August 12, 2021
Any parent would be overwhelmed and stunned to learn their child had cancer. That was true for a Utah couple, Daren and Barbara Jensen, when their 12-year-old son, Parker, was diagnosed with Ewing’s sarcoma in 2003. They faced serious questions, including whether to have their son undergo 48 weeks of chemotherapy with all the difficulty that would entail, especially for a child.
After the tumor was removed, the doctors recommended Parker receive chemotherapy, but the Jensens weren’t sure that was a good idea. The state intervened and a court ordered the treatment, so the Jensens left the state with their son and were charged with kidnapping. Public pressure finally led the state to relent, and a decade later, Parker was still cancer free.
One legacy of this dispute was a Utah Supreme Court decision specifying that parents have a fundamental right to direct the medical treatment of their children. This decision built on an earlier Utah decision determining children could not be removed from parents unless the parent was unfit. This holding, in turn, referenced two key U.S. Supreme Court decisions from the 1920s that provided the basis for the expectation that parents can make decisions about rearing their children without interference from the government.
The first involved a challenge to a Nebraska law that prohibited “the teaching in any private, denominational, parochial or public school, of any modern language, other than English.” The law had been enacted in 1919 during a period of hostility to German instruction in schools. In 1920, it was applied to convict Robert Meyer, a teacher in a Lutheran school, for teaching about the Bible in German to students during a lunch period. A commentator has noted that the conviction “had important religious overtones,” since “Meyer understood that it was impossible to teach children to read the Bible in German if their education was limited to churches on Sunday.” That was true because their parents and congregational leaders would have spoken and taught about their faith in German.
In 1923, the Supreme Court struck down the law as a violation of the right of parents to choose how their children could be taught in schools, rejecting the state’s argument that the law was necessary to Americanize its citizens.
The next case, which was decided in 1925, had even more explicit religious overtones. It involved an Oregon law that required children to attend public schools, effectively banning religious or other private schools. The law had been proposed to dampen the influence of Catholic schools in particular, and it was supported by the Ku Klux Klan and the Federation of Patriotic Societies. The archbishop of Portland, taking note of the anti-Catholic impetus for the law, “founded the Catholic Civic Rights Association of Oregon to combat the initiative.”
This law too was invalidated by the Supreme Court. It was challenged by an organization of nuns who operated orphanages and schools and by a private military academy. The unanimous opinion concluded that the Oregon law:
unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. … The 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.
Five decades later, the court held that a Wisconsin law making attendance at school mandatory until they were 16 could not be applied to punish Amish parents. These parents had withdrawn their children from school after eighth grade based on their religious belief that after basic education, their children needed to pursue only vocational education. Some parents had even been willing to go to jail.
The majority weighed the state’s interest in promoting education with “the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.” It concluded that the rights of the parents, particularly when combined with their free exercise rights, took precedent over the state’s considerations.
These cases, taken together, form the foundation for the now well-established right of a parent to make decisions on behalf of their child, free of government coercion, except for cases of abuse or unfitness. It is also yet another example of how the efforts of individuals to secure their religious freedom have widened the secular circle of freedom for everyone.
The First Amendment – like the Constitution itself – would not exist except for the legislative negotiation and compromise that made it happen.
Today Sutherland Institute announced the return of its Congressional Series for 2022. Later this summer, each of Utah’s members of Congress will take the opportunity to speak on a critical policy issue and engage in Q&A.
In tuition grant case, Supreme Court says state can’t exclude families using church-affiliated schools “from otherwise available public benefits.”