The Briefing 04-20-17

Part I

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In oral arguments on church-state relations, SCOTUS Justices appear to side with Trinity Lutheran

Oral arguments before the Supreme Court of the United States are for the benefit of the Justices. The way the Supreme Court works is that there are any number of preliminary filings, including briefs, making all of the substantial legal arguments, all of that has been processed by the Supreme Court, the individual Justices, their clerks, and staff long before the oral arguments are scheduled. When the oral arguments take place, it is an opportunity for the attorneys on both sides of a case in a very short time to make their case in its essence, and then there is the opportunity for Justices of the Supreme Court to ask questions of the legal counsel representing both sides in a dispute. When that happens sometimes we learn a great deal in terms of observing the oral arguments, not only about the strength of the relative case being made, but also by how the Justices are responding.

I said sometimes. Sometimes we learn a great deal in terms of how the Justices ask their questions. Sometimes we learn very little at all. Now in the latter case in terms of oral arguments that reveal very little, Justices often ask questions that don’t necessarily indicate how they will eventually judge or decide a question. When asking oral argument questions, it can simply come down to the fact that a Justice wants to ask an attorney a question in order to test just how powerful a case that attorney might be making. Sometimes the oral arguments do seem at least to indicate how the Justices are going to rule on a question.

That’s why in terms of the case we discussed yesterday on The Briefing because the oral arguments were held yesterday, the Trinity Lutheran case out of Missouri, it is really interesting that media and observers on both sides of the question seem to be in basic agreement. A majority of the Justices of the Supreme Court seemed to be ready to rule that the state of Missouri had discriminated against the school at Trinity Lutheran Church simply because it is a religious school. You’ll recall that the fundamental question has to do with a special program underwritten by the taxpayers in the state of Missouri whereby recycled tire material is used in order to provide protection on playground surfaces for children, particularly in schools.

The state of Missouri, which has a Blaine amendment—we explained that yesterday, a constitutional amendment that prevents the state from investing any monies in a religious organization in the state of Missouri, that means even indirectly for a secular purpose—the state of Missouri had turned down the request of the school at Trinity Lutheran Church for the same kind of playground protection under the state’s policy. That led to the appeals and the lawsuits that eventually showed up yesterday at the United States Supreme Court in oral arguments. And, for instance, here are the headlines yesterday from the Washington Post,

“Justices express sympathy with Missouri church at Supreme Court hearing.”

The New York Times was a bit more neutral,

“Supreme Court Weighs State Aid to Church Programs.”

But Adam Liptak, one of the most informed observers of the Supreme Court, in his analysis began with this,

“The Supreme Court seemed ready to chip away at the wall separating church and state on Wednesday, with several justices suggesting that states must sometimes provide aid to religious groups.”

Similarly coverage from outside the United States and The Economist of London ran the headline,

“The Supreme Court appears to side with a church in a funding battle.”

Now we have to be careful here because even as these headlines seem to be accurately reading the situation, we don’t know how the Supreme Court is going to rule on any question until it hands down the decision that would be expected before the Court goes into its recess this summer. But it is really interesting to note how the oral arguments unfolded yesterday because the questions that were asked by the Justices, including some of the more liberal Justices of the Supreme Court, indicated their suspicion that the state of Missouri had too high a wall of separation between church and state.

First a note on that historical metaphor, there is no mention in the U.S. Constitution of a wall separating church and state. As a matter fact, there is no language about the separation of church and state in the Constitution. Rather, there is language that forbids Congress from establishing a church or a religion. But even when you’re looking at this, it becomes very clear that the state of Missouri is in an awkward position because it is denying a playground protection program to a religious school simply because it is a Christian school. Matters at this intersection of church and state—that metaphor of a wall is dated back to a communication from President Thomas Jefferson—that very intersection is one of the most troubled in American constitutional history, but particularly during the second half of the 20^th century and beyond. The reason for that is that there has been an avalanche of litigation over questions of church and state as America has turned in a more secular direction.

But in terms of the case that was heard yesterday, you might imagine that just a basic deployment of common sense would’ve prevented this, but this is nonetheless an issue and a case that could turn out to have massive precedential value. It could have a great deal of influence in the future of church-state relations and religious liberty in the United States.

In terms of the oral arguments yesterday, there were some really interesting exchanges. To me the most important was that which was offered by Associate Justice Stephen Breyer, a democratically appointed nominee, one who has been solidly on the liberal side of the Supreme Court. He asked the attorney representing the state of Missouri if his logic were to be extended to the fact that it would be unconstitutional to offer police and fire protection to churches and to Christian schools simply because they are religious in identity.

Other exchanges between Justices and the attorneys indicated something of what we can look for in terms of the decision to be handed down. It appears that a clear majority on the Court are concerned that the state of Missouri wrongfully made this decision and that there is no constitutional basis for denying this particular school this kind of playground surface protection under the state policy and program simply because it is a Christian school because that particular program had a secular purpose—and that would be extended to this playground as well.

But it also appeared that a majority of the Justices of the Court would make a distinction between the investment of a state through its program in something like a playground resurfacing as compared to underwriting what would be described as religious instruction or teaching.

But there is a further wrinkle to be added to this. The state’s governor, Eric Greitens, in the days leading up to the oral arguments by executive order reversed the policy that had created the problem in the first place. So you ask the question, knowing that, why did the Court go forward? It’s because that executive order can simply be reversed. The issue is the question, the constitutional question as presented by the decision that had been made by Missouri’s government. Liptak in his article at the New York Times ended with these words,

“The Supreme Court agreed to hear the case in January 2016, not long before Justice Antonin Scalia died. Apparently fearing a deadlock, it waited more than a year to schedule arguments, an exceptionally long time. With the arrival this week of Justice Gorsuch, the court is now back at full strength.”

And we will simply add to that at full importance.

Part II

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Parental rights and the role of government: Homeschooling in America and abroad

Next, we shift to another issue that sometimes stands at the intersection of church and state but is always at the intersection of parental rights and the role of government, and that is the question of homeschooling. Very interestingly in recent days, the Washington Post ran an article in its magazine with this headline,

“These activists want greater home-school monitoring. Parent groups say no way.”

Lisa Grace Lednicer is the author of the article. It’s really interesting. It has to do with the fact that there are several activists who are continuing to press for increased state control supervision and monitoring of homeschooling. By the time you finish reading the article, it becomes clear that they might be generally opposed to homeschooling being legal in the first place.

The background of this is the massive growth in homeschooling in America over the course of the last three decades. While at the end of the 20^th century it was virtually unknown, it became far more popular in the 1970s, grew in the 1980s and 1990s.

Interestingly, the pedigree of homeschooling doesn’t go to the cultural right, but rather to the cultural left. In the 1960s and early 70s, some liberals, especially on the West Coast, began to push a movement they really didn’t call homeschooling, they called it un-schooling. It was an effort to try to bring about a revolution in schooling in which institutionalized settings certainly under government control would be replaced by more community-based settings, and in particular the home setting. The reality is that there were many who described themselves as hippies who did not want to send their kids to government run schools, and so un-schooling became a part of the answer. But it wasn’t just hippies, it was others on the cultural left who might have been more overtly conventional but still didn’t want their children to be trained in government schools.

Now when it comes to the conservative side, that emerged mostly in 1970s but exploded in the 80s and 90s. And once again as we have seen, this comes in the context of increased secularization in the United States. As a part of that process, the public schools began to change in terms of their character, and many families who wouldn’t have thought anything problematic about sending their kids to the public schools in the 1950s and the 1960s found themselves and their children making very different decisions in the 1980s and 90s. And since then homeschooling has simply grown in terms of numbers.

The legal basis for homeschooling goes back to the earlier 20^th century rulings having to do not so much with homeschooling in particular but with the rights of parents to make decisions about their children and their education. Some of those cases, including the Yoder case, go back to the Amish who were making some the most important arguments in the 20^th century about the fact that parents should have the ultimate say in the education of their children.

During the 20^th century there was understood in the courts to be a balancing between the rightful expectation of government that children would be educated and the rights of parents to decide how their own children would receive that education. By the time you come to the early 21^st century, homeschooling has grown so fast that the cultural left at first did not recognize what was happening, but since then there have been efforts to try to limit the growth of homeschooling and sometimes effectively to force state monitoring where children are not in the state schools. As the Washington Post magazine article says,

“Regulation advocates want stronger oversight, methods to monitor the quality of the education and ways to protect children from the dangers that can unfold behind a family’s closed doors.”

Now that’s a direct quote. It’s interesting to think about this for just a moment though. Here the Washington Post magazine actually indicates concern about the dangers that can unfolds behind the family’s closed doors. Now no doubt there are some dangers in some families, but the perhaps bigger issue here is the context in which it is insinuated that we should be suspicious of what goes on behind a family’s closed doors. The Washington Post piece points to two activists who recently formed an advocacy group.

According to the paper, the Center for Home Education Policy’s plan “is to do legal work for those who want to attend public school. They also want to advise young adults on adjusting to a world to which they’ve had little exposure.”

Now once again we have something here that is probably more stereotype than reality. The suggestion is that homeschooled children in terms of this article in the Washington Post magazine haven’t been exposed to the larger world. The reality is it would probably be homeschooling parents who would be rather naïve to believe that their children have not been exposed to the larger world. But homeschooling parents—and many of them are evangelical Christians—are very determined to fulfill their responsibility to control and to limit how their children are exposed to the wider world.

The most troubling aspect of this article, however, comes early when we read,

“What distinguishes the Center for Home Education Policy is its emphasis on the right of home-schooled children to have a greater say in their destiny, even when it contradicts their parents’ wishes.”

Now let’s just imagine for a moment that we’re not talking about education at all. Let’s just imagine that, for example, we’re talking about healthcare medical decisions. Let’s just imagine that we changed the wording in that sentence so that we read that there is now an advocacy organization that has its emphasis on the right of children to have a greater say in their medical treatment, even when it contradicts their parents’ wishes. Now there is good reason for there to be court access when there is an excruciating question in which it appears that parents are not acting in the best interest of their children. In every single state there is a mechanism in terms of medical care where if children are being denied medical care by their parents, sometimes in terms of the teachings of a religious cult, there is an opportunity for a court to intervene. But what’s really important here is to recognize that there is the necessity of a court or legally sanctioned authority to intervene.

The presumption in terms of the medical care of children in this country is that parents are in the best position to make the decisions in the best interest of their children. And when it comes to education, it is simply the very same presumption that is deeply rooted not only in American jurisprudence and law, but also in terms of Western civilization and what is known as common law. But it’s also rooted in common sense. It’s rooted in the fact that children are born to parents and that parents have the primary responsibility, a responsibility that cannot be adequately undertaken by anyone else, and a responsibility that requires the respect of the entire community, including the government, unless there is some legal justification for the intervention of the state.

But here’s where you have a basic clash of worldviews. Because there are many in our society, particularly on the cultural left, who believe that one of the main responsibilities of the schools, the public schools particularly, is to separate children from their parents. Now just in case you’re wondering where that comes from, if you go back to some of the earliest writings about the public school movement, the common school movement in the United States, especially in the early decades of the 20^th century, you’ll see some of the most influential figures in public school education, such as John Dewey, a philosopher and educator who taught at Columbia University, who explicitly argued that it was an important role of the public schools to separate children from what he identified as the religious prejudices of their parents.

One of the activists behind this new organization is a woman named Sarah Hunt. The magazine article describes her in this way,

“Hunt married and divorced young. She earned two law degrees and made a career in Republican politics. And she advised young women with similar backgrounds on how to move forward, away from their parents’ homes, away from early marriages that may have looked like a fast way out but in the end were traps.”

She said,

“Even if you have a good home-schooling experience, particularly if it’s a religious experience, you may have trouble with cultural navigation and the transition to adulthood.”

She said,

“My sisters and I were raised in a world that didn’t exist, where we’d be staying at home and living in an antediluvian world. Every day I wake up in a culture that’s not mine, and it requires me to be alert and aware.”

Now, what’s really interesting about that paragraph is the fact that here you have a young woman saying that she was raised for a world that didn’t exist, and it now puts her at a disadvantage right after it’s identified the fact that she has graduated with two law degrees and had a professional career in Republican politics. It’s really hard to square both of those when you put them together. All that might be explained by an earlier paragraph where we read,

“She wrestled, too, with her own anger and alienation. She straddled two worlds. There was the one she had grown up in, where she had learned that being a smart and outspoken woman was dangerous. And there was the world in which she was trying to make her way, where she was teased for her ignorance of pop culture touchstones such as ‘The Smurfs,’ Madonna and ‘Mad Max.’ So much was foreign, she says. The more she struggled personally, the greater the distance grew between her and her parents.”

Frankly reading this article, it appears at least to me that perhaps one of the reasons why it appeared to be newsworthy to the Washington Post is that’s it’s hard for almost anyone in this society to believe that one can actually be alive and not know about the Smurfs, Madonna, and Mad Max. Popular culture is so pervasive and so powerful in this society that there are many people who appear to believe that one cannot have a meaningful life if one does not know about pop culture in all of its details and fascinations. These are dated references to be sure, but it appears that there’s at least some hostility here to the fact that someone might have grown up without understanding the Smurfs, that a child deprived of the knowledge of the Smurfs is somehow a child that needs state intervention.

Added to this story must be one that appeared at Baptist Press and World News Service this week, a reminder of how homeschooling is illegal in some places, particularly in the nation of Germany. Kiley Crossland says,

“A German family punished for homeschooling their children has appealed to the European Court of Human Rights (ECHR). Dirk and Petra Wunderlich submitted a final appeal last week asking the ECHR to protect their right to homeschool their four children. Home education has been banned in Germany since 1918 and carries criminal penalties.”

Now consider this article,

“In August 2013, a police squad used a battering ram to break into the Wunderlich home as the family started their first day of homeschool classes for the year. A group of more than 20 police officers and social workers forcefully took the four Wunderlich children, ages 7 to 14, out of the home without letting their parents say goodbye. The parents’ only offense was homeschooling.”

Now what’s really important about this article is that the government in Germany agrees on the particulars. That is to say, the government of Germany in criminalizing homeschooling has said that when it comes to these parents, homeschooling is indeed the criminal act that is of the government’s concerns.

Now before leaving the story we simply have to understand what’s at stake here. It is the question, to whom do children belong? And the presumption in Germany is made very clear in terms of the homeschooling legislation that was adopted back in 1918 is that children, particularly in terms of their education, belong to the state. The presumption in the United States, and for this we should be very thankful and watchful, is that the presumption is that children belongs first to their parents. Those trying to think about these headlines from a Christian worldview understand just how much is thus here at stake and why a story that appears on homeschooling in the Washington Post magazine is actually far more important than the particulars of the story may indicate. That news report from Germany troubling as it is just serves to underline that very issue.

Part III

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Are our kids' toys spying on us? Germany isn't taking any chances

But we conclude with another story from Germany. This one appeared on the front page of a recent edition of the Wall Street Journal. The headline,

“German Officials Order Parents to Execute a Spy—Cayla the Doll.”

Now that might appear to be a big story, and indeed it is. But in this case, the German government has ordered the execution of a doll as a spy. Previously on The Briefing we talked about the fact that there had been controversy in Germany and beyond about a doll name Cayla that, as it turned out, had the technological potential to spy upon children and to have been independently accessed in terms of technology. Andrea Thomas, reporting for the Wall Street Journal tells us,

“Earlier this year, Lisa Harmann received a warning from the German government: A spy might be lurking in her child’s bedroom. She should find it and destroy it.With their 10-year-old daughter sound asleep, Ms. Harmann and her husband sneaked into the room armed with a flashlight and soon found the culprit sitting inside the cupboard, sporting a frozen smile and billowing pink skirt.Despite her innocent looks, ‘My Friend Cayla’ isn’t a doll—at least not in the eyes of German authorities—but an illegal eavesdropping device. On Feb. 17,”

The German government, through its federal networks agency, ordered the destruction of all these dolls, the execution of all of these spies. But the danger is that there are yet other spies lurking in the child’s bedroom. As the Journal says before turning its sights on Kayla, the agency in Germany last year banned a panda bear with a camera hidden in its nose. And furthermore, “a toy robot was sent to the scrapyard because its head was embedded with an internet-enabled camera concealed behind a black visor.”

These stories might seem at first to be humorous if not somewhat bizarre, but this tells us something of the danger of technology that lurks in places we might not expect, including what appears to be an innocent gift given to a child. That innocent gift is not so innocent when it turns out to be a surveillance device that can be accessed by others. This mom, Ms. Harmann, said,

“We thought it simply incredible that we could own such an awful thing… sitting in our child’s bedroom for two years without our knowledge. It’s simply unbelievable what parents have to deal with these days.”

To that we can only say, we agree.