Jacob A. Aschmutat^† | 2 Regent J. Glob. Just. & Pub. Pol. 127 (2015)

ABSTRACT

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. For example, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified.

Several decisions by the European Court of Human Rights (ECHR)  give little to no credence to religious freedom within a homeschooling rights context. These decisions reflect a government’s preference to restrict homeschooling, justified primarily by a need to “stamp out parallel societies.”

This Note suggests that Germany’s compulsory education laws, which originate from Adolf Hitler’s Third Reich, are overly broad, brutally enforced, and they restrict a family’s ability to practice their religion through homeschooling. The Note proposes an alternative framework that the ECHR could employ to evaluate the both the legitimacy of such laws and the petitions by homeschooling families. This framework allows for courts to account for both a potentially reasonable law and weigh it against the religious interests of a family. Incorporating an approach will promote consistency, reliability, and objective analysis by a reviewing court, and will ultimately ensure an appropriate balance between religious liberty and state interests in ensuring an educated body of citizens.

INTRODUCTION

On August 29, 2013, the German Wunderlich family experienced a jolting break from their traditional morning routine.¹ At 8:00 a.m. that Thursday morning, a swarm of twenty state officials broke down the Wunderlich’s house door with a battering ram and took into custody all four of their children, each under the age of fifteen.² A police officer shoved Dirk Wunderlich’s, the father, into a chair, and refused to allow him to make an initial phone call.³ The officer physically restrained Mr. Wunderlich because the judicial order authorizing the removal of the children also permitted the army of state officials to use force.⁴ The German government separated this family and imposed criminal charges on the parents for homeschooling, an act in violation of Germany’s strict compulsory education laws.⁵

As more families around the globe become dissatisfied with their government-run school systems, the Wunderlich story is not uncommon.⁶ In 2006, five German families sought to remove their children from school temporarily because of certain required sex education classes that conflicted with their religious worldviews.⁷ The European Court of Human Rights (ECHR) denied their petition.⁸ That same year, the Konrad family petitioned before the ECHR requesting that the state exempt them from their region’s compulsory education statute so that they could educate their children in conformity with their religious and moral beliefs.⁹ The ECHR denied their petition.¹⁰ In 2013, the Romeike family sought legal shelter in the United States in fear that the German government would separate them for trying to homeschool, even when homeschooling for religious purposes.¹¹ Germany denied their request for an exemption and the Sixth Circuit denied their claim for asylum.¹²

This Note proposes that the German laws at issue in the aforementioned cases conflict with the internationally recognized right to religious freedom. This freedom encompasses parents’ rights to homeschool their children. This Note explores the issue of religious freedom and its extension to the right to homeschool in six main parts. In Part I, it begins by exploring the general concept of religious freedom and its significance to society. Part II examines both the nature of international religious freedom and its relation to Germany’s compulsory educational legal system. Part III accounts for a domestic perspective in Romeike v. Holder, noting language in the American system that supplements this threat to religious freedom. Part IV discusses homeschooling: what it is, why it is done, and why its nature comports with international religious freedom. Part V explains two ECHR cases involving both homeschooling and religious freedom. Part VI argues that the ECHR used a faulty approach in analyzing those cases, and presents the correct alternative analysis.

I. RELIGIOUS FREEDOM: ITS NATURE AND SIGNIFICANCE TO CIVIL SOCIETY

Certain activities exist strictly in a religious context: prayer, church attendance, tithing, giving to the poor, and the taking of communion—to name a few within the Christian faith.¹³ Because a Christian’s relationship with God is the driving force behind these activities, to restrict the performance of these activities is to infringe on one’s freedom of religion.¹⁴

The freedom of religion is the liberty to act in accordance with one’s religious convictions and thus with the choices they make as a result of those convictions.¹⁵ One may externally discern these convictions by focusing on the religious texts, longstanding traditions, or rules imposed by a legitimate institution or its representative.¹⁶ When a person acts because of his religious beliefs, the state has very little leeway in restricting the activity.¹⁷

Because one of the cores of civil society is freedom, and religious  liberty is an important manifestation of freedom, restricting the activity presents a detriment to society.¹⁸ Civil society is important because of the “social capital” it creates through the proliferation of certain virtues among its members: commitment, responsibility, and trust.¹⁹ Each of these ideals enables citizens to contribute to the “common good of society.”²⁰ The state furthers the ability of citizens to pursue these values by not interfering with their practices.²¹ In other words, by restraining itself in its regulatory power to a certain extent, it may permit citizens to contribute to the common good.

This describes the nature of civil society and freedom in general. What does religion, and therefore religious freedom, specifically offer to encourage individuals to contribute to society’s common good?Speaking primarily of monotheistic religions, people are convinced that behaving in a responsible and dedicated way reflects a mindset where their Creator primarily holds them accountable.²² This accountability contains a “commitment to build the common good, through personal responsibility and a relation of trust with other persons [that] is generated by recognition of the truth that has been given by God to human beings.”²³

While homeschooling is not only practiced by Christians, this Note focuses on the Christian faith due to its wide prevalence within the homeschooling communities.²⁴ Christianity is a unique monotheistic religion because it is one of the few that focuses on a loving relationship between a single all-powerful deity and humans as the deity’s creation.²⁵ This definition is important because relationships contain an element of choice, an element also inherent within the concept of liberty.²⁶ According to Christianity, a legitimate religious experience—the relationship with God—thrives only within a domain of freedom.²⁷ As one scholar explains,

This explanation of the Christian faith and its relationship to a Christian’s interaction with the state becomes important in the discussion of the general choice to homeschool since, as the following sections point out, religious fundamentalists dominate that particular community.

1 Verboten Values: Home Schooling in Germany and the Future of Freedom, THE FEDERALIST (Sept. 18, 2013) http://thefederalist.com/2013/09/18/verboten-values-2/.
2 Id.
3 Billy Hallowell, ‘Brutal and Vicious’: Armed German Police Storm Homeschooling Family’s House and Forcibly Seize Children, Report Claims, THE BLAZE (Aug. 30, 2013, 3:25 PM), http://www.theblaze.com/stories/2013/08/30/brutal-and-vicious-armed-german-policestorm-homeschooling-familys-house-and-forcibly-seize-children-report-claims/.
4 Id.
5 See Wunderlichs Regain Freedom to Leave But Vow to Stay and Fight, HOME SCH. LEGAL DEF. ASS’N, http://www.hslda.org/hs/international/Germany/201408280.asp (last visited Aug. 28, 2014).
6 For example, families in China have recently expressed serious dissatisfaction with their government-run public school systems. China maintains strict compulsory education laws, but thousands of families seek to homeschool due to rampant bullying, teacher-student abuse, and ineffective academic preparation. See, e.g., Lilian Lin, Homeschooling Becomes More Popular in China, WALL STREET JOURNAL (Aug. 27, 2013), http://blogs.wsj.com/chinarealtime/2013/08/27/homeschooling-becomes-more-popular -inchina/?mod=e2tw; Karen Lee, Legal Loophole Opens Up Chance for Homeschooling, S. CHINA MORNING POST (Jan. 7, 2014), http://www.scmp.com/news/hong-kong/article/1399191/legalloophole-opens-chance-homeschooling.
7 Dojan v. Germany, 2011-V Eur. Ct. H.R. 511, 514–16.
8 See id.
9 See Konrad v. Germany, 2007 Eur. Ct. H.R. 435, 437–38 (2006).
10 Id. at 444.
11 Romeike v. Holder, 718 F.3d 528, 530 (6th Cir. 2013).
12 Id.
13 These activities are not performed by a Christian by “obligation,” per se, but because of their direct connection to the Christian faith, which involves the development of a relationship with Jesus Christ. See Silvio Ferrari, Religion and the Development of Civil Society, 4 INT’L J. RELIGIOUS FREEDOM 29, 31–32 (2011) (noting the unique “communitarian dimension” of Christianity as a religion, a dimension enveloping both the human and his deity). See generally Romans 12:12; Hebrews 10:24–25; Malachi 3:8–10; Proverbs 22:9; Luke 22:17–20 (New International).
14 See Ferrari, supra note 13, at 32–33.
15 Michael J. Perry, Freedom of Conscience as Religious and Moral Freedom, 29 J. L. & RELIGION 124, 128 (2014).
16 Determining what constitutes religion can be a tricky feat. One scholar suggests three categories of “religion” that may help to determine whether the religious practice is legitimate for the purposes of the ideology in question: religion as belief, religion as identity, and religion as a way of life. For the purposes of this Note, a parent’s choice to homeschool their children likely falls within the third category: religion as a way of life. T. Jeremy Gunn, The Complexity of Religion and the Definition of “Religion” in International Law, 16 HARV. HUM. RTS. J. 189, 200–205 (2003) (“In this facet, religion is associated with actions, rituals, customs, and traditions that may distinguish the believer from adherents of other religions. For example, religion as a way of life may motivate people to live in monasteries or religious communities, or to observe many rituals, including praying five times a day, eschewing the eating of pork, or circumcising males.”).
17 See, e.g., American Convention on Human Rights, art. 12, Nov. 22, 1969, 1144 U.N.T.S. 143 (providing that the “[f]reedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.”).
18 See Ferrari, supra note 13, at 29, 32–33.
19 Id. at 30 (citing ROBERT D. PUTNAM ET AL., MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY 88–89 (1994)).
20 Id.
21 See id. at 30–31.
22 See id. at 31.
23 Id.
24 Robert Kunzman, Homeschooling and Religious Fundamentalism, 3 INT’L ELECTRONIC J. ELEMENTARY EDUC. 17, 19–20 (2010).
25 In his text comparing the various worldviews that influence how we view ourselves, others, and reality, James Sire explains the uniqueness of Christian theism regarding the longing for a relationship with a higher power. See JAMES W. SIRE, THE UNIVERSE NEXT DOOR 28, 32–34 (5th ed. 2009) (“How does God fulfill our ultimate longing? He does so in many ways: by being the perfect fit for our very nature, by satisfying our longing for interpersonal relationship . . . by being in his infinite love the cause of our hope for salvation.”).
26 See Ferrari, supra note 13, at 32 (noting that the communitarian dimension of Christianity “is based on a personal assent that questions the responsibility of each individual. In other words, persons are not born Christian but become Christian, and they become so not because they are members of a community, a people or a family, but because of a personal choice.”).
27 Id.
28 Id.

† B.A. 2012, Howard Payne University; J.D. 2016, Emory University School of Law.