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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 v. 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ever the proper test, had been outdated for eighteen years and the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 test and then in turn, presented its verbal dues to the
compelling interest test and apparently applied the same standard
applied earlier in Meyerkorth,111 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.2d 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 from 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, 406 U.S. 205, 214 (1972)).

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

118 Id at 213-14, 233

119. Id at 215.

120. Id. at 221. 121. Id. at 233

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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
Further, language in Yoder suggests the Court employed the
weighted test:

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 free
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

122 207 Neb. at 813, 301 N.W.3d at 572

123. For a summary of the test set forth in Yoder and its relation to the Sherbert test, see note 18 supra.

124 Wisconsin v. Yoder, 408 U.S. 205, 215 (1972).

125. Id. at 222 (emphasis added).

126. This interpretation is in accord with the Sherbert analysis. Sherbert v. Ver

ner, 374 U.S. 300 (1963).

127, 297 Neb. at 813, 301 N.W3d at 578.

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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. 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

128. Even assuming, for the sake of argument, that both the majority and concur
ring opinions employed the same test, there still would be no certainty that
both framed the tests in the same words, and a shift in words may change the
outcome of the test in particular circumstances.

129. See notes 123-26 & accompanying text supra.
130. Justice White stated:

Cases such as this one inevitably call for a delicate balancing of
important but conflicting interests. I join the opinion and judgment
of the Court because I cannot say that the State's interest in requir
ing two more years of compulsory education in the ninth and tenth
grades outweighs the importance of the concededly sincere Amish
religious practice to the survival of that sect.

Wisconsin v. Yoder, 406 U.S. 205, 237-38 (1972) (White, J., concurring).
131. 207 Neb. at 813, 301 N.W2d at 578.

132 98 U.S. 145 (1878). In Reynolds, the Court stated that religious actions could
be governed but did not lay down an even-balanced test to determine when
they could be governed. A test was suggested in Cantwell v. Connecticut, 310
U.S. 296, 304 (1940) (emphasis added), in which the Court stated: "In every
case the power to regulate must be so exercised as not, in attaining a permis-
sible end, unduly to infringe the protected treedom." Even at this early time,
the balance appeared to be tilted in favor of the "protected freedom." While
the test applied in Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940), may
have approximated Justice White's test, that type of analysis was rejected in
Murdock v. Pennsylvania, 319 U.S. 105 (1943), and the express holding of
Gobitis was overruled in West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624 (1943). The Murdock Court stated:

The fact that the ordinance is "nondiscriminatory" is immaterial.
The protection afforded by the First Amendment is not so restricted.
A license tax certainly does not acquire constitutional validity be
cause it classifies the privileges protected by the First Amendment
along with the wares and merchandise of hucksters and peddlers and
treats them all alike. Such equality in treatment does not save the
ordinance. Freedom of press, breedom of speech, freedom of religion
are in a preferred position.

319 U.S. at 115. In Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (emphasis added), the Court stated: "[T]he state has a wide range of power for limiting

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1982)

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 holding14 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-
Teral "rational basis" test, there is, a fortiori, no violation of federal equal
TP protection guarantees. We need not consider whether the Alaska bar rule
10 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

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 without 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 feld. 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. 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.

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IV. CONCLUSION

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

149. 207 Neb. 802, 301 N.W.2d 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