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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Drew Belsky

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ACLU sues Kentucky clerk for refusing marriage licenses to all couples

Drew Belsky
By Drew Belsky

July 6, 2015 (LifeSiteNews) -- Four Kentucky couples are suing a clerk of the court in their county for refusing to grant them marriage licenses.

The clerk, Kim Davis of Rowan (pronounced "rah-win") County, declared that her faith prevents her from complying with the Supreme Court's Obergefell v. Hodges decision, issued in late June, which legally redefined marriage to include same-sex couples.  She is withholding licenses not only to same-sex couples, but to everyone – in fact, two of the couples suing Davis, with the help of the American Civil Liberties Union (ACLU), are sexually complementary.

"It is my deep conviction and belief that God ordained marriage between a man and a woman," Davis told Kentucky station WYKT.  "I can't be a part of this."

"My Kentucky Constitution that I took the oath to uphold in January stated that marriage is between one man and one woman, and that is the constitution that I have vowed to uphold."

Laura Landenwich, an attorney with the ACLU, said that "Ms. Davis has the absolute right to believe whatever she wants about God, faith, and religion.  But as a government official who swore an oath to uphold the law, she cannot pick and choose who[m] she is going to serve, or which duties her office will perform based on her religious beliefs."

The ACLU's complaint avers that "Plaintiff and Plaintiff Class have suffered and continue to suffer irreparable harms, including harms to their dignity and autonomy, family security, and access to the full spectrum of benefits conferred by the state upon others."

Davis, a Democrat, is appealing to Kentucky's Bill of Rights, which states that "no human authority shall, in any case whatsoever, control or interfere with the rights of conscience."  Moreover, she told WSAZ reporter Kaitlynn LeBeau, "My Kentucky Constitution that I took the oath to uphold in January stated that marriage is between one man and one woman, and that is the constitution that I have vowed to uphold."

Kentucky Gov. Steve Beshear, a Democrat, has ordered all clerks in the Bluegrass State to comply with the Supreme Court's decision.

"Each clerk vowed to uphold the law regardless of his or her personal beliefs," Beshear said in a statement.  "I appreciate the clerks who are fulfilling their duties, issuing licenses to all couples, and I would expect others to execute the duties of their offices as prescribed by law and to issue marriage licenses to all Kentuckians."

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Davis' decision brought protesters to her office in Morehead last Tuesday.  The crowd comprised both opposition and supporters, bearing signs with messages including "Morehead = Equality," "Leave Religion out of your GOVERNMENT job!," and "We stand with you Kim."

Davis refuses to speak on camera because of an intensifying tide of threatening hate mail.  One man told her by email that she needed to be killed.  She has received gratitude and support as well, including from states outside Kentucky.

"This is a battle," Davis told one reporter by phone, "nationwide, that I think is vital to every person who holds near and dear to their heart the word of God."

Resistance to Obergefell is not limited to one Kentucky county.  All three staffers at the county clerk's office in Decatur County, Tennessee resigned following the decision.  Decatur County commissioner David Boroughs told a local paper that he is "proud of them that their faith is so strong and well-rounded that they feel they can do that."

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Matthew J. Franck

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Obergefell is so awful that it makes Dred Scott look like a piece of lawyerly precision

Matthew J. Franck
By Matthew Franck

July 6, 2015 (ThePublicDiscourse) -- When the blow finally fell, the Supreme Court’s ruling in Obergefell v. Hodges—holding 5-4 that every state in the Union must license same-sex marriages—seemed somehow less crushing in its impact, less hurtful and wounding, than one might have expected from a decision that is so thoroughly a defeat for the truth about marriage and the truth about the Constitution.

Make no mistake, the harms from the Court’s appallingly illegitimate decision are many, and gravely serious. But the good news for a cockeyed optimist like me is that Justice Anthony Kennedy’s opinion is so incompetent, so gossamer-thin as an exercise in legal or constitutional reasoning, so unpersuasive even in political terms, that it renews my zest for carrying on the battle of persuading my fellow citizens and turning the country around on this issue.

I should have known he would do this for us, as well as to us. For Kennedy began to travel this road nearly twenty years ago in Romer v. Evans (1996), in which a 6-3 Court denied to the people of Colorado the authority to amend their state constitution to prevent their elected state and local legislators from adding “sexual orientation” to the list of “identities” on the grounds of which discrimination by public and private actors alike is forbidden.

Is Anyone "Demeaning" Others' "Dignity"?

Yet at least in Romer, the word “dignity” had not yet appeared in Kennedy’s reasoning. In Lawrence v. Texas (2003), which overturned state laws that criminalized homosexual sodomy, Kennedy turned away from the equal protection clause and to the textually and historically ungrounded jurisprudence of “substantive due process.” This meant, in Kennedy’s hands, the judicial protection of a free-ranging, judicially defined notion of “liberty” invoked to overturn any conduct-regulating statute that trenched on the “dignity” of persons whose wishes and desires tugged at the judges’ heartstrings.

In Romer, at least, Justice Kennedy had labored to produce something that resembled a competent account of the equal protection clause—though his attempt failed. But Lawrence was something else. Lawrence was a moment of real self-liberation for Kennedy. That can be seen in his quotation of what were probably his own words from the joint opinion he co-authored with Justices O’Connor and Souter in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This “mystery passage” was already in 2003, and remains, the most widely lampooned bit of pseudo-reasoning of the last half century, but Kennedy sensed the cultural and political power that it represented, and in Lawrence he set it on course to colonize our constitutional law entirely. His opinion was also liberally salted with references to “dignity” (three times, including another line quoted from Casey), and to the idea that laws resting on negative judgments of homosexual conduct “demean” those who engage in it (four times).

United States v. Windsor, the Defense of Marriage Act case from two years ago, gave us more of Kennedy’s free-floating jurisprudence of “dignity” (ten mentions including “indignity”), condemning laws that “demean” (three mentions).  Obergefell rests explicitly on this fragile, groundless rationale, with Kennedy mentioning the connection of marriage to “dignity” nine times, while three times saying that it “demeans” same-sex couples when a state limits marriage to one man and one woman, and twice invoking the matter of “identity.”

But there is something else quite new in Obergefell. Kennedy, somewhat defensively, mentions twice that defenders of conjugal marriage might believe redefining the institution to include same-sex couples “demeans” marriage itself. Since no one opposed to same-sex marriage actually speaks this way, this is a curious characterization, but perhaps an important one. In Kennedy’s mind, the Constitution has been converted into a great Dignity Document. The role of the Supreme Court is to adjudicate whose version of Dignity it embodies, which can be decided by pondering who is made to feel worse by having his strongest convictions “demeaned.” Victory will go to the one who can appeal successfully to strong feelings about his “identity.” As Chief Justice Roberts said in dissent, “The majority’s driving themes are that marriage is desirable and petitioners desire it.”

A Constitutional Crisis

Confronted by such a string of sentiments masquerading as constitutional principles, why then should I feel heartened by the new phase of the struggle into which the Obergefell ruling has just pitched us? The reason is that Kennedy is so terribly bad at his chosen profession of judge that he has now unmasked himself, and his four silent colleagues who joined his opinion for the Court, as imperial rulers with no regard for the Constitution, for the forms of reasoning that give the law its real vitality, or for the rightful authority of the people to govern themselves within the bounds of a Constitution they understand and respect.

Moreover, while noting all the manifold ways in which the marriage debate has been played out over the last two decades—just as he was attempting to shut that debate down—Kennedy evinced no understanding of what the arguments about marriage really are, not even grasping the arguments on the side he favored. In so doing, he showed himself to be, if not one of the least intellectually honest persons ever to come to that debate, then one of the least well-informed. His opinion is an act of the most breathtaking argumentative carelessness in the history of the Supreme Court. Roe v. WadeLochner v. New York, and Dred Scott v. Sandford—all rightly invoked by the dissenters in Obergefell as the true models for Kennedy’s reasoning—are closely reasoned works of lawyerly precision by comparison.

As a legal opinion, Obergefell is an utter failure. What the late John Hart Ely, who was politically in favor of abortion, said of Roe v. Wade, we can say of Obergefell: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” But Obergefell is also embarrassingly bad as a contribution to the political and social debate on marriage. From this I take heart that the battle can be rejoined, with the making of better arguments—each side offering its best against the other’s best—in a struggle that will continue for years to come.

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But wait. Isn’t the debate over? Isn’t that what a Supreme Court decision on the Constitution means? Well, frankly, no. The movement for rescuing and restoring marriage in our country will not be made to vanish by so transparently political a holding of five justices of the Supreme Court. The movement for defending the sanctity of life in our law, forty-two years after Roe v. Wade, waxes rather than wanes in strength. As the pro-life movement was joined, so the marriage movement will be joined, by defenders of the authentic Constitution so blithely traduced by the Court’s majority. The Roe decision has often made pro-life converts out of people who actually read it—I know, because I was one of them—and the Obergefell ruling, in time, will do similar work in adding strength to the ranks of marriage’s defenders.

A constitutional ruling so shoddily reasoned, so completely and, one may say, easily dismantled by the four justices who dissent from it, must paper over a cause that cannot ultimately win in an open democratic debate, and that therefore seeks the shelter of powerful friends in the judiciary. This is just what many young people will come to see for themselves simply by reading the decision, just as many have done by reading Roe. The twin discoveries, that a great constitutional wrong has been committed to give cover to a great moral wrong, will come together.

We may take heart, then, from Justice Alito’s observation that “even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.” Indeed they should, for the debate is not over; it has only entered a new phase. That phase will necessarily include some sober deliberations regarding what can be done about a Supreme Court with (at least) five members who believe that they can rewrite the Constitution at will in order to transform fundamental institutions of our society. For Alito’s very next sentence is, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of authority have failed.” Indeed, they have, and so it is back to the drawing board. When even the chief justice complains of “the majority’s extravagant conception of judicial supremacy,” it is time to do some hard thinking about meaningful institutional reform of the federal judiciary.

In the Meantime

While we prepare for hard work on many fronts in the battles for marriage and for the Constitution, we should recognize and immediately try to mitigate the great harm the Court has done. Despite Kennedy’s pat denials, marriage has been grievously wounded as an institution, and we must do what we can to bind up its wounds, in our own families, communities, and churches. After all, every future generation is at stake. We must never tire of saying: every child deserves a mother and a father—preferably his or her own biological parents. That, as the dissenting justices recognized, is what marriage has always been about, in every age and culture, and it is why marriage has always been understood as the union of a man and a woman.

And we must do all that we can to institute safeguards for religious freedom in our country, which will now come under attack as never before. It was strangely gratifying to see Chief Justice Roberts and Justice Thomas, in their dissents, give this matter their lengthy and considered attention. Thomas foresees “potentially ruinous consequences for religious liberty” in this invention of a new “right” of same-sex marriage, and Roberts noted how telling was the way in which Kennedy shrugged off such potentials:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. . . . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

The protection of religious freedom may rapidly become our most urgent legislative business, both in Congress and in state legislatures. But win or lose in legislative assemblies, the faithful and their pastoral leaders in the many religious communities devoted to the truth about marriage must prayerfully muster the courage to act, and to live as their faith informs their consciences, as well as to “advocate” and “teach.” As Alito notes, “those who are determined to stamp out every vestige of dissent” on the marriage question will be ready to exploit the Court’s decision. Look at your social media feeds: That is already happening.

In our response to our counterparts in this great constitutional, political, and moral debate that now begins anew, we can start by preaching and practicing a truer, fuller understanding of dignity, in our families and churches, than the one about which Kennedy so vainly prattles. And we can fix our eyes on the prize of restoring, through real democratic debate and persuasion, the great goods of constitutional self-government and justice to individuals and families.

Thank you, Justice Kennedy, for giving us this opportunity. I know you didn’t mean it, but thank you nonetheless.

Reprinted with permission from The Witherspoon Institute

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Lisa Bourne

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US Episcopal Church faces backlash after approving gay ‘marriage’

Lisa Bourne
By Lisa Bourne

July 6, 2015 (LifeSiteNews) -- The bishops of the U.S. Episcopal Church gave the green light last week for clergy to perform same-sex “weddings,” in a heavily-debated fundamental change set to come in the door incrementally.  

As of November 1 of this year homosexual couples will have the right to be “married” in the church, the result of new liturgies for same-sex couples approved Wednesday at the denomination’s General Convention in Salt Lake City.

The bishops also accepted changing the church’s canons (rules) governing marriage, to make them gender neutral, thus replacing the terms “man and woman” with “couple.”

Episcopal clergy however, will be allowed to refuse to perform a homosexual “marriage” with the promise they would not be penalized, and individual bishops were also given the right to refuse to allow same-sex ceremonies to take place in their diocese.

The compromise is angering Episcopalians on both sides of the issue, with liberal factions potentially trying to block the plan and insist on the immediate introduction of same-sex “marriage” with no way for dioceses to opt out, and conservatives likely to reach out to overseas leaders in the wider Anglican Communion for help in getting the church to stop.

The leader of the worldwide Anglican Communion, which includes the Episcopal Church, released a statement expressing his “deep concern” over the U.S. Episcopal Church’s resolution to change the definition of marriage.

“Its decision will cause distress for some and have ramifications for the Anglican Communion as a whole,” Archbishop of Canterbury Justin Welby said, “as well as for its ecumenical and interfaith relationships.”

Blessings for homosexual unions were first approved at the denomination’s 2012 convention, along with acceptance of transgender clergy. The Episcopal Church still maintained at the time that marriage was an exclusive life-long covenant of one man and one woman, as held in the church’s Book of Common Prayer.

While several Episcopal bishops defended the Biblical definition of marriage at this year’s convention, the majority of bishops argued that the provisional and trial rites would expand the traditional teaching about marriage, without changing the church’s underlying text or doctrine of marriage.

Retired Episcopal Bishop Vicky Gene Robinson, the first openly gay bishop in the Episcopal Church, was among those at the convention who said homosexual sexual intimacy was morally acceptable and should be blessed in faithful covenanted relationships, stating, “I think it is time for us to do this.”

Robinson, whose 2003 elevation to bishop was a key factor in the denomination’s later split, said, “Gays and lesbians are living out their lives in holy ways,” and changing the church’s rules on marriage “allows us to recognize this,” to “declare how far we have come.”

Click "like" if you want to defend true marriage.

In response to an inquiry for comment on the Episcopal bishops’ resolution accepting homosexual “marriage,” the Anglican Church in North America directed LifeSiteNews to the church’s recent response to the U.S. Supreme Court decision legalizing homosexual “marriage,” which said in part, “The Anglican Church in North America only authorizes and only performs marriages between one man and one woman.” 

Leaders of the Anglican Global South, a grouping of 24 of the 38 provinces of the Anglican Communion, issued a statement criticizing the U.S. Episcopal Church’s resolution as another unilateral decision taken without consideration for the Anglican Communion, ecumenical and interfaith relations and the mission of the church worldwide.

“This Resolution clearly contradicts the Holy Scriptures and God’s plan for creation as He created humankind as man and woman to complement each other physically and emotionally,” the Global South statement said.

“The church is intended by its Lord to be the holy leaven to shape society by its spiritual and moral values in line with God’s design,” it continued. “But sadly, by this action of (The Episcopal Church), the church gives way to the society to alter and shape its values. In other words the church is losing its distinctiveness as salt and light in this world.”

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