On 10 January 2019, the European Court of Human Rights ruled, in the case of Wunderlich v. Germany (App. no.: 18925/15), that the German ban on homeschooling did not breach the right to private and family life under Article 8 of the European Convention on Human Rights. The case was brought by a Christian family who had refused to register their oldest daughter in a school in accordance with German law. As a result, they were fined and prosecuted by the German authorities and the child was temporary taken into care to enforce the school attendance requirement.
The European Court of Human Rights held that the actions of the German state, although interfered with the Article 8(1) rights, were justified for the purposes of protecting the health, rights and freedoms of the children (under Article 8(2)). When considering the case, the Court referred to its previous jurisprudence on the issue of compulsory public education. It recalled that “the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems...” (para 50).
The Court held further that although the removal of the child from the parent’s care was a very intrusive measure, it was not disproportionate given that it was only temporary and that all other measures (such as fines and regulatory penalties) had already failed to persuade the parents to comply with the school requirement. In considering the question of proportionality, the Court gave “due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation...” (para 47).
The case leaves no doubt that homeschooling is not protected under the European Convention on Human Rights. In contrast, the US Supreme Court has ruled on several occasions that the US Constitution protects the right to homeschooling. As early as 1925, in the case of Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Court struck down an Oregon statute requiring all children to attend public school. It was held that children were not ‘the mere creature[s] of the state’ (para 535) and that the responsibility for education belonged to parents so the Court deemed the ability to make educational choices a ‘liberty’ within the meaning of the 14th Amendment (thereby expanding the so called Substantive Due Process doctrine in its jurisprudence). Furthermore, almost 50 years later, in the case of Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court also upheld the right of an Amish family to withdraw their children from public school past 8th grade It was ruled that States could not force families to send their children to attend school where it would infringe their (legitimate) religious beliefs protected under the First Amendment.
In June 2018, the US Supreme Court ruled 7-2, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018), that the Colorado Civil Rights Commission had violated a Christian baker’s freedom of religion under the First Amendment when it punished him for refusing to create a personalised wedding cake for a gay couple. The Court held that the Commission, when considering the case, manifested hostility towards the baker’s religious beliefs.
Shortly afterwards, the Masterpiece Cakeshop got involved in another incident when it refused to make a cake with a transgender message, which, despite the earlier ruling from the Supreme Court, led to yet another set of proceedings before the Colorado Civil Rights Commission (The Denver Post). In August 2018, the Masterpiece Cakeshop owner sued the State of Colorado in a federal District Court claiming religious persecution. The lawsuit alleges violation of the First and the 14th Amendments. On 08 January 2019, Judge Wiley Y. Daniel of the U.S. District Court for the District of Colorado ruled that the lawsuit against Colorado could proceed (Fox News).
The case is considered of high importance as it is likely that regardless of its outcome before the District Court, it will move up the judicial ladder towards the Supreme Court. Although the Court has already ruled on this issue, its conclusions were reached on very narrow grounds. The wider question of the priority of the freedom of religion under the First Amendment over non-discrimination legislation still remains open.
On 2 November 2018, the US Supreme Court issued a writ of certiorari to the Court of Appeals for the 4th Circuit in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017, thereby agreeing to hear the case of a 93-year-old war memorial in the shape of a cross (SCOTUS Blog). The memorial was completed in 1925 to commemorate 49 local residents who had died in World War I. In 2014, the American Humanist Association sued Maryland public bodies responsible for the upkeep of the monument alleging that it “discriminates against patriotic soldiers who are not Christian, sending a callous message to non-Christians that Christians are worthy of veneration while they may as well be forgotten” (Fox News). In 2017, the Court of Appeals for the 4th Circuit ruled 2-1 in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017 that even assuming that the monument had some nonreligious function, “the sectarian elements easily overwhelm the secular ones” and that “the cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection” [p22] and as such its presence on a public land violated the Establishment Clause of the First Amendment. In March 2018 the Court sitting en benc refused to reconsider the case and Maryland petitioned the Supreme Court for a permission to appeal (The Washington Post).
The jurisprudence of the US Supreme Court in cases concerning the Establishment Clause is far from being clear. The Court has struggled over the years to agree on a set of precise directions as to when a religious symbol on a public land would violate the First Amendment. This has led to confusing rulings whereby some symbols have been upheld and others not. For instance, in 2005, in the case of Van Orden v. Perry, 545 U.S. 677, the Court ruled 5-4 that a Ten Commandments monolith on the Texas State Capitol grounds did not violate the Constitution. On the other hand, on the same day in 2005, in the case of McCreary County v. ACLU of Kentucky, 545 U.S. 844, the Court also ruled 5-4 that a Ten Commandments display at the McCreary County courthouse in Kentucky did violate the First Amendment. The two cases were extremely similar yet the Court reached the opposite conclusions. In both cases it was Justice Breyer who acted as the Swing Vote. With those two cases, the US Supreme Court has sent mixed signals to lower courts on the subject of the Establishment Clause. Nevertheless, the Court is now almost 15 years older and its composition has also changed, presumably became more conservative in nature. As a result, the majority of the bench might now have enough votes to articulate some clear guiding principles as to how lower courts should deal with similar cases in the future.