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Justice Stephen Breyer: A Moderate Who Threatens Religious Freedom and Private Education

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Justice Stephen Breyer: A Moderate Who Threatens Religious Freedom and Private Education

On July 12, 1994, the U.S. Senate Judiciary Committee began its hearings on the nomination of Judge Stephen Breyer to the Supreme Court of the United States. Michael Farris testified before the Committee on July 15, the last day of the hearings. On July 19, the Committee voted unanimously to recommend Breyer's confirmation to the whole Senate. The full Senate voted 87-9 to confirm Judge Breyer on July 29, 1994.

During the time of questioning following Mike Farris' testimony, Chairman Joseph Biden [D-DE] sought to discredit Mike. Specifically, Senator Biden mocked Mike because of a reference to the New Life Baptist Church Academy v. Town of East Longmeadow, 885 F.2nd 940 (1st Circ. 1989) case, in which the Academy stipulated that all their courses were taught from a religious perspective. Senator Biden attacked Mike, asking him, "How the devil do you teach math from a religious perspective?" Chairman Biden said we will "have gained an ally" if we could prove that schools had lost federal funding due to the religious content of their textbooks. Thus, Mike wrote a response documenting that such discrimination had occurred many times.

Judge Breyer may be viewed as moderate on many issues, and during the hearings he was honest and consistent in his statements. However, we believe his views regarding religious liberty, parental responsibility in education, and government jurisdiction in education are potentially dangerous for freedom-loving families.

Breyer is willing to protect religious liberty as long as it is—in his view—purely "religious" and there exists no compelling State interest for restricting that liberty. He has a narrow view of what is "religious" and protected under the First Amendment, and a broad view of what is "secular." As applied to education, he believes parents have "an important right" to teach their children their religious beliefs, but all other education is "secular," and therefore, should be under the control of school and public officials. Consequently, in the New Life case, Breyer said the State had a compelling "interest in making certain that its children receive adequate secular education." During the hearing, when questioned regarding private education, including home schooling, he also stated, "There is always a government interest to ensure that some type of education is going on."

Such restrictive thinking poses a significant danger to home schoolers if Breyer is confirmed, and if at least four other justices (a majority) agree with his views. Thus far, the Supreme Court has not been this narrow in its interpretation of the "free exercise of religion" and the prohibition of "an establishment of religion" clauses of the First Amendment.

Breyer's misapplication of these First Amendment rights becomes evident when the same reasoning is applied to other freedoms guaranteed in the First Amendment. For example, what if all speech and press that are not purely "religious" in content are "secular"? Would the government then have a compelling interest in controlling the content and in licensing the writers, broadcasters, editors and other media personnel to ensure that what the government wants is communicated? This, of course, is absurd-even to those who agree with Breyer's narrow view of religious liberty.

Our Founding Fathers combined guarantees for several freedoms in the First Amendment because they are all related. Each freedom protects a different aspect of expression of human belief and thought. Similarly, the Virginia Declaration of Rights makes a general distinction of non-government and government concerns. Religion and other matters which can be directed only by "reason and conviction" are not for the government to regulate, but the government is to regulate matters of "force and violence" (Section 16). Our Founding Fathers believed education was a matter of "reason and conviction," not falsely divided between religious and secular.

Although Judge Breyer is likely to be confirmed, your calls and letters to the Senators' offices were not in vain. The Senators referred to the New Life case more often than any other case, and many asked probing questions about religious liberty and home/private/religious education. Let's not forget that, as a result of your efforts, Mike Farris was asked to testify before the Committee. Also, let's not grow weary in well-doing, for in due time we shall reap rewards for our faithfulness.

Before the United States Senate
Judiciary Committee
July 15, 1994


Mr. Chairman and members of the Judiciary Committee:

My name is Michael Farris. . . . By way of personal background, I am a constitutional lawyer with an emphasis in free exercise litigation. I last testified before this Committee as the co-chairman of the drafting committee for the coalition supporting the Religious Freedom Restoration Act.

Home School Legal Defense Association opposes the nomination of Stephen Breyer to the Supreme Court of the United States because his views on the subject of the free exercise of religion—especially within the context of education—are so far beyond the pale of acceptability that his presence on the Supreme Court would represent a clear and present danger to our freedoms.

We base our assessment of Judge Breyer on his exhaustive, articulate, and, in our view, dangerous opinion in New Life Baptist Academy v. East Longmeadow School District, 885 F.2d 940 (1st Cir. 1989).

On behalf of the private school, I wrote an amicus brief which was submitted to Judge Breyer and his fellow panel members in that case. After Judge Breyer reversed an excellent opinion by the federal district court, the private school was unable to afford to have private counsel petition the Supreme Court for a Writ of Certiorari. Our organization undertook their case at that point, and I became lead counsel and personally wrote the cert petition to the Supreme Court.

The Supreme Court denied the petition during the same period of time it was deciding the discredited opinion in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). This Committee helped effectively overturn Smith by the passage of the Religious Freedom Restoration Act. We believe and are greatly concerned that Judge Breyer's legal philosophy is in full accord with the majority opinion in Smith and totally out of sync with the philosophy this Committee and Congress as a whole endorsed by passing the Religious Freedom Restoration Act.

We bring to this Committee's attention four specific problems with Judge Breyer's opinion in New Life:

First, Judge Breyer endorses the notion that private schools can be regulated by the subjective, unwritten, discretionary opinions of public school officials.

Under Massachusetts law, private schools, including home schools, must be "approved" by local public school officials. Many school districts have adopted written policies which specify objective criteria by which they will evaluate a request for approval. Some districts, like the one involved in this case, merely say they want to review the curriculum, teacher qualifications, lessons, and enter the private (often religious) schools to make a wholly discretionary decision.

The federal district court held that this system of subjective discretion violated the free exercise rights of this private religious school. A system of unwritten, subjective, prior restraints is simply unacceptable to a nation with an historical commitment to freedom of conscience and expression.

Judge Breyer rejected the private school's offer of an objective means of analysis. The private school officials voluntarily offered to submit achievement test results to the public officials. Breyer viewed this offer as untrustworthy. He found it to insufficiently regulate the conduct of those who ran the school.

We have a hard time understanding why people can be trusted to choose their leaders by voting for school board members and United States Senators, yet are deemed unfit and untrustworthy to make unregulated choices regarding the education of their own children. Breyer's mistrust of parents and church officials while endorsing the use of government power over their First Amendment is anathema to those who believe in the competence of Americans and those who love freedom.

It is impossible to reconcile Judge Breyer's distrust of the parents and church leaders in New Life and the following strong endorsement of the rights of parents by former Chief Justice Burger written in a majority opinion for the Court:

That some parents "may at times be acting against the interests of their children" . . . creates a basis for caution, but it is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interest The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Parham v. J.R., 442 U.S. 584, 602-603 (1979).

Moreover, Judge Breyer views regarding the right of government officials to rule by their "mere discretion" directly violate longstanding precedents of the United States Supreme Court. In Hague v. CIO, 307 U.S. 496 (1939), the Supreme Court ruled that it is unconstitutional to subject the exercise of a First Amendment freedom to the discretionary opinions of government officials. Judge Breyer's views represent a slap in the face to this line of Supreme Court precedent. Judge Breyer embraces government power too readily and spurns legitimate, longstanding protections of constitutional freedoms too easily.

Second, Judge Breyer's New Life opinion cites with approval three decisions which he says, "uphold [an] effective total ban on home schooling." Consider an analogy from Employment Division v. Smith. Justice Scalia's opinion in Smith was subjected to much criticism because it cited with approval Minersville School District v. Gobitis, 310 U.S. 586 (1940). Gobitis, of course, is the case where the Supreme Court said it was constitutional to expel Jehovah's Witnesses from the public schools for refusing to salute the flag. By citing Gobitis, Justice Scalia clearly indicated that his willingness to restrict religious freedom carried a long way indeed.

Judge Breyer's citation of these anti-home school cases raises a similar concern. We believe his opinion clearly indicates he would vote to uphold a state law which bans home education. Four hundred thousand families in this country deserve a better choice for the Supreme Court. It is simply unacceptable to American home schoolers to have a person on the Court of last resort for their freedoms who believes they have no constitutionally protected right to educate their children.

Judge Breyer is no moderate; but possesses the most extreme views concerning the rights of those who lovingly teach their children at home.

Third, Judge Breyer believes that Wisconsin v. Yoder, 406 U.S. 205 (1972), does not state a general principle of parental religious liberty. His New Life opinion clearly indicates that he sides with the school of thought that Yoder grants religious freedom only to Amish parents. This view raises two concerns.

The lesser concern is this: Should someone be elevated to the Supreme Court who so clearly misunderstands the very nature of a Supreme Court decision? The Supreme Court simply does not hear cases which do not involve general principles of law. If the Yoder decision was to be limited to its facts, it would have never been accepted for review by the high Court.

The greater concern arises from Breyer's aberrant views on religious freedom. Either religious freedom is protected for every faith in America or it is protected for none. The reason the Religious Freedom Restoration Act passed was that virtually every faith group endorsed it as stating a broad principle that every group is entitled to religious freedom in America.

We believe that a person is disqualified to serve on the Supreme Court if he has ever endorsed the notion that a particular constitutional protection applies to one faith group, but not to others. Breyer refused to apply Yoder to a Baptist church in Massachusetts. We believe that the Supreme Court should be reserved for those who believe that all parents of all faiths have the rights enunciated in Yoder.

Fourth, Judge Breyer endorses the duplicitous notion religious schools offer "religious education" when one is talking about government funding, but, when the issue is government regulation, he then believes these same schools offer "secular education." We believe that schools which are too religious to receive direct funding under the Establishment Clause are too religious to be regulated by the government under the Free Exercise Clause. The Constitution should not be interpreted as a judicial Catch-22.

While these are our specific concerns relating to religious freedom and private education, we believe there are broader concerns which should trouble all Americans.

Judge Breyer has endorsed the idea that one fundamental freedom can be subjected to a prior restraint-styled approval process which depends solely on the discretion of local government officials. If the free exercise of religion can be subjected to such a system of discretionary prior restraints, there is no reason to believe that freedom of speech, freedom of the press, and freedom of assembly would fare any better. Either Judge Breyer has a narrow view of all First Amendment freedoms or he has a special antipathy for religious freedom. Neither alternative is acceptable for a member of the United States Supreme Court.

This Committee was very recently involved in helping to reinstitute a broad basis of religious freedom for all Americans of all faiths. The Supreme Court's decision in Smith represented a dramatic departure from established precedent and, more importantly, from our longstanding national commitment to religious liberty. No scholar could read Judge Breyer's opinion in New Life and have any doubt that he would have been part of the majority in the Smith case.

This Committee is on record endorsing a broad view of religious freedom by its passage of the Religious Freedom Restoration Act. It would be totally inconsistent to turn immediately around and place a nominee on the same Court who personifies the philosophy of big government and little freedom that this Committee has just rejected.

We need Justices who trust Americans much and government little. We need Justices who readily embrace freedom and rarely embrace government power. Judge Breyer embraces government power too readily and freedom-especially religious freedom-far too rarely.

[CAPTION] Mike Farris testifies at the Breyer hearings.

[CAPTION] "Home School Legal Defense Association opposes the nomination of Stephen Breyer to the Supreme Court of the United States." The Senate Judiciary Committee heard some rare opposition to Clinton's nominee on July 15, 1994.