Tara Ross & Joseph C. Smith Jr.: Tough Lesson

Late last month, a California court ruled that California parents do not necessarily have a constitutional right to homeschool their children, even when the parents say they homeschool for religious reasons.

The In re Rachel L. decision questions whether religiously motivated homeschooling is protected by the U.S. Constitution's guarantee of the "free exercise" of religion.

Reverberations of the ruling are spreading like shock waves through the homeschooling community.

Dr. James Dobson immediately blasted the ruling as an "all-out assault on the family." More than 250,000 people have signed a petition requesting that the appellate decision be depublished, preventing the decision from bearing precedential value.

The HomeSchool Association of California has asked its members to flood media outlets with letters and editorials. An appeal already has been promised.

The uproar is understandable. California courts are rightly known for being political, liberal and result-oriented. It is impossible to read the court's decision without suspecting that it reflects a liberal anti-homeschooling political agenda.

The decision, however, ultimately is anchored to an existing U.S. Supreme Court precedent with which it is hard to disagree. The governing decision is the 1972 case of Wisconsin v. Yoder.

In Yoder, the Supreme Court decided, based on the Constitution's guarantee of the "free exercise" of religion, that Amish parents had a constitutional right to refrain from sending their children to high school, despite compulsory education laws that otherwise would require the children to attend through age 16.

The court reasoned, based on evidence presented in the case, that the Amish held a sincere religious belief in the need to limit their children's education, after the eighth grade, to vocational training within the Amish community.

The court also found that the state's interests in its system of compulsory education was not so compelling that the religious practices of the Amish could be required to give way to the generally applicable law.

The California court in In re Rachel L. did not, technically speaking, depart from that standard. It recognized the balancing test between the state's interests and religious rights, and then held that the specific California parents who were involved in the case did not present strong enough evidence, along the lines of the evidence in Yoder, to support their claim to be homeschooling their children based on good-faith religious beliefs.

The result, however, begs the question of whether any California court will ever find enough evidence to support any parents' claim to be homeschooling for religious reasons. The recent decision may, as some have said, signal the effective banning of homeschooling in California.

The Yoder standard is ambiguous, to be sure. How do those seeking to be excused from laws of general applicability for religious reasons prove that their motives are real? When is the state's interest in the education of all citizens sufficiently compelling to override some citizens' religious freedom?

These are difficult questions, but they are not new. They are as old as the American experiment itself. George Washington struggled with them during the American Revolution. There was no greater an advocate for religious liberty than Washington, who declared that the "establishment of civil and religious liberty was the motive which induced me to the field."

Yet when Washington feared that certain Quakers were using a religious meeting to help the British, Washington did not allow the Quakers to do as they pleased simply because they claimed to be religiously motivated.

Washington's actions reflect a principle recognized more than 200 years later by Supreme Court Justice Antonin Scalia: A legal system that is too deferential to each individual's personal assertions of religious conviction is a "system in which each conscience is a law unto itself." The resulting anarchy would make civil society unworkable.

It is hard to say whether the California court in In re Rachel L. drew the line in the right place. While the decision can be read as a shot across the bow of homeschooling, it is important to note that the decision embraced and applied the same legal standard that the Supreme Court used when ruling in the parents' favor in Yoder.

The California court simply held, in essence, that the evidence in the California case was not as strong as the evidence in Yoder.

What should be done to prevent the In re Rachel L. decision from ending religiously motivated homeschooling in California?

Appealing the decision certainly is appropriate. But more to the point, Californians should pass a law guaranteeing the rights of homeschoolers — in a way that cannot be undone by activist judges.

The Constitution, in addition to guaranteeing the "free exercise" of religion, reserves to Californians the power to do just that.

Mrs. Ross and Mr. Smith are the authors of "Under God: George Washington and the Question of Church and State."