Originally posted on the Gender & Sexuality Law Blog on August 12th, 2014.
Do you need to know algebra in Heaven? The plaintiffs in a recent state court case in Texas think not. The plaintiffs, Michael and Laura McIntyre, removed their nine children from the public school system in 2004 order to homeschool them, which is perfectly legal in Texas (and many other states) providing that you actually do the “school” part of “homeschool,” not just the “home.” (Five of the children are still minors and at issue in the lawsuit.) But then they stopped homeschooling them too, because, it is alleged, they are convinced that (1) the Rapture is coming, (2) their children are sure to be raptured, and (3) apparently their children will not need any earthly education in Heaven. When the State of Texas filed truancy complaints against the McIntyres they sued for declarative and injunctive relief under the Texas Constitution and the Texas Religious Freedom Restoration Act, as well as the US Constitution and other Texas statutes. 
The McIntyres, being no fools, hired lawyers who had in fact gone to a lot of school, and who argued that Wisconsin v. Yoder gave the family the right not to educate their children. In Yoder, members of an Amish community challenged a Wisconsin state law that required their children to attend school until the age of 16, arguing that their free exercise rights should include the right to pull their children out of school at 14. The Supreme Court found they had a constitutional right to skip those last two years of compulsory education, focusing on the particular nature of the Amish community (insular, upstanding, self-sufficient) and the fact that almost all Amish youth, according to the Court, would be remaining in the Amish community and would need vocational skills more than traditional education.
The Texas Eighth District Court of Appeals ruled against the McIntyres, rightly holding that the US Constitution has never guaranteed an absolute right to control over a child’s upbringing or education, and that the facts in Yoder were so specific and context-dependent as to not be generalizable to other communities or fact patterns. But I want to briefly point out another problem with the claim in this case – which was an overlooked problem with Yoder itself. One problem with the outcome in Yoder that has not received sufficient attention is that it had the potential to impose serious burdens on Amish adolescents who might *want* more education and might *want* to leave the community, but who would be ill-prepared to do so if they had no legal right to attend school past the eighth grade. In my work on third-party harms from religious exemptions I have called the parties affected “existing rights-holders” and cautioned that religious exemptions can impose serious consequences on them. The Amish teens were such existing rights-holders – and so was at least one of the McIntyre children, Tori, who ran away from home in order to attend high school. As I’ve argued elsewhere, a more robust way of understanding the interests of existing rights-holders when analyzing requests for religious exemptions (whether statutory or constitutional) would give us a more comprehensive picture of what’s at stake in these debates.
 This case was slightly unusual because generally a court hearing a federal constitutional challenge as well as a state or federal RFRA challenge will reach the RFRA question first, and that will usually be dispositive, because RFRA provides more protection than the federal constitution for free exercise, so if you win under RFRA there is no need to reach the constitutional question and if you lose under RFRA it is very unlikely you would have a claim under the First Amendment. In this case however, the plaintiffs had failed to satisfy an exhaustion requirement for their state RFRA claim, and so the Court had to decide their First Amendment claim.
Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.