[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,
[[Page S7922]]
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
[[Page S7924]]
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.
____________________