Many homeschoolers believe they have a parental duty and constitutional right to give their children a Godly education—or at least one free from the harmful influences they see in the public schools. And isn’t that right protected by the U.S. Constitution’s First Amendment, which guarantees the “free exercise” of religion? Not as much as you might think. That is why legal advocacy groups are urging homeschooling families to work at the local level to secure extra protections for religious freedom.  

“Supreme” Protection?

If your state were to pass a law that forbade homeschoolers from teaching religion, the Constitution would vigorously protect you. But what if your state simply regulated the content of your curriculum by requiring all public, private, and homeschooled history curricula to include a unit about the gay civil rights struggle for “marriage equality”? Religious families opposed to same-sex marriage might be surprised to find this “religion-neutral” law much harder to attack under the “free exercise” portion of the First Amendment. Why?

After a string of U.S. Supreme Court cases, beginning in the 1960s, most legal scholars believed that judges would strictly scrutinize any law that interfered with your right to freely exercise religion. But the Supreme Court clarified in 1990, in Employment Division v. Smith, that “strict scrutiny” is not proper when a law that is “neutral” toward religion unintentionally impacts your religious practices.1 In that situation, courts merely need to ensure the law is “rational”—an easy standard to meet.

The Smith ruling was bad news for those families who encounter a “neutral” homeschooling law that also impacts religious freedom, such as one regulating the content of a curriculum. Yet legal advocates believe there may be a loophole in Smith’s reasoning that provides extra protection for homeschooling families. They argue that judges must still apply strict scrutiny to neutral laws that impact “hybrid rights”—where the free exercise of religion has been combined with “the right of parents . . . to direct the education of their children.”2 But this loophole may not be wide enough.

The Failure of “Hybrid Rights”

Homeschoolers have yet to score a major court victory using the “hybrid rights” argument, which has been marginalized or ignored by many courts. For instance, in 2008 several families challenged Pennsylvania’s homeschool law, arguing that it interfered with their “hybrid” religious right to direct the education of their children. These families felt that the state’s secular supervision of their homeschool programs conflicted with their belief that God had entrusted education exclusively to parents. A federal appeals court disagreed, finding that the law was “rational” and did not impact their religious freedom.

That same year, the “hybrid rights” argument fared only slightly better in California when a family challenged a judge’s order that forced them to stop homeschooling. In that case—where a father had allegedly abused two of his daughters—homeschool advocates convinced an appeals court to strictly scrutinize the judge’s order. Despite this, the court upheld the order because of the state’s “compelling interest” in the welfare of children.4 In sum, while the “hybrid rights” argument is still available to homeschoolers today, you cannot count on it to deflect neutral laws that impact your religious freedom.5