Religious Use Law Review

Number 3

In Religious Use Law Review Number 1 we looked at the Sherbert case.  That was a case filed in civil court asking for an injunction to order the Employment Security Department to issue unemployment claim checks to Ms. Sherbert.

Today we look at the Yoder case.  Yoder was a criminal case where the parents of teenage children were charged with violating a state law requiring attendance at High School.  This was a felony charge for which jail time and fine are the penalty.  The Yoder case is very important because it is a felony criminal case.  Because we seek exemption from alleged felony violation of law for which jail time and fine are the penalties our case is just like the Yoder case.

Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

The case summery states:

"The defendants, who were members of the Amish faith, refused to send their children, aged 14 and 15, to public school after the children had completed 8th grade.  In Green County Court, Wisconsin, the defendants were convicted of violating Wisconsin's compulsory attendance law. . .  The Wisconsin Circuit Court affirmed the convictions, but the Wisconsin Supreme Court, sustaining the defendant's claims that their First Amendment right to free exercise of religion had been violated, reversed the convictions. (see 49 Wis.2d 430 or 182 N.W.2d 539). The Federal Supreme Court affirms."

Note that the school laws are religion neutral and generally applicable - just like what the Smith court said can be sustained even if it substantially burdens religious exercise.  The fact is that Smith overturned the Yoder decision - but the Smith court lied about that because to outright say it would be too great a departure from legal reality - so they just lied.  We will look at that bald-faced lie later when we examine Smith in depth.

Now we will look at some particular quotes from the Yoder case in 1972.

On page 20 Justice Burger writes, "respondent's convictions for violating the compulsory school attendance law were invalid under the Free Exercise Clause of the First Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment."

On page 25, Burger writes, "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.  We can accept it as settled, therefore, that however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests."

Note, the words "interests of the highest order" are the statement of "COMPELLING INTEREST".

The words "those not otherwise served" are the statement of LEAST RESTRICTIVE MEANS OF REGULATION".

On page 28 Burger writes, "But to agree that religiously grounded conduct must often be subject to the broad power of the State is not to deny that there are areas of conduct protected by the Free Exercise clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability."

Note that while the Smith decision in 1990 states that Laws of General Applicability are immune to the Sherbert and Yoder tests, Yoder says not so. This is the focus of the Lie the Court tells in Smith.  Later when we look at Smith in detail we will look at the actual mechanism of that Judicial Lie they tell.  This will enable us to see other Judicial Lies in other decisions also.

On page 28 Burger writes, "we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption."

Note that in the cases cited in Review No. 2, we saw that from the Leary decision in 1967, the courts refused to allow the defendants claiming religious use of marijuana to "searchingly examine" the question of whether or not marijuana is dangerous.  The lower courts have ruled that we cannot question Congress when it determines that a drug is dangerous, because the drug laws are "special laws" that cannot be questioned.  The courts rule this way even when they admit that the question of marijuana's harms is "controversial" and not set in stone on a scientific basis.

Note, if we fail to demand that "searching examination" of the fundamental proofs of danger caused by our religious exercise, we allow the government, and the court as an arm of the government, to avoid the first test, the test upon which all the other tests are based.

In Yoder, the government claimed that compulsory education is necessary to prepare the individual for effective life and relations with others.  The Court noted this claim and then Burger writes on page 29, "However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional two years of formal high school . . . would do little to serve those interests."

If the Yoder defendants had not been allowed to question the government about the actual, physical proofs that the government had about the advantage of freshman and sophomore year school attendance; and if the Yoder defendants had not been allowed to produce evidence that their church educational program not only met those advantages of high school, but actually exceeded those claims on the ground in the Amish community; then the Supreme Court could not have made that statement, could not have provided a judicial ruling that produced a religious exercise exemption.

This is why judges are so opposed to allowing us to enter evidence and argument about whether or not a violation of law hurts or helps anyone.  Once they do that, the jury can "nullify" the application of a law to a particular person.  The King loses power.

In fact, it was King George's installation of "Admiralty Courts" where the jury is not allowed to nullify the law, that primarily caused the Revolution.  Prior to the installation of the Admiralty Courts, the jury's simply refused to convict a person of violating an unpopular law.  We will deal with "Admiralty Courts" in a later law review.

Note, it is imperative that you demand the fact proofs at the trial or you will not provide any higher court on review the chance to find that the facts are relevant and must be applied.  The higher court only reviews what happened at the trial.  If you failed to introduce evidence - because your Public Pretender doesn't want to 'piss off the judge' - then you gut your own defense.

In fact, under RFRA - as we will see in later cases - it is imperative to make the fundamental demand for the proof that the arresting officers were responding to some threat to public health and safety - rather than "just enforcing the law, Sir"; prior to even entering a plea of guilty or not guilty.  Now, the magistrate probably won't allow you to make that demand work, but if you don't get it into the record then, you may have problems recovering from that later.

In my own case, at my initial arraignment and bail hearing, I tried to question the cops about why they actually arrested me and they admitted that they were only enforcing the law.  Imagine if I had been drunk driving or been on the street waving a loaded gun at people if their answer would have been "just enforcing the law, Sir.".

Because the cops are on the record at the earliest point in the judicial proceeding saying that they were only enforcing the law, they have a hard time coming back later to claim some potential harm that they were reacting to when they arrested me.

From page 29 thru 37 the Court reports on the multitude of facts that the State tried to use to prove that Yoder's refusal to send the kids to school was a "threat to public health and safety".  Take each page and break it down into each separate fact presented.  See for yourself how the Yoders got the evidence into the court record about their alleged "crime".  Start to plan the "actual facts" that you have to introduce into the court record that will allow the jury to find you innocent of causing a "threat to public health and safety.".

You will need to file motions into your court record demanding that the government produce that actual evidence of your crime.  When you file that motion, you need to ask for a hearing on the motion - the court will not assume that you want to actually have a hearing.  You want to have a hearing so that the court and the government cannot just dismiss your claims without you having the chance to get some argument into the record about that.

The general rule is that if you do not contest a claim made by the government, it is assumed that you agree with it.  Don't agree with the government about anything; make them prove every piece of their claim.

If your attorney is not preparing the kind of record that is shown in Yoder, fire them, file a complaint with the court and file a complaint against them with the Professional Responsibility Committee of your state's Bar Association.

If you act like you like it, they will assume that everything is OK.  You must protest the theft, or it isn't theft, you just lent that guy your money.