-July, 1998

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(The following is a first draft of a survey of reported court decisions dealing with the Amish. The primary purpose of the survey is not to examine the issues of freedom of religion, but rather to examine the Anabaptist norm which prohibits the taking of lawsuits to court in the first place. This paper forms a chapter in a proposed monograph dealing with Hutterite litigation and more general material on the Anabaptist anti-litigation norm and the legal issues involving property and other disputes within religious organizations.)

I. Introduction

In the 1680's Jakob Amman, a Mennonite bishop within the Anabaptist community that had fled from Switzerland to the Alsace region of France, favored a harsher shunning of excommunicated members than did other leaders in the community. The Mennonites at that time applied the ban by excluding the excommunicated members from having communion in church, but they did not ostracize the wayward by discontinuing social relationships with them. However Amman insisted on a full ban against those who were excommunicated. Subject to giving aid in emergency circumstances, he argued that church members should have no business or social contact with the banned person and even normal family relationships should be severed between husband and wife, and between parents and grown children. If the excommunicated would not repent and rejoin the community, the ban would extend for life.

While the Anabaptist community refused to participate in the use of weapons of violence to defend the state or to uphold state law, they still had a way of enforcing, as it were, the law of the church community by way of the ultimate penalty of the ban and shunning. Undoubtedly hurtful to the person shunned, the process was nevertheless justified by a higher love. Shunning, in terms of isolation, was not suppose to be a rejection of the person, but rather a process of putting nonviolent pressure on the person to return to the fold. Thus, the motive of the shunning was evangelistic; restorative rather than punitive. In addition, the use of excommunication and shunning kept the church, however imperfect, striving for a level of "purity" of discipleship, rather than relapsing into the old ecclesiastical structure of inclusive citizenship with virtually no ethical passport required. The idea of church discipline was directly related to the fundamental Anabaptist concept that being a Christian was not simply a matter of having the right beliefs but much more a matter of having the right fellowship and following the ethics of Jesus. The ensuing controversy over the ban and other issues eventually led to a split starting in 1693 within the Mennonite community between those that followed Amman, and those that did not. Eventually, Amman's followers became known as the Amish or Amish Mennonites.

In addition to the use of shunning which is also used by Hutterites and more conservative branches within the Mennonite community, the Amish, who now live only in the United States and Canada, have persisted for almost three hundred years in retaining a deep separation from mainstream culture. Hostetler summarizes some of the main contemporary Ordnung (rules of the community) as follows:

Although there are slight variations among Amish communities, the most universal norms include the following: no high-line electricity, no telephone in the home, no central heating system, no automobiles, no tractors with pneumatic tires, and horse drawn machinery must be used for farming. Married men must wear beards, but moustaches are not allowed. Members must dress in plain and traditional styles of clothing. No formal education beyond the elementary grades is a rule of life. No meetinghouses are allowed, because members gather in farm homes for worship services...⁽¹⁾

There have been disagreements over the incorporation of some aspects of modern technology leading to some schisms in the community. The majority of Amish are Old Order Amish who have no electricity or telephones, and still use horses for field work and horse and buggies for transportation, and worship in houses, and so forth. However, some New Order Amish allow electricity, telephones, and tractors, while still using horse and buggy transportation. Still more liberal are the Beachy Amish who allow cars to be driven.⁽²⁾ What appears to the outsider to be a gross confusion between the normative demands of Christianity and the contingencies of culture may on closer reflection lead to a realization that the Amish negotiate the exclusion or inclusion of various technologies and cultural practices precisely on the basis of how these practices affect both the fellowship of the community and the boundary between that community and the outside world.

Moving directly to the issue of litigation, we are told repeatedly that the Amish do not go to law or engage in lawsuits.⁽³⁾ Such action would be contrary to the nonresistance stance of turning the other cheek and of humbly accepting the suffering imposed on them. The issue of litigation in the Amish context must be viewed in the prism of the Anabaptist concept of "Gelassenheit", which means yielding self interest to the higher authority of the will of God and yielding the self in service to the authority of the church community and the norms (the Ordnung) of the community. Nonresistance is part of the stance of Gelassenheit as the Christian does not take revenge on enemies, but rather accepts suffering and seeks always to serve. The filing of a lawsuit seeking personal rights enforced by the violence of the state is a profound violation of Gelassenheit which means "giving up" and "giving in."⁽⁴⁾ The rejection of lawsuits by the Amish is consistent with their general attitude, not just to the separation of the church and the state, but also the withdrawal of the church from participation in the state. At bottom the state uses violence in preserving domestic order and peace. This is a God ordained function in a fallen world, but it is an order that is incompatible with citizenship in the Church which requires sacrificial love in all human relationships.⁽⁵⁾

The withdrawal model of separation is increasingly under pressure as the so called Amish Kingdom is pervasively regulated by the laws of the State Kingdom. Conflicts between the Kingdoms have led the Amish to be more involved in negotiating with the government, which is itself a kind of participation in the affairs of State.⁽⁶⁾ While we will focus on Amish involvement in litigation, it should be noted that some issues such as laws requiring hard hats to be worn while working at various activities, or laws dealing with the form of alternative service required of conscientious objectors, have been resolved by granting exemptions to the Amish on religious free exercise grounds or passing alternative regulations which meet the interests of the state without violating Amish norms and without resort to litigation.⁽⁷⁾ However, in most of the issues we will survey, negotiations have taken place alongside various court proceedings.

Our own survey of the reported decisions involving the Amish does not completely correlate with the "no litigation" assertions. While there does appear to be a solid prohibition in regard to taking civil cases to court, in the area of cases involving governmental regulations, the Amish have been in frequent conflict with the law and in fact have used lawyers and litigation to defend their way of life in court. While sympathetic outsiders have sometimes provided lawyers for the Amish in these cases, given their reluctance to litigate, the Amish individuals involved still had to consent to such representations and thus it seems to me to be incorrect to posit a general norm against any court involvement. It appears rather from the cases that the court involvement of the Amish is limited to defending claims brought by governmental authorities or appealing convictions against them, while more aggressive test case litigation involving the institution of legal action against governmental authorities is still rejected.

II. Civil Litigation

The bringing of civil lawsuits against individuals or private entities violates Amish norms. As Kraybill asserts:

The Amish want to be law-abiding citizens but are reluctant to use the legal system to protect their rights. Lawyers are readily used by the Amish to prepare wills, establish business partnerships, and handle real-estate transactions, but using the law to protect one's personal or business rights contradicts the humility of Gelassenheit. Filing a lawsuit is cause for excommunication. The Amish are taught to bear abuse and suffer insult rather than engage in legal confrontation. But as more Amish move into business, use of the law becomes more tempting.⁽⁸⁾

This proposition is supported by the fact that the only reported civil cases that existed until very recently were ones dealing with excommunicated former members bringing lawsuits against church officials for damages for shunning or an injunction to stop the shunning. The bringing of such a lawsuit, whatever the outcome, would simply confirm the status of the plaintiff as acting outside the norms of the community.

1. Law Suits by Ex-Members

In Gingerich v. Swartzentruber, tried in Holmes County, Ohio in 1919, a court granted an injunction against church leaders in an attempt to stop the community ban against a former member of the church.⁽⁹⁾ Apparently this case was not about the legality of shunning in terms of making arguments that the withdrawal of social and financial association could cause harms that were actionable in law. Rather the plaintiff claimed that the minister of his church at the time had given him permission to voluntarily withdraw from the Old Order Amish church and join a more liberal variety, and yet despite this permission, he was being shunned. The minister in question was dead by the time of the trial and thus the legal issue revolved around the argument that the former congregation had no legal jurisdiction according to its own internal norms to excommunicate and then shun a member who had properly been given permission to voluntarily withdraw. The defendant church leaders did have legal counsel representing them at trial and when they lost the case, an appeal was launched, but then dropped at the request of the defendants.⁽¹⁰⁾ We do not know whether the injunction against shunning was ever enforced in this case. It is difficult to see how neighbours, short of some contractual duty, could be forced to associate with someone, socially or financially.

The second civil case dealing with litigation brought be a shunned excommunicated Amish person not only made headlines in Ohio but was followed by the national press.⁽¹¹⁾ In the 1947 case of Yoder v. Helmuth⁽¹²⁾ in Wayne County, Ohio, a jury awarded the plaintiff $5,000 in damages against the Bishop and three other church leaders of the local Amish district for placing the plaintiff under the ban and for also enforcing that ban through discipline of other church members who did not shun the plaintiff and by appeals to other local Amish congregations to shun the plaintiff.

In 1942 Andrew Yoder stopped attending the Helmuth District Old Order Amish congregation and, with his wife, he joined the more liberal Bunker Hill (Beachy) Amish Mennonite congregation. He was confronted by various ministers of his former congregation to give an explanation for his withdrawal, but he did not do so.⁽¹³⁾ Consequently Yoder was excommunicated and for the next five and a half years he was shunned. At the point of launching the law suit in 1947, Yoder listed his reasons for leaving his old congregation. These included a fundamental disagreement over the use of shunning in the first place, but of greatest significance, was the fact that Yoder had an infant daughter who was severely handicapped and needed weekly medical attention which required 30 mile round trips to Wooster, Ohio. Sometimes the family would have to make two trips a week and subsequently travel to more distant places to consult doctors.⁽¹⁴⁾ Thus Yoder desired to own a car which was forbidden by the Old Order, but allowed by the Beachy group. Several months after joining the Beachy congregation, Yoder purchased a car, but the evidence clearly shows that Yoder was excommunicated at a time when the Ministers did not even know that he had a disabled daughter. They claimed that in the spirit of Amish mutual aid, the whole community would have helped with the transportation needs if they had been told of the need and had Yoder agreed to abide by the church rules. (Apparently it is not wrong to hire a taxi but wrong to actually own a car.) At the time of the trial the daughter was over six years old and could not walk or talk and had to be cared for like a baby. These are the kinds of facts that would make any jury very sympathetic to the plaintiff.

Yoder claimed that the shunning over time caused him financial, mental, and physical harm. The judge in the case summarized the harm as follows:

The influence of this "shunning" and "miting" extended into the very family of the plaintiff. His father, an Amishman, was ordered and directed to "shun" and "mite" him, and being too slow in complying with the requirements, was, in turn, "mited" for a period of six weeks to two months. The father's chief failure consisted in his refusal to put his son, the Plaintiff, with a wife and seven small children off the farm he owned and had leased to said son. His brother exercised the "shunning" more religiously and had no dealings with, and would not associate with or eat with him for over five years. According to the defendant's interpretation of the Confession of Faith even his own wife, a member of the Amish church, should have "mited" him. In any business dealings he desired with Amishmen they either refused to associate or deal with him, or to accept his money. At Amish threshings, corn huskings or other joint work, he was compelled to eat in the cellar or on the back porch, usually by himself, or to drive home to eat his meal.

The Plaintiff worried, lost sleep, became nervous, at times he was unable to work, got ulcers of the stomach for which he had to have the services of a doctor, and among his own people he became an object of scorn and felt a continuing sense of shame and humiliation, "like a whipped dog," as he expressed it on the witness stand.⁽¹⁵⁾

Before he took the step of resorting to litigation, Yoder tried to have the shunning lifted. The minister of the Beachy congregation tried to negotiate with the Old Order leaders and when this failed Yoder's legal counsel tried to negotiate an out of court settlement. However, the Amish ministers were resolute. Finally, Yoder brought suit for $40,000 and an injunction. Bringing the law suit actually breached the rules of even his new congregation and at trial it was revealed that Yoder was not in full good standing with his new congregation due to the instigation of litigation.

Based on the 1919 precedent of Gingerich⁽¹⁶⁾ Yoder claimed that he had voluntarily withdrawn his membership and thus the church had lost any jurisdiction to excommunicate and shun him, since he was no longer a member subject to excommunication. But the more direct argument was that in any case the shunning was illegal because a conspiracy to boycott the plaintiff actually amounted to a violation of the plaintiff's civil rights of liberty to switch churches at will and without intimidation and coercion. Freedom of religion in the sense of being free to switch churches was classified by the lawyers for the plaintiff as a civil right that shunning interfered with, in the sense that pressure was brought to bear on the individual to return to the church of original membership. The lawyers for the plaintiff scored an easy point with the jury when they noted that Yoder was being shunned purely for leaving one church and joining another, when in fact both Menno and Amman had switched churches to found the movement in the first place.

The Amish church leaders as defendants did not hire a lawyer and predictably the evidence and argument during the three day trial overwhelmingly favored the plaintiff. The defendants basically pointed out that the practice of shunning the excommunicated was rooted in the Dortrecht Confession of Faith of 1632 and they were only doing what they sincerely believed was their freedom of religion to do and indeed their duty to do as they understood the Scriptures. The only moderating influence that the defendants brought into the attempt by the plaintiff lawyers to present shunning as a barbaric practice was the assertion that the motive was always to bring the fallen back into the fold, rather than to hurt the excommunicated, and furthermore that shunning did not preclude helping the person in time of trouble. The lengthy scripture reading and claims by the four defendant Amish church leaders that shunning was actually the best thing for Andrew Yoder's soul, and that his problems did not stem from the shunning but from his refusal to return to his confession of faith, hardly presented a sympathetic picture for the jury.⁽¹⁷⁾

The trial judge in charging the jury formulated a familiar distinction between religious belief and practice. You can believe as a matter of religion whatever you like, but you cannot claim legal exemption for religious practices if such practices violate the civil rights of others. The judge clearly viewed the shunning as an outrageous and barbaric act, and making an analogy to polygamy and slavery, he noted that these acts were illegal even if they were based on religious belief. The boycott of Yoder in an attempt to bring him back into the local Amish church allegedly affected the civil right of freedom to change churches. Because the Amish leaders were not represented by counsel, no counter arguments were made on behalf of the church elders about the violation of the separation of church and state that would result from state interference with the exercise of ecclesiastic discipline, nor was there countervailing arguments about whether any civil rights were really interfered with by shunning, in that persons should be free, subject to contractual obligation, not to associate with someone for whatever reason. Furthermore, in terms of civil rights, Yoder had made a "contract" upon baptism that he would accept both the norms and the potential discipline for breach of the norms.

The jury only took about a half hour to decide in favor of Yoder and probably the discussion was about the measure of damages rather than liability. Yoder had claimed $40,000 in damages, and the jury awarded him $5,000. More significantly however, the Judge issued an injunction ordering the shunning to stop. The judge acknowledged that he could not order individuals to associate with Yoder, but what he could do was order the church officials to stop telling people to shun Yoder and further that these church officials in turn would be acting unlawfully if they called for the shunning of people who failed to shun Yoder. As stated by the judge:

If there is anyone to whom a Church member does not want to speak, or to eat with, or to deal with, this Court has no right to stop that, but it does have a right, where there is a conspiracy against one, where orders and directions were given by those in authority, then it is the duty of the Court, by means of an injunction to stop that practice..... The defendants will inform the congregation of the Church that they need not obey any order or direction given by them to "mite" or "shun" the Plaintiff, and that will be the order of the Court.⁽¹⁸⁾

Given that the Amish leaders had lost the case and no appeal was taken, there was a sheriff's sale of the Bishop's livestock and other farming products and implements to help pay the court award to the plaintiff. Since this did not amount to enough to satisfy the judgment, other amounts were paid through donations. If the lawyers for the plaintiff believed that the Yoder litigation was a test case establishing that this sort of shunning was now illegal and would largely disappear along with Mormon polygamy, they were surely wrong. In the end the injunction was "satisfied" by the leaders reading it in church.⁽¹⁹⁾ Apparently this case ended in tragedy as Yoder's handicapped daughter died shortly after the trial as did two of the defendants. Finally, we are told that the plaintiff Andrew Yoder, unable to live with his conscience, hanged himself.⁽²⁰⁾

2. Other Civil Cases

Aside from these two shunning cases, brought by ex-members in violation of the Amish anti-litigation norm, there are only four reported cases that I could find, all from Ohio, where members of the Amish community were involved in civil suits.⁽²¹⁾ What is significant is that in three of these cases the Amish individuals involved were defendants, rather than plaintiffs. In two cases the Amish members were sued for allegedly failing to live up to a commercial contract. In one case the court dismissed the case against the Amish defendant and the non-Amish plaintiff unsuccessfully appealed.⁽²²⁾ In the other case, an Amish roofer was sued and lost the case and then the Amish roofer appealed the decision and lost again.⁽²³⁾ In the second case the Amish roofer refused to bring a counter-claim because of his religious belief, but he did appeal the verdict against him to a higher court. It may be that many Amish would view even the defence of such a lawsuit or an appeal of a verdict as a violation of the nonresistant ethic. Should the Amish person in business simply pay the claim if the plaintiff is unwilling to compromise and is intent on going to court, even if the Amish defendant views the claim as unjust? We do not know if the roofer was disciplined by the church for his involvement, but we could argue that there is a reasonable difference between invoking the power of the sword through litigation in court and filing a defence or an appeal in an attempt to argue that the power should not be invoked against you. In the third case, a claim was brought against an Amish plant manager alleging that he discriminated against the plaintiff in terms of religion. However, the court determined that the plaintiff had not even applied for a job.⁽²⁴⁾

While it is difficult to establish whether the individuals involved were Amish or Mennonite, or what their church status was at the time of litigation, there is one last case which clearly violates the Amish anti-litigation position, if the individuals were in fact Amish. Noah and Clara Troyer sued a variety of individuals and financial institutions in Federal Court in the Southern District of New York after losing money in what they alleged amounted to various misrepresentations involving security fraud.⁽²⁵⁾ One of the motions of the defendants was to have the case transferred to the Northern District of Ohio where all the transactions had taken place. The court agree to this and interestingly noted the motivation for the plaintiffs to have brought the suit in New York:

The Troyers claim that because of their Amish-Mennonite faith, they may be subject to social reprisals should it become known to fellow members of their sect that they are prosecuting this action in federal court.⁽²⁶⁾

It remains to be seen whether the Amish will be able to retain a strict prohibition on bringing civil cases to court. Given the high birth rates in the Amish community and the expense and shortage of agricultural land, the Amish have been increasingly involved in business activities.⁽²⁷⁾ The rapid growth of Amish entrepreneurial activity puts a strain on the tradition of never going to law. The question of debt collection within a context where creditors can exploit the Amish knowing that they will not go to law has led some Amish to consent to having cases brought in the name of a non-Amish business partner, or assign various cases to non-Amish friends or lawyers. This hair splitting idea of staying out of church trouble by not having your name on the lawsuit, but still benefiting from the coercive power of the state to compel the payment of debts owed to you, seems to me to be a violation of the traditional position, even if it has apparently been successful in stopping much of the exploitation.⁽²⁸⁾ The need for liability insurance for business enterprises, including product liability, has led some of the Amish to form their own church liability aid plan so as to avoid the litigation that often results when subscribing to a commercial insurance contract.

III. Governmental Litigation

1. The Use of Legal Resources

Compared to the virtual absence of civil cases, there are a host of reported court decisions dealing with the Amish and their conflicts with governmental authorities. Indeed in the United States some the Amish cases have been litigated all the way up to the Supreme Court and have become landmarks in the field of religion and constitutional rights. The issue that concerns me in this brief overview of Amish litigation is not so much the substantive questions of religious freedom posed in the cases, but rather the paradox of how it is possible to reconcile the fact that it is against the Amish religion to take cases to court and yet there are such a large number of Amish litigation cases. While the anti-litigation principle seems to be still solid in civil disputes, the Amish increasingly have refused to simply suffer in silence when religion and state law conflict, but rather they have utilized the courts to defend their cultural practices that are inseparable from their religious beliefs.

At one level there is evidence that hiring a lawyer even to defend against a claim brought by governmental authorities may be viewed by some church authorities as violating the Amish norms. For example, Huntington notes a case of an Amish individual charged with practising chiropractic medicine without a license and who hired a lawyer to fight the charges and as a result:

Joseph Helmuth was censured by the church, not for practicing medicine without a license, but for hiring a lawyer and going to court.⁽²⁹⁾

Dr. Hostetler cites some case studies that illustrate the basic presumption of the Amish that it is contrary to the nonresistant ethic of the Christian to "go to law". No apparent distinction is made between civil and criminal cases. In one case an Amish minister did not sue even though he lost a very valuable piece of property, and in another case a member was excommunicated because he hired a lawyer to defend himself on a charge of arson.⁽³⁰⁾

But at another level there is evidence for the use of legal resources for the defence of claims brought by governmental authorities. One answer to the assertion that even governmental claims must be met in a passive way is the somewhat hair splitting approach that the Amish have not really engaged in court battles at all, but rather sympathetic outsiders have done so on behalf of the Amish. This sort of approach is summarized by Robert Kidder when he tells of how Amish leaders dealt with various prosecutions of Amish youth who refused to comply with draft board orders during the Viet Nam War era. Kidder quotes one Amish leader as follows:

We might just take along someone [a lawyer] just to make sure that there isn't something done that shouldn't be done. Just to sit there and watch and be sure that the boy isn't treated unfairly. You know that can happen sometimes. But we aren't there to make a fuss or argue back or defend against the charges. But we do have some friends... lawyers... who will just go with us to court to make sure things are done the right way. But we never pay him and he always says he'll get around to billing us, but he doesn't seem to. So we just take him some fresh baked bread, or some garden vegetables, and that's how it seems to go. So we don't really hire lawyers or put up defences or anything.⁽³¹⁾

However, this sort of "limited" use of legal counsel is not the only story. At another level, in terms of the famous Yoder case litigated right up to the Supreme Court, it is true that the case was defended for the Amish by sympathetic outsiders, namely the National Committee for Amish Religious Freedom, but the legal services were not limited. As explained by William Lindholm, the Lutheran Minister who had been instrumental in founding the group:

As committee chairman, I drove to New Glarus, Wisconsin, to attempt the delicate task of gaining the confidence of the Old Order Amish. I explained that they were charged as criminals in the legal complaint. The committee's attorney would simply tell the judge what the Amish believed, and ask the judge to rule that their actions were protected by the Constitution's guarantee of religious freedom. I further explained that they would not be "suing anyone" or "taking anyone to law"- prohibitions in Amish religious teaching. Further, I said, they would not need to pay anything- an act viewed by them as defending themselves....I also told them that Saint Paul appealed his case to Rome (Acts 25:11) in case it was necessary to appeal to a higher court. The Amish agreed to sign a power of attorney...permitting their case to be pursued to its fullest conclusion. ⁽³²⁾

Finally, while we do not know what the reaction of the local church community might have been toward the individuals involved in the various lawsuits that we canvass below, there is evidence that the Amish do not just rely on outsiders to provide legal services, but have on occasion been willing to defend themselves in court when religious freedom is at stake. What is equally clear, however, is that the Amish do make a distinction between bringing a lawsuit against the government on one hand and defending a claim made against you by the government on the other hand.

2. Note on Free Exercise Jurisprudence

Before surveying the cases, we must at least note briefly the major paradigm shifts that have taken place as to the basic approach to the free exercise clause. To simplify the situation, there has been three dominant approaches which might be called first, the belief versus action test, second, the compelling interest test, and then third, the direct discrimination test.

In the Reynolds case of 1878 dealing with Mormon polygamy, the Supreme Court made a fundamental distinction between religious beliefs and religious practices.⁽³³⁾ The free exercise clause offered a kind of absolutist protection from governmental interference with your religious beliefs but it offered little or no protection for activities or practices based on those beliefs if such practices conflicted with the laws passed in the name of public health, safety and welfare. Aside from protecting some core activities of teaching and worship that are associated closely with the belief sphere, this approach gave a very limited scope to the meaning of free exercise. Free exercise became free belief which might well be costly belief as a the believer could be faced with the conflict between the demands of the law and the demands of faith when it came to actually acting in the world.

The big change in free exercise jurisprudence arrived in the case of Sherbert v. Verner

in 1963.⁽³⁴⁾ Here a Seventh Day Adventist was fired for refusing to work on Saturday and was denied State unemployment benefits. The Supreme Court granted to her an exemption from the applicable unemployment benefit requirements of the law and the court formulated the famous compelling interest test for free exercise jurisprudence. The loss of unemployment benefits was not just a legal cost that the believer had to bear for acting on her beliefs under the Reynolds formulation, but rather the court asserted that the burden was unconstitutional in placing this sort of legal cost on a person for exercising their religious belief in the workplace.

If someone objects to obeying a law because they personally judge the law to be immoral, they are not on that ground alone exempt from the law. But if the person can show that their judgment is grounded in their religious belief, they may well be exempt from the law under a compelling interest test, because the Constitution recognizes the fundamental importance of the free exercise of religion. Freedom of religion is not simply a matter of freedom to believe various religious doctrines or even freedom to propagate doctrine, but more importantly it is freedom to act on those beliefs and not be compelled by law to act inconsistently with those beliefs. Even legal disabilities, rather than compulsions, may impair or burden the freedom to act on beliefs. In short, deeply held religious beliefs are given priority over deeply held "secular" beliefs, in terms of potential exemption from law or accommodations made by law to protect people from having to act contrary to their religious faith. However, at the same time, the anti-establishment arm of the American Constitutional equation may allow some secular beliefs to be supported by law in a way that religious beliefs cannot be.

For the sake of simplicity the compelling interest free exercise test is often broken down into a three step process. First, is the objector's claim based on a sincerely held religious belief?

In the Amish cases, this first question is usually answered easily in the positive. Second, does

the government regulation burden the exercise of that religious belief? This second question has sometimes proven to be difficult in the Amish cases as a court may second guess the self expressed burden alleged by the objector. In the case of Slabaugh,⁽³⁵⁾ for example, a young Amish man objected to the alternative service duty of working in a state hospital because even such service might indirectly aid the war effort and more importantly would constitute a kind of co-mingling with the world that was forbidden by his religion. But the Federal Court of Appeals found that there was no evidence that the alternative service would in fact disrupt the religious beliefs of the Amish. Finally the third question to be asked when a burden on the religion has been established, is whether that burden is justified by a compelling state interest, which interest cannot be served by a less intrusive alternative to that of the law in question.⁽³⁶⁾ This third question is obviously a judicially controlled balancing test as the court weighs the value of the state interest against the degree of the burden on religion and decides one way or the other. Plainly such a balancing test is subjective, and depends ultimately on the values held by the judiciary as to the desirability of upholding religious beliefs in general or on the particular attractions or not that a particular religion has in the eyes of the judiciary. My survey of the Amish cases, establishes that in general the Amish have been very successful under the compelling interest test, and this may well be due to the kind of romantic notions that non-Amish have for the Amish way of life. It is not that we would want to live like that, but it sure seems to be an admirable lifestyle! Such notions could easily shift to hostility as the communitarian way of life is increasingly seen as inherently oppressive, particularly of women and children.

The compelling interest test by no means meant that the religious objector always won the day. In more cases than not the courts found that the value of the law outweighed the burden on religion, but nevertheless the approach was very important in upholding many of the fundamental practices of various religious communities such as the Amish in the face of laws that would have destroyed these practices.

In the famous 1990 Smith case, the Supreme Court of the United States adopted another approach, that circling back to Reynolds, reduced radically the meaning of the free exercise clause.⁽³⁷⁾ In Smith the compelling interest paradigm was overthrown for what might be called a direct discrimination paradigm. Only laws that singled out religious belief or practice or which in effect targeted religion would trigger judicial scrutiny, while laws of general and "neutral" application, even if they burdened religious beliefs and practices, would no longer be subject to judicially created exemptions in the name of free exercise. The compelling interest test would only be applied to so called neutral laws if the burden on religion could be combined with some other claimed violation of a constitutional right, like free speech or free association. This decision was so upsetting, that Congress ultimately passed the Religious Freedom Restoration Act of 1993 to restore the compelling interest test.⁽³⁸⁾ To make a long story short, this Act was struck down by the Supreme Court in City of Boerne v. Flores.⁽³⁹⁾ The Smith approach is nevertheless under intense pressure and time will tell whether it survives in a way which will negatively affect the Amish.

3. Education Litigation

The most frequently litigated issue involving the Amish in the United States has been the school question. The Amish were quite willing to send their children to public school when those schools were local one-room facilities and when the law did not require Amish children to attend beyond grade eight.⁽⁴⁰⁾ Indeed, given the wall of separation that the Amish find normative between life in the world and life in the church, it is surprising to learn that in an earlier era some Amish men even served on public school boards. The clash over schooling only arose with the modernization of the public school system as one-room schools were consolidated so that students would have to be transported to towns, and as the age of compulsory attendance rose to encompass high school, and as curriculum and teacher qualification standards became more sophisticated. All of these changes, however beneficial to the rest of society, conflicted with the Amish approach to education which stressed the basic reading, writing and arithmetic skills necessary for the life of being an Amish farmer or housewife. The result of this clash was that Amish parents were increasingly prosecuted for violating various school laws. Amish individuals were jailed for their beliefs, a great deal of publicity and controversy was engendered in several states, and eventually most of the Amish established their own private schools and took a more aggressive stance in litigation over the issue.⁽⁴¹⁾

The first school litigation in Pennsylvania tested the anti-litigation norms of the Amish community. Officials in East Lampeter Township in 1937 decided to close one-room schools and build a consolidated public school and bus children to it. A coalition of citizens, mainly Amish, organized themselves and as Kraybill notes:

Without the blessing of the church, but with the help of Philadelphia lawyers, they obtained a court order in April, 1937 to halt construction of the new building. The two-month building recess was soon overturned by a higher court. Construction resumed, and the "newfangled" school opened in the fall of 1937. Some Amish children attended a one-room public school that remained open, but others simply stayed home from school. In a surprising display of stubbornness, attorneys for the Amish renewed their fight in court.... The legal matter was finally settled when the U. S. Court of Appeals blessed the consolidated school... Such aggressive use of the law was rare, if not unprecedented in Amish history.⁽⁴²⁾

In 1937 an Amish father was convicted and imprisoned for keeping his 14 year old daughter from attending high school and this case was appealed unsuccessfully to the federal district court in Philadelphia.⁽⁴³⁾ As the Amish established their own schools, as well as keeping their children out of school after grade eight, various prosecutions of Amish parents continued to take place in Pennsylvania. At least one case resulted in a higher court upholding the freedom of religion claims of Amish parents.⁽⁴⁴⁾ However, in 1949 two Amish fathers were convicted for failing to send their 14 year old children to high school. They also appealed their conviction. Interestingly one of their lawyers was a Mennonite.⁽⁴⁵⁾ The Superior Court of Pennsylvania was quite unsympathetic to the Amish claim.⁽⁴⁶⁾ The decision was based on the old narrow separate spheres doctrine where religion is largely confined to belief and while the Amish could believe all they wanted that higher education was wrong, the statute compelling them to send their children to high school did not interfere with their beliefs but only penalized their actions which were presumptively subject to reasonable state regulations. That state regulation over mandatory school attendance was reasonable was obvious to the court:

..there is no interference with religious liberty where the State reasonably restricts parental control, or compels parents to perform their natural and civic obligations to educate their children. They may be educated in the public schools, in private or denominational schools, or by approved tutors; but educated they must be within the age limits and in the subjects prescribed by law. The life of the Commonwealth-- its safety, it's integrity, its independence, its progress,-- and the preservation and enhancement of the democratic way of life, depend upon the enlightened intelligence of its citizens. These fundamental objectives are paramount, and they do not collide with the principles of religious or civil liberty. Unless democracy lives religious liberty cannot survive.⁽⁴⁷⁾

Several years later, the Superior Court of Pennsylvania reaffirmed this position in upholding the conviction of another Amish farmer who did not send his 14 year old son to school after grade eight.⁽⁴⁸⁾

It is ironic that with the goal of increasing the educational standards by enforcing compulsory attendance beyond grade eight, the end result of the clash with the Amish was arguably to actually lower the standards of Amish education. As a result of the conflicts, most Amish communities abandoned the public school system not just beyond grade eight but completely. They established their own one room private schools taught by members of their own community who by definition could not have more than a grade eight education themselves. In retrospect, if various State governments had accommodated the Amish needs by continuing to provide public education to grade eight with qualified teachers for the Amish, the State's interest in the education of its citizens might well have been better served.

Even though the courts of Pennsylvania had ruled that the Amish had no legal right as a matter of freedom of religion to violate the mandatory attendance laws, the Amish and the State came to an agreement in 1956 that after grade eight the Amish students could fulfill the requirements of compulsory attendance by going to a special "vocational" school set up by the Amish. This involved some attendance at the Amish school for a few hours a week, but was mostly a matter of home study under the supervision of an Amish teacher.⁽⁴⁹⁾

In the State of Ohio, the Amish school question ultimately involved even greater conflict than in Pennsylvania. There were some convictions of Amish parents in Ohio going back to the early decades of the century.⁽⁵⁰⁾ However, in the 1940's when the Amish formation of private schools was well underway as a result of consolidation pressures, various prosecutions took place. The establishment of Amish private schools came under direct judicial scrutiny when an Amish father was convicted for failing to send his children to school. This case did not deal with the usual scenario of not sending a child after grade eight to school, but rather the Amish father did send his children to school, but he sent them to the Amish private school, which was not really a "school" according to the State, properly so called, because it failed to provide "instruction that was equivalent" to that of a public school as required by State law. While the law allowed for private schools, such schools had to meet the equivalency test and clearly the eight grades in the one room Amish school, with an untrained teacher and a primitive narrow curriculum and no electric lights did not compare to the "sophisticated" separate classrooms, trained teachers, and advanced curriculum of the public school. That freedom of religion might be at stake was again deflected by the narrow separate spheres doctrine when the case was unsuccessfully appealed to the Ohio Court of Appeals.⁽⁵¹⁾ The court stated:

No question of religious freedom is presented in this case. By requiring the defendant to provide for the proper education of his children, his right to worship according to the dictates of his conscience is in no way abridged, and his right to instruct his children in the tenet of his chosen faith is unquestioned.⁽⁵²⁾

Now that it had been established that the Amish private schools were operating in an illegal way, how could the State of Ohio enforce the school law in mass against the Amish? One approach was to actually increase the pressure beyond the fines and jail terms available in the education law. If the State could take custody of children because they were neglected by their parents, in that the parents would not send them to school, properly so called, the pressure to comply would be great indeed. In 1958 a threat to apprehend Amish children in Ohio was made in Wayne County as Amish parents were charged and convicted with child neglect and ordered to hand their children over to the State Board of Welfare. The parents were ordered to produce their sons at a hearing and after refusing to do so, the parents were held to be in contempt of court and jailed. The court again refused to accept the Amish claim that their action was protected as a matter of freedom of religion.⁽⁵³⁾ However, the sheriff was unable to find the boys in question and eventually on appeal the contempt citation was thrown out because the parents did not actually know where their children were hiding.

Although various increased penalties by way of fines and prison terms could be imposed on individual parents for breaching the law, the State authorities could hardly prosecute everyone and the attempt to apprehend children had raised negative publicity throughout the nation, and thus the Amish schools could not be shut down. State educational authorities came up with a new approach to coercion by launching in effect a civil law suit against various Amish leaders and parents on the grounds of public nuisance and attempting in this way to get a court injunction which would shut the schools down. Authorities succeeded in getting an injunction in Common Pleas Court, but on appeal to the Ohio Court of Appeals this approach to enforcement was rejected, since the operation of a private school, even one not meeting the proper minimum standards, could hardly cause the kind of damage to other people's property or civil rights contemplated by the public nuisance doctrine.⁽⁵⁴⁾ The State was limited to the statutory penalties for conviction of individual parents.

In throwing out the State claims, the court was careful to emphasis that it was not upholding any right of the Amish to run schools without meeting the proper standards, only that the public nuisance doctrine could not be used to restrain them from doing so. The State then appealed to the Ohio Supreme Court in 1961.⁽⁵⁵⁾ The highest court of the State again affirmed that the Amish operation of their schools, though illegal in terms of statutory requirements, hardly amounted to serious and irreparable harm to other non-Amish individuals so as to fit into a remedy of injunction under the public nuisance doctrine. If the remedies of prosecution under the compulsory attendance laws were inadequate then it was up to the legislature to pass new laws that might allow the authorities to shut down schools that did not meet the minimum standards.

Indeed, subsequently there was an attempt to pass legislation that would allow for injunctions to be issued against substandard schools, but it was defeated.⁽⁵⁶⁾

Unlike the situation in Pennsylvania and Ohio, relatively few cases of prosecutions arose in Indiana where eventually the State and the Amish reached agreements as to the standards for the Amish private schools. In 1948 in Indiana an Amish father was fined $200 and sentenced to jail for 60 days for failing to send his 14 year old son to high school. On appeal to the Supreme Court of Indiana, the conviction was quashed on various procedural grounds, but the Constitutional issue of freedom of religion was not addressed by the court because the matter had not been raised at trial.⁽⁵⁷⁾ I can only assume that the Amish farmer did not have a lawyer at the trial level.

A turning point in the conflict over Amish schools arose in Iowa. Various Amish farmers were jailed after failing to pay fines issued against them for violating the school attendance laws.⁽⁵⁸⁾ But when officials in 1965 attempted to seize Amish children and bus them to public schools, the newspaper pictures across the nation of weeping Amish mothers and scared children running into corn fields to escape forced busing to public schools, generally led to greater public sympathy for creating legislative exemptions for the Amish.⁽⁵⁹⁾ Indeed, it was this incidence in Iowa that led to the formation of the National Committee for Amish Religious Freedom in 1966. This group of lawyers and interested citizens tried to help the Amish in whatever way they could.

A Kansas case involving an Amish farmer convicted of violating the compulsory attendance laws was appealed with the help of the Committee all the way to the Supreme Court which refused leave to appeal.⁽⁶⁰⁾ Interestingly in the Kansas case the Amish child in question had gone to public school until grade eight and then the Amish community had set up an alternative home school and vocational program for children until age 16, but there was no authority under the Kansas legislation that recognized such alternatives. As to the free exercise of religion, the Kansas Supreme Court again applied the separationist religious belief versus religious action distinction. Under this approach it is difficult to see haw any religious practices could trump the application of law passed in the public interest. The court stated:

The question of how long a child should attend school is not a religious one. No matter how sincere he may be the individual cannot be permitted upon religious grounds to be the judge of his duty to obey laws enacted in the public interest.⁽⁶¹⁾

It was finally a case from Wisconsin that ultimately became a highwater mark in the First Amendment jurisprudence on the free exercise clause. Some Amish men were convicted of breaching the Wisconsin compulsory attendance law that required parents to send their children to public or private school until they reached the age of 16. In conformity to Amish ways, the parents in this case did not send their children to school after they finished grade eight. The National Committee for Amish Religious Freedom was able to provide legal counsel. The motion at trial to dismiss the charges on free exercise grounds was dismissed despite the expert opinion of Dr. Hostetler and Dr. Erickson as to the fundamental threat that high school education had on the Amish religion and the whole lifestyle connected to that religion. The Circuit Court upheld the conviction, but then the lawyers for the Amish appealed to the Wisconsin Supreme Court.⁽⁶²⁾

The Amish first attempted to negotiate a settlement similar to that in Indiana and Pennsylvania, where the Amish objection to high school was accommodated by allowing the Amish themselves to provide a form of alternative academic and vocational training for the period of time between grade eight and age 16. The Wisconsin officials however rejected this alternative and thus the litigation proceeded.⁽⁶³⁾ The Amish could argue that while the state might well have a compelling interest in the education of all children until age 16, the alternative vocational educational plan of the Amish after grade eight was a reasonable alternative that met the state's basic requirements without violating the Amish religion. The Wisconsin Supreme Court decided in favor of the Amish, but the State then appealed all the way up to the Supreme Court of the United States.⁽⁶⁴⁾

The Supreme Court of the United States in Yoder rejected to the old narrow belief/action distinction and instead used the compelling interest test, identifying the restriction on religious freedom imposed by the law on one hand and then looking at the leglislation to ensure that it advanced a compelling state interest and was the least restrictive in terms of violating religious freedom. Chief Justice Burger for the court stated:

Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State's control, but it argues that "actions" even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.⁽⁶⁵⁾

Chief Justice Burger then went to some length in establishing that the Amish had fully met the first two steps in the free exercise inquiry. He reviewed the beliefs and practices of the Amish community in terms of the rejection of numerous modern devices and modes of thought and concluded that:

..we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.⁽⁶⁶⁾

Step number two was equally clear in terms of establishing that high school education fundamentally threatened the very existence of the group. Burger concluded:

..the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion... The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent state of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.⁽⁶⁷⁾

Having shifted the burden to the state, Burger noted that at bottom this case dealt with the interests of the state in compelling Amish parents to subject their children to take just a few more years of formal schooling as opposed to the alternative vocational training provided by the Amish during these years. This case did not deal with the interests of the State in ensuring minimum standards of Amish education until grade eight, but rather with the proposition that the interests of the State in the additional few years after grade eight outweighed the religious claims of the Amish to be exempt. Various interests of the state in these additional few years were identified. Better educational standards might translate into a better society, economically, socially, and politically. However, there was no evidence that the alternative vocational training of the Amish did not meet these very goals. The training given was very effective in helping the person become a productive member of the Amish community and that community itself was a self-sufficient community within the larger whole. On the other hand then, the interests of the State might be that the added few years of education were necessary because the state had an interest in ensuring that those Amish youth that might leave the community were better prepared for life in mainstream culture. But the court found no evidence that the basic education received to grade eight and the vocational training given thereafter in any way disadvantaged those who might leave the fold. In essence, while the state did have a compelling interest in the education of its citizens right up to the age of 16 as established by law, the law did not provide for a less restrictive approach in regard to the Amish which would still have met the interests of the state.

The Yoder case was a great victory for the rights of parents of various religions to potentially educate their children according to their own faith, but the boundaries of the case in terms of application are hardly clear. It should be remembered that the Yoder case strictly dealt with exemption from a few years of further education rather than the issue of what standards the state could uphold on Amish schools until grade eight. Still the implications of the decision in terms of upholding the fundamental ethos of the community over the interest of the state when there is a conflict could be seen as providing considerable autonomy for the Amish to run their own schools with very different standards than those required of others.

In Ohio in 1978, a non-Amish father was convicted of violating the compulsory education law in that he failed to send his daughter to a school which conformed with the minimum standards set by the State Board of Education. Mr. Olin sincerely believed that the public school system was sinful, and he received permission from his Amish neighbours to send his daughter to their local private one room schoolhouse. She was the only non-Amish pupil and the teacher for the school, as is typical of Amish schools, only had a formal grade eight education. The school building, in conformity to Amish belief, had no electricity or indoor plumbing. Olin's appeal of his conviction went up to the Supreme Court of Ohio in 1980.⁽⁶⁸⁾

It is of interest that no Amish parents were prosecuted for sending their children to this school that they had set up. The Yoder decision in overturning the requirement that the Amish send their children to school until the age of 16 did not thereby say that the state could set no minimum standards of education for the Amish. However, it appears that the state of Ohio at this point simply treated the Amish as completely exempt from the educational standards law, rather than formulating a legislative exemption that included various minimum standards. So while no Amish parents were prosecuted for sending their children to the school in question, Mr. Olin, the non-Amish religious objector to the public school curriculum and ethos, was prosecuted for sending his child to an Amish school. The issue of equality arose as to whether it was fair to prosecute Olin who, like the Amish, objected on the basis of religion, to sending his child to a public school. The more important issue for our purposes was whether Olin had the same First Amendment right as the Amish to be free from prosecution for not meeting the educational standards.

On this point the Ohio Supreme Court overturned the conviction of Olin, but it is important to note that the court found the legislation to be unconstitutional as applied to Olin, not because he had the same right to send his child to the same kind of school as the Amish operated, but rather that the state had as yet failed to establish minimum educational standards for religious private schools that might reasonably accommodate the free exercise of Olin's religion and still fulfill the state's interest in the education of its citizens. This tipped the balance of interests for the time being in Olin's favour. One implication of the decision is that the kind of education for the Amish that is constitutionally protected as a matter of religious freedom may be different than the kind of education that is protected for those who assert that all of life must be integrated with faith, but nevertheless are more fully engaged in the activities of mainstream culture. Another implication is that in any case the current freedom given to the Amish by the State to have uncertified teachers and use ancient textbooks and so forth is a freedom that may go beyond what is constitutionally required. Thus, there may yet be further clashes between the state and the Amish on the educational front.

While the Yoder case has been cited innumerable times in litigation by other religionists in litigation involving free exercise claims, whether for education of their children or other issues, one example of the difficulties of applying the case to the non-Amish is illustrated in the narrowly decided case of Johnson in the Iowa Supreme Court.⁽⁶⁹⁾ Here, unlike Ohio, the State of Iowa had a specific legislative exemption that was passed after a long history of conflict with the Amish over the school question. While the exemption was not worded so as to only deal with the Amish, it arose out of the Amish school controversy and was commonly called the "Amish" exemption. Among other issues that arose in the Johnson case, was the argument that the fundamentalist Baptist private school in question should be allowed as a matter of the Yoder and equal protection doctrines to have the same exemption to resist the state's demand to certify the school as meeting minimum private school requirements in terms of curriculum, teacher qualification, inspection and reporting, and the like. A bare majority of the court rejected the church's claim. Despite the sincere belief by the parents involved that their children should not be educated in the public schools of secular humanism, but should have a pervasive church based education that integrated all of thought and action under the authority of Scripture, the majority of the court denied the Amish exemption to this group because the parents did not live the isolated lives of the Amish and thus the educational needs of the children who would presumably ultimately work and live within the mainstream of society were different than the needs of the Amish. Thus the state had the right to set different minimum educational standards for the non-Amish religious objectors. Whether such standards properly balanced the religious exercise of these particular parents and the interests of the state was another issue, but the point was that the Amish exemption did not apply. The dissenters would have applied the Amish exemption under the theory that despite the differences in lifestyle from the Amish, the parents here had the very same holistic objections to the public school system as did the Amish. As Justice Schultz stated in terms of the statutory exemption, "The statute does not address different educational needs; it is aimed at those with different educational goals."⁽⁷⁰⁾

4. Social Security and Tax Litigation

While willing to pay taxes to the government, the Amish believe as part of their separation from the world and the establishment of a caring community that it is wrong to pay into or accept funds from governmental insurance schemes.⁽⁷¹⁾ If a person gets sick, or becomes unemployed, or is too disabled or old to work, the individual depends on God and the Amish community for security, rather than on some governmental scheme that insures that your welfare will be secured at some level. Any reliance on government services might well weaken the strength of the Amish community. Thus, the Amish repeatedly and persistently petitioned the government to be exempt from paying into, or collecting under, various social security schemes, that unlike taxes, were seen as in effect insurance schemes. The Amish simply refused to pay the social security taxes, and at one point "there were an estimated fifteen hundred delinquent accounts and three thousand liens on Amish property."⁽⁷²⁾

The Amish engaged in prolonged and intense negotiations with the government over this issue. Their cause was aided by the public outcry that resulted from a highly publicized case in which IRS agents in 1961 seized the plough horses of an Amish farmer who had refused to pay the Social Security tax. As Ferrara tells the story:

Byler had hitched up three horses to his plow and was diligently pursuing spring plowing. Three IRS agents strode across his field, stopped his work, and demanded payment of his past-due Social Security taxes. When he refused on the grounds that doing so would violate his religion, the agents unhitched his plow horses and took them away in a waiting trailer. They later sold the horses at public auction, using the proceeds to paty Byler's past-due Social Security taxes and the cost of transporting, keeping and selling the horses. A remaining sum of $37.89 was returned to Byler.⁽⁷³⁾

Amish leaders negotiating with the IRS were told that they should sue the government to determine whether they were really exempt on religious free exercise grounds and during that period of the lawsuit the IRS would refrain from any action until the court had determined the issue. Initially the Amish leaders accepted this suggestion. Rather than just defending a case in court, this would involve the launching of a law suit by Byler in the U. S. District Court in Pittsburgh. What was crucial was that this was not an appeal of a specific conviction to a higher court, but rather the start of a new round of litigation. The farmer would apply for a refund from the government that had seized and sold his horses, and then being refused, would sue the government so that the constitutional issue of freedom of religion in regard to the Social Security scheme would be tested in court. This movement from being a defendant in a governmental law suit to being a plaintiff, while initially accepted by the Amish with a great deal of encouragement from their friends, was apparently then rejected after the Amish as a community debated the issue and concluded that launching the law suit violated their religious beliefs. Rather than proceeding with the litigation, the Amish entered into a lengthy process of negotiation with the government that eventually in 1965 led to their being exempted from the Social Security system, at least when they operated as sole proprietors of a farm or business.⁽⁷⁴⁾

This legislative accommodation whereby self-employed Amish could be both exempted from paying into the scheme and also not entitled to collect any benefits under the scheme was not the end of the story however. The exemption only applied to self-employed Amish. Given the shortage of land and the population increase, many Amish now work as employees or have started businesses where they employ others. The issue arose as to whether the Social Security tax exemption should be extended from those Amish who are self-employed to those Amish who are employees and employers.

Thirteen years after Yoder, the Supreme Court of the United States was again faced with the religious freedom of the Amish as it dealt with this issue.⁽⁷⁵⁾ Mr. Lee, an Amish farmer and carpenter, had hired Amish employees in his carpentry business and he had both failed to pay certain social security taxes as an employer and also failed to withhold certain amounts payable by employees. He paid a small portion owing and then sued the government for a refund which is precisely the kind of test case litigation that an earlier generation of Amish had rejected. We are told that Lee violated the norms of the community in bringing the action.⁽⁷⁶⁾ The case is thus not a precedent for Amish litigation but rather an example of a violation of the norm, and indeed the case proved to be a disaster. Not only did Lee lose the case, but the Supreme Court of the United States in effect held not only that the existing exemption did not have to be extended to employees, but the existing exemption was not required by the First Amendment.

Lee first took the case to Federal Court and won.⁽⁷⁷⁾ There was no difficulty establishing that the Amish position was sincere and that the payment of the tax burdened Amish religion. While the law did not require anyone to draw social security benefits, the law required employers and employees to pay the tax while the Amish religion supposedly prohibited such payment. Turning to the compelling interests of the state in having a mandatory and uniform social security tax system, the court noted that the very same accommodations that had been made for the self-employed could be made for Amish employers and employees. In essence the Amish had their own alternative social security system that met all the interests of the state in the welfare of its citizens. Thus the law was struck down as unconstitutional in so far as it applied to the Amish. However on appeal to the Supreme Court of the United States, the government was successful.

Despite the existing exemption for religious objection for the self-employed, the Supreme Court refused to expand the exemption and create a precedent that might allow people to refuse to pay taxes because of religious objections as to how the government used those taxes. In balancing the interference with Amish religion and the interests of the government, the court surprisingly asserted that the interests of the government were greater in this case than in Yoder.

Somehow granting further exemptions for the Amish would create the possibility of myriad religious objections to paying the social security tax or other taxes for that matter and might then upset the fiscal stability of the program, despite the fact that the Amish as a group clearly established that they had a pervasive system of social security of their own provided by the group and therefore any other religious objectors would have to demonstrate just such an alternative scheme. While not determining the issue, the reasoning in Lee supports the conclusion that the existing legislative exemption for the self-employed is not constitutionally required. If the government has a compelling interest in having uniform tax laws and it is administratively just too difficult to sort out the myriad religious objections that might arise, then that argument applies to the existing exemption as much as to the argument for expanding it to Amish employers and employees.

Even though Lee lost the case, further negotiations between Amish leaders and IRS officials led to a further exemption for Amish employees working for Amish employers. The only difficulty remaining was that Amish employees working for non-Amish employers pay substantial funds into the Social Security system without ever drawing a penny out because the acceptance of benefits is forbidden.

There are some subsequent cases involving tax issues. In one case an excommunicated Amish individual, who became a lawyer, nevertheless tried to claim the exemption from social security taxes paid on self-employed earnings. Even if the religious objection was still sincere, in the sense that the excommunicated might still firmly believe that the payment of such tax was a sin, the point of the exemption was that the religious group had an alternative program that provided the social security to its members. The excommunicated Amish was no longer a member of that group and therefore could not claim the exemption.⁽⁷⁸⁾ Another tax issue that is underdeveloped relates to the problems that arise when people leave the Amish community or are expelled from it. They may have signed a waiver with the government stating that they will not collect any benefits, even on the basis of social security taxes they have paid under employment contributions. Thus they may have paid into the system for many years and then when they leave the church they may quite rightly argue that they should now have the benefits of the system they paid into. While not directly on this point, the recent case of Miller⁽⁷⁹⁾ suggests that they are bound by the waiver and can only receive benefits from contributions made after they properly notify the authorities that they have ceased being Amish. The only other "Amish" tax case deals with a dispute over allowable business expense deductions, where the taxpapers improperly deducted various amounts paid out for religious purposes as business expenses.⁽⁸⁰⁾

5. Transportation Litigation

There are reported decisions in three states, Wisconsin, Michigan and Minnesota, where the Amish have defended themselves in court and appealed to higher courts when necessary in litigation involving the conflict between the law that requires them to have the flourescent red and orange triangular slow-moving vehicle (SMV) symbol on their horse-drawn buggies, and the rules of the church which forbid the sign as being too worldly and loud and bright. There are also unreported court decisions in three other states, New York, Kentucky and Ohio, dealing with this same issue.⁽⁸¹⁾

The majority of Amish accept the use of the SMV⁽⁸²⁾, but there is a group of the most conservative, the Swartzentruber group, who do not and there is no doubt as to the sincerity of of their opposition. Furthermore, there is little doubt that the law impairs religious freedom. The Amish do not live in colonies, but rather they own farms and businesses, and have to travel to the farms where church is held, and they have to travel to visit and give mutual aid to others in the community. The colour and design of the buggy, like the clothes the Amish wear, is a visible sign of the separation from the world demanded by the religion. However, it is equally obvious that the law requiring the use of the symbol serves important social goals in terms of safety. To grant an exemption to the Amish in the name of freedom of religion would not just risk the safety of the Amish believer but also risk the safety of many citizens that drive the same roads. But the Amish have asserted that the main purpose of the law could be fulfilled by them without the SMV requirement. For example, in Ohio, without the need for litigation, the state issued regulations allowing the Amish to use reflector tape and lanterns.

That the Amish have generally been protected by American courts is again well illustrated in that in all three states where the litigation took place, the courts upheld the freedom of the Amish to reject the SMV symbol because of the existence of alternatives that would not violate their faith. This was been done by invoking the principle that even if the law serves a compelling state interest, the law must not be drawn so narrowly as to exclude reasonable alternatives that would accommodate the religious interest and still fulfill the basic purposes of the law. The Amish in every case where willing to use liberal amounts of white reflective tape on the backs of their buggies and a red lantern attached to the rear left of the buggy at night and in bad weather. There was evidence that the Amish approach might actually be superior in regard to safety than the SMV symbol, but in all three jurisdictions the governmental authorities still fought over the desirability, uniformity, and administrative convenience of the SMV symbol.

The first litigation took place in Michigan as a number of Amish individuals charged with failure to have the SMV sign argued successfully at trial in District Court that the regulation was unconstitutional as applied against them. However, on appeal by the state, the circuit court placed the interest of the law as higher than the "incidental" negative effect on the religious freedom of the Amish. The Amish then appealed to the Michigan Court of Appeals,⁽⁸³⁾ which found in favor of the Amish because the state had not proven that the alternative Amish tapes and lanterns was inadequate to meet the interests of the state in health and safety. Essentially the Court did not overrule the possibility that the state might in the future come up with sufficient evidence to show that the use of the SMV symbol would indeed result in fewer accidents than alternatives, but in this particular case the state had produced no evidence of any kind as to the connection between the SMV sign and rates of accidents, generally or in comparison to alternative warning devices. The case was appealed further by the state, but the Michigan Supreme Court rejected leave to appeal.⁽⁸⁴⁾

The second round of litigation over the SMV sign took place in Minnesota. While some Amish in Minnesota were willing to use the SMV sign, 14 Amish individuals who had been issued traffic citations banded together and challenged the law in court. They lost the challenge at the trial level on the ground that their religious beliefs were not sincere because other members of the sect did not apparently view the use of the sign as a violation of Amish norms. When the Amish appealed to the Supreme Court of Minnesota the court reversed this ruling and affirmed that a religious belief does not have to be shared uniformly with co-religionists to be sincere.⁽⁸⁵⁾

Another of the differences in this case, as compared to the Michigan situation, was that the Minnesota authorities had already approved an alternative regulation for religious objectors. Such individuals had to get a permit to have a dull black triangular emblem with a white reflective border and affix at least 72 square inches of red reflector tape to the back of the buggy, but in addition, they still had to carry the regular SMV symbol with them in the buggy at all times and display it when travelling at night or when visibility was impaired by weather, smoke, or fog.

This alternative did not meet the needs of the Amish objectors who were willing to liberally use white reflector tape and a red lighted lantern as being in harmony with their desire to be separate from the world.

The Supreme Court of Minnesota upheld the claim of the Amish. As in the Michigan litigation, while the state had an obvious compelling interest in having the SMV law, the state had failed the less restrictive means test. The existing alternative in the law was objectionable to the Amish and there was no evidence that it was superior as a matter of safety to the proposals of the Amish to use white reflector tape and lanterns.

This was not the end of the litigation, however. The Minnesota Supreme Court had decided the case on the bases of the First Amendment of the United States Constitution, and having found in favor of the Amish, it had no reason to also look at the Minnesota State Constitution in terms of freedom of religion. However, the State of Minnesota appealed the case to the United States Supreme Court, which granted certiorari, but then vacated the first decision of the Minnesota Supreme Court and remanded the case back to the Minnesota Supreme Court in the wake of the Smith decision, with its much more restrictive approach to Free Exercise claims.⁽⁸⁶⁾ However, the Minnesota Supreme Court still found a way to uphold the claims of the Amish and throw out the citations against them for not using the SMV emblems.⁽⁸⁷⁾ The Court turned to the Minnesota Constitution and simply applied the traditional "compelling interest and no reasonable alternative test" to the provision for freedom of religion in that Constitution. As in the previous decision, the state failed to show that the Amish alternative did not meet the fundamental public safety concerns that underlay the law.

The third, and most recent litigation involving the Amish and the SMV emblem took place in the state of Wisconsin. A number of Amish individuals challenged their traffic citations and the trial court asserted that the State had shown that the universal recognition afforded by the SMV emblem outweighed the Amish religious claim, as well as the alternative proposed by them. However on appeal to the Minnesota Appeal Court, the Amish once again were granted the religious freedom not to use the SMV emblem.⁽⁸⁸⁾ Unlike the Minnesota Court which had been able to use the traditional test under the State Constitution because that Constitution was held by its terms to actually afford more protection than the First Amendment of the U.S. Constitution, the Wisconsin Court asserted that the Wisconsin Constitution and the First Amendment protections were essentially the same, and thus the Court was faced with Smith. However, the majority opinion turned to the Religious Freedom Restoration Act passed by Congress in 1993 in an attempt to in effect overrule the Smith decision.⁽⁸⁹⁾ Using the old compelling interest and least restrictive means test, the court, as in the other two States, found that the regulation was not the least restrictive, in that the Amish alternative was a reasonable one to meet the legitimate concerns of the state in passing laws for public safety.

The state appealed the case to the Wisconsin Supreme Court.⁽⁹⁰⁾ The highest state court chose not to base the decision on the federal Religious Freedom Restoration Act due to complex questions over the constitutionality of that act. Rather, as in Minnesota, the court turned to the state constitution as an independent source on religious freedom as applied to laws passed by the state, and thus bypassing the restrictive Smith precedent approach to the First Amendment. Applying the traditional compelling interest test under the state constitution, the SMV law, in so far as it applied to the Amish, was held to be unconstitutional in that it failed to incorporate a reasonable alternative for the Amish.

6. "Hunter Orange" Clothing Litigation

The conflict between Amish norms and legal requirements does not always result in exemptions or modifications of the legal requirements so as to accommodate the Amish claims of religious freedom. For example, several cases in Ohio have upheld convictions of Amish individuals for breaching the requirement that deer hunters who are using guns (as opposed to bows) wear "hunter orange" during the two week deer hunting season, even though the Amish say that wearing such clothing violates their religion. In Swartzentruber⁽⁹¹⁾ the trial court held that wearing orange clothing did indeed violate Amish religious norms, but the burden of that law on the exercise of Amish religion was negligible and did not outweigh the compelling value of the law in question. Unlike more fundamental values of schooling, or mobility, the privilege of hunting was not held to be important to the overall exercise of faith by the Amish. If you can't hunt deer with a gun because your religion does not allow you to meet one of the legal requirements, you have not really lost much. Religious faith is interfered with when the believer is faced with real pressure to abandon a religious norm so as to conform to the law or to receive a benefit or privilege provided by the law. The privilege of hunting deer was not seen as giving rise to any such pressure. It was also pointed out that there was a tremendous variety of hunting and different seasons of hunting that could be done without wearing hunter orange. More recently in Bontrager⁽⁹²⁾, the Ohio Court of Appeal essentially upheld the Swartzentruber reasoning. Bontrager appealed his conviction for hunting deer without wearing the required clothing. The Appeal Court again affirmed the conviction on the bases that freedom of religion was not really impaired by this law.

7. Picture Litigation

There are some more liberal Amish groups that have telephones, use electricity and own cars. They might be better classified as on the conservative end of the Mennonite spectrum rather than as Amish, but for our purposes the only point to be made is that the National Committee for Amish Religious Freedoms intervened on behalf of the so called car driving Amish in some litigation in Indiana dealing with a religious objection to the taking of a picture as a condition for a driver's license. In the Pentecostal House of Prayer case⁽⁹³⁾ the court granted exemptions to the picture requirement, in that while driving is a privilege, the burden of the picture condition on those whose religious faith prohibits it is substantial. On the other hand, the interest of the state in having picture identification was not so compelling in terms of ensuring competence as a driver as to override the burden on religionists in terms of the need for transportation to travel to church and to jobs.

The rejection of pictures as violating a literal reading of the second of the ten commandments has not always led the courts to accommodate religious objection. In the case of Slabaugh,⁽⁹⁴⁾ an Amish individual was indicted in Minnesota on one count of bribery of a public official, a federal felony. He ultimately plead guilty and was given a suspended sentence and put on probation. But an issue of religious freedom first arose when the Marshall tried to apply the law requiring a picture to be taken of every person charged with a federal felony, and Slabough asked to be exempt from the requirement on the bases of religious objections. It was the Marshall who referred the matter to the federal district court for a determination. The trial court upheld the requirement that a picture be taken.⁽⁹⁵⁾ The state's interest in public safety was said to outweigh the interference with religious liberty in this case. The court asserted that although Slabaugh had not always lived up to Amish norms, he nevertheless had a sincere religious belief in the Amish faith and the picture requirement was a violation of that faith.⁽⁹⁶⁾ However, the government's interest in being able to identify someone who might flee while under probation, as Slabough was, outweighed this burden on religion. In balancing the competing interests of the state and the burden on religion, the fact that Slabough was a convicted felon was taken into account in tipping the scale in favor of the government. On appeal, the court affirmed that compelling interests of the state outweighed the burden that the law put on religion in this case.⁽⁹⁷⁾

Recently, an Amish man in the state of New York applied for a permit to carry or possess a pistol or revolver. The state law requires, among other things, that the person making the application must submit a picture of himself, which the Amish individual refused to do, given that is was contrary to his religious beliefs. Representing himself before a county court judge, without legal counsel, the Amish man successfully argued that the law was an unconstitutional infringement on his freedom of religion and he should be granted an exemption, because he could submit fingerprints as an alternative means of fulfilling the compelling state interest underlying the legal requirement.⁽⁹⁸⁾ In the sense that pictures are at stake, the decision is consistent with the driver's license decision, but on the other hand, it seems inconsistent with the mug shot and hunter orange cases. There was no argument in the decision as to why the applicant wanted to have a pistol in the first place and the importance then of the denial of such ownership as a burden on his religious freedom.

8. Physical Punishment

In Virginia the Beachy Amish operated the Faith Mission Home, a residential facility for the care of mentally retarded children and adults. In limited circumstances the policy of the Home was to use physical punishment to discipline residents which was in contravention of the regulations of the Virginia Department of Mental Health and Mental Retardation which prohibited the use of any physical punishment on children in residential care. The Faith Mission Home sought to be exempt from the licensing requirement prohibiting physical punishment. The Home was run as an Amish mission and the precepts of the religion included the use of physical punishment "in the form of slapping the hand several times or spanking the buttocks a maximum of four strokes with the hand or a 'simple light paddle."⁽⁹⁹⁾ After a young woman was bruised by a Home supervisor paddling her, the Department was successful in getting an injunction against the Amish home to prohibit any use of physical punishment. The Home, however, in conjunction with the parents of children under care, appealed to have the judgment set aside on the basis of the freedom of religion of the Amish institution to use punishment in limited circumstances. The trial court agreed but the Department appealed to the Virginia Supreme Court.⁽¹⁰⁰⁾ Rather than having to deal with the Free Exercise arguments, the Supreme Court found that the Home was exempt from licensure anyway because the existing regulation stated that so long as the treatment facility was ministering to the sick and suffering by the use of spiritual means and was not using "any drug or material remedy" it was not within the category of facilities required to be licensed. All drugs were administered in the Home only by prescription from outside physicians. The Home itself used therapy that was integrated with Amish faith. By finding the Home exempt in any case, the court did not have to deal with the scenario that may well arise in the future when there is a direct clash between a law prohibiting physical punishment and the religious beliefs of parents or the practices of a religious institution.⁽¹⁰¹⁾

9. Other Cases.

There are a few other reported cases in which Amish individuals have been parties to governmental litigation. An Amish subsistence farmer challenged his conviction for practising dentistry without a license. The court held that the law did not really burden his religious faith, because even though the Amish do not buy health insurance because of their religious faith, and the farmer only served people of his own community, the Amish did not reject using recognized medical and dental services, and thus the objection was really an economic rather than a religious one. Thus, the untrained and unlicensed Amish country "dentist" was convicted.⁽¹⁰²⁾

In another case, although the government passed alternative building regulations dealing with non-electrified Amish homes, an Amish individual installed a water and sewage system without a permit and then appealed his conviction on grounds that the regulations violated his freedom of religion. Again the court ultimately determined that the regulations did not interfere with religious practice, but rather the objection was actually a matter of convenience in terms of wanting easier methods of waste disposal than those required by regulation. The conviction was upheld.⁽¹⁰³⁾ In terms of building codes, there is another case in which several Amish individuals appealed their conviction for failing to get a building permit and failing to allow inspection of their buildings to see if they complied with the Code. The issue of whether religious belief was really interfered with was never argued on appeal because the state simply chose to stand on the position that the law served a compelling interest and there was no reasonable alternative in terms of inspection to insure that construction proceeded with the standards that would insure health and safety. On this point the Ohio Court of Appeals upheld the convictions of the Amish individuals.⁽¹⁰⁴⁾

There are a number of cases in which Amish individuals are not formally parties to the litigation at all, but the cases are still of interest in that the challenged governmental action deals with the Amish collectively or individually. For example, because the Amish object to jury duty on religious grounds, in a number of cases an accused non-Amish person has challenged the array of people from which a jury is to be chosen, because the Amish have allegedly been excluded from the pool and thus the jury pool is not composed of a fair cross-section of the community. These challenges have been unsuccessful because it appears that Amish individuals are not given a blanket exemption, but are chosen as part of the pool of prospective jurors and then they are granted an individual exemption on religious grounds when they ask for it.⁽¹⁰⁵⁾

Another example of litigation by non-Amish parties was the unsuccessful claim that a Zoning Board might have favored an Amish individual in granting a permit to build a saw mill and therefore the Anti-Establishment clause was violated.⁽¹⁰⁶⁾ In another case, a coal mining company challenged the governmental action that prevented the company from mining within 100 feet of a "cemetery", as that regulation applied to mining on Amish farm land given that most of these farms had small, private family burial plots on the land. From the evidence it appears that the Amish farmers, who leased their land to the Company, fully supported the coal company and not the government.⁽¹⁰⁷⁾

Another example of a case involving non-Amish parties but in which the Amish position was argued, involved the challenge of a conviction for unfair labour practices.⁽¹⁰⁸⁾ The company in question made cheese products from milk supplied on contract almost exclusively from the Amish. The company itself was non-Amish, but had 20 Amish employees out of a total of about 90. The argument of the company was that because the Amish objected on religious grounds to labour unions, the Amish would withdraw their supply of milk should the company unionize. Furthermore, given that the company was the exclusive cheese factory in the area, and the Amish could not produce milk for drinking because of their objection to using electricity for cooling purposes, the effect of unionization would be that the Amish themselves would have their religious freedoms interfered with, unless the plant was exempt from the labour relations law on religious grounds. The Court of Appeals held that the claims of the company for religious exemption might be legitimate, but they were denied in this case because of the lack of a factual record to support them. It was not proven that the Amish would in fact withdraw their milk on religious grounds because the company they were dealing with was unionized. As for Amish employees, there was provisions already in the law for those who objected to unionization on religious grounds to pay union dues to charities. Clearly if the Amish themselves set up a cheese factory to process their milk, the issue of religious exemption from union laws would have been squarely faced.

IV. Canadian Cases

While there have been a few cases of litigation brought by others that have benefited the Amish, but for one recent case⁽¹⁰⁹⁾, there is no history of Amish litigation in Canada, which is in marked contrast with the numerous cases in Canada involving Hutterites. Ironically in the United States the situation is reversed, in that there are only a few cases dealing with Hutterites and many cases dealing with the Amish. This may be a function of the size of the population. While there are fairly large numbers of Amish in the United States⁽¹¹⁰⁾, there is only a very small group in Ontario, (not to be confused with Old Order Mennonites who have very similar cultural isolationist features).

There was a prolonged controversy in Ontario involving new regulations regarding milk storage. The requirement of bulk tank storage with electrical cooling systems violated the Amish prohibition against electricity. Some Amish eventually accommodated the new approach by using diesel powered cooling tanks. However, there was also a problem with the pick-up schedule because it involved shipping milk on Sundays, which also violated Amish religious norms. Special non-Sunday pick-ups were negotiated to accommodate the Amish and the costs were charged to the Amish farmers. While the Amish would not litigate the issue, the Mennonite Central Committee retained lawyers to argue the issue to various levels of agencies and governments. Old Order Mennonites and Netherlands Reformed congregations were also affected by the issue. In the end a Netherlands Reformed farmer took a case successfully to the Ontario Human Rights Commission.⁽¹¹¹⁾

In Canada the approach until recently has been that religious practice can be accommodated by religionists negotiating with governments so that legislation is created or changed so as to grant exemptions for those opposed on religious grounds, or to create alternative models of regulation that fulfill state interests but do not violate religious practices.⁽¹¹²⁾ The Amish have negotiated exemptions from universal and direct government "insurance" schemes like the Canadian Pension Plan and Health Care Insurance. The Amish do not have to pay the premiums nor do they take any of the benefits. In other circumstances where the schemes are more indirect, the Amish pay taxes for the scheme like everyone else, but they do not ever apply for the benefits. This would include Family Allowances, for example. The Amish have also been able to retain their own private schools in Ontario and while they abide by the compulsory attendance law that requires children to be in school till age 16, the School officials simply do not enforce the certification laws of teachers or curriculum against them. As in the United States, Amish schools are often taught by Amish teachers who only have a formal grade eight education themselves.

The one case (Keupfer)⁽¹¹³⁾ that deals directly with the Old Order Amish, involved the constitutionality of a Municipal bylaw as applied to a number of Amish residents who kept one horse in a barn on their respective properties in the unincorporated Hamlet of Newton. They were prosecuted under a bylaw of the larger Township of Mornington which prohibited having a variety of animals on any lot or in any building or structure in a Residential zone. It was established that Newton was a small Hamlet where there were 19 barns amongst the 47 homes.⁽¹¹⁴⁾ The nature of the community, while residential, was very much connected to the rural setting which surrounded it and the people living there were mostly retired farmers, or people who grew up on a farm but could not afford one, or people who worked in service sectors connected to the rural community. It was also established that the Amish individuals cleaned their barns regularly. For example the court stated with regard to one of the accused:

He cleans the barn of manure every other day by either giving it to his neighbours, or walking about one-quarter of a mile to a neighbours's field where he has permission to dispose of it. It was the testimony of those who made observation of the fact, that he kept his barn clean, and apart from one witness, the general view was that there was little or no smell that could be directly traceable to Murray Kuepfer's barn, and there was no problem with flies or rodents as a direct result of the horse in his barn.⁽¹¹⁵⁾

Expert evidence was called as to Amish religious-cultural beliefs including reference to the importance of the horse and buggy as the mode of acceptable transportation, but of great importance in terms of the substantial impact on the Amish of blanket prohibitions of having a horse even in a hamlet setting was the evidence that Amish living in more urban areas was a direct result of the land use policy that restricted the division of farms into smaller parcels and the prohibition of having more than one permanent dwelling on a farm parcel size. Thus more Amish are moving off the farm and taking other jobs and yet as a matter of their religion need to retain the horse and buggy mode of transportation. Can municipalities accommodate the needs of the Amish and yet uphold the legitimate needs of land use planning? The judge in the case thought so, citing for example that another municipality with a great number of Old Order Amish and Mennonites had done so. The judge found the bylaw in question to be unconstitutional on the basis that it could not be sustained under Section One of the Charter. While the law did not discriminate on its face and had a valid public policy objective in terms of health and safety, it failed the least restrictive means and the proportionality test in that a hamlet was still an agriculturally centred environment where the having of a horse solely for the purposes of transportation, with some regulations in place as to manure and maintenance and stabling, would not impair the goals and objectives of land use planning in that kind of neighbourhood. In a sense the accommodation of the Amish in this case is similar to the accommodation that is made for blind people to have seeing-eye-dogs in places that ordinarily would prohibit animals. Of interest, in terms of future application, is that the decision is limited to the specific nature of the hamlet in question and does not purport to suggest that the unconstitutionality of the by-law would extend to incorporated towns and cities.

1. John A. Hostetler, "The Amish and the Law: A Religious Minority and Its Legal Encounters" (1984) 41 Washington and Lee L. Rev. 33 at 35-36.

2. For background reading on Amish Society generally see, John A. Hostetler, Amish Society (Baltimore: Johns Hopkins, 3^rd ed., 1993); Donald B. Kraybill, The Riddle of Amish Culture (Baltimore: Johns Hopkins, 1989).

3. For example in virtually every essay in Donald B. Kraybill, ed. The Amish and the State (Baltimore: John Hopkins U. Press, 1993) we are told that the Amish do not use litigation.

4. Kraybill, Supra, n. 2 at 29.

5. Paton Yoder, "The Amish View of the State" in Kraybill, Supra, n. 3 at 23.

6. See Donald B. Kraybill, "Negotiating with Caesar" and Marc A. Olshan, "The National Steering Committee" in Kraybill, Supra, n. 3 at 3, 57.

7. Olshan, Supra, n.3. at 73 and Albert N. Keim, "Military Service and Conscription" Supra, n3 at 43.

8. Kraybill, Supra, n. 2 at 223.

9. Gingerich v. Swartzentruber, (1919) 30 Ohio Dec. 101, 22 N.P. (N.s.) 1 (Holmes C. Ct.).

10. The only information we have on this case is taken from John Howard Yoder, "Caesar and the Meidung" (1949) 23 M.Q.R. 76 at 85-86 and 97-98.

11. The transcript for this trial, with local and national newspaper clippings and various research notes and correspondence is found in the John Howard Yoder Collection, at the Archives of the Mennonite Church, in Goshen. Yoder wrote an article about the case. See Yoder, Supra, n. 10. This case is also reviewed as raising various issues for legal pluralist theory by Carol Weisbrod in "Emblems of Federalism" (1992) 25 U. Mich. J. L. Ref. 795.

12. Yoder v. Helmuth (1947) No. 35747, Wayne County, Ohio, C.P. Ct.

13. There was some conflict in the evidence on this point, but it does appear that Yoder never explained his reasons for leaving at the time that his leaving was brought up as a matter of church discipline. This is consistent with his assertion that he voluntarily withdrew and that the church therefore had no more business dealing with him.

14. Testimony of Sarah Yoder, wife of Andrew Yoder, Trial Transcript p. 102

15. Letter of Common Pleas Judge Walter J. Mougey to Mr. William McGermott of the Cleaveland Plain Dealer, Nov. 22, 1948 at 3. This letter is found in the John Howard Yoder collection on this case in the Goshen Archives.

16. Supra, n. 9.

17. Final arguments of defendants, Trial Transcript pgs. 117-123.

18. Trial Transcript p. 131.

19. John H. Yoder research notes.

20. Paul Ruxin, "The Right Not to be Modern Men: The Amish and Compulsory Education" (1967) 53 Virginia Law Review 925 at 936, note 62. Also, Weisbrod, Supra, n. 11 at p. 819, footnote 90.

21. Lexis search using "Amish" search term. This does not necessarily mean that they are the only cases. There are many lawsuits and trial decisions that are not published in print or electronic form.

22. Union Carbide Corporation v. Yoder (Amish Country Meats) (1986) Ohio App. LEXIS 6639, Ohio Ct. of A., Fifth Dist.

23. Williamsburg Homes v. Kuhns (1991) Ohio App. LEXIS 5475, Ohio Ct. Of A., 11^th Dist.

24. Davidson v. Bontrager (1981) 652 F. 2d 57 (C.A. 6^th C.)

25. Troyer v. Karcagi (1980) 488 F. Supp. 1200 (Southern D. of N.Y)

26. Id at 1207.

27. Danald B. Kraybill and Steven M. Nolt, Amish Enterprise: From Ploughs to Profits (Baltimore: John Hopkins U. P., 1995).

28. Ibid. Chapter 10, "Coping with Litigation and Liability"

29. Gertrude Enders Huntington, "Health Care" in Kraybill ed., Supra, n.3 at 163, 171.

30. Supra, n. 1 at 37-38.

31. Robert L. Kidder, "The Role of Outsiders" in Kraybill, ed. Supra, n.3 at 213, 225.

32. William C. Lindholm, "The National Committee for Amish Religious Freedom" in Kraybill, ed. Supra. n. 3 at 109, 114.

33. Reynolds (1878) 98 U.S. 145.

34. Sherbert v. Verner (1963) 374 U.S. 398

35. Joseph Slabaugh (1973) 474 F. 2d 592 (C.A. 6^th C.).

36. See for example, Thomas v. Indiana (1981) 450 U.S. 707.

37. Employment Division v. Smith (1990) 494 U.S. 872.

38. Pub L No 103-141, 107 Stat 1488 (1993).

39. City of Boerne v. Flores (1997) 117 S. Ct. 2157.

40. John A. Hostetler and Gertrude Enders Huntington, Children in Amish Society: Socialization and Community Education (New York: Holt, Rinehart, 1971)

41. See, Wayne Fisher, The Amish in Court (New York: Vantage Press, 1996); Albert N. Keim, ed., Compulsory Education and the Amish: The Right Not to Be Modern (Boston: Beacon Press, 1975)

42. Kraybill, Supra, n. 2 at 122.

43. Noted in Thomas J Meyers, "Education and Schooling" in Kraybill, ed. Supra. n.3 at 87, 90. No citation is to the case is given.

44. Commonwealth v. Petersheim (1951) 166 Pa. Super. 90, 70 A. 2d 395 upholding (1949) 70 Pa. D & C. 432 (Somerset Ct. Ct.)

45. Samuel Wenger. My chapter on Mennonite Litigation in the proposed monograph deals with Wenger.

46. Commonwealth v. Beiler (1951) 168 Pa. Super. 462, 79 A.2d 134.

47. Id. at 137.

48. Commonwealth v. Smoker (1955) 177 Pa. Super. 435; 110 A. 2d 740.

49. See Meyers, in Kraybill, Supra, n. 3 at 92.

50. See Meyers, Id. at 87-88 and also the case of Byler v. State (1927) 26 Ohio App. 329, 157 N.E. 421.

51. Ohio v. Hershberger (1955) 103 Ohio App. 188; 144 N.E. 2d 693. (C.A. 3^rd D.).

52. Id. at 696-97.

53. State v. Hershberger (1958) 77 Ohio L. Abs. 487, 150 N.E. 2d 671 (Wayne County Juv. Ct.).

54. State v. Glick (1960) 113 Ohio App. 23; 177 N.E. 2d 293 (C.A. 3^rd D.).

55. Board of Education (Hardin County) (1961) 172 Ohio St. 249; 175 N.E. 2d 68 (S. Ct.)

56. Meyers, in Kraybill, Supra, n.3 at 95.

57. Gingerich v. Indiana (1948) 226 Ind. 678; 83 N.E. 2d 47 (S. Ct.).

58. Jorgenson v. Borntreger, Case No. 22904, Buchanan County Court, Iowa, 1962; In re Miller, No. 23163, Buchanan County Court, Iowa, 1963.

59. Donald Erickson, "Showdown at an Amish Schoolhouse" in Keim, Supra, n. 41 at 43-83.

60. Kansas v. Garber (1966) 197 Kan. 567; 419 P. 2d 896 (S. Ct.) cert. denied, (1967) 389 U.S. 51.

61. Id. at 902

62. Wisconsin v. Yoder (1971) 49 Wis. 2d 430; 182 N.W. 2d 539. (S. Ct.).

63. See William Bentley Ball, Mere Creatures of the State? A View From the Courtroom (Indiana: Orestos Brownson Society, 1994)

64. Wisconsin v. Yoder (1972) 406 U.S. 205 affirming (1971) 182 N.W. 2d 539.

65. Id. at 220.

66. Id. at 216

67. Id. at 217-218.

68. The State, Nagle v. Olin (1980) 64 Ohio St. 2d 341; 415 N.E. 2d 279 (S. Ct.).

69. Rev. Johnson v. Superintendent of Public Instruction (1985) 368 N. W. 2d 74 (S. Ct.).

70. Id. at 86.

71. See Peter J. Ferrara, "Social Security and Taxes" in Krabill, Supra. n. 3 at 125-143.

72. Kraybill, Supra, n. 2 at 220.

73. Ferrara, in Kraybill, Supra, n.3 at 132.

74. The Social Security issue and the case of Byler v. United States (1962) No. 62-286 (W.D. Pa.) is dealt with in Fisher, Supra n. 41 at 128 - 145. Fisher suggests that there may have been an older case in the 1930's where a test case was launched on behalf of the Amish trying to get an injunction to stop the school consolidation that was taking place in Pennsylvania. Fisher gives no citation for the case of East Lampeter Township School Board (1938) that was taken to the Federal Court of Appeal unsuccessfully by the Amish. See also, Paul Cline, "Social Security and the Plain People" (1970) 72 W. V. Law Rev. 215.

75. United States v. Lee (1982) 455 U.S. 252.

76. See William Ball. "First Amendment Issues" in Kraybill, ed, Supra, n.3 at 251, 257 and Ferrara at 140.

77. United States v. Lee (1980) 497 F. Supp. 180 (D. Ct. Western Penn.)

78. Ezra Borntrager v. Commissioner of IRS (1990) T.C. Memo 1990-32 (U.S. Tax Ct.)

79. Miller v. Commissioner of Social Security (1996) 908 F. Supp. 479 (Ohio D.Ct.).

80. Bender v. IRS (1982) 43 T.C.M 808 (F. Tax Ct.).

81. Commonwealth v. Zook (1985) No. 85-T-264 (Baron County Dist. Ct., Ky.); Fussner v. Smith, (1977) No. C-76-363 (N.D. Ohio); Ohio v. Weaver (1977) No. 77-TR-634 (Homes County Ct.). Also reference to New York cases in Lee Zook, "Slow-moving Vehicles" Kraybill, ed. Supra, n.3 at 145, 151

82. For example, there are lots of pictures of Amish buggies in Pennsylvania with the SMV sign as found in Mary Ann McDonald, Out of the Past: Amish Tradition and Faith (New York: Todtri, 1996).

83. Michigan v. Swartzentruber, (1988) 170 Mich. App. 682; 429 N.W. 2d 225 (C.A.).

84. Michigan v. Swartzentruber, (1989) 432 Mich. 873 (S.C.).

85. Minnesota v. Herschberger et al. (1989) 444 N.W. 2d 282 (Minn. S. Ct.).

86. Minnesota v. Hershberger, (1990) 494 U.S. 872, 110 S. Ct. 1595.

87. Minnesota v. Hershberger, (1990) 462 N.W. 2d 393 (S.Ct.).

88. Wisconsin v. Miller et. al., (1995) 196 Wis. 2d 238; 538 N.W. 2d 573 (C.A.).

89. Supra, n. 38.

90. Wisconsin v. Miller et. al., (1996) 202 Wis. 2d 56; 549 N.W. 2d 235 (S.Ct.).

91. Ohio v. Swartzentruber, (1989) 556 N.E. 2d 531 (Wadsworth Mun. Ct.).

92. Ohio v. Bontrager, (1996) Ohio App. Lexis 4819 (C.A. Third Dist.).

93. Indiana v. Pentecostal House of Prayer (1978) 269 Ind. 361; 380 N.E. 2d 1225 (Ind. S.C.).

94. U.S.A. v. Andy Slabaugh, (1989) 852 F. 2d 1081 (C.A. 8^th C.).

95. U.S.A. v. Andy Slabaugh, (1989) 655 F. Supp. 462 (Dist. Ct.).

96. The sincerity of Slabough's belief, though a convicted felon, may be contrasted with the case of Clumm v. Ohio, (1982) 698 F. 2d 1218 (C.A. 6^th Cir.) where a prisoner claimed that he should not have his beard cut off because he was Amish. However there was apparently no evidence at all that the prisoner was Amish.

97. Supra, n. 41.

98. In the Matter of Daniel R. Miller, (1997) 656 N.Y.S. 2d 846 (County Court, Allegany).

99. Howard M. Cullum v. Faith Mission Home (1989) 237 Va. 473; 379 S.E. 2d 445 (S.Ct.) at 446.

100. Id.

101. There is of course great irony on this issue, as groups such as the Amish and Hutterites use physical punishment, sometimes excessively, while supposedly believing in nonviolence in human relationships. Unless nonviolence only prohibits lethal violence the contradiction seems plain. On the other side of course are the cultural leaders who would prohibit parents from ever hitting a child no matter what, but are quite content to support capital punishment, late term abortions, and active euthanasia.

102. Christ Zook v. State Board of Dentistry (1996) 683 A. 2d 713 (Penn. Commonwealth Ct.) There are other unreported cases of Amish individuals being prosecuted for unlicensed health care related practices and also cases dealing with conflicts between Amish parents and state officials over medical care for Amish children. See Gertrude Enders Huntington, "Health Care" In Kraybill ed. Supra, n.3 at 163.

103. Ohio v. Gingerich (1996) Ohio App. Lexis 670 (C.A. 5^th District).

104. Ohio v. Hershberger and Yoder (1984) Ohio App. Lexis 10285 (C.A. 9^th D.) As to the issues of land use and the Amish generally, see Elizabeth Place, "Land Use" in Kraybill ed. Supra, n.3 at 191.

105. Ohio v. Fulton (1991) 57 Ohio St. 3d 120; 566 N.E. 2d 1195 (S.Ct.) Affirming on other grounds (1989) Ohio App. Lexis 5170 (C.A. 5^th D.). See also Taylor v. Indiana (1973) 260 Ind. 264; 295 N.E. 2d 600 (S. Ct.).

106. Hickey v. Shetler, (1976) Ohio App. Lexis 6206 (Ohio C.A. 9^th District). See also Citizens v. Universal Disposal (1988) 56 Ohio App. 3d 45; 564 N.E. 2d 722 (C.A. 10^th D.) in terms of allegation of failure to sufficiently take Amish into account in granting permit for waste disposal site.

107. Holmes Limestone v. Secretary of the Interior (1981) 655 F. 2d 732 (U.S. C.A. 6th).

108. Marti v. N.L.R.B. (1982) 676 F. 2d 975 (C.A. 3^rd ).

109. Mornington (Township) v. Kuepfer (1996) O.J. No. 1724 (Ont. P.Ct.).

110. There are over 130,000 Amish in the United States and Canada, but of these only 2,500 or so live in Canada. See Donald B. Kraybill, Supra n.2 at p.6 and Thomson, "Canadian Government Relations" in Kraybill, Supra, n. 3 at p. 237.

111. See Janssen v. Ontario Milk Marketing Board (1990) 13 C.H.R.R. D/397 (Ont. Bd. of Inquiry).

112. Ted Regehr, "Relations Between the Old Order Amish and the State in Canada" (1995) 69 Mennonite Q. Rev. 151-177; Dennis L. Thompson, "Canadian Government Relations", in Donald B. Kraybill, The Amish and the State (Baltimore: John Hopkins U. P., 1993) at 235-299.

113. Supra, n. 109.

114. Supra, n.109 at paragraph 17.

115. Id. at paragraph 50.