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Douglas Laycock is Robert E. Scott Distinguished Professor of Law and professor of religious studies at the University of Virginia. In addition to his work as a lawyer, he has written for the New York Times, the Washington Post, and numerous other publications.

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RELIGIOUS LIBERTY

William B. Eerdmans Publishing Company

Contents

Preface to Volume 2.........................................................................................................................xiiIntroduction: The Free Exercise of Religion.................................................................................................xviA. Constitutional Exemptions Before Smith...................................................................................................3B. Constitutional Exemptions After Smith....................................................................................................47A. The General Theory.......................................................................................................................233B. The Rights of Religious Employers........................................................................................................338C. The Rights of Religious Schools and Colleges.............................................................................................421D. The Rights of Religious Counselors.......................................................................................................607E. The Sexual Abuse Cases...................................................................................................................644Amicus Brief in International Society of Krishna Consciousness v. George 499 U.S. 914 (1991) (coauthored)...................................741Amicus Brief in In re WKG, a Minor Child unreported (Tex. App. — Fort Worth 2000) (coauthored)........................................758Amicus Brief in State v. Church of Scientology Flag Service Organization unreported (Fla. Cir. Ct., 2000)...................................776Amicus Brief in Strayhorn v. Ethical Society 110 S.W.3d 458 (Tex. App. — Austin 2003), review denied, (Tex. 2004).....................794Index.......................................................................................................................................807

Chapter One

All the material in this Section was written before the Court's decision in Employment Division v. Smith. It addresses illustrative cases litigated under the pre-Smith regime. There are two amicus briefs and two short articles addressed to religious audiences.

The law before Smith was much better for churches and believers than the law after Smith, but even before Smith these cases were hard to win. Indeed, the religious claimant lost each of the cases in this Section.

The Briefs ...

In Mozert v. Hawkins County Public Schools (1987), parents sought to exempt their children from using a reader that undermined their religious faith.

In Jimmy Swaggart Ministries v. Board of Equalization (1990), Swaggart sought to exempt the sale of religious books and recordings from the California sales and use tax.

Briefs are not hard to read. For a quick guide to their main peculiarity, see the third-to-last paragraph of the Preface to this volume.

... and the Articles

Peyote, Wine, and the First Amendment is an explanation of the issues in Employment Division v. Smith and why Christians should care about those issues, written before the case was decided, when religious liberty scholars all thought it would be decided under then-existing law.

Churches Are Living on Borrowed Time is an interview about the Swaggart case, after it was decided.

Cross References

All the entries in this Section are short. My most substantial scholarly treatment of the exemption issue prior to Smith is in A Survey of Religious Liberty in the United States, in Volume 1.

Mozert v. Hawkins County Board of Education 827 F.2d 1058 (6th Cir. 1987)

Brief of National Council of Churches of Christ in the U.S.A.

With my students at The University of Texas Law School

Children are required to attend school, but they are free to attend private schools or home schools instead of public schools. The question in this case was whether that is an all-or-nothing choice. The parents in this case wanted to send their children to public school for most purposes, but home school them in reading, because they believed that the readers assigned in their local schools would undermine their children's religious faith to such an extent that they could not permit their children to read them. They objected to a variety of stories in the readers — from stories of magic, mental telepathy, and other supernatural occurrences at one end to stories with what they understood to be secular humanist themes at the other. Cross-examination led one of the plaintiffs into a series of sweeping claims, and she was widely ridiculed in the press and in the school board's briefs.

Originally the plaintiffs wanted the school to provide an alternate reader for their children, but the trial court refused that remedy. The judge ordered instead that any family that wished could simply opt out of the school's reading class, choosing instead to home school their children in reading. That made the case a simple exemption case. The school was not asked to do anything except leave these children alone with respect to reading.

But the defendant school board and the educational establishment resisted fiercely. They insisted that any student in the public school must take the entire prescribed curriculum, with no exceptions or options except those that the school itself chose to offer. They saw a challenge to their control that would lead to many more such challenges unless it was firmly stamped out. In their view, and in the press, this case was linked to a very different case pending in Alabama at the same time, in which religious parents claimed that the school curriculum had established a religion of secular humanism: Smith v. Board of School Commissioners, 827 F.2d 684 (11th Cir. 1987). The remedy for that would necessarily have been to change the curriculum for all students and to subject the curriculum to judicial control. But the Mozert plaintiffs sought a much simpler and much less intrusive remedy—simply let them opt out of religiously objectionable material, and make up the instruction on their own. Their part-time home schooling would be subject to the same rules and quality controls that the state applied to full-time home schoolers.

This amicus brief was a class project in an experimental seminar on Representing a Major Religious Organization. Pairs of students drafted sections of brief, and I worked closely with each pair, working through strategic and tactical choices and line editing carefully. Despite all that, it still to some extent reflects its origin as a committee project.

Interest of the Amicus Curiae

The National Council of Churches of Christ in the U.S.A. is a community of communions composed of thirty-two national religious bodies having over forty million constituents in the United States. It is commonly known as the National Council of Churches. Its public positions are based on policies adopted by its Governing Board, composed of about two hundred fifty-members selected by the member denominations in proportion to their size and support of the Council. The Governing Board has adopted several policy statements affirming religious liberty, including that of minority religious groups, and affirming the rights of children attending public schools to free exercise of religion and to freedom from established religion.

The positions taken in this brief implement the Council's vigorous support of both religious liberty and nonsectarian public education. This case is critical to the reconciliation of those two values. The Council has opposed school prayer, and it opposes any effort to tailor public school curricula to religious teachings. But it also insists on the right of parents of all faiths to send their children to public schools without encountering unnecessary burdens on their religious beliefs. It has supported the concept of "shared time" or "dual enrollment," which would permit students to take some classes in public schools and some in other accredited educational institutions, or some classes at home in those states whose laws permit home schooling. Tennessee is such a state, and the opt-out program ordered by the district court is such a program. The judgment below protects religious minorities without inserting religion into the public school curriculum.

This case is also important to the free exercise of religion more generally. The school board urges this court to apply broad threshold principles that would frustrate free exercise claims in contexts far removed from public education. The National Council of Churches has a strong interest in protecting the Free Exercise Clause against the destructive consequences of the school board's arguments. Very few members of the Council's affiliated churches share plaintiffs' specific religious beliefs, but religious people of all faiths care about religious liberty.

Summary of Argument

Plaintiffs' objection to the Holt readers is based on a sincerely held religious belief that it is their duty to raise their children in their faith. Because the Holt readers interfere with plaintiffs' performance of that duty, their religious exercise is burdened when their children are exposed to the readers. The school board's argument that exposure is not enough to burden plaintiffs' free exercise rights is merely an attempt to redefine plaintiffs' religious beliefs.

Plaintiffs' religious duty to their children is central to their faith, but that is not required. Legal precedent does not support a centrality requirement. Supreme Court opinions discuss the importance of beliefs only to emphasize a free exercise burden, and the Court warns against judicial interference in religious doctrines. Other federal courts have rejected a centrality test. Although some Sixth Circuit opinions suggest a centrality threshold, the cases could easily have been decided without reaching the issue of centrality. This court should, therefore, reject the school board's request to give greater application to an erroneous doctrine.

The state has shown no compelling interest that justifies the burden on plaintiffs' free exercise. The plaintiffs' children will be adequately educated at home, and the non-objecting children will not suffer any material disruption of their education. The trial court found that the school board failed to show any disruption, and defendants do not seriously contend that that finding is clearly erroneous.

The judgment merely exempts plaintiffs from a burdensome requirement; it does not require the school board to aid their religion in any way. The costs of opt out and of alternative reading instruction are to be borne by plaintiffs. The judgment therefore raises no question under the Establishment Clause.

Argument

I. Plaintiffs' Right to Freely Exercise Their Religion Is Burdened by the School Board.

A. The School Board Attempts to Redefine Plaintiffs' Beliefs.

The plaintiffs' claim is based on the parents' right to raise their children in their faith. The plaintiffs sincerely believe that this constitutional right is also an affirmative religious duty. The plaintiffs believe it is their duty to supervise the moral and religious training of their children and that they violate this duty when they permit their children to study material that undermines their faith. The Supreme Court has recognized this right and protected much more expansive exercises of it. Wisconsin v. Yoder, 406 U.S. 205 (1972) (exempting children from any instruction in subjects taught in the last two years of compulsory education); cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925) (exempting private school students from compulsory public education; decided under the Due Process Clause).

The school board argues that plaintiffs' rights have not been burdened. The school board posits a distinction between being forced to violate one's religious beliefs and merely being exposed to material offensive to one's religious beliefs. But this argument misconceives plaintiffs' claim. The school board forces the parents to violate their religious beliefs and duties when it forces them to expose their children to the offensive books. Moreover, the children are not "merely exposed" to the offensive books. They must actively study them if they are to learn reading skills.

A more fundamental defect in the school board's argument is that it attempts to redefine plaintiffs' religious beliefs. This is constitutionally beyond the school board's power. Only the plaintiffs can determine the content of their religious beliefs. The official doctrine of their church or the commonly held beliefs of the majority of the congregation of their church do not define or limit the plaintiffs' religious beliefs. See Thomas v. Review Board, 450 U.S. 707, 715-16 (1981). A fortiori, the school board cannot do so.

Nor may a court redefine plaintiffs' beliefs. It can determine only whether plaintiffs sincerely believe what they claim to believe. Subject to judicial determination of sincerity, courts must accept a claimant's understanding of his own religious beliefs and of what activities violate those beliefs. United States v. Lee, 455 U.S. 252, 257 (1982); Thomas v. Review Board, 450 U.S. 707, 716 (1981); State v. Whisner, 351 N.E.2d 750, 761-62 (Ohio 1976). The government's argument in Lee was very similar to the school board's argument here. The government agreed that the claimants were sincere, but it argued that the "integrity of the Amish religious belief or observance was not threatened." 455 U.S. at 257. The Court found it beyond "judicial competence" to resolve such an argument; it accepted the Amish understanding of their own faith. In this case, plaintiffs' sincerity has been found by the trial court and stipulated by the parties. There can be no claim that this finding is clearly erroneous. The finding of plaintiffs' sincerity must stand, and the court must accept plaintiffs' own understanding of their sincere religious belief.

Free exercise rights would have little meaning if a state could successfully argue that sincere plaintiffs misunderstand their own faith. The school board's effort to redefine religious beliefs threatens the religious freedom of all and not just the plaintiffs. The right of an individual or religious community to determine its own religious beliefs is the very core of the Free Exercise Clause, not only for the plaintiffs, but for every religious group in the land. Because defendants in the present case do not question plaintiffs' sincerity, defendants' argument is reduced to second guessing what plaintiffs' true religious beliefs are.

Similarly, evidence concerning how the plaintiffs conduct the rest of their lives bears only on their sincerity and is not a test in itself. Specifically, evidence that the plaintiffs are exposed to the ideas that violate their religious beliefs in contexts other than public education, such as television, radio, and movies, is irrelevant to whether plaintiffs' beliefs are violated by compulsory curriculum in public education. Some of these other contexts are unavoidable in modern society. In addition, none of these other sources of ideas comes with the imprimatur and authority of the state, and none of these other contexts makes the children study the subject matter and pass tests on it. In the words of the trial court, plaintiffs can "draw a line" between what is tolerable and intolerable to their religious convictions. 647 F. Supp. at 1201. Plaintiffs have drawn a line at the Holt readers.

B. Plaintiffs Must Either Violate Their Religious Beliefs or Forfeit Their Children's Right to a Free Public Education in Other Subjects.

Under the school board's rule, the only way plaintiffs can avoid violation of their free exercise rights is to forfeit their state constitutional right to a free public education for their children. See Tenn. Const. art. 11, § 12. This compelled choice between state and federal constitutional rights clearly burdens the federal right. Plaintiffs must either forfeit a state entitlement or violate their religious beliefs.

The Supreme Court has held that free exercise rights are burdened when people are forced to choose between forfeiting government benefits and violating their religious beliefs. Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 139-46 (1987); Thomas v. Review Board, 450 U.S. 707, 716-18 (1981); Sherbert v. Verner, 374 U.S. 398, 403-06 (1963). Plaintiffs here are forced to forfeit their free public education or let their children study material that undermines their religious beliefs. On the issue of burden, the present case is indistinguishable from Sherbert, Thomas, and Hobbie.

The judgment below eliminates this burden. It allows plaintiffs to decline one benefit (the reading program) without giving up all the other benefits of public education. The school board's demand that plaintiffs accept "all or nothing" clearly burdens plaintiffs' religious free exercise. The school board defends this "all or nothing" requirement by arguing that "if plaintiffs choose to participate in the public school program, they should not be heard to complain that they are burdened by exposure to themes and ideas that they find offensive...." Appellants' Brief at 30. This argument is wholly unjustified and contrary to the basic American right and freedom to question government control. Plaintiffs are not required to accept government benefits blindly without being able to question unconstitutional conditions that accompany these benefits. Cf. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985) (rejecting the "bitter with the sweet" argument in a due process case). If plaintiffs were really forbidden to question the way in which government services are delivered, "separate but equal" institutions and segregated schools would still be the norm in this country. Plaintiffs are entitled to challenge constitutional violations in the public school curriculum without entirely withdrawing their children from the schools.

(Continues...)

Excerpted from RELIGIOUS LIBERTYby Douglas Laycock Copyright © 2011 by Douglas Laycock. Excerpted by permission of William B. Eerdmans Publishing Company. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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