182 N.W.2d 539 (Wis. 1971), 92, State v. Yoder

Docket NºState 92--94.
Citation182 N.W.2d 539, 49 Wis.2d 430
Opinion JudgeThe opinion of the court was delivered by: Hallows
Party NameSTATE of Wisconsin, Respondent. v. Jonas YODER, Appellant. STATE of Wisconsin, Respondent, v. Adin YUTZY, Appellant. STATE of Wisconsin, Respondent, v. Wallace MILLER, Appellant.
AttorneyFor the appellants there was a brief by William B. Ball, Joseph G. Skelly, and Ball & Skelly, all of Harrisburg, Pennsylvania, and by Thomas C. Eckerle and Risser & Risser, all of Madison, and oral argument by Mr. Eckerle and Mr. William B. Ball.
Case DateJanuary 08, 1971
CourtSupreme Court of Wisconsin

Page 539

182 N.W.2d 539 (Wis. 1971)

49 Wis.2d 430

STATE of Wisconsin, Respondent.


Jonas YODER, Appellant.

STATE of Wisconsin, Respondent,


Adin YUTZY, Appellant.

STATE of Wisconsin, Respondent,


Wallace MILLER, Appellant.

Nos. State 92--94.

Supreme Court of Wisconsin.

January 8, 1971.

[49 Wis.2d 432] The appellants Jonas Yoder, Adin Yutzy, members of the Old Order Amish religion, and Wallace Miller, a member of the Conservative Amish Mennonite Church, were convicted in the county court of violating Wisconsin Compulsory School Attendance Law (sec. 118.15, Stats.). Their children, Frieda Yoder, aged 15 years, Barbara Miller, 15, and Vernon Yutzy, 14, are

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graduates of the eighth grade of the New Glarus public school. The appellants refused to enroll them in the public high school for the fall 1968 school term as required by the compulsory school law, 1 and were fined $5 each. The convictions were affirmed by the circuit court.

[49 Wis.2d 433] The appeal to this court and the defense in the lower courts involve the fathers' right to religious liberty and whether sec. 118.15, Stats., as applied to them violates the Free Exercise Clause of the First Amendment of the Constitution of the United States, 2 made applicable to the states by the Fourteenth Amendment. The trial court held the compulsory school law did interfere with the freedom of the appellants to act in accordance with their sincere religious beliefs but concluded the statute represented 'a reasonable constitutional exercise of a governmental function of the state.'

William B. Ball, Joseph G. Skelly, Ball & Skelly, Harrisburg, Pa., Thomas C. Eckerle, Risser & Risser, Madison, for appellants.

Robert W. Warren, Atty. Gen., John W. Calhoun, Asst. Atty. Gen., Madison, Louis A. Koenig, Dist. Atty. of Green County, Monroe, for respondent.

James L. Greenwald, Madison, amicus curiae.

[49 Wis.2d 434] HALLOWS, Chief Justice.

No liberty guaranteed by our constitution is more important or vital to our free society than is a religious liberty protected by the Free Exercise Clause of the First Amendment. This appeal poses the question of whether the compulsory education law of this state, as applied to the Amish, infringes their religious liberty and, if so, whether such interference is constitutionally justified.

If the compulsory education law is to withstand the appellants' constitutional challenge, it must be either because the statute does not interfere with a constitutional freedom to act in accordance with their sincere religious beliefs or because the burden on the free exercise of appellants' religion is justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate * * *.' N.A.A.C.P. v. Button (1963), 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405. The determination of whether a law infringing religious liberty is justified requires the weighing of the burden on the free exercise of one's religion and the importance of the state's interest asserted in justification of the substantial infringement. Sherbert v. Verner (1963), 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965.

Is There Any Infringement Of The Free Exercise Clause?

'The Amish as an independent sect were founded in 1693, near Erlenbach, Bern, Switzerland. Jakob Ammann, a Swiss Anabaptist and a follower of Menno Simons and the Mennonites, broke with his church in disagreement over what he felt were unwarranted departures from traditional practices. The Amish, the followers of Ammann, thus dedicated themselves to maintaining the old practices and

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resisting any capitulation to the sin of worldliness. * * *

[49 Wis.2d 435] 'The Old Order Amish are the most conservative and traditional of the several branches of the sect, numbering about fifty thousand children and adults in the United States.' The Amish and Compulsory Education, 53 Va.L.Rev. 925, 933.

The rules of conduct of the Amish religion in its folk culture context are incorporated in the Ordnung of each community but ordinarily are not articulated and codified in writing as some tenets in other theistic religions. Compliance with the Ordnung is enforced by sanctions of excommunication and shunning. See Hostetler, Amish Society (1963), p. 63; Yoder, Caesar & The Meidung, 23 Mennonite Qtrly.Rev. 76, 98 (1949). Many of the tenets of the religion are found in The Confession of Dortricht (1632) 3 discussed in Commonwealth v. Beiler (1951), 168 Pa.Super. 462, 79 A.2d 134, 136. The lack of codification of the Amish tenets is of no concern. The Free Exercise Clause does not require the codification of religious tenets nor does this clause define the scope of religion. For its purpose, religion defines itself and binds the individual conscience.

At the trial the appellants put in evidence by expert testimony the full range of the Amish religious beliefs and the tenets of the Old Order Amish religion. Dr. John A. Hostetler 4 testified the Amish religion requires [49 Wis.2d 436] as a part of the individual's way of salvation a church community separate from the world. The Amish separateness is dictated by their religious belief of what God's will is for them and thus all the means by which they maintain this unique separateness have religious meaning.

The Old Order Amish religion dictates that the Amish child from the inception of adolescence live according to the mode of life in the Amish community; that he should not attend high school since any high school, public or private, constitutes a deterrent to his salvation. The period of adolescence is critical in the religious and cultural development of the child because at this time the child enters gradually into the fullness of Amish life, is given responsibilities which would be directly interfered with if he were compelled to go to high school, and accepts adult baptism. Thus, the Amish religion requires the avoidance of worldly educational environment and imposes the duty on the adolescent to become mature in a wisdom different from what others may regard as wisdom and in skills and responsibilities which are proper and fitting for a life different from what others may wish to pursue. To the Amish, how long a child should attend a formal school is a religious question.

This court does not evaluate, and in fact is prohibited from evaluating, a religious belief for ecclesiastical purposes. School Dist. of Abington Tp., Pa. v. Schempp (1963), 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844; Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658. Irrelevant, too, is this court's opinion, if it

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has one, of the validity, the reasonableness, or the merits of the Amish religious beliefs.

The state's argument that the appellants' refusal to obey the compulsory school law is no part of their worship but merely a practice or a way of life cannot be accepted. The Free Exercise Clause is not restricted in its protection to formal ritualistic acts of worship common[49 Wis.2d 437] in theistic religions but also includes the practice or the exercise of religion which is binding in conscience. See Sherbert v. Verner, supra, and In re Jenison (1963), 265 Minn. 96, 120 N.W.2d 515; (1963) 375 U.S. 14, 84 S.Ct. 63, 11 L.Ed.2d 39; (1963), 267 Minn. 136, 125 N.W.2d 588. There is no question that, as found by the trial court, the compulsory education law infringes upon the free exercise of religion by the appellants within the scope of the protection of the First Amendment.

The Weighing of Conflicting Interests.

(A) The Burden on the Constitutional Right.

In balancing the competing factors to find the justification of the compulsory school law, we must first examine the burden caused by its interference with the free exercise of the appellants' religion. How heavy is the burden? We think it is clear the burden of compulsory education is a heavy one. The law commands the appellants to perform affirmative acts which are repugnant to their religion. To the Amish, secondary schools not only teach an unacceptable value system but they also seek to integrate ethnic groups into a homogenized society, resulting in a psychological alienation of Amish children from their parents and great harm to the child. The law also places a choice upon each of these fathers to either obey its commands and risk the loss of his salvation or to disobey the law and invite criminal sanctions. The sincerity of the appellants in their beliefs and in their religion cannot be questioned; such sincerity was stipulated in the record.

The impact on the Amish of compulsory education laws is so severe that in other states where they were required to send their children to public schools, they sold their farms and sought religious freedom elsewhere. Some of the Amish in Wisconsin were the victims of [49 Wis.2d 438] daily fines which became so severe that they were suspended by the governor of Iowa and they sought religious freedom here, in a spirit and with a hope not unlike the Pilgrim Fathers who came to America. See Clippings: Relation of religion to secular society: Separation of church and state: Church organization and membership, Wis. Legislative Reference Library. When the Amish can no longer move, the impact may result in the extermination of their religious community.

There is another impact on the Amish children themselves if they are required to go to high school. They would experience a useless anguish of living in two worlds. Either the education they receive in the public school is irrelevant to their lives as members of the Old Order Amish or these secondary school values will make life as Amish impossible. At the trial, one of the children testified she did not want to go to high school. Since the children are not being sued as truants, we do not reach the question of...

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