Pierce’s History and Progeny
Pierce arose because voters in Oregon passed an initiative in 1922 that effectively banned private schools. The law required children between the ages of 8 and 16, with a few narrow exceptions, to attend public schools. Most private schools in the state were Roman Catholic, and anti-Catholic animus was undoubtedly a major reason the initiative passed. The measure was drafted by a Scottish Rite Mason, it was sponsored by prominent Masons, and it was heartily endorsed by the resurgent Ku Klux Klan in Oregon.
Unfortunately, our nation has a long history of anti-Catholic animus. As Philip Hamburger explained, this animus nearly resulted in an amendment to the US Constitution in 1875, known as the Blaine Amendment, that would have prevented states from funding “sectarian” schools. Everyone in the era understood “sectarian” to mean Roman Catholic. The House of Representatives passed the amendment by a vote of 180–7, but it fell just short of the two-thirds necessary for approval in the Senate. Shortly thereafter, at least 31 states adopted similar amendments (often called “Baby Blaines”).
The Society of Sisters contended that the Oregon law was unconstitutional, and a unanimous Supreme Court agreed. Justice James McReynolds held that a “child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” and that the act “unreasonably interferes with the liberty of parents and guardians to direct the upbringing of children under their control.” Such a right isn’t spelled out in the Constitution, but the justices held that it was part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
The outcome of Pierce shouldn’t have come as a surprise in light of Meyer v. Nebraska, a 1923 decision declaring Nebraska’s law prohibiting school teachers from teaching any child not past the eighth grade in a foreign language or teaching him/her a foreign language unconstitutional. The Nebraska law, like similar laws in 22 other states, was passed during the First World War and was primarily concerned with the German language.
Meyer arose after a teacher was fined for teaching Bible stories in German. Justice McReynolds, writing for the seven-Justice majority, argued that the exact content of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause was not specified, but that it certainly includes:
the right of the individual to contract, to engage in any useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.