[Congressional Record Volume 142, Number 105 (Wednesday, July 17, 1996)]
[Senate]
[Pages S7921-S7924]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    RELIGIOUS UPBRINGING OF CHILDREN

  Mr. KYL. Mr. President, while the Supreme Court has issued decisions 
protecting the rights of parents to direct the religious upbringing of 
their children, the lower courts have narrowly interpreted these 
decisions to give them almost no value as precedent. As a result, 
public school officials have been permitted to abuse their authority 
and compel students--at the objection of their parents--to participate 
in activities violative of deeply held religious beliefs. This must be 
of concern at a time when we are all seeking ways to strengthen 
families and inculcate values in our children.
  One case, which a respected Federal court judge brought to my 
attention,

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not only demonstrates the courts' unwillingness to respect the 
constitutional rights of parents to direct the religious upbringing of 
their children, it illustrates a bizarre dichotomy that has developed 
between the first amendment religious clauses: the establishment 
clause, which prohibits an official religion in the United States, and 
the free-exercise clause, which ensures every American's freedom of 
conscience. It is my sincere hope that this discussion will prod the 
Congress into considering ways we can assure that the Constitution will 
be applied to protect the rights of parents committed to firm moral 
guidance of their children, and in the process repair the glaring 
inconsistency that now exists regarding enforcement of these religious 
clauses in our Constitution.
  One Senator who has responded to this challenge is Senator Grassley, 
who has introduced an important bill, the Parental Rights and 
Responsibilities Act, which would forbid Federal, State, and local 
governments from interfering with ``the right of a parent to direct the 
upbringing of the child of the parent.'' This could resuscitate the 
Supreme Court's pro-parental rights decisions. Senator Grassley cited 
the case I am going to discuss as an example of why his legislation 
deserves serious consideration.


                              II. The Case

  On March 4, the U.S. Supreme Court declined to hear Brown v. Hot, 
Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995), cert. 
denied, U.S. (1996), in which the district court ruled, and the circuit 
court upheld, that it is constitutional for a public school to compel 
students--some as young as 14--without notifying parents, to sit 
through an explicit AIDS awareness presentation. A ruling that permits 
public school officials to force students--over the objections of their 
parents--to participate in activities that violate deeply held 
religious beliefs should be of concern to us all.
  School officials at Chelmsford High School in Chelmsford, MA, knew 
full well what they were getting when they hired Suzi Landolphi, the 
owner of a company called Hot, Sexy, and Safer, to give presentations 
at two 90-minute assemblies at the school. They viewed a promotional 
videotape of the organization's past presentations as well as 
promotional brochures and articles. The superintendent and the 
assistant superintendent attended the presentation. The principal 
introduced the presenter to the students.

  While school officials were busy securing what the principal 
described as ``a very special program,'' no effort was made to alert 
parents about the assembly, and students were compelled to attend it. 
Some argue that public school officials cannot keep parents apprised of 
every detail of their children's education. But Landolphi's 
presentation was not a calculus exposition. It was a highly charged 
event, unrelated to subjects traditionally taught to high school 
students.
  A videotape of the program reveals that the presenter concentrated on 
personal matters and used language so graphic that it would make former 
Surgeon General Jocelyn Elders blush.
  Abstinence was never discussed as an option to avoid contracting 
AIDS. The assemblies were, however, filled with lewd demonstrations of 
crude sexual acts. Landolphi kicked off her presentation to 9th and 
10th grade students by saying, ``This is amaz[ing]--I can't believe how 
many people came here to listen to someone talk about sex, instead of 
staying home and having it yourself.'' This may have been the high 
water mark for the show.
  During the program, the presenter told the students that they were 
going to have a ``group sexual experience, with audience 
participation''; told a minor he was not ``having enough orgasms''; 
commented about a minor's ``nice butt''; characterized the loose pants 
worn by a student as ``erection wear''; and had a male student lick an 
oversized prophylactic, after which she had a female student pull it 
over the male's head.
  Landolphi was also philosophical: ``When we are younger, we know 
about our private parts. We're less embarrassed. Why is that? With all 
of us sitting in this room right now--I mean, have you ever really sat 
down and thought about your private parts? Did you ever think about 
them?''
  She concluded her presentation by instructing the students to 
``Become sexually proud and confident people. Know how you work. Tell 
your parents about sex.''
  Not only was Ms. Landolphi's program salacious, it was astonishingly 
inaccurate. Example: ``When you find out someone you love has this 
virus, you tell them they can fight this virus, and they might fight it 
so well that they may never get ill. That's a fact.'' She informed 
these students that those infected with HIV could avoid AIDS by getting 
rid of drugs, alcohol, tobacco, and stress. And what, according to 
Landolphi, relieves stress? ``Sex, of course.''
  For school officials to hold such a controversial--to put it mildly--
event without parental notification suggests these officials may have 
deliberately sidestepped the parents. Even if, on the other hand, this 
heedlessness was inadvertent, it begs a broader question: Have some 
public school officials become so arrogant that they do not even give 
thought to the views of the people they serve--the community--when 
planning school events?

  Some Chelmsford parents believed that their constitutional right to 
direct the upbringing of their children was violated. A Federal 
district court judge and a court of appeals, however, ruled against the 
parents.
  The district court judge, in granting the defendant's motion to 
dismiss, opined: ``Parents who send their children to public schools * 
* * daily risk their children's exposure, both inside and outside the 
classroom, to ideas and values that the parents and the children find 
offensive.'' Memorandum and Order, Brown v. Hot, Sexy and Safer 
Productions, No. 93-11842, slip op. at 10 (D. Mass. January 19, 1995). 
The effect of this brush off is to treat a convinced Christian, Jew, 
Muslim, or parent of other religious faith as insufficiently 
enlightened, deserving of exclusion from the educational process along 
with other narrow-minded and ignorant people. The erosion of our values 
that this kind of indiscriminate reasoning represents is truly 
breathtaking.


           III. Constitutional Protection for Parental Rights

  The liberty clause of the 14th amendment, and the free exercise 
clause of the first amendment, should protect parents from overreaching 
public school officials. The 14th amendment claim is stronger, but 
there is also precedent for the first amendment to protect a religious 
person from neutral government action hostile to his or her beliefs.


                        A. Fourteenth Amendment

  The Supreme Court firmly recognizes that certain practices are ``so 
rooted in the traditions and conscience of our people as to be ranked 
as fundamental'' and therefore merit protection under the 14th 
amendment. Palko v. State of Connecticut, 302 U.S. 319 (1937). I can 
think of few rights as fundamental as the right of a parent to control 
the religious upbringing of his or her children.
  A troika of Supreme Court decisions have encouraged us to see this 
route as potentially fruitful. In Meyer v. Nebraska, 262 U.S. 390, 399 
(1923), the Court ruled that the liberty clause of the 14th amendment 
protects the fundamental right of parents to bring up children. The 
right of the parents to have their children instructed in a foreign 
language was, according to the Court, ``within the liberty of the 
amendment.'' Id. at 400.
  The Court reaffirmed this right in Pierce v. Society of Sisters, 268 
U.S. 510 (1925). In Pierce the Court declared unconstitutional a State 
statute that required public school education of children aged 8 to 16. 
The Court reasoned that the statute ``unreasonably interferes with the 
liberty of parents and guardians to direct the upbringing and education 
of children under their control * * * The child is not the mere 
creature of the State; those who nurture him and direct his destiny 
have the right, coupled with the high duty, to recognize and prepare 
him for additional obligations.'' Id. at 534, 535.

  While decided primarily on free exercise grounds, Wisconsin v. Yoder, 
406 U.S. 205 (1972), a decision upholding the right of Amish parents to 
remove their children from public schools, acknowledged the liberty 
interest of parents to control the upbringing of their children. ``The 
history and culture of Western civilization reflect a strong tradition 
of parental concern for the nurture and upbringing of their children.

[[Page S7923]]

 This primary role of the parents in the upbringing of their children 
is now established beyond debate.'' Id. at 232.
  In the Chelmsford case, the circuit court arrogantly dismissed the 
14th amendment claim of the parents, commenting that ``the Meyer and 
Pierce cases were decided well before the current `right to privacy' 
jurisprudence was developed, and the Supreme Court has yet to decide 
whether the right to direct the upbringing and education of one's 
children is among those fundamental rights whose infringement merits 
heightened scrutiny.'' Hot, Sexy and Safer 68 F.3d at 533. For the 
Court to suggest that decisions regarding fundamental rights, 
including, for example, the right to marry, are pre-empted until 
reanalyzed under the Supreme Court's constitutionally suspect privacy 
decisions is, if not novel, absurd. But again, when cases involve 
religion, the courts all too often come up with imaginative reasons to 
avoid following good case law.


                           B. First Amendment

  At first blush, the first amendment's free exercise clause seems like 
a weak instrument for those who seek relief from neutral State action 
that inhibits the practice of religion. It was, after all, Justice 
Scalia who wrote the decision in Employment Division, Department of 
Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990), which 
announced that a ``neutral, generally applicable'' law does not violate 
the free-exercise clause even when it prohibits religious exercise in 
effect.
  The free exercise claim advanced by the Chelmsford parents would have 
the same problem, if Smith were to be our guide. While the school 
officials at Chelmsford High School certainly offended religious 
children by offering the AIDS presentation, it does not seem that they 
intended to single out religious individuals for the offensive show. 
Indeed, they were equal opportunity offenders.
  But for those ready to close the door on free exercise claims when 
government, by application of a neutral mandate, coerces individuals to 
violate their own religious practices, such as in the Chelmsford case, 
the matter is not set. Relevant to Chelmsford, the Yoder Court held 
that when a 14th amendment-based claim to protect the fundamental right 
to control the religious upbringing of their children is combined with 
a free-exercise claim--a ``hybrid'' situation--the first amendment 
claim is enhanced. Yoder, 406 U.S. at 233. Smith acknowledges Yoder 
hybrid claims. Smith, 494 U.S. at 881.
  Also relevant to the Chelmsford case, Justice Scalia, in a useful 
concurrence in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 
508 U.S. 520, 559 (1993), questioned whether the rule he authored in 
Smith, which garnered five votes on the Court, and was the subject of a 
spirited attack by Justice O'Connor, merits adherence. Justice Scalia 
suggests that Smith is deficient in resolving free-exercise claims when 
``Neutral, generally applicable' laws, drafted as they are from the 
perspective of the nonadherent, have the unavoidable potential of 
putting the believer to a choice between God and government.'' Id. at 
577. In chronicling the tensions in free exercise jurisprudence--the 
mechanistic approach of Smith, versus the more nuanced approach of 
Yoder--the Justices concludes that neither line of cases is 
controlling: ``Our cases now present competing answers to the question 
when Government, while pursuing secular ends, may compel disobedience 
to what one believes religion commands.'' Id. at 559.
  If the Court does reevaluate the free-exercise clause, and decides 
that a more expansive reading is warranted--as it has already done with 
gusto for the other first amendment religious clause, the establishment 
clause--Justice Scalia offers some preliminary thoughts on a 
revitalized free exercise clause more sympathetic to the plaintiffs in 
coercion cases, such as that of Chelmsford, and a persuasive rationale 
for why the Court should resolve this conundrum:

       A law that is religion neutral on its face or in its 
     purpose may lack neutrality in its effect by forbidding 
     something that religion requires or requiring something that 
     religion forbids. A secular law, applicable to all, that 
     prohibits consumption of alcohol, for example, will affect 
     members of religions that require the use of wine differently 
     from members of other religious and nonbelievers, 
     disproportionality burdening the practice of, say, 
     Catholicism or Judaism.'' Id. at 560 (emphasis added).

  What the Chelmsford school officials did, with the District Court's 
backing, was require something that was against the religion of some of 
the students. Thus this legal framework could provide relief for such 
compulsion situations.
  The circuit court in Chelmsford dismissed the free-exercise claim 
under the Yoder scheme on two grounds: First, the free-exercise 
challenge was not ``conjoined with an independently protected 
constitutional protection,'' and Second, the free-exercise claim was 
distinguishable because the parents did not ``allege that the one-time 
compulsory attendance at the Program threatened their entire way of 
life.'' Hot, Sexy, and Safer, 68 F.3d at 539. Neither rationale is 
persuasive. As mentioned above, the Supreme Court has firmly recognized 
that parents enjoy certain constitutional protections in directing the 
upbringing of their children. And the hybrid situation developed in 
Yoder, and noted in Smith, does not require that an individual's entire 
way of life be threatened for there to be constitutional recourse.


           IV. Dichotomy in First Amendment Religious Clauses

  While the courts have taken great pains not to disturb neutrally 
drafted laws when considering free-exercise claims, and even Justices 
sympathetic to religious freedom, such as Justice Scalia, have agonized 
over these decisions, the courts are aggressive in restricting 
religious activities under the establishment clause. The result: an 
extreme dichotomy in religious clauses jurisprudence.

  Contrast the federal courts' refusal to recognize free-exercise 
claims with their zeal in banning prayers at school ceremonies under 
the establishment clause. In the same year the AIDS presentation at 
Chelmsford High School occurred, the U.S. Supreme Court ruled in Lee v. 
Weisman, 505 U.S. 577 (1992) that a prayer given by a rabbi during a 
middle school commencement program violated this clause. Let's take a 
look at a part of the offending prayer:

       God of the Free, Hope of the Brave: For the legacy of 
     America where diversity is celebrated and the rights of 
     minorities are protected, we thank You. May these young men 
     and women grow up to enrich it. . . . May our aspirations for 
     our country and for these young people, who are our hope for 
     the future, be richly fulfilled. Id. at 581,582.

  In his opinion for the majority, Justice Kennedy reasoned that 
``heightened concerns [exist] when protecting freedom of conscience 
from subtle coercive pressure in the elementary and secondary public 
schools.'' Id. at 592.
  But where is the concern for the subtle coercive pressure of a 
mandatory AIDS assembly, whose graphic details and panderingly hip 
attitude toward human sexuality, offend the core values of believers in 
the great religions of the world? Consider that if one agrees with 
Justice Kennedy that students should not be coerced to listen to 
prayer, it is hard to understand why one wouldn't agree that the free-
exercise clause should protect a school from coercing a student to 
participate in an activity which violates that students's religion. But 
a double-standard has emerged that the Chelmsford case perfectly 
illustrates.
  The offending prayer delivered by the rabbi in Weisman was less than 
2 minutes long, compared to the 90-minute presentation which took place 
at Chelmsford High School. The Court in Weisman did not require that 
the student's life lie in ruin when invalidating a benign commencement 
prayer. Also consider that the prayer in Weisman is a religious 
statement that is well within the tradition of benedictions at 
graduation ceremonies, and that parents accompanied the students and 
had notice that the rabbi was speaking.
  We remove prayer because it's offensive to 1 out of 100, but don't 
remove--or at least make optional--material highly offensive to a 
student of faith. I believe that most Americans would agree that 
something is corrupt within our jurisprudence when an indecent 
presentation directed at minors is constitutional while a short 
commencement prayer delivered by a member of the clergy is 
unconstitutional.


                             V. Conclusion

  When a public school presents controversial subjects, out of 
courtesy, it should notify parents, and give them

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the opportunity to have their children opt out. This isn't burdensome; 
it's the morally right thing to do. If public school officials 
exercised this courtesy in the first place, the Chelmsford controversy 
could have been avoided.
  I believe the courts should return to the spirit of the Supreme Court 
decisions on parental rights, and recognize and protect the right of 
parents to direct the religious upbringing of their children. The U.S. 
Constitution requires no less. Meanwhile, Congress should consider 
legislation, such as Senator Grassley's parental rights bill, to prod 
the courts to respect one of the most basic, and important fundamental 
rights.
  The PRESIDING OFFICER. The Senator from West Virginia [Mr. 
Rockefeller], is recognized to speak for up to 15 minutes under the 
previous order.
  Mr. ROCKEFELLER. I thank the Chair.
  (The remarks of Mr. Rockefeller pertaining to the introduction of S. 
1963 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mr. ROCKEFELLER. I thank the Presiding Officer and yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER [Mr. Brown]. Without objection, it is so 
ordered.

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