I concur in the opinion of the majority that the information states a public offense but for entirely different reasons than those assigned by the majority. My colleagues seem to think the state can punish the parents for their religious beliefs if such beliefs are enforced by "directions or commands" but not if inculcated by "teaching or instruction" merely. In other words, they seem to think that this proceeding is one to punish the parents on account of their religion, whereas it has for its purpose their punishment for contributing toward the delinquency of their children, in that they are not affording their children an opportunity for an education equal to the minimum education provided by the common schools of the state. The only defenses to such a charge, as I conceive it, are (1) that their children are attending the public schools or (2) if not, they are attending a private or parochial *Page 454 school or receiving private tutorage equal to that given in the public schools. If none of these is available to the children, their morals, health and welfare are certain to suffer injury for which no one but the defendants is responsible. The proceeding is not to punish defendants on account of their religious beliefs but for neglect to perform not only a natural but a legal duty to their children by arranging for the minimum of education for them as provided in the public school laws. The majority opinion seems to agree that that is the offense charged. The only way to escape punishment for such offense is to show inability to comply with the law. If the defendants are too poor to pay for the children's instruction in a private or parochial school or to hire a private tutor, and there is no public school available to them, the defendants cannot be punished, for the law will not exact an impossible thing. But if the parents are financially able to take care of their children's education as indicated, or if there is a public school available, there exists no excuse for the neglect of the morals, health and welfare of such children.
Under the Gobitis decision (310 U.S. 586, 60 Sup. Ct. 1010,84 L. Ed. 1375, 127 A.L.R. 1493), which is the law on the question, the school board had a right to exclude the Gobitis children for refusing to salute the flag. These children were excluded, not because they believed it idolatrous to salute their country's flag but because they refused to conform with the rules and regulations of the school. It would have been the same if they had refused because the flag was old, torn and faded.
In that case the right of the parents to teach or persuade their children to conform to their religious tenets was not involved. The act condemned was that of the children — failure to salute the flag — and the *Page 455 children's, and not the parents', act was the ground upon which they were excluded from school. In all these exclusion cases, the children have been the sufferers and not the parents. While the excuse made for the children in not saluting the flag is that it was against their religion, such excuse is no more permissible than if the children had refused to salute it through wilfulness or disobedience to the teacher. As I construe the Gobitis decision, it is to the effect that laws like the one requiring a child to salute the flag are legal and enforceable
"so long as men's right to believe as they please, to win othersto their way of belief, and their right to assemble in theirchosen places of worship for the devotional ceremonies of theirfaith, are all fully respected." (Italics mine.)
Gobitis case, supra, 310 U.S. 586, 60 Sup. Ct. at page 1015, 84 L.Ed. at page 1382 and 127 A.L.R. at page 1498.
The enforcement of the law punishing persons who contribute to the dependency or delinquency of their minor children (sections43-1001 to 43-1011, Arizona Code 1939) will not interfere with any of such enumerated rights. The defendants may teach their children, without let or hindrance, any religious beliefs they choose and, so long as such teaching or its effect does not run counter to a general law enacted under the police power of the state to protect the peace, health and general welfare thereof, they commit no crime and may not be punished therefor. But their situation is like that of the person who claims, under constitutional provisions guaranteeing free speech and a free press, the right to speak and write what he pleases. This may not be denied but under such privilege he is responsible for any wrong or damage occasioned thereby to others. A person's religious *Page 456 belief may be that it is wrong to have recourse to medicine in case of sickness but such a belief is no defense in a prosecution for manslaughter. It is said, in 26 American Jurisprudence 229, section 108:
". . . The law of the land must be obeyed even though there is something in the shape of belief in the conscience of the person coming under its obligation which would lead him to obey what, in his state of mind, he may consider a higher power or authority. . . ."
It seems to me that the majority have been misled into a most egregious error from the simple fact that in the information the pleader anticipated the defense the defendants would probably make and alleged it, that is, that the children Thelma Davis and Wayne Davis were taught, instructed, directed and commanded by defendants not to salute the flag. That, if true, is no defense to a charge of contributing towards the delinquency of the children. The information might better have omitted such allegations. They are not necessary elements of the offense; they are surplusage at most. The only question is, have the defendants committed an act of delinquency against these children, and not how they committed it. My answer is yes. *Page 457