"We are asking the Supreme Court to uphold America as a place of refuge for those who are persecuted for their faith," wrote Michael Farris, president of HSLDA. "I feel good about our argument, but we must all recognize that the Supreme Court takes a very limited number of cases -- so please pray that the Court will agree to hear our appeal."
The Supreme Court hears about 75 or 80 out of every 10,000 petitions. The HSLDA could also take its argument to the US Congress, attempting to get the asylum law changed. They decided to pursue a test case, though.
"Our thought," wrote Michael Donnelly, an HSLDA lawyer, "was that this test case, if successful, could pave the way for an American asylum claim as well as start the process for creating public awareness [for homeschooling rights] in Germany."
The organization has not seen a significant response in Germany.
The media has given little attention to the legal battle and there's not much public sympathy for homeschooling. Germans are very concerned about childhood socialization and find groups that isolate themselves from their neighbors for ideological reasons very troubling. Even vocal advocates for religious liberty think it's important that those of minority faiths -- mainly Muslims, in context, but also Jews, Jehovah's Witnesses, Mormons, Hindus and Sikhs -- be integrated into society. The German debate is largely about the inclusion or exclusion of religious minorities.
A case such as the Romeikes', where they're arguing for a religious right of (self)exclusion, does not map neatly onto the public issue in Germany.
The political strategy has been more successful domestically, where many conservatives have rallied to the case and the cause. The HSLDA has used the Romeikes in quite a bit of fundraising, probably more than they could have if they'd gone to congress. In the fundraising, the group has used anti-immigration rhetoric, anti-Obama fervor and the specter of Nazis. They've suggested that supporting the Romeikes' asylum case is akin to evangelical hero Dietrich Bonhoeffer's resistance to Adolf Hitler. HSLDA press releases have been widely disseminated by conservative media, and drawn much attention to HSLDA's work and this case in particular. The call for prayer and fasting is of apiece with those efforts.
Whether or not the Supreme Court will hear the case is another matter.
The lower court ruling on the matter makes it appear that the Romeikes' case for asylum is pretty weak. The court found that the German law requiring school attendance is not selectively applied to those who homeschool for religious reasons. The law is not motivated by animus towards faith. The case that the compulsory school-attendance law amounted to religious persecution wasn't proven.
The Romeikes' lawyers failed to show that the family was eligible for asylum.
They were, according to the court, prosecuted under laws that would not be considered constitutional in the US. That, however, does not amount to the persecution necessary for an asylum claim to be granted.
Judge Jeffrey S. Sutton, writing for the Sixth Circuit Court of Appeals, explained:
The question is not whether Germany's policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany's law is a good idea. It is whether the Romeikes have established the prerequisites of an asylum claim -- a well-founded fear of persecution on account of a protected ground ...
The Romeikes have not met this burden.The HSLDA lawyers have insisted, in their appeal, that the federal court did not consider the question on which it ruled. According to the petition, "The Sixth Court refused the Romeikes’ repeated invitations to consider, much less determine, whether Germany's prosecution of religious homeschoolers constitutes persecution in the context of international human rights norms." All three judges on the appeals court specifically spoke to this question, though, in their concurrent, unanimous rulings. Textually, it doesn't seem that the court failed to consider the question the HSLDA raises, but rather considered and then rejected their arguments.
The Supreme Court could make its decision on whether to revisit those arguments and why they were rejected as early as this coming week.