Oddly, it is the parents’ religious freedom Justice Hallows is aiming to protect, but the youth, who cannot speak for themselves, are left without advocates for protection of their religious (and educational) rights, or what Professor Feinberg deemed “rights-in-trust”:
The violation of the autonomy rights-in-trust cannot always be established by checking the child’s present desires or preferences. It is the adult he is to become who must exercise the choice, more exactly, the adult he will become if his options are kept open and his growth kept “natural” or unforced. In any case, that adult does not exist yet, and perhaps he never will. But the child is potentially that adult, and it is that adult who is the person whose autonomy must be protected now (in advance).
It seemed that Justice Hallows did not understand, or else chose to ignore that the children were being deprived of their religious rights, or rather their rights-in-trust. Justice Heffernan of the Wisconsin Supreme Court, who dissented from the majority opinion, understood this when he wrote:
The principal opinion rests in part upon the misconception that the defendants’ only alternative to criminality is public school attendance for their children. Such is not the case. The law makes no such requirement. The reasoning is faulty, for it conceives the problem as one of religious liberty alone. It completely ignores the personal liberty of the Amish children to avail themselves of educational opportunities beyond eighth grade. In addition, the freedom of these young people to make a religious choice is completely ignored…. No part of our law requires a student to go to a school not of his own religious choice. It merely requires that he go to a school.
Justice Heffernan’s statement about the law merely requiring that children attend a school is a good one. It is too bad he was a lone voice in this case. I often think about how much more the Amish could have accomplished if they had found their own solution, perhaps by expanding their own schools for another two years, rather than fighting the compulsory education laws. (The Amish education conflicts went on for decades before this court case). This fits their martyr culture — they see it as a test of their faith to be resisting the outside world in one way or another.
When this case was heard in the U.S. Supreme Court, the majority opinion echoed that of the Wisconsin Supreme Court. Chief Justice Warren E. Burger authored the unanimous decision:
Formal high school education beyond the eighth grade is contrary to Amish beliefs, not only because it places Amish children in an environment hostile to Amish beliefs …, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife.
It is obvious that Justice Burger did not mind consigning Amish children to one way of life — the girls must become housewives and the boys must become farmers. It is okay for Amish children to have only one option, but everyone else should have a world of opportunities available to them. The decision to exempt the Amish from compulsory education laws created a double standard — one for Amish children and another for all other children in this country.
In neither of the majority opinions does there seem to be even the recognition of the moral complexity involved. If one considers the children’s rights-in-trust, and the state’s role of parens patriae — that of defending the children’s future interests against infringement by their parents, then this case is not as open-and-shut as the authors of these decisions made it seem.