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It was the executive branch, the Obama administration, that wanted a homeschooling family facing persecuting in Germany to be returned there. Now the judicial branch has failed to help them.

Can Congress save the day?

That’s the question that remains after Monday’s decision from the U.S. Supreme Court not to take for review the case involving the Romeike family.

They fled Germany to the United States in 2008 and in 2010 were granted asylum – through the federal court system – by a judge who determined they would be persecuted if returned to Germany.

The Obama administration was unhappy with the result, and appealed, obtaining a ruling from the 6th U.S. Circuit Court of Appeals that the family should be sent back to the persecution.

It wasn’t exactly a surprising position, since Attorney General Eric Holder has argued in the case that homeschooling is a “mutable choice,” meaning that the government can force parents to do as it wishes without violating any rights.

The high court’s decision not to take the case ended the road – in the U.S. court system, for the family.

Michael Donnelly, director of international affairs for the Home School Legal Defense Association, which has been fighting on behalf of the family, said the “Romeikes are an inspiring family of great faith and courage.”

“They came to the United States as modern day pilgrims seeking protection from a country that ignores its obligations to protect basic human rights. They are grateful for the welcome they have received from American families and hope that they will be able to continue to homeschool their children in freedom. Germany’s increasingly harsh treatment of homeschoolers is unacceptable and the court’s refusal to take up this case does not change that fact or diminish the threat to homeschooling families in Germany.”

He continued, “I am disappointed that the court declined to take up this worthy and important case that wove together many important issues of religious freedom, parental rights and international law. HSLDA remains committed to defending the Romeike family and to working for freedom for homeschooling families around the world.

“Although the executive and judicial branches of our government have refused to protect this family,” he said, “we still hope to find a solution that will allow the family to stay in the United States to bring up their children according to their conscience.”

Michael P. Farris, chief of the HSLDA, said in an online statement that while the decision was “the last judicial hope for the family,” there still remain options.

“We will not give up and see this family returned to Germany where they will face certain persecution. Even now, we have been working with supportive members of Congress to introduce legislation that could help the Romeikes and others who flee persecution.”

It was when Holder was trying to have the case dismissed earlier that his opinion about homeschooling was revealed.

Farris was the one who warned then of what Holder was telling Americans.

“When the United States government says that homeschooling is a mutable choice, it is saying that a government can legitimately coerce you to change this choice,” Farris said. “In other words, you have no protected right to choose what type of education your children will receive. We should understand that in these arguments, something very concerning is being said about the liberties of all Americans.

“I’m glad Obama wasn’t in charge in 1620,” Farris said in an appearance on “Fox and Friends.” “The government’s arguments in this case confuse equal persecution with equal protection and demonstrate a serious disregard for individual religious liberty. I really wonder what would’ve happened to the Pilgrims under this administration.”

HSLDA noted an immigration judge who heard the Romeikes’ case ruled the family had a well-founded fear of persecution if returned to German and granted them asylum.

The problem stems from a Nazi-era law when Germany in 1938 under the leadership of Adolf Hitler eliminated exemptions that would provide an open door for homeschoolers under the nation’s compulsory education laws.

Wolfgang Drautz, consul general for the Federal Republic of Germany, previously wrote on the issue in a blog, explaining the German government “has a legitimate interest in countering the rise of parallel societies that are based on religion.”

As WND reported, the German government believes schooling is critical to socialization, as is evident in its response to parents who objected to police officers picking up their child at home and delivering him to a public school.

“The minister of education does not share your attitudes toward so-called homeschooling,” said a government letter. “… You complain about the forced school escort of primary school children by the responsible local police officers. … In order to avoid this in future, the education authority is in conversation with the affected family in order to look for possibilities to bring the religious convictions of the family into line with the unalterable school attendance requirement.”

The family faced, and again would face, fines, threats, jail time and even the loss of their children, if returned to Germany.

According to the Home School Legal Defense Association, the Romeike family was granted asylum in 2010 by a federal immigration judge who found that “Germany’s treatment of the family amounted to persecution. As evidence he cited state officials’ threats against homeschoolers in general to levy crushing fines, file criminal charges, and take away children, and against the Romeikes in particular for their sincere religious beliefs.”

It was in 1937 when Hitler himself said, “The youth of today is ever the people of tomorrow. For this reason we have set before ourselves the task of inoculating our youth with the spirit of this community of the people at a very early age, at an age when human beings are still unperverted and therefore unspoiled. This Reich stands, and it is building itself up for the future, upon its youth. And this new Reich will give its youth to no one, but will itself take youth and give to youth its own education and its own upbringing.”

The HSLDA had argued that nearly a dozen human rights documents and treaties around the globe, including the 1948 Universal Declaration on Human Rights, provide a groundwork for the belief that parents have a primary role in decision-making over the education of their children.

HSLDA reported that Thomas Schirrmacher, the executive chair of the Theological Commission of the World Evangelical Alliance, is based in Germany and recently lectured on religious freedom.

He said just because Germany has a law outlawing homeschooling does not make it right, and Germans, of all people, should know.

“The fact that the laws of a nation make something lawful doesn’t make it right,” he told the organization. “Everything Hitler did in Germany was allowed by the law. He never moved until the law allowed him. Applying the national law of Germany at the time you couldn’t have convicted Hitler of a crime. But what he did obviously and dramatically was a crime against humanity.”

He said the National Socialists, the Nazis, in Germany originated the idea.

“In 1938 the National Socialists passed a law making it a criminal offense if parents did not send their children to their schools,” he said. “These laws were never changed after the war in order to allow for homeschooling which had been possible before. I believe German leaders should take action to protect the right of parents to educate their children at home.”

WND has reported on the case since in began 2006 with police officers appearing on the Romeike’s doorstep to forcibly take their children to a local public school.

HSLDA, in its petition, explained that German officials have confirmed the purpose of their ongoing repression of homeschooling is to prevent “religious and philosophical minorities” from developing into “parallel societies.”

“Human rights standards make it plain that, although a nation may require compulsory attendance and may impose reasonable rules related to educational quality, no nation may exercise philosophical control over a child’s education contrary to the parents’ belief,” the HSLDA statement said.

In Germany, the persecution continues, with children having been seized from their parents in several cases, most recently last September when armed police officers equipped with a battering ram forcibly took four children from German parents Dirk and Petra Wunderlich because they were being homeschooled.

WND reported later the children were return to the parents after they were given no choice but to agree to have the children begin attending public school classes.

In the Romeike case, the original immigration judge, Lawrence O. Burman, granted the Romeike family asylum on Jan. 26, 2010, under the Federal Immigration and Naturalization Act because Germany’s national policy of suppressing homeschooling violated their religious faith and because German authorities were improperly motivated to suppress homeschoolers as a social group.

Uwe Andreas Josef Romeike, and his wife, Hannelore, have seven children,

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