What About Children’s Rights? A Legal Expert Breaks Down Wisconsin v. Yoder

In 2018 I founded the Amish Heritage Foundation (AHF), with raising awareness about the 1972 US Supreme Court case Wisconsin v. Yoder serving as the cornerstone of AHF’s work. That work included not only addressing the harmful consequences of Wisconsin v. Yoder, but also offering solutions to remedy the unconstitutional ruling that took place half a century ago.

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To publicly launch AHF, I produced the groundbreaking conference, Disrupting History: Reclaiming Our Amish Story, that year. But finding a keynote speaker to talk about Wisconsin v. Yoder proved to be a challenge. Few people, even educators and lawyers, were aware of the case and/or understood the problems with the case.

The small number of people who were adequately educated on Wisconsin v. Yoder tended to be lawyers and lobbyists who had no interest in discussing the case from a children’s rights perspective. Their only interest was in . . .

. . . maintaining the narrative of the Religious Right, led by the deceptively named National Committee for Amish Religious Freedom, who paid for and won Wisconsin v. Yoder 50 years ago. That narrative was (and still is) that Wisconsin v. Yoder had nothing to do with children’s rights and was instead a landmark victory for religious freedom, specifically for an adult’s right to religious freedom.

Very fortunately, someone at Columbia University’s Law School was aware of University of Pennsylvania constitutional law attorney and professor Marci Hamilton. She not only understood Wisconsin v. Yoder, but she fearlessly discussed the case from the perspective of children’s rights. I will forever be grateful for her willingness to break down Wisconsin v. Yoder for our inaugural conference, so attendees — and our future audience — could begin to understand why Wisconsin v. Yoder needs to be overturned.

As the 51st anniversary of the Wisconsin v. Yoder hearing approaches, check out the below transcript of Prof. Hamilton’s keynote. You can also watch the video of Prof. Hamilton’s talk here.

Transcript of “What About Children’s Rights? Overturning Wisconsin v. Yoder“

Keynote by Lawyer and Professor Marci Hamilton (Founder & CEO, CHILD USA)

Given at the Amish Heritage Foundation’s Disrupting History: Reclaiming Our Amish Story inaugural conference

September 28, 2019

Marci Hamilton:

The questions that revolve around religious maltreatment of children end up landing on constitutional principles.

So what I’d like to do today is to first talk about why it’s my view that Wisconsin v. Yoder is the single worst decision by the United States Supreme Court on the Free Exercise Clause [of the First Amendment] for child protection and then to talk about what the ramifications have been of Wisconsin v. Yoder.

The Supreme Court has decided free exercise cases over the First Amendment, of course, for decades and they have been very consistent. And their consistent rule has been: “A law that applies to everyone, a law that is not discriminatory towards a religious group, applies to everybody.” It doesn’t matter what your faith is; it doesn’t matter who you are. And so the very first decision that the United States Supreme Court [unintelligible] is the Reynolds decision involving polygamy.

And the question was whether or not George Reynolds had a constitutional right to avoid the impact of the anti-polygamy laws because he was a member of the Latter Day Saints at the time and he was in fact a bigamist. And the United States Supreme Court in the very first decision on the Free Exercise Clause of religion said that he lost. That the law against polygamy applied to everybody and that he could not be a law unto himself. And so even though he believed that he should marry multiple women, the fact that it was illegal for anybody to engage in polygamy meant that it was illegal for him. He did not have a constitutional right to overcome the laws that apply to everybody else.

Going back in time in that era, there are questions that are raised sometimes by my academic colleagues about “well, that was just pure discrimination.” That was anti-Mormon discrimination. That’s ridiculous. The law at the time that applied to George Reynolds was the law that Congress was applying to Utah territory. But that law was the law that replicated the law in every other state. So every state in the United States banned polygamy, because common law had banned polygamy in England. So all that Congress did was that it expanded the rule against polygamy to the Utah territory. And the argument was that this was religious discrimination because in the Utah territory the Latter Day Saints were engaging in polygamy and the Supreme Court rightly said, “No, if there’s a law that applies to every citizen, you do not get out from under the law just because you are religious.”

So think about it this way. It’s a very, very simple way to understand this: If someone is on their way to church, and they run through a stop light and they get stopped by the police, they don’t have the defense that they were on the way to church, or that they were late for church. They get the same ticket as the guy who went through the light because he was taking his wife to the hospital. It’s exactly the same.

So the religious actors have not been preferred actors under the United States constitution. But the First Amendment has protected against persecution. It is a bulwark against targeting, singling out religious entities for unfair treatment. And so when the Supreme Court was faced with the question of whether the City of Hialeah can outlaw sacrifice of animals, which was an ordinance that only could ever apply to the Santerians, the United States Supreme Court said that’s unconstitutional. You cannot single out the Santerians for the sacrifice of animals while you protect the Jews engaged in kosher butchering. The practices are actually quite similar. And so it is unconstitutional to persecute, but it is not unconstitutional to apply the laws that apply to everybody else.

And the Court has been remarkably consistent with that rule all the way up through Employment Division v. Smith in 1990 when the Court summarized all of its free exercise jurisprudence. Justice Scalia wrote for the majority and the majority said what had been said in the Reynolds decision, [which] is that no person is allowed to be a law unto themselves.

Now I was clerking at the United States Supreme Court for Justice Sandra Day O’Conner the year that Smith was decided. And I can tell you that none of us had a clue that that decision meant anything. We thought it was just, you know, one of the 130 cases that we were going to be working on. We all thought that there were other cases that were so much more important that had fallen off to the wayside, and by far the most important decision of the term was Smith, but why?

It was the most important because it was the Supreme Court saying to religious advocates: “You have been asking us to make special privileges for religions for decades and here’s our answer: ‘No. We are not going to create special privileges under the First Amendment for religious believers.’” It was a definitive. It was a Scalia moment. The truth was coming out from on high and being thrown into the public square and the truth would say, “You do not have special privileges.”

But the problem for the Court in explaining why it was that the laws against illegal drugs—the peyote rules—did in fact apply to these two drug counselors who used it in religious service, the hardest thing you had to do was explain Wisconsin v. Yoder. Because all the other decisions had been consistent with this concept that there’s no special privilege for religion. It is in fact protecting from persecution but not from the laws that apply to everybody else. But Wisconsin v. Yoder was very, very odd. And what Wisconsin v. Yoder said is the following, is what makes it stand alone…. The question was how do you explain Wisconsin v. Yoder because in Wisconsin v. Yoder they did something radically different.

In Wisconsin v. Yoder, the Supreme Court said, and it was unfortunately Chief Justice Warren Burger writing for the Court, and he said the following. He said, “This is a neutral law that applies to everybody. It’s compulsory education. Everybody must abide by compulsory education laws in the State of Wisconsin. But even so, it’s not going to apply to these religious believers, the Amish, and the reason it’s not going to apply is we’re going to say we’re going to give it special force. That the rights of these parents are going to provide special force so that they can trump the law that applies to everybody else.”

But then the Court had a problem it had to explain. Why it was that the law was now going to apply to everyone except for the Amish, that they would be permitted to take their children out after eighth grade. And what the Court said is actually shocking. In a footnote, the Court said that the Amish had never violated the law. That the Amish do not violate the law. That no one had ever been hurt by someone who is Amish.

How many of you have seen Witness? Just the opening scene, the beautiful rolling hills, the utopia of it all, that’s in that opinion. That the Amish are a special breed of religious believers, and humans apparently, who do not break the law. And therefore we don’t have to be concerned if they take their children out in eighth grade.

One part of the opinion in my view is a blatant violation of the Establishment Clause. [The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.] The Supreme Court had no business being “witness” to the infallibility of the Amish religion.

But there’s another part of the decision that I think is even more insidious. The one thing in their defense was at least we couldn’t say that about anybody else, right? The idea was that you’d never apply this reasoning to any other group, because you would never ever have another argument that nobody in the group had ever broken the law. [I don’t understand why Marci is saying this, that this is something in their defense: it was never proven that the Amish never broke the law, just believed to be true with no investigation, no due diligence to back up that claim.]

But the insidious part of the opinion is the presumption that these parents should have the power to make martyrs of their children. Justice Doplin in dissent said, “Wait a minute. Wait a minute. Do the children not want to be educated? Could we hear from some of the children that maybe aren’t involved in this lawsuit?” But he was ignored.

For the majority, the parents had the power and the right to be able to say that they would take their children out of school after eighth grade and educate them only in an agrarian lifestyle. That was an insidious moment for the protection of children. Because children were being subjugated to their parents.

And what’s remarkable about that decision is that decades before, the Supreme Court had decided Prince v. Massachusetts. In Prince v. Massachusetts, we had a proselytizing parent standing on the corner and she had her child with her and handing out pamphlets. And in was violation of Massachusetts State labor laws, the child labor laws. And the United States Supreme Court said that her conviction for violating the child labor laws was being upheld. Why? Because she was not permitted by the Constitution to create a martyr of her children. That is what the Court says. The Court uses the term “martyr.” And so the Court had, decades before, laid out the way of thinking about this, which is, “Yes, an adult religious believer may engage in voluntary behavior that may not be legal or whatever and we’ll deal with them separately. But what they can’t do is violate the laws that protect children.”

So as you can imagine, that is a very, very important ruling for the protection of children from abuse and neglect, including educational neglect. But Wisconsin v. Yoder, with Burger at the helm, went against that. And did not recognize the decision as one that was actually martyring the children because of their parents’ religious beliefs and instead treated it as this monumental moment of religious liberty.

After Wisconsin v. Yoder was decided, the Court did not return to that way of reasoning again. The Court did not hold, in a later case, that a religious entity has the right to get around the laws that apply to everybody else. So when the Native American family in California said that they needed welfare support but they weren’t going to supply a social security number because they believed that a social security number would mark their child’s spirit, the United States Supreme Court said that if you want to get federal assistance, you have to supply your social security number. And why? Because it applies to everybody else.

When the Amish argued that they should not have to pay taxes for employment, the United States Supreme Court responded, “You don’t believe in paying those taxes and frankly, you say you take care of your people going into their older years and so maybe you don’t have a problem, but this is a law that applies to everybody. So yes, you do have to pay those taxes.”

So, the Supreme Court held the line except for this really odd blip but what’s unfortunate about this is odd blip is that it opened a Pandora’s Box of arguments for the abuse and neglect of children. And the right of parents to make decisions for children that are not in the children’s best interest. And so we are left today with a decision that has not been overruled. The Supreme Court has spent time trying to explain it away in very unpersuasive ways. The Circuit Court has said, “What? That’s not, that’s not believable.”

But we sit today with a crisis of child abuse and neglect in the United Sates. And one of the main reasons is because of the hyper deference that is given by some in our culture to religious actors. It is the concept that if someone is religious you can trust them to do the right thing. It’s because they are religious that you know they will do the right thing.

Now, I wrote God vs. the Gavel in the first edition and I rewrote it again more recently for the purpose of saying, that is just crazy. The big problem with religious actors is they’re human. If they weren’t human, I might feel otherwise but they are and they do harm others. And therefore they need legal limitations just like everybody else. And in fact, they may need more.

As you know, the Catholic Church has an extraordinary clergy sex abuse crisis. They are not alone. But they are the biggest. They’re the largest religious organization in the world. They’re the only religious organization that is simultaneously a sovereign state. The percentages right now look to support that 6-10% of their priests are likely to sexually abuse children. 6-10%. The average across the culture is 2.5%.

So, we have a crisis of child abuse, of clergy sex abuse, of child sex abuse. No one can read about the Larry Nassar cases without understanding that in fact, the Catholic paradigm is just a paradigm for abuse. It’s just the way abuse is in the United States.

And if anybody ever thought that we had somehow created this moment [i.e., MeToo] where we have gone beyond the moment of abuse by powerful [actors] at the expense of children, if you listen to 30 minutes of the hearings in the Judiciary Committee in the Senate yesterday or today, you know we are long from the moment when we don’t have to worry about children anymore.

The victim of Brett Kavanaugh who testified yesterday was a child. She was 15. She was not an adult. Yet we have an entire party that is willing to say that she is not credible. She must be confused, like all those other women. She’s not.

And that’s the fundamental challenge in this era. How do we shape free exercise theory, how do we shape the First Amendment to protect the vulnerable? To protect the ones who cannot protect themselves? And the only answer is that a case like Wisconsin v. Yoder must be shoved aside. It is wrongly decided.

Children must be protected so that they will thrive when they become adults. They cannot thrive when they become adults if they are deprived of education at eighth grade, which makes it impossible for them to succeed if they choose to leave. Every child should be presumed to have the agency to choose to leave what they are born into. Every child should be able to have the bare minimum of skills and health to succeed when they decide what their path will be. Depriving children of a high school education is inconsistent. It’s simply inconsistent with the constitutional right of a child to thrive.

The civil rights of children are increasingly in front of us. Children have rights at public schools to speak. They have rights at public schools against unwarranted searches. They have rights against their parents for abuse and neglect. They have rights for medical care even when the parent doesn’t provide it. They have the right to the State taking custody if they’re not going to receive the medical care that they need. They have a right to be vaccinated. These are rights that these children have. And we need to start talking about children’s rights and quit talking about adults as if they’re the only ones who have any rights, because they’re not.

Internationally we do have a Convention for the civil rights of children. The only country in the world not to sign it is the United States. And the reason the United States has not signed the Convention on the Rights of the Child is because of the power of conservative lobbyists to argue for the right to be able to punish your child. For the right to be able to hit a child. The right to be able to deprive a child of education. The right to subject a child to conversion therapy. The only way any of this will change so that children are protected from over-leaning religious actors is through politics.

It’s not just the Supreme Court, although I guarantee you that if there’s another Trump nominee on the Supreme Court, the Establishment Clause will evaporate. What little is left of it will be gone. We will not have separation of church and state. We will have a hyper power of religion.

We now live in an era when the Department of Justice of the federal government has a Chair for religion. There’s a person in the Department of Justice whose job it is solely to help religious actors get what they seek, whether it’s getting around land use, vaccination requirements, or being able to discriminate against LGBTQ. That is a powerful position in the Department of Justice. The only way any of this will change is if there is political movement by citizens to let their elected representatives know that they prefer protecting children over protecting the adults that put them at risk.

I’ll close with this: we prefer and protect adults every single day. We prefer and we protect adults instinctually every single day. And we assume children will either get over it or just survive. But they won’t. What must change in our society is the rising tide of civil rights for children. And a demand by all citizens that children are treated with dignity and respect and are protected from those who harm them. That’s really what we need to be working on.

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