Another Mozert?

[David Waddilove]

 Surprisingly, the plaintiffs here might be better off in Europe.  The
European Convention of Human Rights contains strong language in Article 2 of
the First Protocol to the treaty to the effect that:

"In the exercise of any functions which it assumes in relation to education
and to teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and
philosophical convictions"

The European Court of Human Rights effectively neutered this language by
judicial interpretation so that only one violation was ever found prior to
June of last year, even though this language had been in force since
1952.  The case that found the violation was actually about corporal
punishment rather than any doctrinal question.  (Interestingly the court
has TWICE found violations since June, once by a 9-8 margin, but this may
signal a seismic shift in the court's direction.)  At any rate, the court
interpreted the above language essentially to grant nothing more than a
right against state "indoctrination" in schools in *Kjeldsen, Busk Madsen
and Pedersen v. Denmark.*

In this case the 1st Circuit wrote:
"The heart of the plaintiffs' free exercise claim is a claim of
"indoctrination": that the state has put pressure on their children to
endorse an affirmative view of gay marriage and has thus undercut the
parents' efforts to inculcate their children with their own opposing
religious views. The Supreme Court, we believe, has never utilized an
indoctrination test under the Free Exercise Clause, much less in the public
school context. The closest it has come is *Barnette*..." pg. 38
  The court also said regarding a book called "King and King" read in class
to the plaintiffs' second grader:
"It is a fair inference that the reading of King and King was precisely *
intended* to influence the listening children toward tolerance of gay
marriage." pg. 40 (emphasis in original).

After MUCH discussion the court essentially followed *Mozert* holding that
exposure to ideas does not constitute a burden on religion and it dismissed
the complaint.  The indoctrination claim might not succeed in Europe either,
but at least it would be directly on point with the case law.

David Waddilove
Adjunct Professor, William H. Bowen School of Law,
University of Arkansas at Little Rock




On Jan 31, 2008 3:50 PM, <marty.lederman at comcast.net> wrote:

> I haven't read this through yet, but thought I'd bring it to the list's
> attention, since it looks to be dealing with an opt-out claim very similar
> to that in Mozert -- always a very interesting question:
>
> http://www.ca1.uscourts.gov/pdf.opinions/07-1528-01A.pdf
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080131/0aa2d212/attachment.htm