dissenting.
I largely concur in the analysis of the majority opinion concerning the State Constitution, the Due Process Clause and the Establishment Clause. However, I view the issue on the Free Exercise Clause as more difficult. On that issue, my analysis differs. Therefore, I respectfully dissent.
The Free Exercise Clause of the First Amendment to our United States Constitution declares that government “shall make no law ... prohibiting the free exercise [of religion].” While not absolute to the exclusion of all governmental interests, this freedom ranks among the foremost-respected values of our diverse American culture. "... [W]e have become a Nation of many religions and sects, representing all of the diversities of the human race.” Wisconsin v. Yoder, 406 U.S. 205, 249, 92 S.Ct. 1526, 1550, 32 L.Ed.2d 15 (1972) (Justice Douglas, dissenting). When government seeks to use the compulsion of our criminal laws to override sincerely held religious beliefs, painstaking judicial review is essential if freedom of religion is to be truly meaningful — more than a high sounding phrase emptied of purpose by majoritarian winds, as in some nations.
It is well established'that judicial review requires a sufficiently important governmental interest to justify a particular burden on the freedom of religion. When evaluating compulsory school attendance laws, the state must show “with sufficient ‘particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption’ ” for the religious convictions claimed. Lyng v. Northwest Indian Cemetery Protective Association, — U.S. —, 108 S.Ct. 1319, 1329, 99 L.Ed.2d 534 (1988) (quoting from Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)).
“Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance.
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“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. We can accept it as settled, therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.” Wisconsin v. Yoder, supra at 214-215, 92 S.Ct. at 1532-33, 32 L.Ed.2d at 24.
*326The State made no effort to demonstrate that its interest in educating children would be disrupted by granting an exemption for these religious beliefs. The State simply relied upon our decision in State v. Patzer, 382 N.W.2d 631 (N.D.1986), as binding precedent that teacher certification was “the least personally intrusive method[]” of assuring education of all children. The majority opinion adopts the same attitude and simply concludes that State v. Patzer is still controlling.
I joined in Justice Levine’s opinion for this court in Patzer, supra. That opinion recognized that we were performing “a sensitive and delicate task.” 382 N.W.2d at 636. In “[balancing the defendant’s religious beliefs and the nature of the burden imposed upon those beliefs by the teacher certification requirement,” id. at 639,1 voted to uphold the teacher certification requirement. But, additional arguments in this case and in other related cases also before us, together with further study of related and new United States Supreme Court decisions on the free exercise of religion, have brought me to view this case differently.
I am now convinced that, in Patzer, we read Yoder too narrowly and focused our analysis inappropriately. We should expect more from the State. The State must affirmatively show us that its compulsory education program would not work if it granted a religious exemption to these defendants. Our responsibility is to strictly scrutinize the need for the State’s purpose to prevail over sincere religious convictions.
We have a recent teaching from the United States Supreme Court about how Yoder should be interpreted and applied:
“The statute at issue in that case [Yo-der] prohibited the Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by the Amish religion. Id., [406 U.S.], at 207-209, 223 [92 S.Ct. at 1529-1530,1537]. The statute directly compelled the Amish to send their children to public high schools ‘contrary to the Amish religion and way of life.’ Id., at 209 [92 S.Ct. at 1530]. The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the state could show with sufficient ‘particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.’ Id., at 236 [92 S.Ct. at 1543] (citation omitted). The dissent’s out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the ‘impact’ on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature.” Lyng v. Northwest Indian Cemetery Protective Association, 108 S.Ct. at 1329.
Lyng held that the Free Exercise Clause did not prohibit the United States Government from permitting timber harvesting or constructing roads on lands owned by the United States which were sacred to certain American Indians. Lack of coercion to participate in an internal government action was a key factor in Lyng. The dissent by Justice Brennan, and joined by Justices Marshall and Blackmun, makes that vividly clear. This case is coercion by criminal prosecution.
I think we were also mistaken when we read Yoder as only involving “exceptional considerations” of a community of like minded, religious people with “a long history of being a successful, self-sufficient segment of society.” 382 N.W.2d at 637. It is well established that the Free Exercise Clause does more than protect established religions and discrete groups. Individual religious beliefs, as much as institutionalized ones, are protected by our Constitution. In Thomas v. Review Board, 450 U.S. 707, 715-716, 101 S.Ct. 1425, 1430-31, 67 L.Ed. 624 (1981), the United States Supreme Court said that the “guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.” Justice O’Connor’s pointed remarks for the majority in Lyng emphasize this eloquently:
"... [T]he dissent ... offers us the prospect of this Court holding that some sincerely held religious beliefs and practices *327are not ‘central’ to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent’s approach would require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the judiciary in a role that we were never intended to play.” Lyng, 108 S.Ct. at 1329-30.
Thus, our analysis should be focused on the State’s showing of how an exemption for religious belief would affect the state’s educational program, more than on how the intrusion would affect sincere individual beliefs. “... [I]t would require a more particularized showing from the State on this point to justify the severe interference with religious freedom such additional compulsory attendance would entail.” Wisconsin v. Yoder, supra 406 U.S. at 227, 92 S.Ct. at 1639, 32 L.Ed.2d at 32. The choice between religious belief and state interest comes only after the State shows that toleration of the religious belief will seriously undermine the state program of education. Here, the record is bare.
Andersons have advanced the position that North Dakota is nearly alone in enforcing teacher certification for all its teachers, without allowing home schooling. This has not been seriously contested by the State. No argument has been made or evidence offered by the State that the educational efforts of 47 other states, which apparently tolerate some form of home schooling, are failing. In this sensitive constitutional area, the burden of persuasion should be on the influential State, not well-intentioned parents. In this case, the State sought to weigh in only with the bare precedent of Patzer, and no other effort. To me, that is not enough.
"... [T]his case involves the fundamental interest of parents as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Wisconsin v. Yoder, supra at 232, 92 S.Ct. at 1641, 32 L.Ed.2d at 36.
We are told by these defendants that only three states, including North Dakota, require teacher certification for all teachers, while all other states permit home schooling in some form. The State’s sole response was, “What other states may be doing ... does not, and cannot alter the legal precedence which is well settled on this issue in this Circuit,” citing only Pat-zer, supra. This response cannot be sufficient. If the experience of many other states shows that a religious exemption for home schooling does not seriously impair education of children, this State must certainly explain why conditions are different here. Full respect for free exercise of religion, as a cherished freedom, may well force repeated efforts by the government to show that particular purposes cannot be adequately accomplished without overriding deeply held beliefs by compulsion. The State’s position is unacceptable because it offers neither explanation or evidence about how or why its educational system would be significantly impaired or rendered ineffectual by recognizing a religious exemption. We should not synthesize those effects for the State when they are not properly submitted, as we did in Patzer. See 382 N.W.2d at 637, footnote 4.
“This would be a very different case for me if respondents’ claim were that their religion forbade their children from attending any school at any time and from complying in any way with the educational standards set by the State.” Wisconsin v. Yoder, supra at 238, 92 S.Ct. at 1544, 32 L.Ed.2d at 38 (Justice White, concurring).
This State does recognize exemptions from compulsory education. An administrative procedure is already in place for processing exemption claims based upon good reasons. There is not only the approved “parochial or private school” exemption in subsection 1 of NDCC 15-34.1-*32803, quoted in the majority opinion. There are three more:
“2. That the child has acquired the branches of learning taught in the public schools and has completed high school.
“3. That the child actually is necessary to the support of his family, which shall be a question of fact to be determined by the governing board of the district with the approval of the county superintendent of schools, and such determination shall be subject to review by the superintendent of public instruction on appeal.
“4. That the child is in such physical or mental condition as to render attendance or participation in the regular or special education program inexpedient or impracticable. Such condition shall be shown by a declaration of a multidisciplinary team which includes the director of special education of the special education unit of which the school district of residence is a member, the school superintendent of the child’s district of residence, the child’s classroom teacher, the child’s physician, and the child’s parent or guardian.” (emphasis added).
I refer to these legislated excuses to illustrate that exemptions can and do exist while carrying out a general program of educating children. Again, the State has made no effort to justify the existence of an economic exemption “necessary to the support of [a child’s] family” at the same time that it denies one for religious beliefs. Surely, First Amendment values are equal to other values which may be adversely affected by a state program.
I believe that the North Dakota compulsory school-attendance law does interfere with the freedom of these defendants to act in accordance with their sincere religious beliefs. I believe that the State has failed to show that its interest in establishing and maintaining an educational system overrides these defendants’ rights to free exercise of their religion. Therefore, I respectfully dissent.