In this paper the author examines the nature of parents' due process right to direct the education of their children and its relationship to the First Amendment. The article begins with the hardiest of the U.S. Supreme Court's early substantive due process decisions: Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer struck down a Nebraska law forbidding the teaching of foreign language in public or private schools; Pierce struck down an Oregon law requiring attendance at public schools. Part I recounts that the laws in both cases were the result of complex forces, uniting groups as disparate as the Ku Klux Klan and the progressives, both of which advocated the “Americanization” of the state's young people. In both cases, the incidence of the laws fell heavily and deliberately on parochial schools. Yet in both cases the Supreme Court ignored the claims of infringement of religious liberty and resorted to the reasoning of substantive due process to recognize a parental right to direct children's education.
Part II discusses that the constitutional bases for parental rights and free exercise claims in the 1920s were more closely connected than we might have thought at first glance. Indeed, for the Court in that era, free exercise rights were substantive due process rights. Deciding Meyer and Pierce on the basis of parental rights, rather than free exercise grounds, imposed few additional intellectual costs on the Court and, importantly, absolved the Court of some difficult questions surrounding the relationship between the First and Fourteenth Amendments. Like the Court's earlier substantive due process cases, Meyer and Pierce are without constitutional rigor, thereby giving the Court great flexibility to support benevolent causes.
Part III discusses Wisconsin v. Yoder, and Part IV shows that Yoder follows in the substantive due process tradition of Meyer and Pierce. Unlike those cases, Yoder comes with the formal trappings of the Free Exercise Clause, but like those cases, Yoder's free exercise rights are fitted into a larger patchwork of substantive due process rights. As a result, Yoder too lacks doctrinal rigor and becomes a useful vehicle for giving the Court a way out in difficult cases, while not imposing any additional form on the First Amendment. In this sense, Yoder survives Smith, but only because there is so little to survive.
25 Cap. U. L. Rev. 887 (1996).
Bybee, Jay S., "Substantive Due Process and Free Exercise of Religion: Meyer, Pierce and the Origins of Wisconsin v. Yoder" (1996). Scholarly Works. Paper 352.