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April 10, 2018

Lesson 9: Freedom of Religion – Government Can’t Ban Religious Schools

After U.S. entry into World War I, several states amended their compulsory school attendance laws by adding provisions aimed at inculcating patriotism. One such law, passed in referendum by Oregon voters in 1922, required all children (except for those home-schooled or incapacitated) to attend public schools after 1926. Two plaintiffs sued: A military academy and the Catholic Society of Sisters, which operated schools that would have to close under the act. A three-judge federal panel enjoined operation of the statute. The state of Oregon appealed to the Supreme Court, which in June 1925 ruled unanimously in Pierce v. Society of Sisters that the law was unconstitutional.

The Court’s decision, written by Justice James Clark McReynolds, relied largely on the due process clause of the Fourteenth Amendment. He argued that the law unlawfully interfered with the freedom of both the schools and of parents who wanted their children to attend private schools. A child, he wrote, was not “the mere creature of the state,” and that while the state could regulate schools in many ways it could not require attendance at particular schools.

This decision was the Court’s first recognition that the Fourteenth Amendment protected the liberties of individuals and of corporations like the Society of Sisters, and that government’s deprivation of certain personal liberties was by itself a violation of the due process guaranteed by the Constitution.

Pierce v. Society of Sisters has been regarded as good law now for nearly a century. Its assertion of a generalized liberty which the government must respect was not explicitly based on the First Amendment’s guarantee of freedom of religion, which the Court had not yet declared binding on the states. Justice Anthony Kennedy in 2000 said it might be if the issue were raised today.

The due process protection of unspecified individual liberties has been the basis of many subsequent Supreme Court decisions, including the right to marital privacy in Griswold v. Connecticut (1965, overturning a state law banning contraceptives), the right to abortion in Roe v. Wade (1973, overturning all state abortion laws) and the right to marry in Obergefell v. Hodges (2015, overturning state bans on same-sex marriage).

The Court in effect balanced the state’s interest in having an educated populace with parents’ freedom of choice in determining their children’s education. The decision was written by Justice Pierce Butler, then the Court’s only Catholic but far from the first one: Catholics were appointed chief justice in 1836 and 1910. The Court came down firmly on the parents’ freedom of choice and free exercise of religion, in a decision that was depended less on textual analysis of the Constitution than on philosophic principle.

In nearly a century of contested constitutional interpretations, Pierce v. Society of Sisters has never been seriously challenged in either the legal or political spheres. It provides firm support for the continued existence of religious-based schools and, presumably, for homeschooling.

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April 10, 2018