*1
Mich
REMAND)
(AFTER
PEOPLE v DeJONGE
4).
(Calendar
10,
Argued
No.
November
Docket No. 91479.
25,1993.
May
Decided
DeJonge
by jury
DeJonge
in the
convicted
and Chris
were
Mark
J.,
Court,
Kloote,
violating the
J.
of
Richard
Ottawa District
by instructing
compulsory
law
their children at home
education
Circuit
state certified teachers. The Ottawa
without the aid of
Bosman, J.,
Appeals,
Court,
of
L.
affirmed.
Court
Calvin
Marilyn
JJ.,
Doctoroff, P.J.,
Kelly,
J.
af-
and Maher 106149).
(Docket
unpublished opinion
No.
On
firmed in
convictions,
Appeals
rehearing,
of
the Court
reaffirmed
finding
as
was constitutional
that the certification
to meet the state’s interest. The
restrictive means
least
Court,
Supreme
granting
appeal,
remanded
in lieu of
leave
light
Appeals
Court
reconsideration
case
Smith,
Div, Dep’t
Employment
Human
v
Resources
(1990),
Baptist
Dep’t of
v Emmanuel
Social Services
(1990).
remand,
Preschool,
Following
the Court of
188 Mich
Amici Curiae: Attorney Kelley, General, L. Thomas J.
Frank Casey, Zimmer, General, As- and Paul J. Solicitor Attorney General, for the State Board sistant Education. *3 (Paul counsel), Denenfeld, of for
Mark Brewer Michigan. the ACLU Fund AFTER REMAND constitutionality At of MCL J. issue Riley, requires parents 15.1923, who 388.553; MSA which pro- schooling their to home children conduct vide that by state. hold certified We instructors the teacher certification of the Free Exercise violation unconstitutional Clause applied as First Amendment prohibit convictions families whose families, Such there- use fore, certified instructors. exempt of the teacher from the dictates are requirement. certification
i DeJonge taught Mark and Chris Defendants Rem) (After Opinion of the Court school-age children at home accor- their two DeJonges faith. The dance with their the Church of program utilized a administered Arlington Academy Christian Liberty Heights, Illinois. taught
Because the their children teachers, without the aid of home certified charged Area Intermediate School District Ottawa law, violating them with education compulsory Code, 380.1561(1), as codified in the School MCL (3). (3); 15.41561(1), requires parents MSA This act of children from the sixteen to age six to send public their children schools or to state- approved nonpublic schools.1 To as a state- qualify school, approved nonpublic students must be in- 15.41561(1) 380.1561(1); MCL MSA mandates: (2) (3), Except provided parent, every subsections guardian, person having or other in this state control and charge age of a child from the of 6 to the child’s sixteenth birthday, public during shall send that child to the schools year. entire school The child’s attendance shall be continuous year and consecutive for the school fixed the school district in which the child is enrolled. In a school district which during year maintains school the entire calendar and in which year quarters, the school is divided into a child shall not be compelled calendar public quarters to attend school more than 3 in 1 year, but a child shall not be absent for 2 consecutive quarters. 380.1561(3); 15.41561(3),however, exception MCL MSA crafts an compulsory state-approved nonpublic the schools: school attendance law for required public A child shall not be to attend the schools in following cases: *4 (a) attending being regularly taught A child who is and is in school, approved nonpublic subjects a state which teaches com- parable taught public to those in of the course of schools children corresponding age grade, by and as determined public study for the schools of the district within which the nonpublic school is located. 442 Mich the Court of by 388.553; MSA MCL teachers. structed certified 15.1923.2 ques prosecution trial, never of At time DeJonges’ adequacy instruction of the
tioned received. Michael or McHugh, Liberty education the children employee the Church of Christian an of organiza Academy, his testified that and "testing, provided with individu tion alized monitoring the home curriculum, and Ap Unpublished opinion of the Court of school.” (Docket 106149), August peals, No. decided p 2.3 McHugh that educational further this testified employed
program, in since had been use "many youngsters at- who have thousands major successfully graduated col- from tended and leges throughout the United and universities respect Indeed, . . .” with to the States . children, impressed "very judge he the trial noted that was support they have, with the testified and credentials the witnesses have school,” complies approved nonpublic in the School A "state defined private, Code, nonpublic denomi- a school which with 388.551-388.558; parochial MSA act. MCL national and schools requires nonpublic that all school students 15.1921-15.1928.The act Michigan taught only: certified State of teachers any person give shall teach or instruction No grade any private,
regular tional elementary denomina- or studies parochial does not a or school within this who hold qualify him or her to teach in like certificate such as would 388.553; grades public the state .... schools of [MCL MSA 15.1923.] explained range subjects: McHugh the broad of curriculum Academy systems complete . . . students in our have [A]ll Studies, study Bible course of phonics, and which area of [includes] spelling vocabulary reading . . . and literature studies, grammar penmanship language . . . mathe- studies, science, music, history . . . matic physical arts crafts place heavy emphasis And we do education. also development upon the studies and character within relate directly to the .... bible studies *5 271 People DeJonge (After Rem) Opinion of the Court reports apparently very very, are favor- report able on the education the children.” DeJonges began teaching they The testified that August their children at home in they of 1984 because provide wished to them a "Christ centered DeJonges major The that "the education.” believe purpose of education is to show a student how to just God, not him face world.”4 show how face DeJonges’ opposition That to the certifica- requirement religiously tion was motivated was beyond question. proceedings, At the close of the judge "question the trial he concluded that had no sincerity about the conviction or the of the De- Jonges position,” on this and that the teacher requirement "very, certification conflicted with a very honest and sincere conviction.” DeJonges Nevertheless, were convicted and years probation instructing sentenced to two their children without state certified teachers. They required $200, were each fined to test their achievement, children for academic and ordered to arrange for certified instruction. Circuit Court Ottawa affirmed their convic DeJonges appealed
tions, and the in the Court of Appeals, where their case was consolidated with People v Bennett.5 The Court affirmed both trial 4 Michigan’s requirement Mark testified that that all taught by children be certified teachers violates their beliefs family scripture complete because the is the "believe[s] specifically parents inherit word of God. That it teaches that are [sic] responsible the ones that are to God for the education of their authority, children. And for us to allow the State to insert God’s [sic] McHugh for us to submit to that would be a sin.” also testified that many required by upon of the courses the state "are based a false and pagan religion known as secularism or secular humanism.” 5 The defendants in both the instant case and v Bennett (After Remand), (1993), 442 Mich 106 NW2d maintained that infringed the certification their Fourteenth Amendment right to direct the education their children. We do not reach this case, Bennett, question supra. issue in the instant but address the 442 Mich Court decisions, on their convictions and reaffirmed
court 225; App NW2d Mich rehearing. II). (1989) (DeJonge that with ruling, recognized the Court so of the state "burden
respect there high, certification law on the belief *6 DeJonge for compromise,” to be no room appears Nevertheless, that II, 235. the Court ruled supra at constitutional as the was requirement certification meet the state’s means to the least restrictive interest.6 Court, grant this in lieu of
On October
the
to the
ing
appeal,
remanded
case
leave
light of
reconsideration
Appeals
Court of
(1990).
burden on
freedom
Michigan
had an
concern about the
certification.
quality
has
intense
its
....
teacher
of the education of
citizens
requirement
protection
this
is a backbone in the
certification
II, supra
[DeJonge
vital
state interest.
236.]
872;
Div,
Smith,
Dep’t
Employment
of Human
v
Resources
(1990),
1595;
Dep’t
v
108 L Ed
of Social Services
2d
(1990).
Preschool,
Baptist
434 Mich
ii
*7
Michigan’s
At
issue then is whether
teacher
certification
for home schools violates
the Free Exercise Clause of the First Amendment
applied
the
Constitution
to the
of
United States
as
Michigan by
State of
the Fourteenth Amendment
of the United States Constitution.8 The Free Exer
proclaims: "Congress
cise Clause
shall make no
respecting
religion,
establishment
law
of
or
prohibiting the free exercise
. . .
thereof
.”9
8
1
the Fourteenth
the
Section
of
Amendment of
United States
applies
Constitution
the First Amendment
to the individual states.
(1947).
Ed,
1, 15;
Everson v Bd of
the dictates of his own conscience.
shall be com-
No
attend, or,
consent,
pelled
against
his
to contribute
the
religious worship,
pay
support
any place
or
of
of
or to
erection
Thus, our we underpinnings the First Amendment. historical of long This Court has held that constitution interpreted light original intent must be of understanding of The framers’ its drafters.10 conjunction intent must be understood intentions and with understanding of constitution by held its ratifiers: framers, however, The of the must be intent part primary used understanding” rule of "common as described Justice Cooley: " people 'A for the constitution made people. interpretation that the given should be great minds, it is that which reasonable give peoplethemselves, it.’
mass of the would ”[11] corollary necessary principles A is that of these properly only the constitution can be understood " meaning by studying common as 'the its well surrounding adoption a con circumstances of purpose provision sought to be stitutional and the ”12 accomplished . .’ . . are These rules of constitutional construction indispensable "[t]he because literal construction regard purpose words, to their without obvious
tithes,
support
any
taxes or other rates for the
minister
money
gospel
religion.
appropri-
shall
or teacher
No
be
any religious
treasury
ated or
from the
for the benefit of
drawn
society,
theological
religious seminary;
sect or
property belonging
nor shall
appropriated
any
to the
such
political rights, privileges
capacities
purpose.
The civil
and
account
person
enlarged on
of his
of no
shall be diminished or
religious belief.
State,
Secretary
Committee for Constitutional Reform
(1986).
336, 342;
Mich
389 NW2d
General,
342, quoting
Attorney
City
Dist v
Id. at
Traverse
School
*8
(6th
390, 405;
(1971), quoting Cooley,
9
Lim
384 Mich
185 NW2d
Const
ed), p 81.
12
Auditors,
Kearney
of State
189 Mich
Id. at 340. See also
v Bd
(1915).
673;
This
religious
tyran
protection
liberty from
edented
nical
of
government
Springing forth from this
action.
founding principle
government
nation’s
rights
protection of the
[the]
"instituted for
Religion
mankind,”16
Clause
the Free Exercise
government
protection from
interference
ensured
Rights.17
in the Bill of
as the first freedom
protection
prominence
religious liberty’s
The
13
dissent,
Contrary
of the
such constitutional
to the assertions
"legal analysis.”
impose
does not
"doctrine”
lieu
construction
Indeed,
original
courts do
intent is crucial to ensure that
adherence to
pleasure
constitutional intentions of”
their own
to the
not "substitute
the
78, Kramnick,
Hamilton,
Papers,
people.
ed
The Federalist
No
Books,
1788]),p
[originally published
(England: Penguin
440.
1987
14
clauses,
necessary
meaning
religion
it
"To determine the
McConnell,
proponents
through
eyes
. . . .”
of their
to see them
religion,
origins
understanding of free exercise of
and historical
The
(1990). Indeed,
provision of the Consti
103
L R
1437
"[n]o
Harv
generating
given
closely
its
tied to or
content
tution is more
Everson,
n
history
First Amendment.”
than the
clause of the
J., dissenting).
(Rutledge,
at 33
seclorum,
Founding
ordo
Fathers as novus
Referred to
ages.
new order for
Morris, quoted
the Federal Conven-
in Records of
Gouverneur
(Farrand
ed, 1966),p 222.
tion of 1787
rev
"extending
proclaimed
Founding
to its citizens
Fathers
liberty”
"great
blessings
end” and
is the
of civil &
all
Pickney, quoted
government
in 4
"object
. . . .” Charles
our
(Farrand
1966),
ed,
pp
rev
Federal Convention of
Records of the
28-29.
*9
[May-
in the Bill of
no historical
re
vigorous
the
of America’s
clashes
consequence
freedom. The First Amendment’s
garding religious
the
was born from
protection
religious
liberty
of
the minds of the
persecution,
forged by
fires of
Fathers,
in
tempered
struggle
the
Founding
in America.18
for freedom
attests,
Founding
history forcefully
As our
the
the
of the free exer
protection
Fathers envisioned
duty
gov
the
religion
cise of
affirmative
of
the inherent nature of reli
ernment mandated
one
mere
"toleration”
gious
not
of
liberty,
in this
government.19
significant
history
Most
was
prerevolutionary religious
For an exhaustive examination of
religious
persecution,
colonies, McConnell,
development
in
as the
of
freedom the
as well
n 14
1421-1430.
see
at
explained
religious liberty is a
free-
Jefferson
fundamental
power
legitimate sphere
government
dom
ening
quoted
of
unless threat-
outside the
Jefferson,
Virginia,
on the
*10
explained
as "a fundamen
Assessments
religious liberty
and undeniable
tal
a
right by
practices
truth”23
deeply private,
fundamental,
and inalienable
religious
beliefs
which a citizen’s
from the hostile intolerance
are shielded
Virginia
Bill for Reli
Jefferson’s
of
while
society,24
McConnell,
constitutions,
survey
n 14
thirteen
see
For a
of all
supra at 1456-1458.
20
Virginia struggle
for
For an extensive discussion of
J.,
Everson,
dissenting).
supra
(Rutledge,
liberty,
n 8
at 34-39
see
Everson,
supra, appendix at 63-73.
See
n 8
Religious
Against
Assess-
and Remonstrance
Madison’s Memorial
Religious Liberty
recognized in
Bill for
are well
ments and Jefferson’s
interpretative
tools essential
constitutional
law as invaluable
insight
protections
achieving
necessary
afforded
to understand the
See, e.g.,
First Amendment.
the Free Exercise Clause of the
Nyquist,
Religious Liberty v
413 US
Committee for Public Ed &
(1973);
760;
2955;
Abington Twp
III
Dep’t
Employment Div,
Human Resources
1595;
L
Smith,
872, 881; 110 S Ct
108 Ed
494 US
v
(1990),
the "Free
ruled that
2d 876
the Court
conjunction
other constitu
with
Exercise Clause
right
par
protections,
. . . the
such as
tional
Society
acknowledged
Sisters,
ents,
[v
in Pierce
(1925)],
571;
L
1070
510; 45 S Ct
69 Ed
268 US
children, see Wiscon
the education of their
direct
32 L
2d
Yoder,
[92
205
S Ct
Ed
v
sin
(1972),”
application
scrut
of strict
demands
Michigan’s
iny.27 Hence,
re
teacher certification
27
generated in
of the criticism
reaction
We are not unaware
Smith,
Amendment does not bar
which held that
the First
neutral,
religiously
generally applicable
"application
law to
of a
“conjunction
the Free Exercise Clause is
motivated” conduct unless
Smith,
See,
protections
. .
at 881.
.
with other constitutional
Smith,
e.g.,
discourse,
in constitutional
and fall of
freedom
rise
(1991)
232,
149, 231,
(referring
U
as "the virtual
L R
Penn
Smith, supra,
Exercise
abandonment of the Free
protection
Clause,” "reachpng]
point in modern constitutional
a low
Clause,” "leav[ing]
Exercise Clause
the Free
under the Free Exercise
thus,
practical
independent
constitutional content and
without
McConnell, Religious
largely meaningless”);
at a
purposes,
freedom
(1992) ("Smith
crossroads,
constitutionally explicit
115,
Chicago
converts a
59 U
L R
requirement,
liberty
into a nondiscrimination
straightforward interpretation of the First
in violation of the most
Amendment
religious liberty,
text”);
Summary
synthesis:
Laycock,
The crisis in
(1992) (summarizing
sympo
60 Geo Wash L R
finding
symposium
one in this
sium of ten articles and
"[n]o
might
possibility
Employment
seriously
Div v Smith
be
takes
defensible”). Nevertheless,
interpretation
this Court must follow
opinions
prevailing
of the United
Clause in the
of the Free Exercise
States
dissenting opinions
Court,
though
may
Supreme
we
be in accord with
"even
Lechner,
Mich
v
in those cases.”
(1943).
360-361;11
NW2d
Michigan
hand,
may certainly interpret
the other
we
On
protection
affording
to the free exercise
additional
Constitution
Smith,
However,
ruling
supra at
com-
religion.
mands that strict
undertake
Constitution’s
do
scrutiny
because the
issue,
scrutiny
applied
case at
we do
be
Michigan
time the extent of the
to determine at
this
religion generally.
protection
We
free exercise of
hold, however,
Michigan
mandates that strict
that the
Constitution
applied
opinion
instant case.
in the
in this
as articulated
(1968)
177, 181;
Bartlett,
App
280 Opinion op the Court undergo scrutiny quirement to survive strict must challenge.28 a free exercise scrutiny in the "com- This strict is manifested composed pelling of five test, is interest” which elements:
(1) belief, or conduct whether a defendant’s sincerely belief, held; motivated (2) belief, a defendant’s or conduct whether by belief, nature; motivated
(3) regulation imposes a whether a state of such or con- on the exercise belief burden duct;
(4) jus- compelling state interest whether a upon imposed a defendant’s tifies the burden conduct; belief or (5) less form of whether there is a obtrusive supra
regulation Yoder, to the state. available Dep’t Emman 214-230; of Social Services v at Baptist Preschool, 380, 391-396; 434 Mich uel (1990) (Cavanagh, J., 455 ring), concur NW2d concurring).29 J., (Griffin,
A
element of the
test
first
"
(art 1,
Michigan
'guarantees
every person
4 of the
Constitution
§
according
liberty
worship God
to the dictates of his own
the
conscience’
”).
categorically prohibits gov-
Although
Free Exercise Clause
"[t]he
rewarding religious
regulating, prohibiting,
beliefs
ernment from
as
593
ence with
such,”
618, 626;
Paty,
S
55 L Ed 2d
McDaniel v
98 Ct
(1978),
government interfer-
the case at issue involves more than
hence,
belief;
balancing approach
compel-
mere
ling interest test must be utilized.
Preschool,
Cavanagh,
Baptist
supra,
In Emmanuel
Justice
writ-
concurring opinion,
ing separately, joined
majority
in accordance with Justice
"to form a
Justice Griffin’s
standard of review”
on the issue of the Free Exercise Clause
Riley’s opinion
Baptist
in Sheridan Rd
(1986),
Ed,
462, 574-578;
Dep’t
426 Mich
396 NW2d
Church v
(1987).
Preschool,
Baptist
Emmanuel
cert den
B DeJonges’ Similarly, is reli- belief because the compel- giously based, the second element protec- ling is met. To be afforded test Clause, individual’s the Free Exercise tion of religiously motivated, as the must be behavior explained: 215-216, Yoder, Court admirable, life, and way of however virtuous A to reasonable interposed as a barrier may not be if it on education is based regulation of protec- considerations; to have purely secular Clauses, must be Religion the claims of the tion Thus, . if the Amish religious . . rooted in belief. subjective of their their claims because asserted contemporary secu- rejection evaluation much as majority, accepted by lar values of his time the social values rejected Thoreau Pond, their claims himself at Walden isolated Thoreau’s religious basis. rest on a would not rather than personal philosophical was choice Mich Opinion of the Court religious, demands not rise to the and such belief does Clauses.[30] Religion Thus, this Court must determine whether sincerely held, not whether such belief is or United States v 1148 are true reasonable. beliefs 78, 86; L Ballard, 322 US 88 Ed (1944). good- accept worshiper’s This Court must grounded activity faith characterization in its "[i]t is not within the belief because question centrality particular judicial ken to practices validity faith, or the to a beliefs *14 particular litigants’ interpretations those Revenue, v Comm’r of Internal creeds.” Hernandez 490 2136; L 699; 109 S Ct 104 Ed 2d US (1989).31 may "[m]en This must so because be be they prove. They may not lieve what put cannot be proof religious to the of their doctrines or are as real as Religious experiences beliefs. which incomprehensible may life to some be to others.” supra Ballard, 86. at religious orthodoxy necessary to obtain
Nor is protection Exercise Clause. Reli of the Free gious not be endorsed or belief and conduct need pro religious organization by mandated be Baptist supra Preschool, tected. Emmanuel at popu concurring). J., Indeed, because (Cavanagh, religious rarely by lar beliefs are threatened legislators, the Free Exercise Clause’s ma elected religious jor or dissi are minorities benefactors worship suppressed are dents whose beliefs majority. To hold otherwise would shunned "Religion deny . . . must be left to the be to every . . . .”32 man conviction and conscience Preschool, Baptist supra at 391-392 Emmanuel See also J., (Cavanagh, concurring). Smith, Preschool, Baptist supra Emmanuel See also (Cavanagh, J., concurring). at 392 32Madison, Against Religious Assess- Memorial and Remonstrance Rem) (After Court taught they their testified complying the cer with home without children at pro they requirement wished because tification educa a "Christ-centered for their children vide tion.” Because professes DeJonges’ "that faith responsible parents God the ones that are are passion they children,” of their for the education utilizing ately teacher a state-certified believe may although unusual, faith, Their is sinful. ignored.33 challenged or be
c
met because
element of the test is also
The third
imposes
clearly
the certification
religious
DeJonges’
on the exercise of
burden
may
if the "affected
A
shown
freedom.
burden
by the Govern
[would] be coerced
individuals
violating
their
beliefs
action into
ment’s
penalize
governmental
[would]
action
[or whether]
equal
person
religious activity by denying any
privileges enjoyed
rights, benefits, and
share of the
Lyng
Indian Ceme
v Northwest
other citizens.”
tery
439, 449;
Ass'n,
Protective
(1988). Hence, "[a] claimed
1319;
In the instant
deference,
court,
grants
this Court
due
to which
require
reveal
the teacher
certification
amply
DeJonges’
heavily
ment
burdens
directly
noted,
DeJonges
religion. As
exercise of their
them to
of God commands
believe
the word
certification.
educate
their
children without
interfering with that
command
regulation
Any
religion.36
The certifica
regulation
ment
is state
upon the
requirement
imposes
tion
either
dilemma:
must
violate
they
loathsome
man,
or commit
of God to abide
the law
law
faithful
law of man to remain
a crime under
presents
an "irreconcilable
God. The
between the mandates
of law
conflict
supra
Baptist Preschool,
. . . .” Emmanuel
duty
(Cavanagh,
J.,
concurring)._
Freedom, quoted
Establishing Religious
in The Com-
A Bill for
Jefferson,
plete
n 19
at 947.
35Indeed,
regarding
original
drafts
as one of the few comments
reveal,
Congress
the thresh
Free Exercise Clause in our First
of the
old to
"rights
very slight
of conscience
find a sufficient burden is
governmental
gentlest
. . .
hand
.”
.
little bear the
touch of
. . will
Carroll,
Congress
quoted
Representative
in 1 Annals of
Daniel
1789)
Seaton,
ed,
Washington,
(Joseph
(August
Gales &
Gales
1834).
1051;
Lee,
252, 257;
71 L Ed 2d
102 S Ct
States
455 US
United
(1982),
Employment
quoting
Bd of Indiana
Thomas v Review
(1981)
1425;
Div,
Security
ployment
Comm
Thomas,
(1987),
quoting
n 36
L
2d 190
Ed
717-718.]
(Griffin,
Preschool, supra
Baptist
at 434-435
Emmanuel
See also
J., concurring).
burden *17 imposed upon prosecution, following was interpretation the word of God.39 of their
D Finally, is uncon the certification remaining it fails to meet the because stitutional compelling prongs test, which two presume the free exercise a state’s burden of that religion is essential unless the burden is invalid compelling interest.40 state the fulfillment of a to Hence, (1) scrutiny that a state demands strict compelling regulation justified by state inter (2) essential est, the means chosen be further that interest.41
Furthermore, must state interest threatening safety compelling, truly be welfare present in mann of the state a clear er.42 DeJonges’ of the interests as "secu- The dissent’s characterization misunderstanding simply of their a fundamental lar” education is Supreme religious recognized clearly practices. Court As the United States beliefs and Yoder, practices by religion motivated in educational Yoder, protection Clause. of Free Exercise fall within
supra at 218. may justify Lee, ("[t]he a limitation n 36 at 257-258 accomplish by showing religious liberty that it is essential on overriding governmental interest”); Yoder, supra at 233-234. reveals, scrutiny application the dissent’s contention As of strict right to direct the educa- this Court has found "a fundamental that regulation” clearly completely of state their children free tion of erroneous. meet the simply find that the state has failed Post at 301. We scrutiny. rigorous requirements of strict dissent, Contrary free exercise of to the assertions safeguards religion rights. protected by fundamental the same as other explained Remonstrance: in his Memorial and Madison right every [Fjinally, equal the free exercise citizen to "the Religion according of conscience” is held to the dictates of his rights. If recur to its all our other we the same tenure with nature; weigh impor- equally gift origin, tance, if we its it is us; [Virginia if we consult the it cannot be less dear to (After Rem) Opinion of the Court Rights], equal Declaration of ... it is enumerated with solem- nity, emphasis. then, say, or rather studied Either we must Legislature only that the will of the is the measure of their authority; sweep away to leave this plenitude authority, they may that and that of this or, rights; they all our fundamental are bound particular right untouched and sacred: Either we say, they may press, that must controul the freedom of the [sic] may and us of our independent by jury, may up abolish the trial swallow the Executive Judiciary State; nay they despoil may Powers of the very right suffrage, and erect themselves into an hereditary assembly: say, or we must they authority have no to enact into law Bill under consid- Remonstrance, quoting eration. Memorial and Vir- [Madison ginia Rights, quoted Everson, supra, Declaration of n 8 appendix at 71.] Kentucky Jefferson concurred when he declared in the Resolutions (adopted by Kentucky Legislature 10, 1798, on November Acts) protest of the infamous Alien and Sedition the First "guarding sentence, Amendment in the same and under the same *18 words, insomuch, religion, speech, press: the freedom of of and of the either, sanctuary that whatever violated throws down the which others, libels, falsehood, defamation, equally covers the and that and heresy religion, cognizance with and false are withheld from the of Jefferson, Resolutions, Kentucky quoted federal tribunals.” The in Jefferson, Complete supra The n 19 at 180. n See also 18. Hence, Supreme the United States Court has noted: weighing arguments parties important of the it to distinguish process between the due clause of the Fourteenth transmitting principles Amendment as an instrument for of applied the First Amendment and its own sake. . . . The a is legislature may freedoms of may tible of restriction in those cases which it is for right regulate, example, of a State to for public include, utility may process well so far as the due test concerned, power impose to all of the restrictions which a adopting. have a "rational basis” for But speech press, assembly, worship and of of and of infringed grounds. They suscep- not be on such slender are only prevent grave danger to and immediate may lawfully protect. [Barnette, to interests which the State n supra 26 at 639.] Sherbert, supra (collecting See also n 26 at 403 cases and conclud- ing tutionally regulated public safety, only religiously that the motivated conduct that has consti- been "invariably posed has or some substantial threat to peace order”); Massachusetts, Prince v (1944) ("when 167; 438; impinges 88 L Ed state action freedom, upon a claimed it must fall unless shown to be necessary protection against for or conducive to child’s some clear present danger”). Accordingly, "only high- those interests of the legitimate est order and those not otherwise can served overbalance Yoder, religion.” supra claims to the free exercise of at 215. 442 Mich op the Court it state The asserts has ensuring adequate all in education of "[tjhere Indeed, is no doubt as to the children. power having high responsibility State, of a impose citizens, to reasonable education of its regulations of for the control and duration basic public Providing at the education. schools ranks apex very Yoder, the function of a State.” omitted). (citations importance of com- at 213 recognized pulsory has because education been necessary prepare degree of education is "some intelligently participate effectively and citizens to open system preserve political if in our we are to independence. Further, freedom education prepares individuals be self-reliant and self-suffi- participants society.” com- cient Id. 221. Our deeply his- mitment tory: to education rooted our regarded people always "[t]he American have knowledge acquisition matters education and diligently supreme importance should which promoted.” Meyer Nebraska, 390, 400; US (1923). S Ct 67 L Ed Michigan equally deeply rooted commit- has 8, § 1 of our constitu- ment education. Article paralleling language tion, Northwest proclaims the vital nature Ordinance education Michigan: Religion, knowledge morality being neces *19 government sary good happiness and the of mankind, schools and the means of education shall forever be encouraged.[43] importance Former James illustrated the Governor Blanchard played Michigan’s historically in the lives of citizens: education has decades, promise has been the ladder of "For of education Hard-working people, people,
opportunity honest in this state. here, they knowing here could lived or came themselves working living more earn a with their hands —but even decent Rem) (After Opinion op the Court rights meaningless they Nevertheless, if our are permit challenge do not an individual and be abridgments liberty free from that are those society: otherwise vital to worship ... limited to is not [F]reedom
things that do not matter much. That would be a
mere shadow of freedom. The test of its substance
right
things
is the
to differ as to
touch the
existing
Virginia
heart of the
order.
Bd of
[West
Barnette,
624, 638, 642;
Ed v
(1943).]
Hence, interest educa- yield tion is not absolute and must constitu- protected by tional liberties The United States the First Amendment.
Supreme explained: Court Thus, education, a State’s interest in universal it, highly totally however we rank is not free from balancing process impinges it when on funda- interests, rights mental specifi- such as those protected cally by the Free Exercise Clause of the Amendment, First parents and the traditional respect religious upbringing
with to the long their children so they, the words of important, that their children could find an even better future working Michigan’s with their minds because fine schools colleges Blanchard, and universities.” State of [Governor 1984, quoted Church, Baptist the State Address in Sheridan Rd J.).] (Williams, n 29 at 479-480 crisis, Engler Even in times of fiscal current Governor John stated Michigan’s duty, that the education of priority, children must be our foremost hope: prescription Michigan’s Our fiscal crisis does include one spending future, priority. absolute For as we build our we must precious My budget focus on one fulfill another resource: our children. will pledge put to our citizens: to education back at top agenda, belongs. Engler, the of the State where it State [Governor Address, 1991 Journal of the House 185.] *20 442 Mich 266 290 Opinion the of Court "prepare [supra 535], [them] for addi- at Pierce supra obligations.” 214.] [Yoder, at tional Although the asserts that "its interest state compel- system compulsory is so its ling of education DeJonges’ practices religious must the
that” give way, of "[w]here fundamental claims accept stake, ... we such freedom are at cannot searchingly sweeping must examine claim ... we promote . . . the that the State seeks to interests impediment objectives those that would and the of [religious] recognizing the ex- flow claimed from emption.” Yoder, at 221. searching in the
Indeed, examination such enlightening it that instant is because reveals case upon govern the mental ing has the incorrect state focused is interest. The state’s interest not ensur goals compulsory the education are that met, does contest that because not succeeding fulfilling DeJonges are such aims. simply Rather, the state’s interest certifica private requirement act, not the tion school general objectives compulsory The education. pursues interest the state the manner of educa goals.44 tion, not its
Hence,
narrow
the state’s
maintain
ing
weighed
must be
the certification
right
against
DeJonges’
fundamental
religion.
exemptions
free
Because
are
exercise
provided
remedy
general
in cases in which a
liberty,45
abridges religious
this
must
law
Court
Charles,
324, 336;
Care and Protection of
Mass
the State interest
504 NE2d
("we
(1987)
agree
parents that
with the
. . . lies
education,
ensuring
. .
the children .
receive an
detail”).
process
its
in minutest
educational
dictated
may
religion
exercise of
State
"accommodate”
free
by relieving people
generally applicable rules
inter-
from
callings. [Weisman,
supra,
fere
their
with
J.,
(Souter,
concurring).]
Rem)
(After
Court
granting
religious exemp
focus on the effect
such
purported
tions would have on the
state interest.46
If this Court does not find a substantial effect on
exemption
interest,
the asserted
is warranted
*21
compelling
Yoder,
because no
is affected.
supra
supra
Sherbert,
237;
at
at 407.47In the case
prove
exemptions
impair
issue,
at
from the teacher certification
the state’s asserted
necessary.
enforcing
exception,
required by
if the state fails to
that
balancing
interest,
then no
state, therefore,
must establish that
requirement,
the certification
without
is essential
to ensure the education
compulsory
the
education law. United
Lee,
States v
257-258;
US
102 Ct 1051;
S
(1982).
necessary obligations to fulfill the of the Free Exercise Clause: religions encourage practices Most devotional that are at idiosyncratic once crucial to the lives of believers and in the definition, eyes By general of nonadherents. secular rules of application and, vantage are drawn from the nonadherent’s consequently, practices fail to take such into account. Yet when religious sensibilities, enforcement of such rules cuts across does, puts it taking often it those affected to the choice of sides government. circumstances,
between God and
In such
accom-
modating religion
nothing beyond
recognition
reveals
that
general
when
unnecessarily
rules can
offend the
conscience
they
society
offend the conscience of secular
not at all.
[Weisman, supra,
(Souter, J., concurring).]
Furthermore, of our sister states provides requirement that the certification irrefutable evidence worthy being an interest
is not nearly "compelling.” universal con- deemed review, dissenting expressed opinion in in Rd dard Sheridan Church, Baptist supra, Baptist n Emmanuel Preschool. and Cavanagh Preschool, supra Baptist noted: Emmanuel Justice applies scrutiny The dissent a version of strict "substan- —the not consistent with established tial state law .... test” —that departs precedent in This standard from established First, places respects. improperly it at least two burden establishing proof free on the exercise claimant existence Second, place it of less restrictive alternatives. does showing there on the state of are no less restrictive burden the claimant’s burden. Yo- alternatives der remains as described that can accommodate good law, applied here in the manner must be J.). Rd, (Riley, at 574-578 Sheridan Preschool, (Griffin, J., Baptist supra at 430 See also Emmanuel concurring). DeJonge (After Rem) Opinion op the Court permit sensus of our sister states is to home schooling demanding without teacher certified ins many recently Indeed, truction.49 states have re jected the archaic notion that certified instruction necessary for home schools. Within the last twenty repealed decade, over states have teacher requirements certification for home schools. De vins, Fundamentalist Christian v State: Educators compromise, An inevitable 60 Geo Wash LR (1992).50 practice The relevance of the of our sister states empirical disprove becomes clear when studies positive correlation between teacher certification quality study by Ray education. A Dr. Brian the National Home Education Research Institute [statistically significant] found that "there was no reading, math, difference students’ total total language total scores based on the teacher certifi- states, Michigan, only Alabama, Besides ap- two California and pear to mandate teacher certification in home schools. Cal Ed Code Alabama, however, exempts Ala Code 16-28-1. "church requirement, 16-28-1, schools” from the teacher certification Ala Code DeJonges’ program likely and the most would be such a school. Although school, Sawyer, Kansas bars the usual home In re 234 Kan 436; parochial (1983), permits private, denominational, 672 P2d 1093 it by "competent” instruction instructors. Kan Stat Ann 72- 1111. 50 Further, contrary state, many to the assertions of the of our stringent supervisory sister states have much less control over home schooling legislative Michigan. Carolina, example, than does In North recent regulation reforms have limited state of home schools to requirements: high two or diploma home instructors must have a school equivalent, and home school students must take an annual Similarly, permits achievement test. NC Gen Stat 115C-564. Nebraska "parents existing regulations who find state in conflict with their satisfy compulsory-education beliefs [to] laws sub mitting an 'informational statement’ that declares that their children days year they attend school for 175 curriculum and that are instructed in core subjects.” Devins, Fundamentalist Christian Educators v *23 State, 831, supra citing Louisiana, at Neb Rev Stat 79-1701. Minne sota, and Colorado utilize standardized achievement tests to monitor 17:236.1(D); 120.101; home schools. La Rev Stat Ann Minn Stat Ann Perhaps interesting, Mississippi Colo Rev Stat 22-33-104.5. appeared schools. Miss Code most has any regulation private to have abdicated over home and 37-13-91(10). 442 Mich op Court (i.e., parent had certi been neither cation status been) been, of their
fied, parents.” had one had both In Education Research Home National Study Home Education: stitute, A Nationwide Legal Family Characteristics, Matters, and Stu (Salem, Oregon: National Home dent Achievement 1990), p Institute, 12.51The Research Education compelling re teacher certification nature of the quirement is not extant.
E possessed any event, if the state In even prove interest, it failed to has requirement is to that that interest.52 The certification essential Appeals Court of asserted that is a back "[t]he teacher certification protection education, of” state bone "propose[] alterna did not an supra DeJonge II, at certification. tive” teacher supra. But, III, 236; support the record fails supra Sherbert, 407, In at
this assertion. plaintiff had "no the Court held that because the proof compel to warrant” fears its whatever endangered by ling would be alternative means, Similarly, the state had failed to meet its burden. sweeping case, instant the state’s it is not assertion must turned aside when fashion, Lanier, parallel Dr. Judith state’s education Church, (Riley, expert Baptist Rd n at Sheridan 563-564 evidence estab- J.), any empirical "she testified that was unaware any compliance lishing correlation between with administrative learning.” competence Id. at certification rules 563, teacher or student Similarly, n 64. Dr. Donald A. Erickson testified in same case respect empirical to the existence of extensive evidence that "with perfor- relationship certification and student that no such [between n 57. has been found.” Id. mance] DeJonges propose n As noted in individualized stan- testing adequate device that the state achievement dardized may of their The state’s utilize to monitor the education children. option unpersuasive. viability attempt of that discredit the *24 DeJonge (After Rem) Opinion op the Coukt supported by evidence.53 The state’s contention particularly suspect when no other state has such "a backbone.” To find that of all the states Union only Michigan meets the aims of compul sory education is untenable and flies in the face the aforementioned studies.54 Yoder,
Moreover,
222-223,
at
the Su-
preme Court held that
the success of Amish teach-
ing
proved
methods
that
the state’s compulsory
unequivocally
The dissent
concludes that
certification re-
"[t]he
quirement
means,
is an effective
chosen
the state to achieve its
school-age
fact,
interest in the education of
children. In
the certifica-
requirement
possess
tion
ensures that educators
a minimal level of
competency
they may
preparing
before
take on the task of
our
children for their future endeavors.” Post at 307. The record does not
support
fact,
present any
this contention. In
the state did not
evi-
supports
assertion,
merely
dence that
this
but
relied on the lead
opinion
equally
unprecedential
in this Court’s
divided and
decision in
posit
Sheridan
compelling
Rd to
that
teacher certification met the
witness,
Bergers,
test. The state’s
Super-
sole
James
Assistant
District,
intendent for the
only
Ottawa Intermediate School
testified
state, then,
that defendants violated the law at issue. The
failed to
proof.
417,
Baptist, supra
meet its burden of
See Emmanuel
n 58
J.,
("Mere
(Cavanagh,
concurring)
speculation by
government
as
probable
possible injury
to the
Exercise Clause
or
granting
to the state from
a Free
exemption,
enough
justify infringing
upon
is not
religion”).
the free exercise of
Similarly, the dissent’s claim that the characterization of the state’s
may
closely
interest
Exercise
not be
scrutinized and that adherence to the Free
radically
relationship
Clause is "to
alter the
between the
Legislature and the Court” stems from the dissent’s misunderstand-
ing
strong protections
religious liberty
afforded
the First
Amendment. Post at 308. See ns
39.
purpose
citing
practices
Our
of our sister states in the
controversy
stringent
suggest
Michigan
at issue is not to
must follow less
standards,
suggest
Michigan
academic
or to
must
purpose
simply
follow the trends of other states. Our
to determine
whether
the teacher certification
is essential
to the
achievement of a
state interest. In no manner do we mean
to defile a central
system,
tenet of our federal constitutional
that each
may proceed
implement programs
on a different course and
delegated
diverse from its sisters in matters not
to the national
government,
long
they
infringe upon
rights
as
as
do not
of its
Michigan,
citizens. To
courageous
single
hold otherwise would stifle
often "a
social, economic,
reform,
political
State” and leader in
experimenting
unique policy.
from
in diverse and
New State Ice Co v
Liebmann,
(1932)
371;
education case, "[t]his that because The Court ruled interest. any to the course, in which harm is not one physical public safety, the child or mental health of or
peace, order, or welfare has been may properly inferred,” the demonstrated state’s patriae parens power secondary argument its *25 permitted education to it to extend regardless wishes of their Similarly, of the children parents, supra Yoder, 230. fail. at must case, the Church of the success of in the instant Academy DeJonges Liberty and the Christian repudiates argument the certifica the that state’s goals requirement to of com essential the tion is pulsory education.55 Michigan permits
Indeed, of itself now the State possessing de teachers a bachelor’s noncertified gree nonpublic schools;56 is the nor to teach in regard requirement with to enforced certification substitute teachers public Michi in schools.57Even gan, re then, command a certification does not quirement great majority students, of for the its only taught by parents their at but for those home.58 1988) 55 (CA 8, Arkansas, 1039, Murphy 1042-1043 v 852 F2d Cf. schooling (finding panied requirement be that that home must accom- testing by thereby implicitly achievement as least restrictive standardized
means, recognizing not that teacher certification is Charles, means); 44 n the least restrictive supra Care Protection ("certification required appropriately at 339 would not be parents parents proposal. . . . a home school Nor must under college degrees”). academic have or advanced 56 nonpublic permits Michigan Department Education The Michigan possess a in utilize teachers who schools uncertified Baptist Dep’t degree stipulated v Rd Church bachelor’s Sheridan Court, Ed, opinion Ingham unpublished Circuit decided 80-26205-AZ). (Docket 3,1988 May No. 57 News, Teachers, The Detroit Detroit Schools Short 151 (public that most school administrators admitted December teachers). open teaching positions were filled with noncertified Baptist Benton, acknowledge Fellowship Church v We that (CA 8, 1987), require- the court ruled that a certification F2d (After Rem) Opinion of the Court argues proposed state, however, upon alternative means are more intrusive DeJonges beliefs of the than the current requirement. We, however, certification presume do not judgment. to make that We believe that judges regula are the best of which tions are the most burdensome or least intrusive upon religion. their To entertain the notion that insight either this Court or the state has the interpret DeJonges’ religion correctly more they simply arrogant pretension.”59 than "an today ment satisfy was "the best means available its interest in the plaintiffs’ right education of its children does not violate to the free religion.” Church, Fellowship Baptist exercise of supra their at 494. requirement We Fellowship also note that the certification at issue in Baptist longer place. Chtirch is no Moreover, persuaded by Fellowship Baptist we are not Church analysis, given practices nearly reality all states and the may adequately replaced by certification alternative methods of (Standardized testing materials, instruction. for and access to educational instance, proven adequate are alternatives. Care and Protection of Charles, 340.) utilizes, n Michigan Which alternative if any, legislative discretion, Michigan may a matter of but impose exercise of available. substantially certification burdens the free religion when less burdensome alternative means are *26 Furthermore, even if some adverse effects occur because of alterna- means, importance religious tive liberty outweighs prob- the of such lems: Yoder, implicitly the Court conceded that the Amish high children who failed to attend same level of intellectual school would not receive the and, thus, learning fully that the state’s objective exemption would not be as realized if an were given. resulting further, however, The Court went and held that upon adverse effect the achievement of the state’s unduly interest did not interfere with the fulfillment of that Thus, implicitly interest. sufficient for the its even at quite the Court held that it was not exemption impair state to show that an would ability fully goals; exemption required achieve its an was slight Yoder, objectives. some sacrifice to the state’s thus, proposition stands for the that the state’s interest must be broadly flexibly determining read whether that interest exemption could granted. still be fulfilled if an were [Sheridan Church, Baptist supra (Riley, J.).]
Rd n at 59Madison, Against Religious Memorial and Remonstrance Assess- 442 Mich of Court that Appeals assertion
Similarly, Court bar all state DeJonge’s Mark beliefs would because there interference, the certification First, the asser fore constitutional is incredulous. any and all DeJonges’ prohibit tion that beliefs erroneous; guidance monitoring of state types tests administered standardized DeJonges have do not argument they at oral that emphasized the consti testing.60 important, to such More object any regulation to impose tution forbids the state to the and is not essential religion that burdens Because fulfillment a state interest. certification does meet constitu teacher burden, from exempt must be tional religious other views if less regardless it of their To hold regulation may be enacted. burdensome the most intrusive otherwise would be sanction egregious infringement beliefs intrusion, although much less because another burdensome, also burdens belief.
Furthermore, of Appeals erroneously the Court upon the proof DeJonges. placed burden requiring individual Appeals, by Court prove that governmental regulation burdened exist, accept- while at the same time alternatives by the ing at face value unsubstantiated assertions state, jurisprudence has turned constitutional on alter- "propose its head. Our citizens need not afforded their constitutional liberties. native” Lee, Yoder, supra at 257-258; 233-234. We of proof correctly are burden persuaded in the case is fatal to the state’s placed instant requirement. certification
ÍV In sum conclude that the historical under- we Everson, ments, supra, appendix quoted n at 67. See also *27 Thomas, n 36 at 714. 51. See ns DeJonge (After Rem) Opinions Mallett, Levin and JJ. pinnings of the First Amendment of the United support States Constitution and the case law compels imposition it the conclusion that requirement upon the certification violates the Free Exercise Clause. We so conclude requirement because we find that the certification is not essential to nor is it the least restrictive achieving means of the state’s claimed interest. sphere Thus, we reaffirm "that of inviolable con- science and belief which is the mark of a free people.” Weisman, 112 S Ct 2658. We hold that the requirement teacher certification is an unconstitu- tional violation of the Free Exercise Clause of the applied First Amendment as to families whose prohibit convictions the use of certified exempt families, therefore, instructors. Such are from the dictates of the teacher certification re- quirement.
Accordingly, DeJonge we reverse the convic- tions.
Cavanagh, C.J., J., Griffin, concurred with Riley, J. (concurring). join
Levin, J. in the reversal of I agree majority the convictions I because with discharge that showing the state failed to its burden of that the teacher certification discharging is the least intrusive means of its the education of the children. respectfully J. We Mallett, dissent from majority opinion. The decision of the Court Appeals should be affirmed.
i present requires case this Court to examine the Free Exercise Clause and the cases that have *28 Mich 266 442
300
Dissenting Opinion Maixett,
J.
Dep’t
interpreted
Employment Div,
of Hu
it.1 In
872, 881;
S
Smith,
110 Ct
494 US
man Resources v
(1990), the
held that
1595;
Court
applicability simply the law is because religious practice. contrary How to the claimant’s ever, the Court noted: only in which we have held The decisions neu application of a
the First Amendment bars tral, moti applicable religiously generally law Free Exercise involved not the vated action have in alone, Exercise Clause but the Free Clause conjunction protections, other constitutional with right parents, acknowledged in . . . of such as Sisters, 510 S Ct Society of Pierce v [45 571; (1925)] of L Ed 1070 to direct the education Yoder, children, v US their see Wisconsin ] (1972)].[2 S 32 L 2d 15 Ct Ed [92 "hybrid Thus, of a situation”3 absence alleges violation Free which a claimant recognized another, constitu Exercise Clause tional compliance exemption protection, from granted long the law not be as law with will generally applicable to all is otherwise valid segments society. Smith, of constitu of As result challenges of on the basis the Free Exercise tional Clause alone are
defeated, successful con because challenges turn on the existence stitutional another recognized right. major- constitutional long majority’s 1 The assertion that this Court has held interpreted light intent and must under constitution needlessly, standing inject its drafters seems and therefore original present controversy. gratuitously, intent debate into the authority position, majority’s for the resort the lack Given legal suggests "Founding analysis. doctrine for Fathers” the substitution of 2Smith, US 881. Id. 882. (After Rem) Dissenting Mallett, J.
ity’s conclusion that the teacher certification re- quirement violates the Free Exercise Clause and DeJonges’ right to direct the education of their significant expansion Michigan children is a law disagree. Yoder, with we which Pierce and supra, recognized parents’ rights the Court to di- rect the day, education of their children. To- majority parents holds that have a funda- right, coupled mental constitutional when with the Clause, Free Exercise to direct the secular educa- *29 majority’s children, tion of their as well. The. conclusion, while not under defensible a Smith analysis, does not withstand careful examination accepts hybrid even if one the existence of a situation. rely supra, Meyer Pierce,
The claimants
on
Nebraska,
v
(1923),
390;
262 US
43
625;
S Ct
247;
1923;
(1968),
88 S Ct
that these standards are met has been considered a refusing accept sufficient reason for to instruction at home as Mich by J. Dissenting Opinion Mallett, DeJonges’ trial, minister true that at the It is are that children his church teaches testified that clearly Scripture given parents, and that God to educating responsibility chil- teaches that the McHugh, parents. belongs to Michael dren the Liberty and Acad- the Church of Christian from emy, prescribed the curriculum testified DeJonge organization to the children included his development heavy emphasis on character permeates through study, the into Bible which also subject-matter It is true that traditional areas. in contravention of Mark testified that requirement faith, makes their the certification DeJonges responsible state, testimony, God, for their children’s education. This argues, sufficiently majority establishes implicates certification teacher DeJonges’ right directly to direct secular of their education children. finding, this an examination of
Pursuant
requires
DeJonges’
claim
this Court
free exercise
respective
parties.
interests
balance
Verner,
Sherbert v
(1963),
L
1790; 10 Ed 2d 965
Court stated
*30
regulation
infringes
in
free
for a state
that
on
order
rights
regulation
valid,
to remain
exercise
justified
compelling
by
must be
a
state interest.
appropriate
inquiry
is whether
free exercise
placed
government has
a
burden on
substantial
practice
belief or
the observation
a
compliance
compulsory
These
education statutes.
cases
with
corollary
Society
[supra]:
a
of Pierce v
Sisters
if
were
sensible
satisfy
through
interest
in secular education
the State must
its
schools,
private
proper
it has a
interest
the instrument
perform their
educa-
the manner in which those schools
secular
function.
tional
Church,
802;
Baptist
207 Neb
that held Baptist, Yoder, belief. 406 215; US Emmanuel 434 prove Second, Mich 392. the defendants must regulation imposes the state a burden on the free Tony exercise of their belief. & Susan Alamo Secretary Labor, Foundation v 303; (1985); 1953; S Ct 85 L Ed 2d United Lee, States v 256-257; US (1982); Baptist, 71 L Ed 2d 127 Emmanuel Mich 393. successfully
Once the defendants
establish the
parts
inquire
first two
test,
of the
the court will
possesses
compelling
whether the state
interest
justifies
imposed upon
the burden
the defen-
Hobbie,
dants’ beliefs.
141-142;
US
Emmanuel
Baptist,
compelling
lation.6 the Court means” departed restrictive from the "least concluding requirement. After assuring mandatory government’s in interest security sys participation in the social continuous tem is high,”7 "very the Court stated accommodating "remaining inquiry whether unduly with fulfillment interfere Amish belief will governmental Although the interest.”8 Court interference,” "undue declined to further define surely than the it is less burdensome standard requirement.9 Thus, "least restrictive means” inquire present case, should this Court DeJonges’ beliefs whether accommodation unduly interfere with the fulfillment of would in education. state’s interest require apparently majority would further regulation the compared restrictive when least forty-nine the other states. Un-
with survey regulations doubtedly, can similar uti- we in our lized relative obtrusiveness sister states order determine requirements. Yet, our regulation in the mere existence of less restrictive other states tells at us little that state’s success about achieving universal may quality Indeed, have some states education. evades an exact- "Least restrictive means” is ing Bd of definition. In Illinois State Elections v Socialist Workers (1979), 173, 188-189; Party, Ct 59 L 2d 99 S Ed Blackmun, concurring, warned that we should exercise cau- Justice tion application principle. in the this elusive "[Ljeast slippery slope [, judge . . drastic means” is a . and a] up unimaginative if
would be indeed he could not come with something a little less "drastic” or a little less "restrictive” in situation, any thereby himself to vote to almost strike enable legislation down. 259. 7 Id. at added). (emphasis Id. (2d Tribe, ed), 14-13, p 1261. See American Constitutional Law § *32 Rem) (After 305 v Dissenting Opinion by Mallett, J. objectives Michigan. that differ from those of Re- gardless, necessary we do it not believe is for the require- state to establish the certification achieving ment is the least restrictive means of its compelling interest education. majority require prove would also the state
that "the means chosen be essential to further disagree. equal protection th[e] interest.”10 We involving regulation discrimination, cases in employs race the question presumed is invalid and the court scrutiny,
strict in which the court asks if compelling the state has a interest and if the means chosen are essential to further intere 1 purposes However, st.1 of the Free Exercise equal protection inquiry part Clause, this is not a compelling adopted by interest test this equal protection inquiry, Court. Unlike the there presumption invalidity is no and the claimant By imposing bears the initial burden. such a sub majority’s state, stantial burden on the com pelling designed specifically interest test cause the state to fail.
n A Applying test to the present case, we reach several conclusions differ- majority. agree ent from those We with the majority DeJonges possess sincerely 10 286, citing Lee, Ante at United States v 257-258. US Sidoti, 429, 432-433; 1879; See Palmore v 466 US 104 S Ct 80 L (1984). subject Ed 2d classifications are to the "[Racial] most exacting muster, scrutiny; pass they justified constitutional must be compelling governmental they 'necessary interest and must be accomplishment’ legitimate purpose . . . to the of their . . . .” See Florida, McLaughlin 196; 283; also 222 v 379 US 85 S Ct 13 L Ed 2d (1964); Loving Virginia, 1817; L18 Ed 2d (1967). 442 Mich Dissenting Opinion Mallett, J. evidence There sufficient
held belief.12 judge the record for the trial to conclude that on DeJonges’ sincerity were be convictions dispute. part yond In order to meet the second inquiry, prove that must regulation imposes a burden on exercise state of their belief. may
A
found where a
burden
pressure
"put[s]
adherent
on an
state
to
substantial
modify his
and to
his beliefs
behavior
violate
Thomas,
. . .”
B regard- met Because their burden ing parts compelling the first of the interest two reviewing test, court must be satisfied possesses compelling justifies a interest imposed upon DeJonges’ the burden Massachusetts, In beliefs. Prince v (1944), L 438; Ed the Court importance indicated the relative interest state’s in the welfare children. family beyond regulation itself is [T]he interest, against public claim of
the
liberty.
Ed 244
States,
Reynolds United
Ed 637 rights rights And neither religion nor parenthood beyond are Acting limitation. guard general in youth’s being, well parens patriae the state as may par- restrict by requiring attendance, ent’s control lating regu- school prohibiting the child’s labor and in many ways. other majority concludes that "the state’s interest simply requirement pri the certification general objectives act,
vate school not the of com pulsory pursues education. The interest the state goals.”13 is the disagree. education, manner of not its We possesses We believe that the state majority properly interest the education. The *34 preparing our children for their future endeavors. Boyle As Justice Rd, noted in Sheridan 426 Mich 509-510: The requirements teacher certification are essen-
tially prophylactic in nature. Certification does not
guarantee
person
that
a
will
be
effective
teacher,
it
but
the probability
increases
that a
Therefore,
competent.
teacher will be
the certificá-
Ante
at
290.
Ante
at
n 43.
tion J., [Boyle, ing unqualified to exposed teachers. concurring.] observing although correctly
Furthermore, that may the defendants’ the Court not recharacterize support majority beliefs, is offers for what the no argument actually is, that crux its the —that authority to recharacterize this Court has the as the "manner nature of state’s interest support any course, Nor, of is there education.”15 Supreme from Court decisions the United States proposition more that the for even remarkable "ensuring goals is state’s interest not that compulsory met, are because the state education succeeding are does not contest that fulfilling such conclude that at aims.”16 To authority protect all of the state is without prove it unless can children within its boundaries given parent satisfying not the state’s that is relationship radically alter the be interest is Legislature a re tween the and the Court. Such might assuredly noted, sult, it would offend Founding Fathers. require prove majority, the state to would compelling, compelling "truly interest is its
threatening safety of the in a or welfare present However, re clear or manner.”17 such Virginia quirement West Bd of Ed untenable. Barnette, 1178; 87 L Ed (1943), holding authority the Free requires prove Exercise Clause the state 15Ante 290. at 16Ante 290. If, fact, inquiry part Ante at 286. this was a test, being regulated threaten the conduct or actions would safety welfare of the state. *35 Rem) 309 (After v by Dissenting Opinion Mallett, J. right parent’s state in a clear threatens Verner, present In Sherbert manner.18 and present utilized the "clear the Court US categorize language its to in an effort manner” prior rejected free exercise in which it decisions regulation. challenges government "The conduct to posed invariably regulated some have or actions so safety, peace public or ord to threat substantial Simply in used the Court Sherbert because er.”19 categorize language those decisions to this upheld, regulation it does not was which necessarily cases thereafter all follow safety is of the state or welfare threat to challenge required to for a free exercise order importantly, rejected. has not this Court Most present expressly adopted manner” "clear in association with expansion unwar test, an and such ranted here. upon excerpted by majority language for this and relied arguably speech a free case is dicta. Barnette is conclusion implicates Barnette marginally Clause. At issue in the Free Exercise requiring constitutionality to salute students of a resolution
was the Allegiance. Pledge flag The Court stated: and recite the censorship suppression commonplace It is now a only expression opinion our Constitution is tolerated danger present expression presents a clear and
when
punish.
empowered
prevent and
of a kind the State
action
required
compulsory flag
are
to
to
salute we
... To sustain
right
guards
Rights
say
speak
Mm to utter what is
the individual’s
that a Bill of
which
compel
mind,
open
public
left it
authorities
his own
not in his mind.
at 633-634.]
[Id.
important
present danger”
is an historic and
test
The "clear
States,
speech jurisprudence.
part
Schenck v United
See
of free
States,
(1919);
47;
616;
247;
Abrams v United
39 Ct
permit instruction a teacher who does not teaching If, fact,
a valid certificate.25 teaching district, such an individual the state board must within the immediately notified.26
be However, the certification is not "ab Subject availability solute.” to the of a certified may engage teacher,27 a local school board a computer science, noncertified instructor to teach foreign language, biology, mathematics, a chemis try, engineering, physics, or robotics to students grades through nine twelve.28 The noncertified possess degree, major teacher must bachelor’s possess graduate degree special in the field of taught, years occupa ization to be have two experience taught. tional in the If field *37 year, instructor intends to more teach for than one pass then the instructor must a basic skills exami subject Thus, nation and a area examination. certification for the has not been abandoned majority Legislature teachers, and the flexibility require has added an element of to the qualified ment in order to attract individuals to high specialized teach school students fields of study.
The State Board of Education also established a
exceptions
person may
set of
within which a
qualified to teach without a valid teacher’s certifi-
cate. Under
the State Board of Education’s
25
380.1233;
MCL
MSA 15.41233.
26
15.41233(3),
380.1233(3);
provides
exception
MCL
MSA
an
for
Through
30, 1995,
vocational
instructors.
June
the local school board
may renew an annual vocational authorization
of a noncertified
instructor, provided
vocational
the instructor
is enrolled and
completing
approved
preparation
credit
in vocational
teacher
program,
employing
program
and that
the instructor has a
on file with the
district,
institution,
Depart-
school
the educational
and the
ment of Education.
27
15.41233(2).
380.1233b;
See MCL
MSA
28Id.
312 Dissenting Mart,bit, J. possess addition Teacher Certification Code,29 person teaching ing with "voca a certificate,30 "special or a tional authorization”31 permit”32 public in the schools. to teach authorized special types of three board issues The state perm special permits: full-year substitute permits,33 permits Emergency emergency permits. its,34 follows: are issued as 29 AACS, seq. R 390.1101 et following: any teaching "Michigan certificate” means (1) permanent A certificate. (ii) A life certificate. (iii) provisional A certificate. (iv) occupational certificate. An education (v) continuing A certificate. (vi) professional education certificate. A (vii) temporary authorization. [1989 or full vocational A AACS, 390.1101(f).] R actually included within the defini authorization” is "Vocational 390.1101(f)(vii). AACS, "Michigan teaching R certificate.” tion of separate However, provides Code the Teacher Certification because issuance, its application I have chosen to note guidelines for its AACS, independently R the teacher certificate. See existence 390.1162; AACS, R 390.1165. AACS, 390.1143;R 390.1145 to 390.1146. R 390.1141 to 32 1989 33 (1) properly permit full-year special shall be issued when A teaching assign- regular for a teacher is unavailable certificated ment. (2) permit full-year special application shall contain for a An completed 120 semester hours has that the candidate
evidence
of
credit,
including
satisfactory college
in R 390.1141
as defined
professional
appropriate
credit.
education
15 semester hours of
(3)
teaching
permit
full-year special
in the
is valid
A
specified
permit
grade
subjects
grades
subjects
or
on
permit
year
is issued.
school
for which
until June 30 of the
*38
(4)
full-year special permit
evidence
will be renewed when
A
completed
person
hours of
presented
has
semester
that a
is
satisfactory
regular
applying
requirements
for
on
additional credit
properly
teacher is
that a
certified
certification and
AACS,
assignment.
regular teaching
R
[1989
for a
unavailable
390.1142.]
34 (1)
permit
application
shall contain evi-
for a substitute
An
completed
not less than
the candidate has
dence that
Rem)
(After
Dissenting Opinion Maiaett,
J.
on recommendation
emergency
situations
intermediate
local or
of a
superintendent
permit
a
district,
may issue
the state board
school
for
if a
qualifications
with reasonable
a candidate
for obtain-
requirements
meets the
who
candidate
permit is
full-year
permit or
ing a substitute
emer-
this
to authorize
if failure
available
an education.
deprive children of
permit
gency
will
period of
specific
for a
be issued
permit
The
time under
shall
dis-
A labor
emergency circumstancés.
circumstance.
emergency
[1989
is not an
pute
AACS, R 390.1145.]
submits
of Education
State Board
curiae
Amicus
uni-
adopted a
it has
January
that since
Pursu-
permits.
emergency
regarding
policy
form
have
permit
for a
candidates
policy,
ant
to this
possess
if
bache-
they
qualifications”
"reasonable
local
Thus,
finding by the
upon a
degree.
lor’s
is "unavail-
instructor
that another
board
school
will
permit
to authorize
and that
failure
able”
education,
person
any
deprivation
in the
result
obtain
degree may
has earned a bachelor’s
who
to teach.
permit
emergency
and accommo-
flexibility
an element
Clearly,
statutory
this
exists within
already
dation
for teacher certification.
framework
administrative
majority
in the
required of teachers
is
Certification
approved
satisfactory
teacher
credit
in an
semester hours
preparation
program,
minimum of 6
shall
include a
which
professional
credit. Persons who
education
approved
hours
semester
are
program
requirement.
preparation
currently
in an
teacher
enrolled
met
the 6-semester-hour
considered to have
will be
(2)
teaching
permit
on a substitute
is valid for
A substitute
during
year.
regu-
days
any school
of 150
a maximum
basis for
teaching
Teaching
when
basis means
on a substitute
permit
temporarily
Such
absent.
certificated teacher
lar
teaching assignment.
regular
any
or extended
not valid
AACS,
(3)
year.
permit
each
[1989
is renewable
A substitute
R 390.1143.]
*39
However, a
exemp
grants
also
California
is certified.36
from
who
tion
compulsory
the child
where
attendance
tutoring program.37
engaged in a structured
possess
again,
*40
valid
the tutor must
Once
certification.
exempts
Finally,
only
a child
Kansas
compulsory
at
the child
attendance where
from
parochial
"private,
or
denominational
tends a
Lowry,
701; 383 P2d
191 Kan
In State v
school.”38
(1963),
Supreme
held that a
Court
the Kansas
private,
equivalent of a
school is
home
parochial
The court
denominational,
school.
not meet
instruction does
held that home
also
compulsory
requirements
attendance
school
Sawyer,
436; 672 P2d
234 Kan
laws.
(1983);
re
Garber,
567; 419 P2d
197 Kan
State v
(1967).
(1966), app
DeJonges’ religious interfere beliefs would in educa- of its interest fulfillment with the state’s DeJonges’ Accordingly, convictions tion. Appeals be affirmed. decision should the Court of Brickley JJ., Boyle, concurred with Mallett, J._ Code 16-28-5. Ala 48224. See Cal Ed Code 72-llll(aX2). Ann Kan Stat harm another. Notes State (New Padover, Duell, Complete in & The Jefferson York: Sloan Pearce, Inc, 1943), p by agreeing 675. Jefferson Madison echoed jurisdiction, every liberty is immune "from civil in case trespass rights public peace.” private it on or where does Madison, (July 1822), Alley, Livingston quoted in letter to Edward (New ed, Religious Liberty James on Prometheus Madison York: Books, 1985), p 82. Indeed, understanding freedom dominant this was governments Rights: Bill of the state ratified the patterned Clause after the various Free Exercise was provisions in free exercise and freedom of conscience existing the Bill of then- constitutions. At the time of ratification of Rights, twelve of the thirteen states had such twelve, provisions. explicitly implicitly those nine either Of expressed following religion The free exercise of belief: endangers peace safety. protected This formulation was test and public’s it . . . unless precursor compelling-interest to the religion implies that the exercise of was under- free exemption generally applicable stood [McConnell, include an from laws. Congress pass legislation restoring the Should religion?, interpretation of free 15 Harv J of broader exercise (1992).] L Pub 185-186 & Pol Georgia’s typical: Constitution is "All Article LVI of religion; persons have free exercise of their whatever shall repugnant peace provided State.” safety it be not 186, n 18.] [Id. Rem) (After Opinion op the Court proposed regarding confrontation dramatic support Virginia’s levy for the renewal of tax bore This embroilment the established James church.20 and Remonstrance Madison’s Memorial Against Religious Virginia in the to the delivered Assessments,21 Burgess opposition House Virginia levy, Religious Liberty, Bill of as well as Thomas Jefferson’s levy’s enacted stead.22 Against and Remonstrance Madison’s Memorial Religious
Notes
notes importance vitality of education to the of our unnecessary nation, state and and it is to reiterate expressed by those sentiments.14 The statements majority objective the that lead an reader to conclude the state’s interest in this case is the univer school-age sal education of children, and not the requirement. require certification ment The certification means, is an effective chosen the state to school-age achieve its interest in the education of fact, children. the certification en possess sures that educators a minimal level of .competency they may before take on the task of