Supreme Court and Amish plumbing: how a minority’s dedication can benefit society

Written by William C. Duncan

December 10, 2021

An entire society can benefit, in tangible and intangible ways, from the dedication of a minority. The small proportion of the population who serve in the military is an obvious example. The oversize role that Quakers played in the movement to abolish slavery is another.

A recent, but not as well-known, Supreme Court decision illustrates another. It involves an Amish community in Minnesota.

In a brief opinion, Justice Neil Gorsuch described the background of the case:

The Swartzentruber Amish are religiously committed to living separately from the modern world. Maintaining that commitment is not easy. They grow their own food, tend their farms using pre-industrial equipment, and make their own clothes. In short, they lead lives of faith and self-reliance that have ‘not altered in fundamentals for centuries.’

Each Amish community has its own body of religious rules, called an Ordnung. When a community must decide whether its faith permits a certain action—say, using the phone at a neighbor’s farm should a fire break out—it makes that decision collectively. Sometimes there are disagreements and communities fracture. Over time, this phenomenon has led to approximately 40 different affiliations within the broader Amish community across the United States. The Swartzentruber Amish are among the most traditional.

Today’s dispute is about plumbing, specifically the disposal of gray water—water used in dishwashing, laundry, and the like. The Swartzentruber Amish do not have running water in their homes, at least as most would understand it. Water arrives through a single line and is either pumped by hand or delivered by gravity from an external cistern.

This created a conflict with a county ordinance requiring

a modern septic system for the disposal of gray water. … Responding to this development, the Swartzentruber Amish submitted a letter explaining that their religion forbids the use of such technology and ‘asking in the name of our Lord to be exempt’ from the new rule. Instead of accommodating this request or devising a solution that respected the Amish’s faith, the Minnesota Pollution Control Agency filed an administrative enforcement action against 23 Amish families in Fillmore County demanding the installation of modern septic systems under pain of criminal penalties and civil fines.

The Amish sought a court order preventing enforcement and “also offered an alternative … to install systems that clean gray water in large earthen basins filled with wood chips that filter water as it drains. These wood chip basins may be more primitive than modern septic systems, but other jurisdictions permit their use for the disposal of gray water.”

The County replied by filing a counterclaim seeking an order displacing the Amish from their homes, removing all their possessions, and declaring their homes uninhabitable if the Amish did not install septic systems within six months. The County even unsuccessfully sought a court order authorizing its agents to inspect the inside of Amish homes as part of an investigation into what “types of modern technologies and materials” they might be using. Apparently, this was part of an effort to amass “evidence” to “attack the sincerity of [the Amish’s] religious beliefs.”

The trial court and Minnesota Court of Appeals ruled in favor of the county and, since the state supreme court denied review, it was appealed to the U.S. Supreme Court.

The court vacated the decision and instructed the lower court to reconsider the decision by applying the court’s reasoning in Fulton v. City of Philadelphia, which made clear that governments cannot rely on general interests that would be advanced by denying accommodations to religious groups who are seeking exemptions from a law. As Gorsuch noted in his opinion concurring in the order, the Minnesota county will need to show that there is no way it could accommodate the beliefs of the Amish. He suggests this will be difficult because other states allow the specific accommodation the Amish are seeking.

This is not the first time a case involving the Amish has led to an important religious freedom precedent.

In 1972, the court ruled the state of Wisconsin could not require the Amish to send their children to school after eighth grade.  The case not only strengthened religious freedom but also established the primacy of parents in making educational decisions for their children.

In a world of increasing digital incursions into everyday life, we can learn a lot from the Amish about being intentional about what technologies we adopt and why. We can also be grateful for their efforts to secure religious freedom and other liberties that benefit all of us.

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