The usual caution about my not being a lawyer applies in spades to this entry, because it is related to asylum law, which is an area that is new to me even as an interested layman.
Germany outlaws home schooling across the board. As a patriotic American, when I hear of such cases, and knowing (ahem) how generous America is with its immigration policy, I often say, "Get out! Come to America! Be free!" Is that not what many people have done over the decades when faced with totalitarianism?
Well, not anymore. Our government, which is eagerly pursuing amnesty for millions of illegal immigrants, is also actively appealing a case in which a German home schooling family, the Romeike family, was granted political asylum in the United States by a federal court ruling by Judge Lawrence Burman. Apparently this is the sort of thing that the Obama administration considers really important to pursue: Making sure that persecuted Christian German home schoolers are not granted political asylum in the U.S. Why, if we did that, more of them might manage to come here and ask to stay on similar grounds! And that would be a Bad Thing, for some reason.
I fully admit that the law of asylum as it has been worked out has, shall we say, some fuzzy edges. It seems to be based entirely on the question of whether you would, if you returned, face personal persecution because of your membership in an identifiable group of some sort--because of your membership in a social group, your race, religion, or political opinions. That seems to allow a lot of leeway, and Judge Burman's opinion that religious people persecuted simply for home schooling their children (not for being educationally negligent) fall under one or more of these categories is by no means manifestly unreasonable. So the federal government's determination to have the decision overturned is all the more disturbing. All the more so since the German government has been absolutely explicit that its total ban on home schooling is meant to prevent the rise of "religiously and philosophically motivated parallel societies." In other words, if you are not what the German government considers a part of ideologically mainstream society, forcing you to send your children to school is intended to make sure that you don't pass on those non-mainstream views too successfully to your children. Predictably, it is people who do have somewhat different views of the true and the good who are most likely to run afoul of this intentional indoctrination and therefore to be punished by the government. It is hardly implausible, then, to say that this amounts to persecuting people for their religious and/or political views: The government wants to prevent their conveying their worldview to their children; the parents are resisting this attempt at absolute standardization and indoctrination and are being punished for doing so. The parallel to the persecution of Baptists in Soviet Russia for taking their children to church and for holding Sunday Schools and religious youth camps for children is instructive.
The U.S. government's arguments to the contrary are disturbing. Here's what I tease out as a kind of unspoken background to those arguments: We don't want just any person who disagrees with the laws of his country to be able to come to the United States, because (among other things) the laws he disagrees with might be perfectly reasonable. If someone in Britain started a religious or political group devoted to driving on the right side of the road and were being "persecuted" with traffic fines, it would be trivializing to grant him asylum in the U.S. on those grounds. His objections to the British traffic laws would be unreasonable, and even though he belongs to an identifiable political, religious, or social group (namely, right-side drivers), that doesn't give him grounds for portraying himself as any sort of political martyr or dissident. His claim for asylum is frivolous. Such an argument would apply in spades if someone applied for asylum on the grounds that he wants to engage in terror bombings and that his sincere religious belief in the imperative of violent jihad is causing him to be persecuted by his country of origin. After all, he should be "persecuted" for acting on such a belief in the U.S. as well!
So somewhere along the line some questions have to be raised: "Okay, so this person belongs, perhaps by his own choice, to an identifiable social, political, or religious group, and that's getting him in trouble with his own government. But is his government reasonable for punishing him, or is his government being totalitarian for doing so?" The involvement of some sort of evaluative judgement is unavoidable. Or so it seems to me.
The HSLDA's discussion in this article suggests that these sorts of considerations come in when arguments are being considered for asylum for belonging to a particular "social group." Apparently the precedents/law on this (I don't know how much of it has been written legislatively) say that the membership in the social group must be based on an "immutable" characteristic, where "immutable" can actually mean what one would ordinarily mean by "mutable" so long as the characteristic is one that the person "should not" be asked to change. Got that? What this would seem to mean is that if you're part of a social group whose distinguishing characteristic is that you are trying to avoid a seriously unjust law, then you may be eligible for asylum in the U.S.
(As an interesting side note, the U.S. Congress has set up in law that persecution for resisting coercive population control laws counts as persecution for one's political opinions. Not more than one thousand refugees can be accepted into the U.S. per year on this basis.)
The argument from the present U.S. government that home schooling is a "mutable" characteristic amounts, then, to an argument that laws that ban all home schooling, regardless of the ability or willingness of parents to offer a quality education, are prima facie perfectly legitimate and understandable laws. This is an unpleasant thought.
Though the headlines on the articles about this case have often highlighted the fact that the brief from the USG says that home schooling is "not a fundamental right," to my mind the "fundamental right" phrase is not so much the issue. (Though it may have a meaning in asylum law that I haven't yet figured out.) Some people are a bit wary of the language of "fundamental rights" anyway, especially when applied to something other than the right to life, and then there is always a question as to what it means for something to be a fundamental right if one can lose it for cause. I imagine that some of us would say that an "unschooler" might lose the right to home school, because he is giving his twelve-year-old (say) no clear education of any kind. Does that mean that home schooling isn't a fundamental right?
But never mind all that. Let's put it differently: The U.S. government thinks it's okie dokie, no problemo, perfectly reasonable, for a government to insist that your children, and everybody's children, be taken away for schooling by the state just because you might otherwise be raising them in countercultural ways, and the government wants to get in first and indoctrinate your children. The brief for the USG apparently made a reference to the fact that the mandatory public schooling in question is "only" about twenty-six hours a week, but why draw the line there? Why wouldn't it be reasonable for the government of Germany to counter the rise of "parallel societies" based on "religious or philosophical" ideas by requiring that all children be sent to boarding school? They could see Mom and Dad for a few days or a couple of weeks during holidays. After all, boarding school for those rich enough to afford it for their children was extremely widespread in Britain for a long time. Maybe it still is, for all I know. It was considered a privilege.
Another bad argument by the U.S. government deserves mention: They reject the claim that the home schoolers are being persecuted for their religion on the grounds that a) not all home schoolers are Christians and b) not all Christians are home schoolers.
This is an extremely poor argument and a dangerous type of legal thinking. As the HSLDA points out, it is also contrary to domestic precedents that hold that religious exercise freedoms belong to the individual, not to the group. What the Obama administration is attempting to do is (as we've seen elsewhere) to put in place a more European and/or Canadian notion of religious liberty. On this notion, for example, it is only churches or "houses of worship" that have religious freedom, and then only with respect to their actual pastors or worship, not with respect to any of their other actions in the world. The UK government attempted to argue, similar to this argument from the Obama administration, that a woman was not religiously discriminated against by British Airways for wearing a cross, because wearing a cross isn't generally required of all Christians.
This mode of thought is very problematic as a gutting of religious liberty claims. In particular, it would have quite a negative impact on precisely those countercultural religious people who are not simply "going with the flow" even when the leaders of their denominations do so. For example, in Quebec all educators, including home schoolers, are required to use objectionable curriculum for teaching about sexual and religious matters, and (unfortunately) some Catholic bishops apparently see no problem with it. This could leave Catholic home schoolers who consider that the bishops have made a mistake without a larger body or authoritative declaration to appeal to, and the government could easily say, "See, it isn't a requirement of your religion that you not teach this material, because your own religious leaders are going along with it."
Finally, as I mentioned at the outset, there is another elephant in the room: This is the very U.S. government that is urging a widespread amnesty for illegal aliens. Such a widespread amnesty would undoubtedly include people who have far less obvious potential for being good American citizens than the Romeikes. And is this not ironic? The German government is pursuing home schooling as though it is a hotbed for breeding terrorism and "non-assimilation" in some sinister sense. Yet it is fairly evident that when it comes to more ordinary notions of being law-abiding and hard-working and in that sense being "good citizens," Christian German home schoolers like the Romeikes are among a country's best bets. Moreover, the Romeikes are trying to follow the rules and get permission to be here--by itself a good indication that they are conscientious people rather than scofflaws. So why is this same U.S. government, which wants us to grant widespread amnesty to illegals, insisting that we have no room here for the Romeikes? Why couldn't they just leave the matter with Judge Burman's opinion that the Romeikes qualify for asylum? It's my opinion that the reason is that the Obama administration is particularly hostile to people like the Romeikes. As leftist ideologues, the members of the Obama administration really detest Christian home schoolers who want the freedom to pass on their worldview to their own children. In fact, these leftist ideologues are in deep sympathy with the totalitarians in the German government who want to break that link between Christians who are probably (for example) social conservatives and their own children--a link deemed especially precious by those of us who want to pass on our culture from generation to generation, to bring up our children in the "nurture and admonition of the Lord." In other words, I believe the Obama administration is spending time and resources on pursuing the Romeikes because the members of this administration are our enemies--the enemies of Christians and (probable) conservatives who take their faith seriously and want to teach it to their children.
We should pray for the Romeikes and also pray that God would deliver our own country from the darkness into which it is speeding.