Monday, March 3, 2008

Freedom of Religion Guaranteed by CA Constitution

I've seen a couple of different bloggers question whether the First Amendment to the U.S. Constitution is applicable to the Long case, given the issue of states' rights and whatnot. One of them is Joseph Knippenberg of the Ashbrook Center blog "No Left Turns" and the other being a blog I don't feel is appropriate for linkage given that it has a "restricted to adults" warning and content many of my readers would likely find objectionable. So for all you doubters out there, it is not just the U.S. Constitution that guarantees Californians the free exercise of religion but *ALSO* the state constitution:

"CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SECTION 4
Free exercise and enjoyment of religion without discrimination
or preference are guaranteed. This liberty of conscience
does not excuse acts that are licentious or inconsistent with
the peace or safety of the State. The Legislature shall make
no law respecting an establishment of religion.

A person is not incompetent to be a witness or juror because
of his or her opinions on religious beliefs."
Homeschooling is neither "licentious" nor "inconsistent with the peace or safety of the State." Therefore the Longs do indeed have a constitutional right to practice their religion without interference from the California state authorities.

12 comments:

Cavalor Epthith said...

As a solicitor, and editor-in-chief of the admitted adult politcs and culture blogs you mention, I think you are yet another fine human example of being too close to the problem.
Art I Sec 4 California Constitution:
"This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State."

And in that is the groundwork to deny anyone their right to break the law and abridge the peace such that they may practice their religion. It is this same bit of doctrine codified into law that prohibits human sacrifice if you may accept a rather draconian example. I hope you take my point clearly because what the Long case is is a matter of circumvention of the law to attain a privilege or condition. It has very little to do with religion save for in the minds of people who feel they are being persecuted because they feel their religion is the law and they do not have to follow the laws as made by Men.

To undo this law is to allow for the unravelling of protections in this law that make you free to practice your religion under the protection of the State. Without that you could see the same oe similar situation that Ireland suffered for four hundred years. The refusal to accede to the rule of law dmagaes all parties in a republic those who wish to worship as you do and those that do not.

If the Longs wish to homeschool in Californai they need to follow the law as written which allows for it in several forms. If they merely want to do things their way then they need to seek every man's safe harbor in a free society and that is the freedom to seek their fortunes in a place where the law suits their needs.

I clearly understand your vehemence as this is an issue close to you but the law is an unemotional observer who passes on its findings to Justice which is blind. Being a well intentioned Christian is no barrier to the force of the Law.

Qu'ul cuda praedex nihil!

sunniemom said...

The Longs were in compliance with home education laws in CA. The ruling should not even have touched on homeschooling- if there were allegations of abuse, then investigate and act accordingly- the educational method used by the family should not be a concern for the court.

And for the state to define what is and isn't a legitimate religious practice? Obviously the laws in place would prevent inflicting bodily harm on others in the name of religion (unless you live in the Middle East) but except in cases where one's actions are illegal, one should be able to practice the teachings of one's religion without the state sticking its big stinky toe in.

Pain said...

sunniemom,

The law is clear in this matter and religion does not trump the Law of a republic when religion seeks to gain advantage by breaking the Law.

The Longs were not in compliance with the California Educational Code or this would not be an issue for the Courts.

Christina said...

Sunnie, if the facts of the situation are accurate - that the Longs used an ISP sponsored by a private school - then they seem to have been operating in a grey area. I've been pounding the CA Ed. Code to inform myself on this case (being a CA homeschooler myself) and I have found no statute either permitting or forbidding private schools from having independent study programs. There is only a public school ISP statute (at 51745).

That being the case, alongside the apparent facts that the Longs have been intersecting with CPS for almost two decades on various issues, the unfortunate result seems to be that the courts managed to find a loophole in the statutes in order to get the Longs' children out of the house for at least part of the day.

I am on the other side of the spectrum from the Longs, but even absent the homeschooling complications (I run my own private school in order to homeschool my kids, so they are "at" their school daily and IMO our homeschooling path does not come afoul of this ruling), I am concerned about CPS accusations of neglect or abuse simply because of the radical nature of their beliefs. Many of my own parenting choices could easily be considered suspect (homebirth, cosleeping, non-vaccination).

It does seem like the children themselves are trying to get out; I think they should have that right.

Dana said...

If the court simply ruled that because of the history of abuse in the family, they lost the right to direct the education of the children, I would agree.

If they are in counseling, attending classes or whatever a lower court would have ordered, I have no problem with the court making educational decisions for the family.

But the decision seems to imply that there is no way for anyone to homeschool. What you are saying about your private school is what I have read everywhere regarding CA law. But the court seems to address that specifically. I may not be reading this right, but it seems they are attempting to close that possibility:

The court stated that a simple reading of the statutes governing private schools and home instruction by private tutors shows the Legislature intended to distinguish the two, for if a private school includes a parent or a private tutor instructing a child at home, there would be no purpose in writing separate legislation for private instruction at home.

Hopefully I am wrong on that, but I read somewhere that this has never specifically been tested. Is that true?

Christina said...

It's definitely true that the broad nature of the private school law has never been tested in court, although it has been challenged by the CA Dept. of Education and they backed down (under new management of Jack O'Connell).

However, the tutorial exemption makes no mention at all of being home-based. 48224 simply states that "[c]hildren not attending a private, full-time, day school" who are being tutored according to certain restrictions (3hrs/day, credentialed instructor, etc.) are exempted from compulsory attendance. This part of the compulsory attendance laws is of course very important given the extensive entertainment industry in southern CA.

So that part of the ruling that you quote has no basis in fact; the tutor exemption is not bound to home study.

The ruling hinges on one point: that the children are not under the private school exemption because they are not "at" the private school (on site). Therefore, in order to be exempt, they must be under the tutor exemption, which they are not because their instructor is not credentialed.

sunniemom said...

Part of the problem is the erroneous belief that rights are granted by the state. This is not the message or intent of the Constitution. There are rights that are inherent to humanity, and the fact that they aren't spelled out in the law does not negate their existence. Heck- you don't have the right to vote or eat that second piece of apple pie- but we acknowledge the right anyway.

So- parents have the right to educate their children in whatever method or manner they see fit. If, however, their home life is dysfunctional to the point that an education is not being provided or the home is not safe, then actions to address those issues would be necessary.

The judge is ruling that the state defines what is and isn't a legitimate religious exemption. So if you have a religious or philosophical objection to having your child in a gov't school, unless Moses came down off the mountain with your reasons etched in stone- too bad, so sad. Again- the state is taking the position that they define what the citizens can and cannot do in their private lives, and how they are allowed to live out their beliefs. This is not a correct interpretation of the law.

M.E. said...

If you read the California decision, the antagonism of the court toward the family becomes clear. Truly, hard cases make bad law. Some thoughts about it here.

There was no evidence that the family was doing anything "licentious or inconsistent with the peace and safety of the State", yet the court slapped down the family (even denying them the right to hire a private tutor for their children), their religious beliefs, and the Christian home study program they used.

The court overreached, period.

Christina said...

So true, m.e. I have not seen documentation regarding the facts of this case and its history, only the ruling itself, but the word from the various homeschool groups' legal teams is that this family has had a two-decade relationship with CPS. It looks to me like the courts looked for any loophole in the law that would get the kids out from the parents' control, and that loophole is rebounding into something so general that it's threatening a constitutional showdown. The court even went so far as to deny the family the legal option of hiring a credentialed tutor, without any basis.

The fact that the children in the case initiated the break with their family is very important to my mind. They are entitled to religious and other personal freedoms as much as the parents are. There must be a way for government to assist the children in egregious cases like this one, while simultaneously guaranteeing the rights of parents.

Crimson Wife said...

Christina- the "unpublished" court ruling detailing the abuse allegations is public record and it's out there on the 'net. I had updated my blog entry with a link but then decided to take it down out of concern for the privacy of the Long children.

The main gist is that there was conflict between Mr. Long and an adolescent daughter over her disobedience to his strict rules. She ran away from the family home and reported to the police that his corporal punishment was abusive and that he did not protect her and her sisters from sexual abuse by a family friend. An older daughter not living with the family made similar allegations. The parents and the other children dispute the allegations and basically characterize the two daughters as disgruntled.

It's a classic "he said/she said" situation and we will probably never know the truth. Perhaps the corporal punishment did cross the line into abuse or perhaps that's an exaggeration by a deeply troubled teen.

Personally, I do believe that she most likely was molested by the family friend and that the parents chose to believe the friend over their "wayward" daughter. A similar situation happened to an older woman I know when she was a teen. She reported the abuse to her deeply religious mother and the mom refused to believe that it was the truth. I can't understand why a parent would do that but sadly it's not all that unusual a situation :-(

If it legitimately *is* an abusive situation, simply forcing the kids to attend a traditional school is no guarantee that it will stop. The child welfare authorities should be the ones monitoring the situation and removing the children if that become necessary.

Christina said...

Crimson, I wanted to say thanks so much for allowing so much discussion here on your blog. I've been out all day at various music lessons (and parks with the toddler) and haven't had time to write a post for my own blog. I was also waiting until CHN or HSC got a synopsis and opinion on their site, since I'm not interested in linking to one of the "homeschooling is now illegal" panic-stricken articles published elsewhere!

I agree that traditional school isn't going to solve the family's problems. I'm sad that they are so troubled, and wish there was some system (private or public) that might be able to help them. I'm also mad as heck that the appellate court chose this terrible path to do their work. Regardless of what others say, this ruling *is* law; that's how the judicial system works. It's not legislation, but U.S. law is a combination of legislation and jurisprudence and always has been. Now we've got to figure out how to rearrange the mess...

Crimson Wife said...

Tammy Takahashi of CHN has a good blog post on the topic, which I encourage everyone to check out if they haven't seen it yet.

I've been spending WAAAAAY too much time on the 'Net these past few days, but the whole situation has just been exacerbating my tendency to be an information junkie....