Review Essay:

Shawn Francis Peters, The Yoder Case: Religious Freedom, Education, and Parental Rights (Lawrence: University Press of Kansas, 2003)

LEE ROY BERRY, JR.*

     The Yoder Case recounts how the United States Supreme Court resolved the conflict between Wisconsin educational officials and Amish parents over that state's compulsory education law. In telling that story, the author assesses the lasting impact of this episode on the Amish and on U.S. constitutional law. The text of the book is a concise 180 pages, including the introduction. It also contains an editor's preface and a three-page chronology followed by an informative bibliographical essay at the end.

     The controversy began during the mid to late 1960s when Wisconsin school officials insisted that Amish school-age children, ages 7-16, like all other such children living in Green County's New Glarus School District, attend state-approved educational institutions and conform to curriculum requirements without exception for their religious practices and despite their parents' objections. Such requirements posed a threat to the Amish because they forced Amish children to accept values and a worldview that were in direct conflict with those that their parents and church tried to instill. Physical education classes, for example, posed an immediate concern for the parents because school officials mandated that the children wear uniforms that conflicted directly with the church's teaching regarding modest dress.

     Initially, Amish leaders and supporters attempted to settle the matter by persuading the Wisconsin legislature to exempt Amish children who had completed the eighth grade from the compulsory school attendance law. That effort failed, in part, because of the opposition of Wisconsin school officials. When that happened, Amish parents refused to permit their children to attend school as the law required, and on October 23, 1968, Wisconsin charged three of the resisting parents-Wallace Miller, Adin Yutzy and Jonas Yoder-with violation of the compulsory school attendance statute.

     Peters takes care to let the reader know that, like all major constitutional law cases, the outcome of Yoder v. Wisconsin had potentially far-reaching implications for groups other than the New Glarus Amish. For example, Amish in parts of Iowa, Kansas, Ohio and Pennsylvania also found themselves under attack by state truancy officials for violating school attendance laws. Indeed, some of the members of the Amish community of New Glarus had recently migrated there from Iowa in order to gain a respite from the problem. Furthermore, non-Amish religious groups, such as fundamentalist evangelicals, increasingly objected to compulsory school attendance laws because the state-sponsored education they received pursuant to those laws exposed their children to secular humanist values that conflicted with their Christian beliefs.

     Peters also makes it clear that the Amishmen's vindication was by no means certain as the case began. In fact each of them received a conviction in the trial court. By the end of the 1960s no reasonable person could seriously question a state's power to set minimum educational standards for its citizens. In an earlier era, the U.S. Supreme Court had said in Pierce v. Society of Sisters that Oregon could not force parents to send their children to public schools if the parents desired to send them to parochial ones; but there was no doubt that Oregon could force parents to send them to school through the enforcement of its truancy laws. Moreover, even though the Free Exercise Clause of the First Amendment of the U.S. Constitution had become applicable to the states by way of the Due Process Clause of the 14th Amendment, the U.S. Supreme Court had rendered decisions that indicated that enforcement of Wisconsin's school attendance laws against the Amish could very well be constitutionally acceptable. In Braunfeld v. Brown, for example, the court refused to strike down Pennsylvania's law that prohibited Orthodox Jews from conducting their businesses on Sunday even though the defendants argued that their religion required them not to work on Saturday rather than on Sunday and that the effect of the law was to punish them for exercising their religion. More important, in Reno County, Kansas, prosecutors had obtained a conviction of an Amish church member, LeRoy Garber, for violating that state's recently enacted compulsory school attendance law, and the Kansas appellate court sustained it. If anything, the signs indicated that the Amish defendants' chances of being vindicated were not good.

Peters suggests that the eventual exoneration of the defendants in Yoder was due primarily to the confluence of three factors: the willingness of civil libertarians to assist the Amish, the Amish defendants' willingness to accept that assistance and the development of free exercise jurisprudence in Supreme Court litigation after the court decided Braunfeld.

     When Wisconsin charged Yoder, Miller and Yutzy, no apparent consensus existed among the New Glarus Amish regarding how the accused should respond except that they should try to engage in face-to-face bargaining with state authorities in the hope of reaching a compromise. Since the Amish church staunchly opposed resorting to courtrooms for dispute resolution, the defendants were not prepared to engage legal counsel. At that moment, William C. Lindholm, a Lutheran pastor from Michigan who had become familiar with the Amish struggle over compulsory school issues in Iowa and Kansas and had founded the National Committee for Amish Religious Freedom (N.C.A.R.F.), offered to provide them with able counsel and funding for their defense.

     Even so, given the Amish church's understanding of the principle of nonresistance, could they accept such defense at all and still remain true to their religious beliefs? For some among the New Glarus Amish, even obtaining a lawyer to defend oneself violated the church's historical prohibition against "going to law." The defendants halted at the prospect of fellow church members charging them with violating so fundamental a church norm. Eventually, however, they overcame their reluctance when church leaders considered it reasonable to make a distinction between initiating a cause of action and being drawn into one against one's will. Besides, according to Peters, Lindholm had reminded them that when the Apostle Paul was prosecuted he defended himself in court and appealed to Rome to assert his rights.

     Meanwhile, by the time Yoder made its way to the Supreme Court, a notable change had occurred in the way the majority approached free exercise issues. Before 1963 the seminal Supreme Court case that interpreted the free exercise clause of the First Amendment was Reynolds v. United States. The Mormon believer in that case argued that the state law prohibiting him from practicing polygamy violated his right to the free exercise of his religion. The court, however, disagreed, stating that free exercise involved both belief and conduct. The former was not subject to government intrusion, but the latter, depending on the circumstances, could be. As a consequence, the court normally sustained state and federal laws that may have had a negative impact on religious conduct, although it occasionally struck down government regulation that it determined was too intrusive.

     In 1963 the court decided Sherbert v. Verner, and in doing so, it made a significant departure from the Reynolds approach. In Sherbert v. Verner, South Carolina required the plaintiff to work on Saturdays in order to become eligible for unemployment benefits. She objected because she was a member of the Seventh Day Adventist Church and was obliged to worship on Saturday, regarded as the true Sabbath. The majority thought the effect of South Carolina's rule had the same kind of impact on Sherbert's ability to practice her religion as would a fine imposed on her for worshipping on Saturday. In order for such a rule to stand, the court said, the state had to demonstrate a "compelling interest." What threat did Sherbert's refusal to work on Saturday on account of her faith pose to South Carolina's ability to maintain peace, stability and order, asked the court? None had been sufficiently shown, and thus the compelling state interest standard became the prevailing standard of review when Yoder reached the Supreme Court.

     The 1972 opinion in Yoder was 7-0 in favor of the Amish, a unanimous decision (the two remaining spots on the nine-member court had been vacant, and the just-appointed Lewis Powell and William Rehnquist had not arrived in time to help decide the case). In his opinion Chief Justice Warren Burger stated that the state of Wisconsin had failed to demonstrate a compelling interest in requiring the Amish to conform to the compulsory attendance law. Though Wisconsin argued that, at the very least, its statute was necessary to provide essential training for those Amish students who would eventually leave the church, Burger found no evidence in the record to support that contention. On the contrary, the record showed that one of the by-products of the Amish way of life was the inculcation of valuable vocational skills in Amish children that helped prevent them from becoming burdens on the rest of society while simultaneously avoiding threats and dangers to their well being. Indeed, he suggested, the Amish, in practicing their religion, were actually accomplishing what Wisconsin professed its law intended to accomplish. On the other hand, if the Amish were forced to conform to the law, he said, it would serve to undermine the Amish faith. The school curriculum during the additional two years would expose Amish children to values and belief systems that ran counter to those upheld by the church and would require them to engage in activities that were undeniably in conflict with Amish beliefs, thereby ultimately depriving the Amish of the right to the free exercise of their religion, a guarantee granted them by the First and Fourteenth Amendments to the U.S. Constitution. In all, the ruling was a very strong decision for the defendants, although Justice William Douglas made clear that he was concerned that the decision was weakened by its failure to address the matter of the Amish children's right to decide whether they wanted to attend school beyond the age of 14 independently of their parents.

     Though the Supreme Court agreed with Yoder, Miller and Yutzy, Peters suggests that Wisconsin's position had considerable merit. Chief Justice Burger's conclusion that the compulsory attendance statute was a threat to the Amish religious faith, for example, was highly questionable since under Wisconsin statute, the Amish were free to establish and run their own schools. That so essential a point became lost or obscured in the debate before the Supreme Court, in Peters's view, was a strong indication that Wisconsin's legal team had simply been outlawyered. The National Committee for Amish Religious Freedom legal team, headed by William Ball, was scrupulous about making a record at the trial stage for purposes of appeal; but the state's attorneys apparently left the matter to chance. The result was most telling when the chief justice responded to their argument that granting exemption to the law for the Amish would have a negative impact upon Amish children who eventually left the church by reminding them that the trial record contained little or no evidence to support that assertion. Had the state's team done otherwise, the outcome of the case may have been different.

     In the final two chapters of the book, the author assesses Yoder's significance for both the Amish community and U.S. constitutional law. For the New Glarus Amish the results were ambiguous. On the one hand, the defendants were vindicated. As Amish parents they had the right to shape their children's education so that it was consistent with the Amish faith. The Amish no doubt welcomed the outcome. On the other hand, to achieve that objective they had to ally themselves with an organization and individuals whose goals differed to a large extent from their own. The alliance was an uneasy one. Thus, Peters described the Amish as perplexed by and indifferent to the National Committee for Amish Religious Freedom, while some among the Amish's Anabaptist cousins, the Mennonites, thought that the committee and Ball had "used" the Amish defendants' cause to serve a much wider agenda. The case also placed the defendants and the Amish church in the public spotlight, a development that both found distasteful. Perhaps the most difficult burden the defendants had to bear was enduring the criticism from fellow church members that they "went to law" instead of offering no defense to the charges. Such developments were predictable given the nature of Amish society.

     The case highlighted what can be fairly called an inherent dilemma for members of the Amish faith. As a religious minority they naturally valued the protections provided by the guarantees of the First Amendment; yet when adherents are presented with situations that require them to invoke those guarantees, the tenets of their faith discourage them from doing so. Thus, a member is left with the cruel choice of deciding whether to quietly endure religious discrimination or to challenge government and thereby risk fomenting dissension among fellow church members. Peters observed, "Although Wisconsin v. Yoder helped shield Yoder's religious practices from interference by the state, it also made him a target for criticism from other Amish." The resulting strain from that experience led, ironically, to the demise of the New Glarus Amish community.

     Though it was a major free exercise case when the court decided it, Yoder ceased having value as precedent on matters relating to free exercise within two decades. In United States v. Lee (1982) and Employment Division v. Smith (1990), the court handed down decisions that contradicted much of the logic of the decision in Yoder. Lee involved an Amish businessman's challenge of the government's refusal to exempt him from withholding Social Security taxes from the wages of his employees because of his religious scruples. The plaintiffs in Smith challenged the government's decision denying them unemployment benefits after they lost their jobs as drug counselors because they used the drug peyote in their religious worship ceremonies, saying that the denial inhibited the free exercise of their religion. The litigants in both cases asked the court to apply the same strict scrutiny standard that it had applied in Sherbert v. Verner and Yoder v. Wisconsin. In both instances the court declined the invitation. The majority said that if a statute's provisions are neutral and applied generally, they may be enforced even though such enforcement burdens a person's right to exercise his religion.

     After the Supreme Court decided Lee and Smith, Congress responded by enacting the Religious Freedom Restoration Act of 1993. The act explicitly stated that its purpose was to require the court to apply the same strict scrutiny test in future free exercise of religion cases as it had applied in Sherbert and Yoder. It was a futile effort. In City of Boerne v. Flores, the Archbishop of a church applied for a permit to enlarge one of the church's buildings. The city refused the permit on the ground that the plan provided for the modification of a historic building in violation of the city's landmark zoning ordinance. The archbishop challenged the government's refusal to grant the permit, in part, on the basis of the Religious Freedom Restoration Act. The Supreme Court ruled the legislation unconstitutional and reiterated its holding in Smith.

     Yet Peters correctly avoids the conclusion that Yoder is now effectively a dead letter. On the contrary, because of its holding that recognized parents' right to decide how much formal education their children would receive and the conditions under which it would be delivered to them, Yoder strengthened the holdings in cases such as Pierce v. Society of Sisters. Thus he observes that Yoder provided substantial inspiration for and had a permanent impact on the home schooling movement and challenges to state regulation of religious schools even though its core holding regarding religious freedom has not endured.

     The book represents an impressive piece of scholarship on the Old Order Amish in United States constitutional law. Scholars in the field should welcome it because it emphasizes an aspect of Amish experience that I suspect is often overlooked. The Amish's reputation for being plain and quiet people has likely served to obscure their role as reluctant protesters. This book enhances that understanding. Peters notes in the bibliographical essay to the book, for example, that despite their dislike of litigation, the Amish still managed to become involved in several notable cases besides Yoder.

     The book is balanced and thorough in its treatment of the subject. The author portrays the defendants and their church community in a sympathetic light, while still allowing the reader see them as the humans they are. The internal dissension among the members over the Yoder litigation, the differences over church policy and the "ideological schism" between conservative and progressive Amish are clear. One even learns that for all their plainness and commitment to avoiding the corruption of this world, the Amish shared some of the same views of government as political conservatives. In a similar vein, while Peters applauds the Supreme Court's decision in favor of the defendants, he also argues convincingly that the litigation was, for the New Glarus Amish, both destructive and unnecessary. It was destructive because the tension generated by the case among the Amish led to the dissolution of their New Glarus colony; and it was unnecessary since Wisconsin's compulsory school attendance statute permitted the Amish to set up and run their own parochial schools free of the worldly influences they so abhorred.

     The book's examination of the constitutional issues and the holdings of the relevant case law is excellent. The author managed to include all of the major cases from Reynolds v. United States to the court's decision in City of Boerne v. Flores so that the book can serve as a quick reference for those interested in the history of the U.S. Supreme Court's interpretation of the free exercise clause. Though Yoder has generated a large amount of written material from scholars, free exercise enthusiasts and civil libertarians over the last thirty-four years, Peters's book appears to be the first of its kind. It is the first, and, thus far, the only book-length study of Yoder v. Wisconsin that attempts to assess the decision's significance on U.S. constitutional law and its impact on the Amish church. This, perhaps, is the book's lasting value to Anabaptist-Mennonite studies.

     Toward the end of the book Peters informs the reader in passing that after their experience with the Yoder case, the Old Order Amish established their own Amish Steering Committee to speak on their behalf to government. That development was most significant because it indicated that perhaps the Amish recognized, as had others before them, that in the U.S. no other group can articulate Amish interests better than the Amish themselves. This was no doubt one of the lessons that they learned from dealing with the National Committee for Amish Religious Freedom. The author did not explore the matter, but that move represented a significant point of departure from the conventional way in which the Amish have dealt with the outside world, especially the government. What does the founding of such an organization portend for the plain people and their reputation for being the Quiet in the Land? Could a book examining that question be the logical sequel to The Yoder Case?


?? ?? ?? ?? 390 The Mennonite Quarterly Review 391 The Yoder Case 383 *Lee Roy Berry Jr. is associate professor of political science at Goshen College. MQR 79 (April 2005)