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Religious Freedom is Endangered: How We Can Fight Back

By Christopher Klicka
Printed in Practical Homeschooling #67, 2005.

Religious freedom is an endangered species - what can we do to preserve it?
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Chris Klicka

The two constitutional pillars that support homeschooling are the parents' fundamental right to direct the education and upbringing of their children as secured by the 14th Amendment and the parents' right to freely exercise their religious convictions as guaranteed by the First Amendment.

Because most homeschoolers teach their children at home in order to train them up in the nurture and admonition of the Lord, our right to freely exercise our religious beliefs is paramount.

Therefore, one of the goals of the Home School Legal Defense Association (HSLDA) is to work in the Federal and State legislatures and the courts to protect our right to freely exercise our religious beliefs so parents can home school their children the way God leads them.

Religious Freedom Protection Reduced by the U. S. Supreme Court

On June 25, 1997, the U.S. Supreme Court, by a 6-3 majority, ruled the Religious Freedom Restoration Act (RFRA) unconstitutional in City of Boerne v. Flores. This was a devastating blow to our religious freedom in this country.

The facts of the case are this: After the city of Boerne denied a building permit to a church because the church building was located in a historic district, Catholic Archbishop Flores of San Antonio appealed this decision, arguing that this denial of the church's right to expand to accommodate its growing congregation violated the church's right to freely exercise its religious beliefs as protected by the RFRA. The U.S. Supreme Court ruled against the church and in the process struck down the RFRA, which was the highest level of protection of our religious liberty available.

Since this extremely harmful U.S. Supreme Court Boerne decision, state and federal courts have diminished religious freedom in many ways. For example:

  • The long-standing practice of pastor-laity confidentiality has been repeatedly violated

  • A Catholic hospital was denied state accreditation for refusing to teach abortion techniques

  • There have been conflicts with zoning ordinances, such as shutting down a church ministry to the homeless because it was located on the second floor of a building with no elevator

  • A church was prohibited by a local city ordinance from feeding more than 50 poor people per day

The list goes on and on. This subtle erosion of our religious liberty by the courts who are applying the Boerne ruling is gradually removing one of the bedrock defenses of homeschooling.

But there is hope.

Resolving the Religious Freedom Crisis at the State Level

Several years ago, HSLDA and a broad coalition of organizations worked very hard to get the federal RFRA enacted. Since it was struck down, other attempts at the federal level to resolve the religious freedom crisis have been misguided or have failed.

HSLDA, therefore, along with several other pro-religious freedom organizations and many state homeschool organizations, is urging all of the 50 states to pass their own Religious Freedom Act to counter the Boerne case's devastating impact on religious freedom.

As of August 2005, by God's grace, more than a quarter of the states have acted to protect the religious freedom of the citizens in their states. Rhode Island, Connecticut, Florida, Illinois, Arizona, South Carolina, Texas, Idaho, New Mexico, Missouri, Pennsylvania, and Oklahoma have passed their own state Religious Freedom Acts. Alabama made religious freedom even more secure by specifically amending their state constitution to recognize religious freedom as a fundamental right protected by the compelling interest test.

HSLDA's legal staff has worked with religious freedom coalitions in the states (and the national state religious freedom coalition), helped draft legislation, lobbied individual state legislators, attorney generals, and governor offices, sent out numerous alerts, and provided testimony at some legislative hearings in order to advance these Religious Freedom Acts. The phone calls of thousands of homeschoolers particularly contributed to the passage of the RFRA's in Illinois, Arizona, Texas, South Carolina, Idaho, New Mexico, and Oklahoma. The Illinois act was successful after two HSLDA alerts and tremendous outpouring of calls by homeschoolers convinced legislators to override the governor's veto.

HSLDA and homeschoolers have brought significant pressure on the state legislatures of Virginia and Oregon along with much work in Louisiana, California, and Hawaii, but the fruits of their labors have not yet been realized. In 1999, Religious Freedom Restoration Acts were passed by both houses in New Mexico and California, only to have them vetoed by the governors. However, in April 2000, HSLDA and homeschoolers were able to convince both the New Mexico legislature and Governor Gary Johnson to re-pass and authorize a RFRA bill. Also encouraging is the fact that RFRA bills have continued to be introduced in numerous states during the 2004 and 2005 legislative sessions, although not all have passed.

Home Schoolers Successfully Use Religious Freedom Acts to Escape Onerous Regulations

We have used these state Religious Freedom Acts to help homeschoolers escape onerous home school requirements. For example, homeschoolers who have religious reasons for homeschooling have invoked the Florida Religious Freedom Act (Florida Statutes Section 761.01 et seq) that HSLDA helped pass a few years ago. This act provides religious homeschoolers with a legal means to say "no" to the portfolio review of all their school records as allowed by Florida law. For some homeschool families the portfolio review by the local school district is offensive to their religious beliefs. By invoking the Religious Freedom Act these homeschoolers have forced the state to prove that the fulfillment of a portfolio review "furthers a compelling state interest" and is the "least restrictive means" of fulfilling its interest that children be educated. Instead of going to court, school districts have just exempted homeschoolers from invasive portfolio reviews!

In Pennsylvania, we are using that state's Religious Freedom Act to successfully fight against a very cumbersome and regulatory homeschool law that has substantially burdened families for years. We currently have about 50 families who are no longer following these onerous restrictions after invoking the RFA and are being left alone. We have a half dozen more families that we helped in court to win their religious exemption under the Act.

Be Ready!

All freedom-loving homeschoolers should be prepared to call their legislators to support their state's Religious Freedom Act in order to save religious freedom. HSLDA will be sending our legislative alerts and updates on the battle for religious freedom in your state. We urge you to pass these alerts on to encourage your friends and relatives to also call.

If you know a supportive legislator and would like to send him our model legislation and arguments for a state Religious Freedom Act, write or call HSLDA and ask for our "State Religious Freedom Packet."

Don't let one decision by the U.S. Supreme Court denigrate this priceless inalienable right! Support your state religious freedom act this coming session.

History of the RFRA

The RFRA was originally drafted in response to a 1990 U.S. Supreme Court decision (Smith II) in which the Court gave the lowest level of protection to religious liberty - one of the foundational freedoms of homeschooling. Using this ruling, a state could override an individual's right to freely exercise his religious beliefs merely by proving that its regulation was "reasonable."

HSLDA helped form the coalition which drafted and promoted the RFRA. Three years later, Congress passed the RFRA and President Bill Clinton signed it into law, reversing the disastrous effects of Smith II by restoring religious freedom as a fundamental right.

The RFRA affirmed a 1963 decision (Sherbert v. Verner) in which the U.S. Supreme Court held that in order for a state's regulation to prevail over an individual's right to freely exercise his religious belief, the state had to prove that its regulation was "essential" to achieve a compelling interest. In addition, the state had to provide evidence that it was using the "least restrictive means" to accomplish this compelling interest. Under this high standard of review, the free exercise of religion was usually upheld over restrictive state regulations.

However, in the City of Boerne case, the U.S. Supreme Court held that the power of Congress under Section 5 of the 14th amendment is limited to "enforcing the provisions of the Fourteenth Amendment." In the Court' s opinion, Congress does not have the authority to determine what constitutes a constitutional violation. The Court held that the RFRA went too far in attempting to change the substantive law of constitutional protections. According to the Boerne decision, Congress can make determinations as to the proper interpretation of the Constitution, but courts ultimately have the authority to determine if Congress has exceeded its own constitutional bounds. In other words, the U.S. Supreme Court, not Congress, is the final arbiter in interpreting the Constitution.

Unfortunately, our conservative friends - the late Justice Rehnquist and Justices Scalia and Thomas - joined with the majority in knocking our first amendment right down from its lofty fundamental right status to a simple garden variety category. The Court ruled that only when a person's claim to freely exercise a religious belief is combined with another fundamental right still receiving the protection of the compelling interest test (in a "hybrid situation") such as freedom of speech, freedom of the press, or the fundamental right of parents to direct the education and upbringing of their children, will it be given more than a simple reasonableness test.

Dissenting in the minority with Justices Breyer and Souter, Justice O'Connor stated that the Court should have used this case to revisit the Smith decision of 1990 since Smith had so drastically redefined the standard of review of the Free Exercise Clause, departing from decades of Supreme Court precedent.

[T]he Court's rejection of this principle in Smith is supported neither by precedent nor as discussed... by history. The decision has harmed religious liberty. The historical evidence casts doubt on the Court's current interpretation of the Free Exercise Clause.

O'Connor gave a stirring review of the importance of religious freedom in our country, quoting a number of state religious freedom charters. She noted that:

[E]arly in our country's history, several colonies acknowledged that freedom to pursue one's chosen religious beliefs was an essential liberty. Moreover, these colonies appear to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent licentiousness.

She further explained that every state constitution included the right to freely exercise religious beliefs. She quoted James Madison and Thomas Jefferson in summary, explaining,

To Madison, then, duties to God were superior to duties to civil authorities - the ultimate loyalty was owed to God above all... the idea that civil obligations are subordinate to religious duty is consonant that government must accommodate, where possible, those religious practices that conflict with religious law."

O'Connor concluded,

It has long been the Court's position that freedom of speech - a right enumerated only a few words after the rights to Free Exercise - has a special Constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect. The rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe it essential for the Court to reconsider its holding in Smith."

Unfortunately, this dissent, although correct, was ignored.

It is now left to you to stand up for religious freedom and work hard to pass a Religious Freedom Act in your state. By being a member of HSLDA we can join together to make this happen.

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