Vol. 13 No. 12 (December 2003)

THE YODER CASE: RELIGIOUS FREEDOM, EDUCATION, AND PARENTAL RIGHTS by Shawn Francis Peters. Landmark Law Cases and American Society, Peter Charles Hoffer and N.E.H. Hull, series editors. Lawrence, Kansas: University Press of Kansas, 2003. 199 pp. Paper $14.95. ISBN 0-7006-1273-4.

Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff@jsums.edu.

Since the mid 1990s, the University Press of Kansas has been publishing a series of books currently unique in the publishing landscape. These books have traditionally examined well-known seminal Supreme Court cases and legal events through the lens of contemporary legal, historical, and political scholarship. Unlike the parallel Bedford Book series (Bedford Series in History and Culture), the Landmark Law Cases and American Society series does not provide primary documents with an introductory survey; instead, the Kansas series emphasizes the significance of the selected case and what that case reveals about our legal process and our political communities.

WISCONSIN v. YODER (1972), one of the earlier free exercise cases decided by the Court, is a very apt choice for such an exploration. The case originates when a newly established Amish community in New Glarus, Wisconsin, determines not to send their children to the public schools beyond the eighth grade. The Amish argue that the central tenet of their faith is to "not conform any longer to the patterns of this world…" (Romans 12:2). As Amish leaders in Lancaster, Pennsylvania, had written in 1950 regarding their faith's position on public school attendance, "We believe that our children should be properly trained and educated for manhood and womanhood. We believe that they need to be trained in those elements of learning which are given in the elementary schools. Specifically, we believe that our children should be trained to read, to write, and to cipher." The statement indicates that more extensive schooling was deemed harmful to older students as it "has a tendency to cultivate sentiment which may lead to a drifting away from the church" (p.28). The State of Wisconsin believed that it had an obligation to ensure that all students were educated until the age of sixteen. School Board officials feared that any exception made to this rule would open the floodgates to many requests for similar exemptions, placing the state in the tenuous position of determining which religious requests were genuine and which were fraudulent.

YODER is regarded as a precedent that protected the right of a small religious group against the larger interests of the states. While the Court had already ruled in cases regarding Jehovah's Witnesses' refusal to pledge allegiance to the flag, in general the rulings the Court had made involving the free exercise clause were inconclusive. Many questions remained before the Court when they granted certiorari in YODER. "Was there an absolute right to conscience, to worship as one chose? Or did the state's interests in universal education prevail over parents' wishes concerning their children's religious training? Was there a wall between church and state that protected both from the commands of the other? Or was the United States founded under the principle that 'we are a religious people, whose institutions presuppose a supreme being,' as Justice William Douglas wrote in his majority opinion in ZORACH v. CLAUSON (1952)" (p.vii). EMPLOYMENT DIVISION v. SMITH (1990) destroyed any presidential value YODER holds; nonetheless, the YODER decision is significant because of the Court's analysis of these conflicting rights.

A careful survey of the development of the case and the significance of the decision would be a useful contribution to the pedagogical literature, much like Nancy Woloch's MULLER v. OREGON: A BRIEF HISTORY WITH DOCUMENTS. Another approach the author could have taken in the examination of the case is to look at the human element by interviewing participants and telling their perspective of the case, as Peter Irons did in his COURAGE OF THEIR CONVICTIONS. Peters certainly integrates this perspective throughout his analysis. A third approach would be to examine the doctrine that emerges from the opinion, connect it to relevant precedents and antecedents and suggest a more coherent approach an omnipotent court could take, much like Robert Wheeler Lane (1995) in his analysis of minors and First Amendment speech protections. Peters carves a different path, but one that is familiar to other readers of this series.

Like Howard Ball (2003), Melvin Urofsky (1997), and John W. Johnson (1997), Peters places the case into the larger cultural and political landscape. All of these texts trace the historical forces from which their respective controversies emerge, articulate how the conflicts result in litigation, indicate why they could not be settled prior to trial, and describe the national forces (higher education affirmative action, affirmative action in employment, and free speech interests of students) leading to a decision by the Supreme Court. The authors explain why their focal cases are considered seminal by scholars today and in how they are still relevant to constitutional law. In the process of doing this, these consistently strong books ask-what do these cases tell about the legal process and our society? It is at this point that THE YODER CASE is particularly strong.

Peters argues that understanding the brewing debate over the role of education in society in the 1960s and the unique dynamics of the Amish community is necessary to comprehend the origins of this case. He traces the move to New Glarus from an Amish Community in Iowa that had already faced state prosecution for refusing to send children to school past the eighth grade. He shows the attempts at negotiation between Amish leaders and the New Glarus local school board surrounding mandatory gym classes in which children were expected to wear t-shirts and shorts. Although they were successful in reaching compromise initially, eventually the competing interests of the state and the religious community could not be resolved.

These tensions, Peters observes, led to internal conflicts within the New Glarus Amish community over the role that law should play in their society. By carefully examining the internal beliefs and dynamics of Amish society, Peters is able to provide very careful and thoughtful analysis of the differing communities' perceptions of the legal process:

As one observer of the faith put it, they are, unlike most Americans, "unalterably opposed to instituting suits at law." This disinclination is rooted in large part in their adherence to the ethical principles detailed in the Sermon on the Mount. There, as he counsels meekness and nonresistance, Christ admonishes: "If any man sue you at law, and take away thy coat, let him have thy cloak also." To the Amish, being sued or prosecuted is not quite the same as suing, for defendants in legal cases typically have not chosen to invoke the law; in most instances, they have been dragged into the courts by other people. "Nevertheless, the Amish believe that they should avoid such involvement as much as possible," according to one study of the faith. "Normally, if the judgment of the court is against the defendant, he should obey the law as interpreted by the court" (pp.54-55).

How then did the Amish become involved in such a high-profile Supreme Court case? Peters points to an interest group composed of academics, lawyers, and ministers, formed to help provide accuracy in "press reports regarding [Amish] beliefs and practices" (p.50). The National Committee for Amish Religious Freedom (NCARF) was created because their supporters believed that the Amish would not advocate for their own beliefs, and YODER was representative of a conflict that was occurring in many states across the country. From its inception, according to its fund-raising materials, "NCARF hoped 'to make it possible to request a full scale legal review of Amish religious rights before the United States Supreme Court'" (p.53). This dimension of Peters' analysis is among the most fascinating in the book. Much research has been completed on the role of interest groups in successful litigation, and Peters examines the multiple agendas such interest groups might have in assisting the less enfranchised. While many books look at the legal consequences of litigation and the changes it may generate in public policy, how participation in a litigation process affects the participants is often ignored. WISCONSIN v. YODER is an appropriate case study to answer both questions.

The remainder of the book is well written and carefully researched, albeit less compelling. Peters meticulously traces the progress of the case through the lower state courts, to the Wisconsin Supreme Court, and ultimately to the United States Supreme Court. Throughout these chapters he painstakingly traces the ongoing tension between the involved interest groups and the Amish appellants, generally relying on newspaper accounts and personal interviews with surviving participants. Chapters Eight and Nine examine the internal Court tension surrounding the oral arguments and decision-making process. As always, careful examination of the case study provides a myriad of opportunities to examine the practice and purpose of the Supreme Court. One point of key significance in this case is the way in which Justice Douglas, in his partial dissent, introduced the interest of the minors. "Douglas believed that the Court's opinion in YODER might have dire consequences for Amish children who chose to leave the insular world of their religious faith. Deprived of schooling by their parents, they might not be sufficiently prepared to handle the myriad challenges of the modern world" (p.148). Peters carefully examines how the other Justices adapted their opinions in light of Justice Douglas' concerns.

The last two chapters of Peter's book assesses the Court's decision in YODER and its impact on the participants-the interest group NCARF, the individual litigants and their children, the participating attorneys, the New Glarus Amish community, and the Wisconsin state schools-as well as the constitutional understanding of the free exercise clause. But it is the first issue that more deeply interests Peters. The contribution of this book is not in its constitutional analysis; it is in the socio-legal assessment of the impact of such highly visible, protracted litigation on the political agendas of interest groups and lawyers, as well as on the lives of members of this insular community. If only for this analysis, the book is worthy of commendation.

REFERENCES:

Ball, Howard. 2003. THE BAKKE CASE: RACE, EDUCATION, AND AFFIRMATIVE ACTION. Lawrence: University Press of Kansas.

Irons, Peter. 1990. THE COURAGE OF THEIR CONVICTIONS: SIXTEEN AMERICANS WHO FOUGHT THEIR WAY TO THE SUPREME COURT. New York, NY: Penguin USA.

Johnson, John W. 1997. THE STRUGGLE FOR STUDENT RIGHTS: TINKER v. DES MOINES AND THE 1960s. Lawrence: University Press of Kansas.

Lane, Robert Wheeler. 1995. BEYOND THE SCHOOLHOUSE GATE: FREE SPEECH AND THE INCULCATION OF VALUES. Philadelphia: Temple University Press.

Urofsky, Melvin I. 1997. AFFIRMATIVE ACTION ON TRIAL: SEX DISCRIMINATION IN JOHNSON v. SANTA CLARA. Lawrence: University Press of Kansas.

Woloch, Nancy. 1996. MULLER v. OREGON: A BRIEF HISTORY WITH DOCUMENTS. (Bedford Series in History and Culture). Boston: Bedford/St. Martin's Press.

CASE REFERENCES:

EMPLOYMENT DIVISION v. SMITH, 494 US 872 (1990).

WISCONSIN v. YODER 406 US 205 (1972).

ZORACH v. CLAUSON 343 US 306 (1952).

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Copyright 2003 by the author, Michelle D. Deardorff.