Yoder II?
David Sinacore-Guinn
dsg at PRCHFE.ORG
Thu Oct 8 16:36:53 PDT 1998
It seems to me that this law is confronting the conflict inherent in the two religion clauses. Yoder clearly "favors" one religious group by recognizing that their free exercise right requires that they be exempted from a continuing education requirement beyond the 8th grade. The problem is that child labor laws prohibit those children from adopting a profession common to that religious group. (I believe the Amish may even have a FE argument here in that I believe work is consistered a part of their religious duty ― but I'm not sure of that point.) Thus, while Yoder allows them to avoid the "harm" of continuing secular education, the child labor laws nonetheless constrict their ability to put that period of time to constructive use by exercising the right to pursue a profession (which was in part one of the justifications for the Yoder exemption noted by Chief Justice Burger ― i.e. that the Amish had an execelent vocational training program that could acceptably substitute for continued education.)
It seems to me that this law is attempting to redress this incomplete recognition of FE rights by altering the child labor laws to recognize the unique position of Amish youths. Yet in attempting to do so, the law is attacked as violating the EC because if favors one particular religious group. Indeed, this is unavoidable because no other religious group has been given an exemption from mandatory school attendence in favor of full time vocational education. (At what point does vocational education in woodworking turn into a profession?)
The bind for the Amish is that it is unlikely, given the Courts current attitudes that it will extend Yoder to recognize that the adoption of a profession such as woodworking is a necessary correlary to the educational exemption of Yoder I and is an element of FE. Yet, at the same time, the legislature is precluded from addressing this problem on EC grounds!
It is a problem....
David
>>> richard duncan <rduncan at UNLINFO.UNL.EDU> 10/08 1:21 PM >>>
Now that I've seen the language of the bill I do think it is an
unconstitutional law gerrymandered to favor one particular
denomination. The fact that the bill no longer mentions the Amish by
name does not render it religiously neutral. It singles out religions
with one particular religious tenet--not permitimg school beyond the
8th grade--and provides a special exemption for those sects but not
for others. This seems a clear violation of Larson v. Valente. No?
--Rick Duncan
> To amend the Fair Labor Standards Act of 1938 to permit certain youth to
> perform certain work with wood products. (Introduced in the House)
> HR 4257 IH
> 105th CONGRESS
> 2d Session
> H. R. 4257
> To amend the Fair Labor Standards Act of 1938 to permit certain youth to
> perform certain work with wood products.
> IN THE HOUSE OF REPRESENTATIVES
> July 16, 1998
> Mr. PITTS (for himself, Mr. MARTINEZ, Mr. GOODLING, Mr. PETERSON of
> Pennsylvania, Mr. SOUDER, Mr. MCINTOSH, Mr. GEKAS, Mr. COBURN, and Mr. ENGLISH
> of Pennsylvania) introduced the following bill; which was referred to the
> Committee on Education and the Workforce
>
> A BILL
> To amend the Fair Labor Standards Act of 1938 to permit certain youth to
> perform certain work with wood products.
> Be it enacted by the Senate and House of Representatives of the United States
> of America in Congress assembled,
> SECTION 1. EXEMPTION.
> Section 13(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(c)) is
> amended by adding at the end the following:
> `(6)(A) Subject to subparagraph (B), in the administration and enforcement of
> the child labor provisions of this Act, it shall not be considered oppressive
> child labor for an individual who--
> `(i) is under the age of 18 and over the age of 14, and
> `(ii) is a member of a religious sect or division thereof whose established
> teachings do not permit formal education beyond the eighth grade,
> to be employed inside or outside places of business where machinery is used to
> process wood products.
> `(B) The employment of an individual under subparagraph (A) shall be
> permitted--
> `(i) if there is an adult present in a supervisory capacity; and
> `(ii) if the individual does not operate or assist in the operation of
> power-driven woodworking machines.'.
>
>
>
>
>
>
>
> At 02:28 PM 10/7/98 -0700, Eric Treene wrote:
> >>
> >
> >Reading my earlier post, a colleague pointed out to me that we don't know the
> >language of the statute, and that it is possible that it names the Amish or
> >defines the class of religious people that could benefit so narrowly as to
> >exclude everybody except the Amish ( I cannot tell whether the quote in the
> >story are from the statute itself or is a statement by the Congressman
> >regarding its purpose). If so, that would of course make the Establishment
> >Clause issues more complicated.
> >
> >Eric Treene
> >The Becket Fund for Religious Liberty
> >
> >
> >> Eric Treene
> >> The Becket Fund for Religious Liberty
> >
> ~~~~~~~
> Dr. Beth Rapp Young office: 407-823-2853
> Assistant Professor, English fax: 407-823-3007
> Director, University Writing Center home: 407-207-1453
> http://pegasus.cc.ucf.edu/~byoung
> byoung at pegasus.cc.ucf.edu
>
> --=====================_5536749==_.ALT
> Content-Type: TEXT/HTML; CHARSET=us-ascii
> Content-ID: <Pine.SV4.3.96.981008130304.21185D at pegasus>
> Content-Description:
>
> <html>
> Law & Religion issues for Law Academics
> <RELIGIONLAW at LISTSERV.UCLA.EDU><br>
> <br>
> The language of H.R. 4257 is appended below. When I originally saw
> this bill, it specifically mentioned "Amish" children--the
> language has been changed since then.<br>
> <br>
> What I don't understand is the need for any religious exemption. If
> there are enough safeguards in this bill to protect <font size=2>children
> who are members "of a religious sect or division thereof whose
> established teachings do not permit formal education beyond the eighth
> grade," </font><font size=3>there should be enough safeguards to
> protect all children. So why not let all children benefit from the
> opportunity to perform "certain work with wood products"?<br>
> <br>
> And if there are not sufficient safeguards in this bill to protect all
> children, why are we giving less protection to Amish children? Are
> Amish children somehow less valuable to the country? Or are Amish
> parents somehow better than other American parents, and more likely to
> protect their kids?<br>
> <br>
> Beth Young<br>
> U of Central Florida, Orlando<br>
> byoung at pegasus.cc.ucf.edu<br>
> <br>
> <br>
> </font><font size=3><b>To amend the Fair Labor Standards Act of 1938 to
> permit certain youth to perform certain work with wood products.
> (Introduced in the House)<br>
> </font></b><font face="Arial, Helvetica" size=3>HR 4257 IH <br>
> <font size=3><div align="center">
> 105th CONGRESS<br>
> 2d Session<br>
> <font size=3><b>H. R. 4257<br>
> </b><font size=3></div>
> To amend the Fair Labor Standards Act of 1938 to permit certain youth to
> perform certain work with wood products. <br>
> <font size=3><b><div align="center">
> IN THE HOUSE OF REPRESENTATIVES<br>
> </font><font size=4>July 16, 1998<br>
> </font></b><font size=3></div>
> Mr. PITTS (for himself, Mr. MARTINEZ, Mr. GOODLING, Mr. PETERSON of
> Pennsylvania, Mr. SOUDER, Mr. MCINTOSH, Mr. GEKAS, Mr. COBURN, and Mr.
> ENGLISH of Pennsylvania) introduced the following bill; which was
> referred to the Committee on Education and the Workforce <br>
> <br>
> <font size=3><b><div align="center">
> A BILL<br>
> </b><font size=3></div>
> To amend the Fair Labor Standards Act of 1938 to permit certain youth to
> perform certain work with wood products. <br>
> <font size=3><i>Be it enacted by the Senate and House of Representatives
> of the United States of America in Congress assembled,<br>
> </font></i><font size=4><b>SECTION 1. EXEMPTION.<br>
> </font></b><font size=3>Section 13(c) of the Fair Labor Standards Act of
> 1938 (29 U.S.C. 213(c)) is amended by adding at the end the
> following:<br>
> `(6)(A) Subject to subparagraph (B), in the administration and
> enforcement of the child labor provisions of this Act, it shall not be
> considered oppressive child labor for an individual who--<font size=3>
> <dl>
> <dl>
> <dd>`(i) is under the age of 18 and over the age of 14, and
> <dd>`(ii) is a member of a religious sect or division thereof whose
> established teachings do not permit formal education beyond the eighth
> grade,<font size=3>
> </dl>
> </dl>to be employed inside or outside places of business where machinery
> is used to process wood products.<br>
> `(B) The employment of an individual under subparagraph (A) shall be
> permitted--<font size=3>
> <dl>
> <dl>
> <dd>`(i) if there is an adult present in a supervisory capacity; and
> <dd>`(ii) if the individual does not operate or assist in the operation
> of power-driven woodworking machines.'.<br>
> <br>
> <br>
> <br>
> <br>
> <br>
> <br>
> <br>
> </font><font size=3>
> </dl>
> </dl>At 02:28 PM 10/7/98 -0700, Eric Treene wrote:<br>
> >><br>
> ><br>
> >Reading my earlier post, a colleague pointed out to me that we don't
> know the<br>
> >language of the statute, and that it is possible that it names the
> Amish or<br>
> >defines the class of religious people that could benefit so narrowly
> as to<br>
> >exclude everybody except the Amish ( I cannot tell whether the
> quote in the<br>
> >story are from the statute itself or is a statement by the
> Congressman<br>
> >regarding its purpose). If so, that would of course make the
> Establishment<br>
> >Clause issues more complicated.<br>
> ><br>
> >Eric Treene<br>
> >The Becket Fund for Religious Liberty<br>
> ><br>
> ><br>
> >> Eric Treene<br>
> >> The Becket Fund for Religious Liberty<br>
> > </font><br>
> <div>~~~~~~~</div>
> <div>Dr. Beth Rapp
> Young<x-tab> </x-tab><x-tab> </x-tab><x-tab> </x-tab><x-tab> </x-tab>office:
> 407-823-2853</div>
> <div>Assistant Professor,
> English<x-tab> </x-tab><x-tab> </x-tab><x-tab> </x-tab>fax:
> 407-823-3007</div>
> <div>Director, University Writing
> Center<x-tab> </x-tab><x-tab> </x-tab>home:
> 407-207-1453</div>
> <div><a href="http://pegasus.cc.ucf.edu/~byoung" EUDORA=AUTOURL>http://pegasus.cc.ucf.edu/~byoung</a></div>
> byoung at pegasus.cc.ucf.edu
> </html>
>
> --=====================_5536749==_.ALT--
>
--
----------
Rick Duncan (rduncan at unlinfo.unl.edu)
"Men plan, God laughs."
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