Home School Court Report
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May / June 2004

The Best Preventative Medicine

What are mandatory reporters?

Quick tickets to a social services investigation

Freedom watch

Same-sex marriage: Not a tangential battle
Across the states
About campus

"Intelligence" takes on new meaning
Active cases
Members only

Wanted: Words from the wise
Around the globe

Netherlands victory

Canadian Supreme Court affirms parental rights
Presidents Page

Not in vain


HSLDA social services contact policy/A plethora of forms

HSLDA legal inquiries

Prayer & Praise

On the other hand: a Contrario Sensu




Same-sex marriage: Not a tangential battle

When we ask our members why they belong to Home School Legal Defense Association, they usually answer, "Because HSLDA is an advocate for homeschool freedom in the courts, the legislature, and the media." And that is HSLDA's mission: promoting and defending the right of parents to raise their children without government interference. Our mission has not changed in 20 years, and it will not change down the road. We take it seriously, because proper stewardship of HSLDA's resources and talents is not just expected by our dues-paying members—it is an obligation to the Lord.

From time to time, however, the centrality of homeschool freedom in some of HSLDA's battles may not be obvious to the casual observer. For that, we apologize. But this is not an apology for what we do; rather, we apologize for not communicating as clearly as we can why we do what we do. Our reason for fighting does not change from battle to battle. It is always the same: we fight for homeschool freedom.

The government's recognition of same-sex marriage is now front and center in the public debate—and it is front and center in the fight for homeschool freedom as well. HSLDA opposes government sanctioning of same-sex marriages and civil unions because, to us as constitutional lawyers, this issue is critically related to homeschooling. We want to make sure the connection is equally clear to our members.

Americans have long recognized that the original intent of the writers of our Constitution was to protect many rights not expressly set forth in the founding documents. One such fundamental right is the right of parents to direct the upbringing of their children. In fact, this understanding of parental rights, attested to by legal scholars and Supreme Court justices, predates the founding of the United States. And in constitutional analysis, once a right is deemed "fundamental," it trumps all government actions unless the government can show some overriding "compelling" interest.

For almost one hundred years, American jurisprudence has held that the government's compelling interest in education is limited to only two varieties: civic and economic. The first involves the government's interest in seeing that a child is prepared for citizenship—that is, can he vote responsibly? The second involves the state's interest in having citizens who can provide for themselves without burdening the government.

So, for example, when a state attempts to require that all home educators have teaching degrees, the state must show that this requirement is essential to achieving its civic and economic interest in education. To counter the government's claims, the home educator merely needs to show that homeschooling parents without teaching degrees are already raising children who are competent, useful members of society—proving that the proposed regulation is completely unnecessary to achieve the government's compelling interest. From a constitutional perspective, this is the legal basis of homeschooling.

Though there has been considerable debate about whether the government's interest in education should be broadened, the courts have been reluctant to do so up till now. Not even the most liberal of judges have attempted to override centuries of respect for the institution of the family and parental rights.

Note, however, that this entire analysis is predicated on the historical, traditional view that because the family is an institution ordained by God, it exists whether or not the government recognizes it, and it overrides the will of the state. Children are not, to borrow a line from the Supreme Court, "mere creatures of the state"; but rather they are beyond the state. This has profound ramifications for law and policy. To the extent that we jettison this notion of the family, and replace it with the ideas of the modern state, we are throwing away not only thousands of years of wisdom, but also the very basis for the fundamental right underlying home education. In balancing the rights of parents with the government's interest in education, we must keep the court focused on history, not postmodern notions of how a child is to be "educated."

HSLDA is, and has been, engaged in the fight to keep the union between a man and a woman what it has always been: a relationship created not by governments, but by God. Governments recognize this truth to their benefit. They ignore it to their detriment.

If we redefine marriage according to the whims of the modern state, we also subject homeschooling to the whims of the modern state. We cannot let this happen. This is not an issue tangential to homeschooling. This is the issue.