The Time Has Come to Overrule Wisconsin v. Yoder

There is a growth industry in television reality shows about Amish young adults leaving the fold and the many challenges they face, including Breaking Amish, Breaking Amish: LA, Brave New World, and Amish: Out of Order and Amish in the City, with likely even more on the horizon. The protagonists come across as often sadly unprepared for the world as they struggle with alcohol, drugs, sex, and employment challenges; the faith appears to be cold when these seeking young people are shunned for stepping outside the bounds; and the parents appear incapable of protecting their children from the real world. This is not the wholesome, peace-filled, law-abiding Amish universe that the Supreme Court described in Wisconsin v. Yoder, where the Court unfortunately opened the door to the sorts of problems that are now typical reality TV fodder.

In Yoder, the religious claimants were Amish and Mennonite parents, who argued that the compulsory education laws that required children to attend school to age 16 violated their religious principles, because they believed that children should turn to an agrarian way of life several years earlier. They also argued that the state law was a threat to their religious way of life, which required them to be “aloof from the world” and had been in place for 300 years.

Under the Court’s typical “ordered liberty” approach to rights generally, the First Amendment subjects a neutral, generally applicable law to rationality review. For example, if you are stopped for a speeding ticket or have religious objections to paying taxes, the fact you are religious does not help. Employment Div. v. Smith. And a law that is not neutral, or not generally applicable, is subject to strict scrutiny. For example, if a law is drafted so as to apply to only a religious group for purposes of negative treatment, it receives strict scrutiny. Church of Lukumi Babalu Aye v. City of Hialeah.

Even though the Wisconsin law in Yoder was neutral, and generally applicable, Chief Justice Burger, writing for the Court, applied strict scrutiny, and held that it violated the Free Exercise Clause, because the state failed to prove a compelling interest in sending Amish children to school till age 16. The Chief Justice wrote:

Wisconsin’s interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally. . . . There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health or that Amish parents exploit children at tender years.

In effect, the Court carved out an exemption from Wisconsin’s generally applicable, neutral law solely for the Amish. Yoder is the only case in which the Court has applied strict scrutiny to a neutral, generally applicable law.

The Court’s Free Exercise Doctrine: Where Yoder Sticks Out Like a Sore Thumb

The one outlier case in the Supreme Court’s free exercise history is Yoder, where the Court turned on its prior cases and applied its strict scrutiny reasoning to an irrefutably neutral, generally applicable law. The law was Wisconsin’s compulsory education law, which required students to attend high school until age 16. As a result of applying strict scrutiny in that case, the Court thereby granted a right to the Amish and Mennonite communities to remove their children from school several years early. (In Yoder, they were arguing for removal at age 14, but in the interim, it appears children have been removed as early as age 12 and 13.)

The Amish based their argument on the belief that “salvation requires life in a church community separate and apart from the world and worldly influence.” Further, the Amish said that they rejected higher education, because of its “influences that alienate man from God.” In addition, the faith argued that abiding by the law would destroy the Church, which led the Court to recognize a right to avoid the “destruction of the old Order Amish church community as it exists in the United States today.”

Yoder was a love letter to the Amish. They were described as upstanding citizens who “have an excellent record as law-abiding and generally self-sufficient members of society.” The Court even went so far as to say that the record in this one case “establishes without contradiction that the Green County Amish had never been known to commit crimes, that none had been known to receive public assistance, and that none were unemployed.”

Having sung the religious entity’s praises, the Court then discounted the government’s and society’s interest in an adequately educated citizenry, assumed that no child would ever want to leave the faith, and failed to take into account the needs of children to be educated at least through high school. No group of humans is as perfect as the Court assumed in Yoder, and this decision shows just how far Americans, and even judges, will go to assume religious actors are intrinsically good people. Unfortunately, they are all too human.

There is no other decision with the same level of hero worship, but also no other decision where the Court permits a religious entity to overcome a neutral, generally applicable law through the application of strict scrutiny. There is a lesson in this opinion, and that is the Framers’ deep insight that every one of us is fallible, even the perfect-appearing religious. And when it comes to religious conduct, the courts should defer to legislative determinations.

Justice Douglas noted in dissent that the Court did not have all of the most important issues before it: “While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition.” Justice Douglas further presaged the costs to children of the decision:

It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.

Amish children, and the many other children across the United States not permitted to finish school for their parents’ beliefs, have not been asked about their views. Instead, religious parents have had the cover of Yoder to force children to withdraw from school before the vast majority of children can or would. The result, sadly, is fodder for reality shows and children whose life choices have been pre-determined by parents’ religious beliefs.

The Factors for Overruling a Constitutional Decision

The Supreme Court rarely overrules prior constitutional decisions, but it does make sense to do so when the decision’s underlying assumptions turn out to be false and its reasoning in tension with constitutional demands. The plurality in Planned Parenthood of Se. Pennsylvania v. Casey, summarized the relevant factors as follows:

. . . when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability…whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation…whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine…or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

Yoder is a candidate for overruling, because the facts assumed in the decision are now known to be false. That which appeared to justify affording the Amish the privilege of strict scrutiny against a neutral, generally applicable law at the time is no longer sustainable. Moreover, the blind acceptance of the uprightness of all Amish surely rides close to an Establishment Clause violation.

The Fact Lessons about the Amish Community

Since Yoder, we have learned that there are indeed problems in the Amish community, like those that range across humankind.

There is rape and incest. “When sexual abuse is uncovered among the Amish, they focus mainly on the perpetrator’s repentance, rather than on the welfare of the children, which allows pedophiles to walk freely among innocents. They are simply not equipped to deal with these issues, and their isolation from mainstream society means that public services are largely out of reach, especially for children.”

In 2005, we learned about a girl, Mary, who was molested by her father, brothers, and cousin. The brothers and cousin reported themselves to the church elders, but were only shunned by the community for a few weeks. Mary wrote a letter to the clergy, but they did not bother to follow up. She went to the police, and when detectives came to ask around the community, Mary was excommunicated. One of Mary’s distant relatives, Kathryn also stated that her husband molested two of her daughters, but Kathryn was taught to forgive, and “made things right” in church.

The children who do leave face uphill challenges, having had no full education. Saloma Miller Furlong, writes in Why I Left the Amish: A Memoir , about being forced to leave school at age 13, finally leaving the community, and the years and hurdles she passed before she was able to pursue a college education. She is one of many.

These are just a few of the facts about the Amish and their children, but now that they are known, it would be impossible to write the Yoder decision as it was written in 1972.


My vote for the worst Religion Clause case in the United States goes to Wisconsin v. Yoder. I would deep-six it for its romantic, unrealistic depiction of Amish life, its unexamined assumption that parental rights automatically trump any question about the children’s needs or beliefs, and its judicially forced accommodation, which forestalled legislative debate and determination over whether permitting a significant number of children to forego higher education is consistent with their best interests or the public good. There is good reason to question that conclusion in a society where most every other citizen is required to complete high school (and therefore the Amish children are being severely disabled in terms of their future prospects) and where the political and social welfare of the country rests on well-educated and informed adults.

The Yoder case is also problematic in that the Court believed it was legitimate to take into account whether the sect would continue to exist as it has for centuries. The government, including the courts, is required to take a neutral position in religious beliefs and existence. It is not appropriate for judges to prop up religious groups or treat them as necessarily static. It is up to the faiths themselves to decide whether they will change or not, and only up to the government to serve the public good. Imagine the human rights violations if religious groups were permanently secure against responding to the larger culture’s developments and changes. The Yoder court’s reasoning to protect the Amish lifestyle itself was a violation of the separation of church and state, and an argument by itself to overrule the decision.

The real culprit in the decision is the use of strict scrutiny against a neutral, generally applicable law. Yoder is an outlier for a reason; its conclusion and its reasoning should be overruled.