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

The Way Ahead: Religious Freedom Laws

In the wake of the Supreme Court’s ruling in Smith, Congress tried to increase religious protections by passing the Religious Freedom Restoration Act of 1993 (RFRA), which would have forced both federal and state courts to apply a stricter measuring rod to laws that impact religion. But the Supreme Court later struck down parts of RFRA, limiting the law’s reach solely to the actions of the Federal Government.6 In other words, your state and local governments are free to pass neutral laws—regardless of their religious impact—with only minimal court scrutiny.

With the federal RFRA severely limited, homeschool advocates are pushing for state-level RFRAs as a way to secure extra protection for religious families. But these local laws only apply within your state’s own borders. Thus, to replace the federal RFRA, all fifty states must individually pass their own versions of the law.

The push for local RFRAs has netted about a dozen victories, even in large states such as Pennsylvania, Texas, and Florida. A handful of other states, such as Kansas, Ohio, and Vermont, provide stricter scrutiny based on local court decisions. But the battle still rages. For instance, in 2010 Louisiana successfully passed RFRA legislation, but Colorado failed to add the law to its constitution.

Homeschool legal advocates are urging families to check the law in their own states and to work for passage of additional local RFRAs, either through legislation or amendment to state constitutions. In 2012, several states will be voting on this issue, such as West Virginia, New Hampshire, and North Dakota. If you are a religious homeschooler in one of those states, you will want to make your voice heard. And if your state still lacks an RFRA, you will want to contact your local legislators and statewide homeschool groups to start the process to get one. These laws may not guarantee your religious freedom in every case, but they will give you a fighting chance in the courts.

Endnotes:

1. See Employment Division v. Smith, 494 U.S. 872 (1990) (upholding an Oregon statute criminalizing the use of peyote—a Schedule I controlled substance—even when used sacramentally by Native Americans as part of a religious ceremony).

2. Smith, 494 U.S. at 881–82.

3. Combs v. Homer-Center School District, 540 F.3d 231 (3rd Cir. 2008).

4. See Jonathan L. v. Super. Ct. of Los Angeles County, 81 Cal. Rptr. 3d 571 (Cal. Ct. App. 2008).

5. In January 2012, the United States Supreme Court unanimously ruled that the First Amendment prevented the government from interfering with a church’s “free exercise” right to fire one of its ministers. See Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. ___ (2012).  This ruling did not change the state of the law regarding the “rational basis” test, however.

6. See City of Boerne v. Flores, 521 U.S. 507 [http://en.wikipedia.org/wiki/Court_citation ] (1997).

Antony B. Kolenc (J.D., University of Florida College of Law) is an attorney, author, and speaker. He and his wife have homeschooled their five children for over a decade. He is author of The Chronicles of Xan historical fiction trilogy, as well as several legal articles. Learn more about him at www.antonykolenc.com.

If you have a legal-related question, please email  TL@TheHomeschoolMagazine.com  and Tony may get a chance to answer it in his monthly column!  

Copyright 2012, used with permission. All rights reserved by author. Originally appeared in the April 2012 issue of The Old Schoolhouse® Magazine, the family education magazine. Read the magazine free at www.TOSMagazine.com or read it on the go and download the free apps at www.TOSApps.com to read the magazine on your mobile devices.

Publication date: March 29, 2013