Also during oral arguments for the case, the judges suggested to the attorney representing the Obama administration's stance against the family that he was wrong to defend Germany's crackdown against homeschooling. A better argument for the government, the judges said, is that German law is unjust but does not amount to persecution and is not grounds for granting asylum.
The family at issue, devout Christians Uwe and Hannelore Romeike and their five children, fled Germany in 2008 after facing heavy fines and the threat of losing custody of the children unless they attended school. The Romeikes have since had a sixth child and expect a seventh in June. They were granted asylum by an immigration judge in 2010, but the Obama administration appealed the decision to the Board of Immigration Appeals and won.
Before they left Germany, fines against them grew to more than $9,000 and they worried that authorities might take custody of their children.
The right of parents to direct the education of their children, including homeschooling, is a fundamental human right that the government must protect, Farris told the three appeals court judges.
"Our values as a nation apply to the case to say, 'We're not going to force women to wear burkas who do not want to wear them.' And if we can have room for those people, we can have room for German homeschoolers, 500 in number, who say, 'We want to be different. We want to believe differently,'" Farris, chairman of the Virginia-based Home School Legal Defense Association, said during the April 23 oral arguments.
If the court believes Germany's law constitutes "tolerance," he said, "then it's a tolerance I'm simply unfamiliar with."
Farris cited the burka case (Fatin v. Immigration and Naturalization Service) in response to the judges' claim that Germany's laws against homeschooling, while not good policy, are not overly burdensome.
Judge John Rogers said if the Romeikes' request for asylum is granted, it could open "the door for anyone who lives in a country that doesn't have all of the constitutional protections that we have. ... When they defy their own government, of course governments react when their laws get defied."
Judge Jeffrey Sutton argued that Germany "is not prohibiting homeschooling."
"A parent can teach their kids in the evening," Sutton said. "They can use the weekends. It's true is a drain on time, eight hours a day, five days a week." Yet "it's not as if they're saying the parents cannot have a very significant role in the education of their children and in their religious upbringing."
In response, Farris again appealed to the case of Iranian women who did not want to wear Islamic veils.
"That would be like saying to women in Iran, 'You can wear what you want at your house later. When you're out in public, wear the burka,'" Farris told the judges. He added that religious freedom entitles parents to teach their children what they want and avoid any teaching that they find objectionable -- a right that may require some parents to remove their children from public or private school.
The core issue in the Romeike case, Farris told the judges, is that German law punishes people with a characteristic that should not be changed (the desire to educate their children at home), and the degree of punishment (taking away the children) is sufficiently harmful to warrant protection by the U.S. government.
Walter Bocchini, an attorney representing the U.S. Justice Department, argued that the German law requiring school attendance is "reasonable." It recognizes "that the parents have a right to raise their children as they see fit," he said. But that right is not "complete or unfettered or absolute." Parents can "teach their children after school and on the weekends."
Bocchini also said the law attempts to "create pluralism and tolerance from a very young age." It does not involve "indoctrination" of children to a particular worldview.
Rogers seemed to object to Bocchini's defense of the German law, stating that some nations have laws that are "reprehensible because of their motivation" but "not objectively very burdensome." Such laws, Rogers said, do not amount to persecution and are not a reason to grant asylum.
"It seems to me that's an easier argument than trying to argue that this is really a great law, which seems to me what you're arguing," Rogers told Bocchini. "That's why I'm wondering why you come at it that way."
Even if the court rules against the Romeikes, it is not clear that they will be deported. The family's next option would be to ask the Department of Homeland Security not to enforce a deportation order against them, Bocchini said. Sutton noted that the Obama administration "doesn't have a policy of kicking people out of the country if they're law-abiding. That surely seems to be true of this family."
Though Bocchini did not know what the government would do in this case, he confirmed that in the event they are not granted asylum, the Romeikes will be "in somewhat of a limbo" -- never eligible to apply for citizenship though possibly never facing deportation either.
The court likely will not render a decision for several weeks.
Sutton and Rogers were nominated to the appeals court by President George W. Bush. The panel's third judge, Ronald Gilman, was nominated by President Clinton.
David Roach is a writer in Shelbyville, Ky. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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