Over Here and Over There

9 Oct

The writer has continued to reflect upon the Wisconsin v Yoder (1972) (US Supreme Court) decision, exempting the Amish (apparently the ‘A’ is long – see here for some BBC notes) from Wisconsin’s compulsory post-elementary education laws on the basis that their application to the Amish was an unwarranted interference with the free exercise by its members of the Amish religion – a branch of Christianity made famous by the Harrison Ford film Witness. The writer’s intuition is that Yoder would have been decided differently here – but why ?

Partly the answer is the facts – as the Supreme Court were at some pains to stress (see the judgement eg 406 US 238), the Amish are an unusual group of people, who could show clearly to the Court that their education system works, and the State had not come up with any very convincing explanation for demanding an additional 2 years of education. The writer is not sure that a UK equivalent could easily be cited.

Partly, however, it seems also a question of approach – possibly even the choice of approach. The dissent of Mr Justice Douglas (406 US 241 onwards) argues that for the sake of the children’s possible desire to be astronauts (for example – the Amish are famously unenthusiastic about technology) then Wisconsin should be able to compel their further state education (I summarise). As the Justice suggests in his last paragraph, there is a considerable gap between the Amish as portrayed in his judgement and in that of the majority.

That said, a possible (and recent) UK parallel case is Re G [2012] EWCA Civ 1233 (CA). The facts were not quite the same – this was about the choice of schools for the somewhat younger children of a separating Orthodox Jewish couple – but some of the angles are strikingly similar (eg queries about the social adequacy of the education proposed, concerns about stunting the children’s careers potential), and one can imagine Yoder being rewritten from Lord Justice Munby’s approach. Interestingly, the children in Re G were directed to the more liberal schools preferred by the mother on (very) broadly the kinds of grounds (just noted) that had worried the state of Wisconsin.

(Of course the Judge was neutral between the parents, and took no view on the merits of the Orthodox Jewish vision of life – that goes without saying. That he thought it worthy of comment that “the practice of their religion … becomes a way of life” (4) should be treated merely as the common law’s perspective based on experience – descriptive rather than normative, one trusts).


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