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Supreme Court announced two important decisions relating to the
free exercise clause. In 1963, the Court very clearly set forth a
three-tiered compelling state interest test in Sherbert v. Verner, 107
Nine years later in Wisconsin u. Yoder,108 the Court applied the
Sherbert test to a compulsory education requirement challenged
by Amish parents. By the time the Faith Baptist Church case was
presented to the Nebraska court, the reasonable regulation test, if
ever the proper test, had been outdated for eighteen years and the
compelling state interest test had become the law of the land,100
Although the Sherbert case has been cited approvingly in three
United States Supreme Court free exercise cases decided after
it,110 the Nebraska Supreme Court majority did not even mention
the decision in its opinion in Faith Baptist Church. Instead, it in-
terpreted Yoder as only giving lip service to the compelling inter-
est test111 and then in turn, presented its verbal dues to the
compelling interest test and apparently applied the same standard
applied earlier in Meyerkorth,112 The "arbitrary, unreasonable, or
unconstitutional"113 language of the Meyerkorth decision subse-
quently became the "legitimate, reasonable, and compelling"114
language of the Faith Baptist Church decision. This effectively al-
lowed the court to give judicial blessing to the state's action in
seeking the closure of a religious educational institution. In order
to reach this result, the court relied heavily upon certain language
from the Yoder opinion.

Initially, the court stated: "[T]he Yoder court did recognize the
principle upon which our decision in Meyerkorth was based.
There is no doubt as to the power of a State, having a high respon-
sibility for education of its citizens, to impose reasonable regula-
tions for the control and duration of basic education." "115 Standing
alone, the latter statement could lend support to the Meyerkorth
result that reasonable regulations may override free exercise

115. Id. at 811, 301 N.W.3d at 577 (quoting Wisconsin v. Yoder, 406 U.S. 205, 213 (1972)).

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claims in the area of education. However, as quoted by the Nebraska court, the Yoder opinion continued:

It follows that in order for Wisconsin to compel school attendance beyond
the eighth grade against a claim that such attendance interferes with the
practice of a legitimate religious belief, it must appear either that the
State does not deny the free exercise of religious belief by its require
ment, or that there is a state interest of sufficient magnitude to override
the interest claiming protection under the Free Exercise Clause,116
When considered together, these two passages from Yoder reveal
that the state generally may "impose reasonable regulations for
the control and duration of basic education,"117 but those regula-
tions will become constitutionally suspect if a free exercise claim
is raised.11 This interpretation is further supported by several
later portions of the Yoder opinion. First, the Court stated: "A
way of life, however virtuous and admirable, may not be inter-
posed as a barrier to reasonable state regulation of education if it
is based on purely secular considerations; to have the protection of
the Religion Clauses, the claims must be rooted in religious be
lief." This language compels the conclusion that the free exer-
cise clause may be interposed as a barrier to reasonable state
regulation. In another passage the Yoder Court stated:

We turn, then, to the State's broader contention that its interest in its
system of compulsory education is so compelling that even the estab
lished religious practices of the Amish must give way. Where fundamen-
tal claims of religious freedom are at stake, however, we cannot accept
such a sweeping claim, despite its admitted validity in the generality of
cases, we must searchingly examine the interests that the State seeks to
promote by its requirement for compulsory education to age 16, and the
impediment to those objectives that would flow trom recognizing the
claimed Amish exemption. 120

Significantly, the Court cited Sherbert as the source for the above
test. A final statement by the Yoder Court conclusively estab-
lishes that the proper test is not the "reasonable regulation" test
employed in Meyerkorth:

However read, the Court's holding in Pierce stands as a charter of the
rights of parents to direct the religious upbringing of their children. And,
when the interests of parenthood are combined with a tree exercise claim
of the nature revealed by this record, more than merely a "reasonable re-
lation to some purpose within the competency of the State" is required to
sustain the validity of the State's requirement under the First
Amendment 121

116. Id. at 811-12, 301 N.W2d at 577 (quoting Wisconsin v. Yoder, 408 U.S. 205, 214 (1972)).

117. Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).

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Since something higher than a mere reasonable relationship is
needed to sustain a regulation challenged under the free exercise
clause, the Meyerkorth decision is without precedential value be-
cause it was based upon the wrong test. However, the Nebraska
court, in Faith Baptist Church, characterized Yoder as follows:

The majority opinion in Yoder, then, although employing a "compelling
Interest" rule, nevertheless was greatly, if not completely, influenced by
the process of balancing.... It is somewhat dimcult to develop a genera-
lized rule from the court's specific holding. The concurring opinion of Mr.
Justice White, with whom, however, Mr. Justice Brennan and Mr. Justice
application 122
Stewart Joined, is more illuminating of the rule in its general

Unless the Nebraska court was referring to a balancing test heavily
weighted in favor of the individuals' free exercise rights, its analy-
sis of Yoder is incorrect. There was nothing in the Yoder opinion
which suggested that the Court did not apply the weighted balanc-
ing test required under Sherbert.123 In fact, it would have been
somewhat incongruous had the Court not applied the weighted
balancing test since it stated early in the opinion: "The essence of
all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion."124
weighted test:
Further, language in Yoder suggests the Court employed the

It is one thing to say that compulsory education for a year or two beyond
the eighth grade may be necessary when its goal is the preparation of the
child for life in modern society as the majority live, but it is quite another
if the goal of education be viewed as the preparation of the child for life in
faith, 125
the separated agrarian community that is the keystone of the Amish

The Nebraska Supreme Court interpreted this language to support
the application of an even-handed balancing test. However, the
language suggests quite strongly that the state's interest in tree
exercise cases must equate to the "necessary" level, and that any
lesser level of interest simply is not strong enough to justify an
infringement of one's free exercise rights,128

Additionally, the Nebraska court's reliance upon the concurring
opinion of Justice White as the correct statement of the test127 em-
ployed in Yoder was misplaced. The Yoder majority and Justice

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White did not apply the same test; therefore, Justice White's state-
ment of the test was not an accurate reflection of the appropriate
test.128 The test applied by the majority was a weighted balancing.
test with the weight heavily in favor of the individual,129 In con-
trast, Justice White apparently applied a nonweighted balancing
test.130 Much as the Nebraska court may have been attracted to
Justice White's test, its duty lay in applying the test of the
majority.

A third objection to the Nebraska court's analysis of Yoder
stems from its statement: "It is somewhat difficult to develop a
generalized rule from the court's specific holding."131 The court
apparently was attempting to interpret Yoder independently of
Sherbert instead of reading the two decisions in pari materia. The
generalized rule sought by the Nebraska court has been in the pro-
cess of being synthesized since the Reynolds v. United States 132

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decision in 1878. Nowhere in that process has the test in Justice
White's concurrence been employed in free exercise cases.

The Nebraska Supreme Court's reliance on Application of
Urie 133 as support for its holding further demonstrates the
court's failure to place the free exercise rights of the petitioners in
a "preferred position."135 In that case, a plaintiff who had gradu-
ated from an unaccredited law school in California applied for ad-
mission to the Alaska bar,136 The Alaska court, in upholding the
rejection of plaintiff's application, explained the test employed in
reaching its decision as follows:

Since Alaska's equal protection analysis is more demanding than the fed-
Feral "rational basis" test, there is, a fortiori, no violation of federal equal
protection guarantees. We need not consider whether the Alaska bar rule
meets the more demanding federal requirement of a "compelling state in-
terest" because that standard is only applicable if the complainant is a
member of a suspect class or the procedure at issue violates a fundamen-
tal right. Neither is the case here, 137

In relying on the Urie decision to directly support its holding in
Faith Baptist Church, the Nebraska court more clearly revealed
that it was not applying a compelling state interest test but rather
an even-handed balancing test.138 The test employed in Urie was
an inappropriate one to use in resolving the Faith Baptist Church
issues because Urie did not involve a fundamental right.130

parental freedom and authority in things affecting the child's welfare, and
.this includes, to some extent, matters of conscience and religious convic-
tion." Again, religious freedom was placed in an exalted position in relation
to other interests. Moreover, that Court strictly confined the Prince holding
to the facts before it. Id. at 171. See also Wisconsin v. Yoder, 406 U.S. 205, 229-
30 (1972).

Braunfeld v. Brown, 366 U.S. 599, 607 (1961), although sustaining the state
regulation, placed the "least restrictive alternative" burden on the state. Fol-
lowing Braunfeld was Sherbert v. Verner, 374 U.S. 398 (1963), which was cited
as the authority for the proper test in Wisconsin v. Yoder, 406 U.S. 205 (1972).
McDaniel v. Páty, 435 U.S. 618 (1978), and Thomas v. Review Bd., 450 U.S. 707
(1981). Although the Sherbert Court Arst stated the full test, the Thomas
Court most succinctly stated the test as follows: "The state may justify an
inroad on religious liberty by showing that it is the least restrictive means of
achieving some compelling state interest." 450 U.S. at 718.

138. Since the Urie court did not engage in a compelling state interest analysis, its
decision could not be applied to a case involving a fundamental right without
Arst making that important distinction. If the Nebraska court made the dis-
tinction, it was with the mind and not the pen.

139. The rationale of a case involving a challenge to teacher certification require
ments, Kentucky State Bd. of Elementary & Secondary Educ. v. Rudasill, 589

FREEDOM OF RELIGION

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The court, in the last two paragraphs of its opinion, did attempt to pay some respect to the compelling interest standard, but with. out much enthusiasm or success.140 First, the court stated:

However, we think it cannot fairly be disputed that the requirement of a
baccalaureate degree for teacher certification is neither arbitrary nor un-
reasonable, additionally, we believe it is also a reliable indicator of the
probability of success in that particular field. We believe that it goes with
out saying that the State has a compelling interest in the quality and abil
ity of those who are to teach its young people.141

Although this appears to be an accurate statement, its relevance to
the test employed by Sherbert and Yoder is unclear. Both Sherbert
and Yoder require the compelling state interest to be in not al-
lowing an exemption rather than simply in the subject matter of
the regulation. The fact that a regulation is neither "arbitrary
nor unreasonable" is not determinative in a free exercise case.143

The last statement made by the Nebraska court concerning the
existence of a compelling state interest was as follows: "The re-
fusal of the defendants to comply with the compulsory education
laws of the State of Nebraska as applied in this case is an arbitrary
and unreasonable attempt to thwart the legitimate, reasonable,
and compelling interests of the State in carrying out its educa-
tional obligations, under a claim of religious freedom."144 Again,
the court failed to appreciate that the compelling state interest
must be in denying the exemption to those particular defend-
ants,145 and that the state's general interest in carrying out its edu-
cational obligations is not enough to sustain its burden.14 Further,
even if the state sustained its burden of proof, it would still have an
obligation to prove that there were no less drastic alternatives
available.147 The Nebraska Supreme Court did not even mention
this consideration in its decision.

S.W.2d 877 (Ky. 1979), cert. denied, 446 U.S. 938 (1980) (decided on state con-
stitutional provision), was rejected by the Nebraska court in favor of Urie.
207 Neb. at 816, 301 N.W.2d at 579. In so doing, the court failed to recognize an
important distinction between the two cases. Rudarill involved a fundamen-
tal right, whereas Urie did not. The difference in the two opinions could be
directly accounted for by the degree of scrutiny employed in the tests in each.
140, 207 Neb. at 816-17, 301 N.W.2d at 579-80.

141. Id. at 816-17, 301 N.W.2d at 579.

142. See notes 20, 58 & accompanying text supra.
143. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).
144 207 Neb, at 817, 301 N.W.2d at 580.

145. See notes 20, 58 & accompanying text supra.

146. This was precisely one of the issues decided in Wisconsin v. Yoder, 406 U.S. 205 (1972).

147. Sherbert v. Verner, 374 U.S. 398 (1963), Braunfeld v. Brown, 366 U.S. 500 (1961).

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IV. CONCLUSION

The tree exercise test, as synthesized by the United States
Supreme Court, has granted to individuals an absolute right to be-
lieve as their consciences dictate and a significant right to practice
those beliefs without unnecessary governmental interference. In
the area of education, however, this right has been somewhat re-
stricted by unnecessary government regulation. To properly pro-
tect the rights of individuals to follow their consciences in religious
matters, adherence to the free exercise test as laid down by the
Supreme Court is in order. The practical result of that test does
not unduly hinder the state from protecting its legitimate interests
in education. That result may be stated as follows: When parents,
because of religious reasons, object to public school education,
they may opt to send their children to a private school.148 If there
is no private school within a reasonable distance which is both
state-approved and not violative of the parents' religious beliefs,
the parents should have the option of providing an "equivalent"
education. In any contested case, the burden is on the state to
show that its educational interests are not being met. Only then
should the state be able to sustain teacher certification require-
ments in the face of a free exercise challenge.

The recent case of Douglas v. Faith Baptist Church 149 even if.
correct in its ultimate decision, 150 constitutes a severe blow to reli-
gious freedom in Nebraska and is contrary to the free exercise test
Which has evolved through United States Supreme Court deci
sions. The decision will unnecessarily place individuals in a posi-
Hon where they must make a choice between their God and their
government,181 it will not be "unreasonable" for those individuals
to choose to obey their God and suffer punishment at the hands of
the government.152 The effect of the Supreme Court's compelling
interest rule is to limit those situations as much as is practically
possible. But when state courts fail to follow that rule, the circum-

148 Pierce v. Society of Sisters, 268 U.S. 510 (1925).

149. 207 Neb. 802, 301 N.W2d 571, cert. denied, 102 S. CL 75 (1981).
150. If the facts failed to establish an infringement or, alternatively, if the facts
established an infringement but further established that the education re-
ceived in the church-operated school was below the level of education neces
sary to insure the continued viability of our society, both politically and
economically, and additionally that the state's method of regulating educa-
tion in this area was the least drastic alternative, then the court's ultimate
decision in the case would be correct.

151. The evil to be avoided, if possible, is a compelled choice. Sherbert v. Verner, 374 U.S. 398 (1963).

152 See notes 5-7 & accompanying text supra.

stances in which a choice is demanded increase to the detriment of both the individuals involved and society in general.159

Timothy J. Binder '81

153. The effect on society of increasing the number of coercive choices required is
the encouragement of civil unrest and the antagonism of certain groups
within society. The effect on individuals is increased mental pressure as well
as the loss of liberty or property in certain situations. Neither result is
desirable.

APPENDIX - B

SPIRE'S REPORT

THE REPORT OF THE GOVERNOR'S CHRISTIAN
SCHOOL ISSUE PANEL

TRANSMITTAL LETTER

January 26, 1984

The Honorable Robert Kerrey

Governor of Nebraska

State Capitol

Lincoln, Nebraska 68509

Dear Governor Kerrey:

On December 12, 1983, you created the Governor's Christian School Issue Panel and charged it to "examine and report on public policy questions surrounding the Christian School issue in Nebraska".

I respectfully submit to you the report of this panel. We commend you for your keen interest in this important issue and thank you for allowing us to participate in the study of it.

We owe much to (a) the many people with whom we spoke and corresponded, (b) the authors of the vast number of reference materials we studied, and (c) your considerate staff members. Although our thanks go to all of these persons our recommendations are our own, for which we take full responsibility.

This issue presents profound and difficult challenges. Nonetheless, we believe that it can be resolved in a responsible manner because of the inherent good sense of Nebraskans and our state's tradition of fairness.

Very truly yours,

Kobert M Spire

Robert M. Spire

Chair

RMS: sa enclosure