Reading Wisconsin v. Yoder Decision Excerpts | A Primary Source Close Read w/ BRI

0:02 Hello, and welcome to another edition of the Bill of Rights Institute’s Close Reads. We’re really glad you’re here. My name is Kirk Higgins, and for those of you who are new to this program or our channel, every week we take a look at a different primary source or Supreme Court case from American history and unpack it for some big ideas and big questions that can help us dig into it and find some interesting themes.

0:22 So this week we’re going to be looking at the case of Wisconsin v. Yoder, which was decided 1972. And to help me with unpacking this case, I’m fortunate to be joined by my colleague Tony Williams. Welcome, Tony. Thank you. I’m really excited to be on talking about this primary source and also talk about how it relates to our Homework Help video.

0:42 That’ll be great. Absolutely. And thanks for mentioning that, Tony. We have a homework help video about this case coming out this week, so if you have a chance to take a look, it goes through a summary of the case, kind of talks through the decision, some of the things that Tony and I are going to be talking about here, but in a little bit more detail as far as the story of the case goes. So if you have any additional questions, please check it out.

1:04 We’ll be sure to link it here. And so just to dive into the case, Tony, this is a case that really talks about religious liberty, which I know is something that you’ve thought a lot about and talked and written a couple of books about this topic in general. And it’s one, I think that’s a perennial question in our nation. And I wonder if we could just kick this

1:25 off by you first, kind of explaining what is religious liberty? When we say that phrase, what are we talking about? And second, why is it this perennial question? Why is it that we seemingly constantly have these questions about sort of how to balance religious liberty? Right? Well, the American founding really does

1:47 something very transformational in world history. It creates the idea that your right of conscience and your right of worship, what we’ll call religious liberty is an inalienable right. It’s essential to each person as a matter of their sort of freedom of thought and belief.

2:11 We know that religion and other ideas are really integral to individual rights. And so the Americans developed this idea that it’s a natural right no longer just near toleration right. It’s not going to be tolerated by the state, the government, or by your fellow citizens, but rather enjoyed as a right.

2:33 And really all the founders agreed on this. It’s not that just some of them and we’re cherry picking, the founders really believed in this ideal. But it’s been a perennial question. And I think the most simple reason why is because oftentimes some of these essential rights bump up against other rights that are out

2:56 there or other sort of compelling government interests. And these can be no less important. For example, a brief example today of this conflict might be we have individual liberty to kind of go about our day. But there’s also recent pandemic and public health crisis

3:21 in which the state government, local governments, had a compelling interest in terms of public health, in terms of requiring citizens to wear a mask or to socially distance from each other. And so these two things can often be in contention and we’ve seen that in our society. Great. Well, let’s take a look at the case and I

3:42 think we’ll definitely come back to this topic here as we go through it. Tony, I think that this idea of conscience and religious belief is really interesting because as you said, it’s kind of grappling with where this balance lies. And I think that’s the big question of this case, which is how do we balance

4:04 this idea of religious liberty, our own personal beliefs, whatever they may be, in the interest of the government in finding that appropriate balance is something we’ll see directly in the excerpts from the case that we read today. Unfortunately, we don’t have time to go through the entire decision, but we’ll look at a few snippets. But it seems like that balance is something the Supreme Court has very much

4:26 on their minds because as the law is interpreted, it seems these kinds of things are it’s hard to write a perfect law that in all cases and all times is going to be exactly what you need it to be. In here you have the case of a state being interested in having its citizenry educated, making that compulsory, and then you have a religious group

4:47 who says, well, in fact, that conflicts with our beliefs. Right. The founders themselves this is a perennial question, right? The founders themselves believed that an educated citizenry, an enlightened citizenry, was really important for self government, for Republican self government to survive. Right. So that’s a really important, compelling state interest.

5:08 And the government does have police powers, state governments over health, safety, welfare, education of its citizens. And yet, on the other hand, we’ve already talked about religious liberty being an innovative natural right. And so that’s really important too for the individual and for religious communities. So you see this tension there. Right.

5:29 And it’s not always necessarily easy to resolve that tension of two important principles at stake. Absolutely. And so just to get right into the case, this takes place in the state of Wisconsin. I believe that the actual case began in the 1960s but was decided by the Supreme Court in 1972.

5:52 And you have members of the Amish community, of two different Amish communities having a concern because they felt that they did not want their children to continue in the state schools all the way up until the state of Wisconsin, I believe, is requiring them to be in school till they were 18 or 16.

6:13 Right. So that’s what brought about the case. Right. And that’s the school requirement is the law and it’s a reasonable law. Right. We want an educated citizenry. And the idea is that students were required by state law to stay in school until they were 16. But this ran up against some religious beliefs as we’ll talk about.

6:35 Right. I think the members of the Amish community were saying, look, we’re still educating our children. We just would like them to have a more vocational or sort of hands on education within the Amish community, as opposed to them going to one of the public schools or whatever other school was deemed appropriate by the state of Wisconsin.

6:56 Right. And they said the education of these children in terms of their morals and in terms of their vocational education, for the skills they’ll need to survive and thrive in our community will be attended to. They will be taught those things. And so they’re saying, we don’t necessarily need them to go

7:17 to a public high school and learn physics or chemistry or calculus or what have you. We will continue with their education. But we really value what came before that. But we only wanted to go up to 8th grade. Great. And so the question goes through the law system in the state of Wisconsin.

7:38 Goes up to the State of Wisconsin Supreme Court and then eventually gets appealed up to the United States Supreme Court with kind of this question at the heart of it. Which we’ve been talking about. Which is. Does Wisconsin requirement that all parents send their children to school at least until the age of 16. Violate the First Amendment by criminalizing the conduct of parents who refuse to send their children to school for religious reasons?

8:01 So I like to highlight this question because I think, again, we’re talking about this big constitutional question of like, okay, what is it that we’re balancing between personal religious belief and the state’s interest? And then specifically here we’re looking at, okay, state of Wisconsin. Wisconsin is saying kids got to go till 16, and if the kids don’t go, then the parents are personally responsible.

8:23 And then it’s the parents who are saying, well, my religious space objects to that law. And so therefore, that’s the heart of the tension. It’s kind of the rubber meeting the road, if you will. Right. And this really nicely lays out this main tension in the case between the states very legitimate interest in education and the parents religious communities have very legitimate

8:48 and compelling interest in their religious liberty. And so we’ll see how the court decides. Absolutely. And so the court did decide unanimously for yoda with a partial dissent, which is interesting. We’ll get into that. And what it came down to was this First Amendment. We haven’t talked about the Bill of Rights. We’re the Bill of Rights Institute.

9:09 But this First Amendment is really important and what they said was that and we’ll get into their exact language, but that the Free Exercise clause was what was that question here? I wondered if you could help me just unpack a little bit. So we’ve got this Free Exercise clause, then we have the Establishment clause. One is about sort of the establishment of religion and that the state can’t establish a state religion.

9:34 And then exercise is about a personal exercising of that religious faith. Is that kind of the difference between the two? Or how would you set up that difference? Yeah, exactly right. So the First Amendment says congress shall make no law respecting an establishment of religion. Not a controversial what that exactly means, but it essentially means

9:54 that the national government could not set up an official church right. And this has been incorporated into the states and local governments as well. And the Free Exercise clause really goes to the heart of that religious liberty that your basic religious beliefs and the exercise of them and your worship

10:21 as well, cannot be impinged upon by the state. Right. That the state should take no cognizance of how you practice your religion or your private religious beliefs. Great. And that’s exactly what they found. And so here we have one part

10:42 of Justice Warren Burger’s majority opinion in this particular case, and he uses much of your wording, but what he’s really arguing here, what I found interesting here was you said a compelling interest earlier on you said that there’s a compelling, that there’s a serious interest that the state has the state is serious about education. It’s very clear why that’s being established.

11:04 And there’s a legitimate belief on behalf of the religious community. And Justice Warren Burger, I think he’s building up to this free exercise argument, but he begins by underlining what you had said earlier, Tony, which is this is a dearly held belief and the Amish community is putting forth

11:26 its own style of education that is still working to do that within this belief framework, or at least that’s how I read it. Is that close to kind of how you saw this passage? I think that’s correct. And I think what Burger is acknowledging is that, look, all of these young people in this community presumably received basic literacy

11:47 and they learned basic math skills and they took some social studies courses, so they learned about civics and history and took science classes as well. And so they did receive a good basic education that would make them responsible and educated citizens and that their specific education

12:10 in the vocations and morals and so forth of the Amish community would continue, but that they had been educated up to that point. Right. So the state has a compelling interest that is maintained. But after the 8th grade in this case, they are saying that’s been satisfied.

12:30 What the state is concerned about by 8th grade has been satisfied side and then therefore free exercise becomes the thing that outweighs that state interest, right? And another two years, they say another two years will not really make that much of a difference. Difference in terms of saying, well, they were prepared to be good citizens now

12:53 that they’re 16, but not with that education up to 14. The court kind of says, well, it’s only a matter of a few years anyway. Yeah. Think that balance that you’re talking about, and I do think we have that in another segment here in a little bit. But I think that balance that you’re talking about is, again, what Burger goes on, just as Burger goes on to say here, which is, look, this is a balance, right?

13:17 There’s no perfect point at which we’re going to say, well, this is now the line whereby we’re saying this is perfectly balanced, but they’re saying, through sign of this dialogue between government and the citizenry, we are working to find where that balance is best in place.

13:37 And he says here, he quotes that balance. He says. A state’s interest in universal education. However highly we rank it. Is not totally free from a balancing process when it impinges on fundamental rights and interests such as those specifically protected by the free exercise clause of the First Amendment in the traditional interests of parents with respect to the religious upbringing of their children.

14:00 So long as they. In the words of peers versus society of sisters. Prepared them for additional obligations. So, again, I think this is underlining a few things we’ve mentioned. It’s the seriousness with which the Amish are holding these beliefs that it is a seriously held religious belief, that it is something that now is in balance with the state’s interest because we have that right of free exercise in the Constitution.

14:25 And the state, though it does have a right in this case, it’s not always going to outweigh the state’s interest in education, doesn’t always, never outweigh the interest of the individual when it comes to free exercise. Right. I really like this decision, right. Because it acknowledges that there’s compelling interest on each side

14:48 and acknowledges the state’s interest in education, which we believe at the Bill of Rights Institute in an educated citizenry. But the court’s majority here does default towards protecting religious liberty, right? And it acknowledges that by calling it the fundamental right of religious liberty.

15:10 What the founders might have used the word the natural right of freedom of conscience. And Washington said this a lot in his first administration in several letters to many different denominations of Christianity and Judaism. And he said, you have a natural right to freedom of conscience.

15:34 And he also said, we only ask that you import yourself as good citizens. Right? And so the court seems to be very much in line with the founders thinking in this case, and I really like the way they default to protecting religious liberty. Yeah, I mean, those personally held beliefs are protected within the structure of the Constitution for a reason

15:57 and for the state to violate that which again, at times, there’s a compelling interest for the state to violate that right. But it has to be clearly articulated. And I think you see the court really wrestling with that. Right? For example, they said, we don’t want our kids to go to school at all and just be literate.

16:19 Or if you’re practicing, I don’t know, some kind of human sacrifice or something kind of outrageous that would violate all sorts of rights, then the state would have a compelling interest to say, well, you don’t have the freedom to do that under your religion. So there can be limits, right, reasonable limits on this.

16:40 And yet, barring all of that kind of extreme examples, the default is to protect religious liberty. Yeah. And I think you foreshadowed Justice Byron White’s concurring opinion here. And concurring opinions are always interesting to me because concurring opinions, as I understand them are look,

17:01 I’m agreeing with the majority, but I just want to really emphasize this point. And I think the point that Byron White is emphasizing here is. Look. We found in favor of this religious group in this case for these reasons. But that does not mean that any religious group or that any group. Whatever that may be. Has a compelling interest to push back against the state’s interest in education for any reason.

17:24 Or at least that’s how I read these two passages. Him talking about the balancing here’s. Where the line you were mentioning earlier about the two additional years? Look, two additional years isn’t going to make that much of a difference once you reach 8th grade. And emphasizing again, too, the sincerity of the Amish religious policy here is uncontested, saying, look, it’s clear that this is a sincerely held

17:50 belief that these two years are going to make a difference. And so in this case, it is clear that this balance is here. But it seems to me he’s also saying, but not always. The line is that it outweighs the importance of the conceivably, sincere Amish religious practice to the survival of that sex. Right. But it seems to me implied within that is but not always.

18:13 Right. This is an open conversation. We’re making this decision. It’s very clear here why we’re making it. But this is still a debate that’s going to continue. Right, I think why this thing? Look, it’s a good law for a state to decide that it’s young people need to stay in school until they’re 16 or roughly 10th, 11th grade.

18:36 That’s otherwise a good rule. And if you’re going to break with that, there needs to be a compelling reason why,

18:56 and you need to convince us. And in this case, the Amish did. Yeah, and I think it did again, unanimously. But there was this partial dissent, and I find this partial descent to be really interesting because I think it gets to the heart of this question about religious belief, because Justice William Douglas again finds for

19:21 Yoder, but asks a question, essentially is how I look at it about whose religious faith we ought to be considering here. So earlier, I think it’s interesting just to highlight again, Wisconsin’s law was holding parents accountable for ensuring their children were in school, right? So it’s clear that the parents then have

19:43 are the ones that are, I guess, affected by the law in a certain sense. But what Douglas says here, just as Douglas is here, is but what about the faith of the children who are in question here, which is a really interesting one. The court’s analysis assumes that the only interest at stake in the case are those of the Amish parents on the one hand, and those of the state on the other.

20:04 The difficulty with this approach is that despite the court’s claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high school age children. And I don’t know, I find that question compelling. It gets tricky, right, because there’s a stage at which parents

20:25 or children are sort of under their parents protection. I guess in tax law we would call them dependence, right? But it’s a different relationship when a child is fully recognized by the state as being their own citizen and those rights change. And there’s lots of cases about that too. But I think it’s an interesting question that Justice Douglas points out here.

20:49 I think it’s interesting and I’m sympathetic to the idea that he wants to sort of empower children and give them a voice and maybe it’s possible that they wanted to stay in school. I’m not sure about that. So I am sympathetic to that. Yet, on the other hand, I do strongly think that

21:12 I think it’s somewhat of a red herring in the sense that this is sort of distracting from the compelling sort of tension here. I think the right tension is between the state law and the religious beliefs of this community and of these parents and of the family.

21:34 I think what Douglas is doing here is setting up a bit of an adversary relationship between the parents and the children. I’m a little less willing to say that the government should have a compelling interest in intruding

21:55 in that relationship, in that family relationship, and whether the parents have a lot of influence over their children. I don’t think that’s really something that the state government should be taking cognizant of. I think that they have a compelling interest in education and in schools and educated citizenry.

22:19 But otherwise, I think that the government, and really Douglas here, should not be setting up that adversary relationship between parents and children. And with that, it brings us back to our big question here, right? So I think what you’re pointing out too, I think it’s even a part of this balancing act.

22:40 But fundamentally we’re back at this big question that was asked in this case, which is how do we balance religious liberty with government interest? And here in Wisconsin v. Yoder they found that how you balance that is looking at the sincerity of belief. In this case, if they’re saying their children are going to school up to 8th grade, but after 8th grade, they’re uncomfortable with it.

23:00 In that case, the religious liberty is out or the free exercise of that religious faith is outweighing government interest because much of that government interest is satisfied and the free exercise that those individuals want to exercise, sorry for the repeated word, but that is of value and of interest

23:24 and that should outweigh the state’s interest in this case. Right. And this is just one of many cases dealing with the free exercise clause and the establishment clause. We’re dealing with prayer in schools and Bible reading in schools and whether state government should fund Catholic

23:44 schools or the textbooks or even the buses the students ride on. Later on we’ll see court cases dealing with Christmas and Hanukkah displays in public or prayer at graduation or football games. These are just kind of perennial questions that the courts dealing with in terms

24:05 of the state interests and the interests of religious communities. Yeah, in more cases on the horizon too, as questions about whether or not employers are providing insurance and whether that those insurance policies are violating certain aspects of religious faith.

24:26 It’s an extremely complicated question and one that I am confident that the court will be continuing to wrestle with so long as the court is in existence. The question is not going away. Absolutely. Well, Tony, thank you so much for joining me. This is great walking through this case with you and thank all of you for tuning in. We release videos, our Primary Source, Close Reads come out every other week,

24:49 but we’ve got new videos coming out all the time. And as I mentioned, one of those will be our Homework Help video on this case in particular, which gets even more into the story of the case and how it came about and it’s path to the Supreme Court as well as picking apart the decision a little bit more. So I hope you’ll check out that video. Remember to like and subscribe so you can find out when all of our content is coming out.

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