The Free Exercise of Religion and Public Schools: The Implications of Hybrid Rights on the Religious Upbringing of Children
This Note argues that parents have a fundamental right under the U.S. Constitution to direct the religious upbringing of their children and that courts interpreting Smith have systematically misunderstood and misapplied the Supreme Court’s confusing hybrid rights language. Part I explains how Yoder and Smith create and preserve parents’ right to direct the religious upbringing of their children. The essential point is that the free exercise right and the parental right are not examined independently and simply added together, but instead are incorporated together to provide a specific bite to the free exercise claim. Part I also examines the lower courts’ treatment of hybrid rights claims and argue s that no lower court has correctly articulated the hybrid rights standard be cause they have looked solely at the language on its face without sufficiently examining the purpose and history of the right. Part II delves deeper into the Supreme Court’s Free Exercise Clause jurisprudence and argues that parental free exercise challenges to public school policies must be analyzed under pre –Smith scrutiny. For example, the hybrid rights language requires that parents have a fundamental right to direct the religious upbringing of their children as exemplified by Yoder. Part II further explains why parental free exercise claims must be treated seriously and proposes a solution in how the scope of this right should be applied by detailing the proper scrutiny that courts must use .