The Obama administration is attempting to deport a German family that came to America seeking asylum from a Nazi-era law that prohibits homeschooling.
Uwe and Hannelore Romeike decided to homeschool their children in 2006 because the curriculum at their public school ran counter to the family’s Christian convictions.
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German law mandates that children attend a public or state-approved school. The local mayor informed the family that they would face fines and could lose the custody of their children if they did not attend school. The parents also faced potential jail time.
The government fined the family heavily and at one point seized the children to force them to attend school.
After trying to secure an exemption from the law, the Romeikes fled the country and immigrated to Tennessee in 2008. They had been fined well over $10,000 by the time they fled and faced escalating fines if they continued to homeschool their children.
The family applied for asylum in the United States and an immigration judge granted it to them, citing a well-founded fear of persecution if they returned to Germany.
However, Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), appealed the ruling to the Board of Immigration Appeals.
The board overturned the original judge’s ruling and ordered the Romeikes deported to Germany. The Romeikes appealed their case to the Sixth Circuit Court of Appeals, where their case will be heard April 23.
At issue is whether the German law constitutes persecution against Christians for their faith, qualifying them for asylum under the Immigration and Nationality Act.
The U.S. Justice Department contends the German law is "generally applicable" to all people and is not being selectively enforced. As a result, the German government is "prosecuting" the family under German law, not persecuting them.
Mike Donnelly, an attorney for the Home School Legal Defense Association, pointed to a German Constitutional Court’s decision about another German family in 2003 as evidence that the court was discriminating against Christians.
"The general public has a justified interest in counteracting the development of religiously or philosophically motivated ‘parallel societies’ and in integrating minorities," the court said, as quoted in the Department of Justice’s brief.
The German high court argued that the state has an interest in ensuring that all children attend schools.
Donnelly said the German law allows parents to homeschool their children for medical or logistical reasons, but not for religious reasons.
"They are differentiating on the basis of conviction," he said.
This treatment justifies granting asylum under U.S. law, he argued.
The immigration judge did not find that the Romeikes faced persecution in their home country, but he did find that they justifiably feared persecution if they returned. The fines would continue to increase if the Romeikes did not acquiesce to the state and the family faced confiscation of their property, Donnelly said.
"Prosecution that goes too far can become persecution," Donnelly said.
The Pew Research Center found last year that Germany has moderate legal restrictions on religion, the same as in the United States. The study also found a high social hostility toward religion in Germany.
The Obama administration has not vigorously defended religious liberty around the world, said Timothy Shah, associate director of the Religious Freedom Project at Georgetown University.
He said religious liberty is an "equal opportunity victim" in that no recent administration has heavily prioritized it.
The Romeikes’ case implicates a very important part of religious liberty, Shah said.
"If parents do not have the right to rear their children in the way that their religion demands, religious freedom is severely impaired," he said.
He said the United Nations explicitly protects parents’ rights to guide their children’s education according to their religious faith.
Thomas Farr, director of Georgetown’s Religious Freedom Project, criticized the Obama administration last year for prioritizing other, more politically expedient causes like gay rights while not supporting religious freedom to the same degree.
President Barack Obama extended asylum in 2011 to persecuted gay, lesbian, bisexual, and transgender individuals in other countries.
"If it’s the case that sexual minorities of that sort deserve protection, then it’s no less true that religious minorities deserve protection," Shah said.
Luke Goodrich, deputy general counsel at the Becket Fund for Religious Liberty, said the Romeikes’ case "fits perfectly" with both the letter and spirit of U.S. asylum law.
"One of the main reasons we have asylum law is to protect human rights when they’re being abused in foreign countries," Goodrich said.
The Becket Fund is not involved in the case, although Goodrich did appear in a debate about the case at the University of St. Thomas Law School.
The United Nations has criticized Germany in the past for not allowing homeschooling, Goodrich said, citing a report by the Special Rapporteur on the right to education for the U.N. Human Rights Council.
David Abraham, a law professor at the University of Miami Law School, defended the decision to deport the Romeikes from the United States in the debate at the University of St. Thomas.
"This is a democratic country with voters and legislators—this is not a totalitarian society," Abraham said about Germany in the debate.
The Romeikes had many schooling options in Germany, Abraham said in an interview for this article, noting that Germany has been a "pioneer" in school choice options. The Romeikes also have the ability to address their grievances through the democratic process, he said.
"They are not forced to go to a secular school only," Abraham said.
He argued that religion could not excuse people from laws of general applicability.
"None of these [rights] are without limits, and the limit is in different places in different countries," he said.
ICE does not comment on pending litigation, a spokesman said.
The Romeikes were unavailable for comment, a Home School Legal Defense Association official said.