Louis Marshall’s Argument in Brief on Oregon School Law Case Used to Bolster Up Point in Encyclical

The interesting situation of the arguments of the late Louis Marshall as contained in his brief on the famous Oregon school cases and later used by the United States Supreme Court in declaring the Oregon school law unconstitutional being offered in support of views entertained by the head of the Catholic Church was offered this week when the Pope issued an encyclical with regard to education.

In the encyclical the Pontiff declared in effect, that a child is not a creature of the state and that since those who raise him have the right to educate him as they see fit the state cannot arbitrarily insist on a uniform system of education.

The Oregon school law of 1923 sought to make it a misdemeanor to permit children to attend schools other than those provided by the state. At the invitation of those who contested the constitutionality of this law, Mr. Marshall, on behalf of the American Jewish Committee, filed a brief with the Supreme Court in which he declared that the state might as well compel citizens to read the same paper, be members of the same lodge and become members of the same political party as “to say to parents that regardless of their ambitions. . . for their children, regardless of the love and affection which they bear them, regardless of their deep-seated convictions respecting the duty which they owe for their ethical, moral and religious rearing of their children, the state may come in and take away from them that sacred right and performance of the duty of which they conscientiously believe that they owe to their children and to future generations. Our children do not belong to the state.”

In language that was identical in spirit, if not in word, the Supreme Court on June 1, 1925, unanimously declared “that 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.”