustin Siggins

Advocates on behalf of individuals with Down syndrome, as well as pro-life leaders, are slamming famed atheist Richard Dawkins’ statements made on Twitter earlier today that parents have a moral responsibility to abort babies diagnosed in utero with Down’s.

During a shocking Twitter rant, Dawkins responded to questioners saying that it was "civilised" to abort Down Syndrome babies, and that it would be "immoral" to choose not to abort babies diagnosed with the condition.

He said that his goal is to "reduce suffering wherever you can," indicating that unborn children cannot suffer, and that unborn children don't "have human feelings."

In addition to being scientifically challenged - unborn children can feel both pain and emotions - Dawkins' comments drew criticism for his callousness towards children with disabilities.  

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus"

"It's sick and twisted for anyone to advocate for the killing of children with disabilities," Live Action President Lila Rose told LifeSiteNews. "Dawkins's ignorant comments serve only to further stigmatize people with Down syndrome.

"While many people with Down syndrome, their families, and advocacy groups are fighting discrimination on a daily basis, Dawkins calls for their murder before they are even born," she said. "Those with Down syndrome are human beings, with innate human dignity, and they, along with the whole human family, deserve our respect and protection."

Carol Boys, chief executive of the Down's Syndrome Association, told MailOnline that, contrary to Dawkins’ assertion, "People with Down’s syndrome can and do live full and rewarding lives, they also make a valuable contribution to our society."

A spokesperson for the UK disabilities charity Scope lamented that during the "difficult and confusing time" when parents find out they are expecting a child with disabilities, they often experience "negative attitudes."

"What parents really need at this time is sensitive and thorough advice and information," the spokesperson said.

Charlotte Lozier Institute president Chuck Donovan agreed with Rose’s assessment. "Advocates of abortion for those 'weaker' than others, or of less physical or intellectual dexterity, should remember that each of us is 'lesser' in some or most respects," he said.

According to Donovan, "we deliver a death sentence on all of humanity by such cruel logic."

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus" he said.

One family who has a child with Down syndrome said Dawkins was far from the mark when he suggested that aborting babies with Down syndrome is a good way to eliminate suffering.

Jan Lucas, whose son Kevin has Down syndrome, said that far from suffering, Kevin has brought enormous joy to the family, and "is so loving. He just has a million hugs."

She described how Kevin was asked to be an honorary deacon at the church they attend in New Jersey, "because he is so encouraging to everyone. At church, he asks people how their families are, says he'll pray for them, and follows up to let them know that he has been praying for them."

It's not just strangers for whom Kevin prays. "My husband and I were separated for a time, and Kevin kept asking people to pray for his dad," said Jan. "They didn't believe that Kevin's prayers would be answered. Kevin didn't lose hope, and asking people, and our marriage now is better than ever before. We attribute it to Kevin's prayers, and how he drew on the prayers of everyone."

"I don't know what we'd do without him," said Jan.

Speaking with LifeSiteNews, Kevin said that his favorite things to do are "spending time with my family, and keeping God in prayer." He said that he "always knows God," which helps him to "always keep praying for my friends."

"I love my church," said Kevin.

Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey , 99% of respondents with Down syndrome described themselves as "happy." At the same time, 99% percent of parents said they loved their child with Down syndrome, and 97 percent said they were proud of them.

Only 4 percent of parents who responded said they regretted having their child.

Despite this, it is estimated that in many Western countries the abortion rate of children diagnosed in utero with Down syndrome is 90%, or even higher. The development of new and more accurate tests for the condition has raised concerns among Down syndrome advocates that that number could rise even higher. 

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President George Bush takes the ice bucket challenge in a video released this week.
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What’s wrong with the viral ‘ice bucket challenge’? A lot, say pro-life leaders

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By Dustin Siggins

Pro-life leaders in the U.S. are warning about ethical problems with the viral "Ice Bucket Challenge" that has raised over $15 million for research into Lou Gehrig’s Disease since late July, making its way to the top of American politics, and the entertainment and business worlds in the process.

In recent days, former president George W. Bush, New Jersey Governor Chris Christie, Facebook founder Mark Zuckerberg, TV hosts Oprah Winfrey and Jimmy Fallon, and Microsoft founder Bill Gates have all had ice-cold water dumped on their heads in support of the effort.

They have been joined by many thousands of everyday Americans eager to do their part to raise funds to find a cure for the fatal neurodegenerative disease.

However, pro-life leaders from Patheos blogger Father Michael Duffy to the American Life League (ALL) are all pointing out that the ALS Association, which is behind the wildly popular fundraising effort, funds and otherwise supports embryonic stem cell research.

Instead, they are urging that pro-life people who want to participate in the ice bucket challenge send their donations to other charities that don't have similar ethical issues.

Embryonic stem cell research requires the destruction of an unborn child. This is unlike adult and umbilical cord stem cell research, which are considered ethical.

A spokesperson from the ALS Association admitted to American Life League in an e-mail that while the organization "primarily funds adult stem cell research," they are "funding one study using embryonic stem cells (ESC)..."

Click "like" if you are PRO-LIFE!

"It is noble to combat a deadly disease," Live Action president Lila Rose said in a statement provided to LifeSiteNews, but added that "it's such a shame that the ALS Association...chooses to support research that thrives from experimenting on and killing tiny, innocent human beings."

"Embryonic stem cell research, which requires the destruction of pre-born people, is inherently unethical and a violation of fundamental human rights, and even materialists must admit that promises of its benefits have failed to deliver," continued Rose. "There is no good reason to condone this practice; in fact, all it does is taint the ALS Association, whom I'd otherwise be happy to support."

In the email to American Life League, ALS Assocation Spokesperson Carrie Munk defended the organization, saying that the embryonic stem cell research is being funded by an outside donor, and "the stem cell line was established many years ago."

She added that "under very strict guidelines, The Association may fund embryonic stem cell research in the future," and that currently "donors may stipulate that their funds not be invested in this study or any stem cell project."

At least one Catholic archdiocese has spoken up about the problematic relationship between ALS Assocation and unethical research.

"We appreciate the compassion that has caused so many people to engage in the ice bucket challenge," said a spokesperson for the Archdiocese of Cincinnati. "But it's a well established moral principle that a good end is not enough. The means to that ends must be morally licit."

Both Fr. Duffy and the archdiocese have recommended money be sent to the John Paul II Medical Research Institute in Iowa City, Iowa. It is an organization that exclusively researches with adult stem cells. 

One D.C.-area Catholic, Robert Vega, wrote on Facebook that "in light of the absolute dignity of human life and necessity to defend it...I have taken down my Ice Bucket video, untagged myself from my nomination video, and encourage anyone to whom I may have spread the Challenge to do the same."

Embryonic stem cell research, which was a major controversy throughout the presidency of George W. Bush, has quietly, although decidedly, become less popular after many of the exalted promises of its proponents failed to materialize. As LifeSiteNews reported, in 2012 California and Maryland funded a fraction of the embryonic stem cell research projects that they did in 2007. Likewise, Maryland funded nearly twice as many stem cell research projects in 2012 as it had in the prior year -- but only one of the grants was done for an embryonic research project.

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Catholic couple fined $13,000 for refusing to host same-sex ‘wedding’ at their farm

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By Kirsten Anderson
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Robert and Cynthia Gifford

The New York State Division of Human Rights (DHR) has ruled that the Roman Catholic owners of an Albany-area farm violated the civil rights of a lesbian couple when they declined to host the couple’s same-sex “marriage” ceremony in 2012.

Robert and Cynthia Gifford, who own and operate Liberty Ridge Farm in Schaghticoke, were ordered by DHR Judge Migdalia Pares and Commissioner Helen Diane Foster to pay $10,000 in fines to the state and an additional $3,000 in damages to the lesbian couple, Jennie McCarthy and Melissa Erwin for “mental pain and suffering.” 

Additionally, the Giffords must provide sensitivity training to their staff, and prominently display a poster highlighting state anti-discrimination laws.

The Giffords’ attorney, Jim Trainor, told LifeSiteNews that the two-year-legal drama and resulting fines all stemmed from a single brief phone call in 2012 that caught his clients off guard.

“The entire interaction between the Complainants and the Giffords transpired during a two to three minute telephone conversation which, unknown to Mrs. Gifford, was being tape recorded,” Trainor said.

“After communicating the fact that they chose not to hold same-sex marriage ceremonies at the farm because to do so would violate the Giffords’ sincerely held beliefs (that God intended marriage to be between a man a woman only), Mrs. Gifford invited the couple to visit the farm to discuss handling their wedding reception, which the couple refused.” 

The Giffords draw a line, Trainor explained, between a ceremony that solemnizes a homosexual relationship and a reception that celebrates the union after the fact.  To participate in the former, they argue, would be a violation of their own religious beliefs, especially because marriage ceremonies on the farm typically take place in and around the couple’s home, where they live full-time and are raising their two children. 

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But the Giffords are willing to serve gay couples in other ways – for example, they allowed another lesbian couple to throw a birthday party for their adopted child on the farm.

Trainor said he believes the decision by DHR goes too far in that it seeks to regulate what the Giffords can or cannot do in their own private home, even though state law only requires “places of public accommodation” to adhere to anti-discrimination laws.

“They consider the farm their home,” Trainor said. “They live there, they work there, they raise their kids there.”

Trainor also said that the Judge and Commissioner should have taken into account the Supreme Court’s recent Hobby Lobby ruling, which came down weeks before the DHR notified the Giffords of their decision.

“We're disappointed that neither the Administrative Law Judge nor the Commissioner considered the Gifford's Constitutional (1st Amendment) rights, including the right not to be compelled to participate in a ‘marriage’ ceremony which violates their own religious beliefs,” Trainor said. 

Trainor said he and the Giffords are evaluating their options for further legal action.

The Giffords could simply ask the DHR to reconsider their decision, but Trainor said he doubts that approach would be successful. In order to formally appeal the ruling the couple would have to go to the New York State Supreme Court. 

But there is another option: The Giffords could file a fresh lawsuit in either state or federal court challenging the constitutionality of the DHR ruling.

While religious liberty has been a hot topic in federal court lately, Trainor said New York’s state constitution “actually offers a lot” of protection when it comes to religious freedom. “Many people view it as more expansive than the U.S. Constitution in terms of religious freedoms.”

However, Trainor emphasized that the Giffords have not yet decided which avenue, if any, they are planning to take in terms of pursuing further legal action.

In the meantime, the Giffords will continue hosting wedding ceremonies and receptions at the farm, Trainor said. However, they are considering hiring a dedicated employee to handle the ceremonies in order to avoid having to directly participate in any future same-sex “weddings.”

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