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7. CURRENT ISSUES OF RELIGIOUS EXPRESSION VERSUS COMPETING SOCIAL INTERESTS
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7 Current Issues of Religious Expression versus Competing Social Interests ❖❖❖❖❖ The issues discussed in the preceding chapter, where religious expression has had to compete with conflicting societal interests, have by and large become settled matters as far as the United States Supreme Court is concerned. By contrast, most of those to be described in this chapter are questions that are still very much in dispute and are likely to remain so for a long time to come. They pose very close questions, as we shall see. Public Education, Health, and Safety An early case in which the Supreme Court established a precedent that has sometimes been followed and sometimes been circumvented or ignored involved a Jehovah’s Witness, Sarah Prince, who had her nine-year-old daughter out selling the group’s Watch Tower publication in Massachusetts. State law, however, prohibited children from selling newspapers and magazines on the street. Ms. Prince was therefore found guilty of aiding a minor to violate the law. In her defense she contended that her conviction violated her free exercise of religion, as well as her right to raise her child as she saw fit. 109 With only one dissent, the Supreme Court held that “the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. . . . Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstance, to make martyrs of their children.”1 However, the Court came to quite a different conclusion three decades later in its landmark ruling in Wisconsin v Yoder.2 In that case members of the Old Order Amish religion sought to keep their children “down on the farm” [my quotation marks] after they completed the eighth grade of public school. As the Supreme Court described it, “They believed that by sending their children to high school, they would not only expose themselves to the danger of censure of the church community, but . . . also endanger their own salvation and that of their children.” Wisconsin’s compulsory school-attendance law, however, required all children to attend either a public or a private school until they reached the age of sixteen. Thus the Amish parents, who had kept their fourteen- and fifteen-year-olds at home, were convicted of violating the statute. The question before the Supreme Court was whether enforcing that state law against them was a violation of the free exercise of their religion. In a surprising decision that was a far cry, in both substance and tone, from the polygamy ruling of the previous century and the Smith decision that was to come eighteen years later, the Court, with only one dissent, agreed that Wisconsin was in violation of the free-exercise clause. The majority ’s opinion spoke at considerable length, and with great sympathy, about the religious values at stake: the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction. . . . Their way of life in a church-oriented community, separated from the outside world and “worldly” influences, their attachment to nature and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressures to conform. . . . As the record so strongly shows, the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion. . . . Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. . . . Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State’s control, but it argues that “actions,” even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. 110 Chapter Seven [54.90.167.73] Project MUSE (2024-03-29 15:23 GMT) As for the competing social interest alleged to be involved, the Court said: There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. . . . A State’s interest in universal education , however highly we rank it, is not totally free from a balancing process when it impinges on other fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the...