The Freedom to Raise Our Children

An interfaith panel at the 2025 Forum on Faith, held in New York City in October, commemorated the hundred-year anniversary of the US Supreme Court case Pierce v. Society of Sisters that established the right of parents to direct the upbringing of their children, including sending them to schools of their choice. Panelists included Timothy Cardinal Dolan, Rabbi Meir Soloveichik, and William Haun. John Huleatt of the Bruderhof moderated the discussion.

John Huleatt: We’re here today to talk about the Pierce v. Society of Sisters case and its ongoing significance. This summer when Cardinal Timothy Dolan was visiting the Bruderhof we were talking about the importance of intellectual and spiritual formation for young people. His Eminence suggested that we ought to do something publicly to commemorate the importance of the Pierce case. Thanks to the Forum on Faith and Plough magazine for making it happen. Timothy Cardinal Dolan will kick this off by explaining why this issue is of great significance today, after which we will hear from the panelists.

Cardinal Dolan: People of faith strongly believe that the parents and the family are the primary educators of their children. They welcome support for the participation of the government in that sacred function, in excellent public schools, as long as government does not dare take the place of the parents but partners with them, and as long as options other than government schools are available.

“The child is not the mere creature of the state.” Have we heard those words before? That didn’t come from some saint or pope. It comes from the 1925 Supreme Court decision, now one hundred years old, in the case called Pierce v. Society of Sisters. Briefly, here’s how it went down. It was November of 1922, and the state of Oregon, led by the Ku Klux Klan, passed a referendum outlawing all schools except government ones, to which all parents had to send their children. This was appealed to the state Supreme Court and overturned, thank God, in January of 1924.

The Klan, which doesn’t give up easily, brought that decision to the United States Supreme Court where it was upheld on June 1, 1925, one hundred years ago. Hallelujah!

It was an ecclesiastical and interreligious coalition, I’m proud to say, that won justice for the freedom of parents and their children to attend the school of their choice.

Photograph courtesy of Forum on Faith.

John Huleatt: Pierce is bedrock for parental rights in education. Before we explore the legal basis further, Rabbi Soloveichik, can you speak to where parental rights ultimately come from?

Rabbi Meir Soloveichik: I’m father of six children, and educating our children in the faith is at the very heart of traditional Judaism in general and it is the central reason for not just the survival and endurance but the growth and flourishing of traditional Judaism in America. If you study the history of Orthodox Judaism in the United States you will see that in the 1950s everyone thought that we were not long for this earth. There was a magazine called Look which had a cover story: “The Vanishing Orthodox Jew.” And as one Orthodox Jew pointed out, Orthodox Judaism is still here, but Look magazine no longer exists. And so if there is reason for why we are not just here, but, thank God, vibrant and flourishing, it is because of the role that education plays and the Jewish day school plays in our communal life. And therefore, our future flourishing rests on our very freedom to educate our children in the faith. I’ve been so inspired by my own visit to the Bruderhof high school, having the opportunity to speak at the commencement there.

I’m not here as a lawyer, but if you look at the Pierce decision – when the Supreme Court decided this case it focused on the nature of the due process clause. And more recent writings have spoken of the natural right parents have to raise children according to the faith. It was one that the founders recognized as they ratified the Declaration of Independence, whose 250th anniversary we will celebrate in the coming year. But it’s impossible to speak about the right of religious liberty itself without speaking about the way in which we are free to raise our children and to educate our children. Because any truly covenantal community, by definition, thinks of itself as intergenerational. It is preparing the next generation for eternity.

Abraham is chosen, God says, because of his capacity as a father. “For I have known him,” God says in Genesis, “because he will command his children and household after him to keep the ways of God to perform justice and righteousness” (Gen. 18:19). Abraham is set apart by his capacity as a father. And his dream as a father, of course, is not merely to have biological progeny, but to transmit his faith, as well as the God that he has discovered in Mesopotamia, the God who accompanied him to the Holy Land, to transmit knowledge of that God to his child. That is how a covenantal community is actually born.

Moses says at the end of his life, describing the covenant between God and Israel, that “not only with you do I make this covenant, but, I make this covenant with those that are here this day in the presence of the Lord our God, and with those that are not here this day” (Deut. 29:14–15). If you raise children and if you have five children or six children, you know that a lot of your time goes into that.

And if we really do expend so much effort and so much sacrifice in the way we raise our children, it’s because we believe that it lies at the very heart of the obligation between us and our Creator. Without the ability to raise our children as we see fit, covenantal communion between generations is not possible. Therefore, I would locate the freedom to raise our children at the very heart of religious liberty itself.

John Huleatt: Before Pierce was there recognition in law of parental authority and duties preceding the state? What was the development of those rights in our country?

William Haun: In terms of the legal recognition of parental authority, this is ancient common law. So the English common law in many ways goes back to Aristotle and sees family as its own natural society, recognizing the role of parents and particularly the role of the father in carrying on religious faith.

There was some disruption after King Henry VIII and the taking over of the church in England about that protection when it was brought to the United States. Throughout the nineteenth century there was broad protection for parental direction around religion in this country. This began to be cut back with the rise of modern public schools and a desire to standardize children through the power of the state. That sounds really bad but you could put an understandable gloss on this as public education as trying to form good citizens, trying to form people who can participate in democratic life. The problem is that this effort to standardize the child to make a good citizen often connoted using the power of the state to change the religious direction of the child.

So this was happening in the late nineteenth century, particularly with the introduction of the King James Bible and the Protestant version of the Ten Commandments in public schools. Then you have a whole bunch of denial of opt-out challenges from the public-school context. And it’s not until Pierce that the door gets broken open. And one of the interesting developments in religious liberty law over twenty years or so – and the Becket Fund has been at the tip of the spear of this – is thinking about religious liberty not simply as a matter of the individual on one side and the state on the other, and the individuals essentially asking for a permission slip to be accommodated from something, but as actually thinking about different spheres of authority that are necessary for the preservation of self-government. We need religious institutions to be able to govern themselves and direct them. We need families to be able to direct the religious upbringing of their children. So it’s a much more communal way of understanding the First Amendment. It’s taken hold in a variety of contexts and it’s really helpful for a free society.

John Huleatt: I approach this question from the perspective of a Christian in the rightful understanding of Romans 12 and 13 and the proper respect for government, but also the proper limited role of government, which in this context would be complementary to but subsidiary to the rights and obligations of parents.

We touched on the limits of state authority in education and the proper sphere of state involvement but should we also recognize limits on parental rights?

William Haun: You asked the question about the proper limits on parental rights and parental religious exercise. I think here the Supreme Court’s latest decision in Mahmoud v. Taylor is helpful because it applies the compelling state interest test to assess the limits on a burden on parental rights. In layman’s terms you can think of it this way: your parental religious authority is being burdened by something the government is doing. OK, now the government then has to answer the question, “Did you have a really good reason to do this?” And is there no other way that you could do it, except by placing a burden on parental religious authority? That’s essentially the kind of question that’s asked by the court.

And when you focus the question that way, in my experience as a litigator, the government very rarely has a good reason that rises to that level. The government routinely fails that test – they failed it in Mahmoud, and they failed it in all the other Supreme Court cases that involve religious exercise in schools, except for one involving Jehovah’s Witnesses where the Supreme Court ended up reversing itself in three years because the result was so bad. So I think that’s a manageable inquiry.

Rabbi Meir Soloveichik: Yes, of course, as has been noted there are of course limits on parental rights and it’s the obligation of the state to prevent harm to a child. It’s interesting just to note that at the same time as Will said, we see a greater recognition of the parents and the community as having their own status within religious liberty in this country, we’re also starting to realize, hopefully not too late, how important it is actually for a child’s flourishing to think of him or herself as part of something much larger than him or herself. Ben Sasse wrote a book where he noted that the same technology that has allowed us today to live like royalty is also actually at times impeding one’s own understanding of the larger world in which one actually is, or the larger family in which one finds oneself. I think that Sasse cites that there’s an enormously low amount of young people that can state that they’ve had a genuine relationship with, or even extended conversations with, people over sixty.

And of course what that means is that the more we individuate identity and take it out of the framework of family and community, the more we have what we see right now, on the one hand astonishing wonders of technology, but also an epidemic of loneliness. On the one hand, we do think about individual rights and the individual rights of children, but that must go hand in hand with how important it is for the child to see him or herself, not only as an individual, but as part of something much larger.

John Huleatt: Cardinal Dolan, you noted that the Pierce case was not brought by parents asserting their rights. It was actually the Hill Military Academy and the Pierce religious order that asserted their rights to operate private schools. The question I have for the panel is, beyond the assertion of parental rights, what is the importance of operating independent, private schools?

Rabbi Meir Soloveichik: Catholic schools would teach their children Catholic doctrine. Jewish schools would teach how to study the Bible in Hebrew, to study Talmud in Aramaic, et cetera, et cetera. Now these schools exist not only to teach religious doctrine and knowledge, but also in a certain sense to shield children from the larger zeitgeist. For me, as a parent, that’s as important, if not more, a function of what religious schools do.

My great uncle, the great Talmudist and Jewish philosopher Joseph Soloveichik said that to be a Jew in the world is to be as Abraham described himself when he was in Canaan among people that were very different than he was. He said in Hebrew, Ger v’toshav anochi immachem, I am a stranger and a neighbor amongst you (Gen. 23:4).

And part and parcel of being part of a unique covenantal community but also part of the larger American society is to be a stranger and a neighbor. On the one hand, we are neighbors with others. We engage each other and we work toward the betterment of the larger society. But we’re also constantly aware that we are set apart by our unique faith and we need to train our children to be able to live that way. And so private schools, above all, are what prepare children for the art of living as stranger and neighbor in the larger world.

John Huleatt: In the Christian tradition this is reflected in the paradox of being in the world but not of it. And as a parent, as an educator, what does it mean to prepare our young people intellectually and spiritually to do that? Let’s take a moment to reflect on how important the freedoms that we are talking about are, that we all continue to have to be vigilant about. Our community has founded schools in in four states in the United States, in continental Europe, the United Kingdom, and Australia.

The freedom we have in the United States is exceptional and we are grateful for it. It’s still true today that it’s almost impossible to run a religious independent school in Germany. We have come full circle historically, because our communities left Germany almost one hundred years ago over the issue of freedom to direct the upbringing of our children. We’re now setting up a German-language school in Austria for the reason that these freedoms are embraced there rather than in Germany.

Pierce cemented the freedom for parents to opt out of public schools. But what about protecting the free exercise rights of students and their parents in public schools? Will, you were at counsel’s table at the US Supreme Court for the recent case of Mahmoud v. Taylor. Can you talk about that?

William Haun: Mahmoud v. Taylor is a case that was decided this past June, and incidentally the case came down on the 100th anniversary of Pierce, which is pretty fitting. Pierce, as has been said, protects everyone’s freedom to send their children to a religious school. Mahmoud then guarantees that you as a parent do not surrender your First Amendment rights just because you send your children to public school. I’m on the board of an independent, classical, Catholic school, my children don’t go to public school, but eighty percent of American children do, and they don’t surrender their First Amendment rights at the door, just like any other government programs.

Parental rights matter to me first and foremost as the father of five children. Historically in this country the question of parental rights comes to the fore in the school context in the late nineteenth century when you start to see large waves, particularly of Catholic, but also Jewish immigration to the United States. And this begins raising a whole host of questions about the proper role of the public schools. Many of the original cases around either opting your children out of instruction in public schools or developing their own religious schools were blocked.

It was at the turn of the twentieth century that you started to see the growth of the secular state and a renewed appreciation for the role of the family alongside the role of the church or religious institutions in providing a space to direct people towards truths that ultimately aren’t the state’s to decide.

John Huleatt: In 1972, well after the Pierce case the Amish community in Wisconsin vs. Yoder again pressed the issue of the rights of parents and the religious community of which they were a part to direct the upbringing of their children. Yoder featured heavily in the Court’s recent opinion in Mahmoud. Yoder has been characterized by legal scholars as a case unique to the Amish mode of life and therefore not instructive in other circumstances. In light of Mahmoud, what is the significance of the Yoder case going forward?

William Haun: Yoder is foundationally important for bringing parental religious exercise authority into the public school context. Because what the families were seeking in that case was an opt-out from the last two years of high school on the grounds that allowing their children to continue on would interfere with handing on and forming their children in a particular tradition, a particular way of life.

But in the years since Yoder, lower courts in this country have taken a variety of clever approaches to say, “unless you’re as socially isolated as the Amish are, you essentially don’t have free exercise rights when you send your children to public school.” In other words, you have to show that sending your kids to public school would be just as devastating to your way of life like it was for the Amish with the last two years of high school. Otherwise, you just have no claim. And so all these cases, case after case after case, for over half a century were failing at the threshold.

This is a real problem because if the emphasis there is placed upon the importance of the democratic process, the thinking being that these are democratically elected public school boards. If you’re a parent you can show up at a town meeting, you can run for school board. You can be involved. That was the logic.

Photograph by Gabe Palmer / Alamy Stock.

But in Mahmoud you see firsthand the limits of that logic. In the public schools there in Montgomery County, Maryland, a series of books on sexual orientation and gender identity were introduced, starting in pre-K and going up to fifth grade. They would teach pre-kindergarteners how to navigate things like a pride parade, how to identify so-called gender transitions, and how to have conversations with your parents about this. And like everything else in the Montgomery County Maryland Public Schools, you could opt your kids out of having to read these books.

Unsurprisingly, many parents wanted to opt their kids out of this instruction and that led, in March 2023, to the Montgomery County Public Schools – without any public explanation – pulling the notice and opt out rights away from parents as to these books and only these books. So in Montgomery County Public Schools, you could still opt out of band class, Halloween parties, or Valentine’s Day and get alternative reading assignments or other curriculum. But as to these books and only these books, your children are going to be made to read them and you’re never going to know.

This led to, at the end of the school year, roughly a thousand people, many Muslim and Ethiopian Orthodox, many first-generation immigrants, showing up at the Montgomery County Public School Board meeting to protest this. And the school board responded by closing the doors to the boardroom and calling the police.

When the boardroom doors are closed, that’s when the courthouse doors need to be open. So that’s when we see the limits of the logic that says, oh, well, we can just count on the democratic process. The entire point of the Bill of Rights, the entire point of the federal courts, is to make sure that we are not giving up our foundational freedoms on a whim. And so it is crucial, then, that we are able to go to court and have that opt-out right restored.

John Huleatt: What was an issue for me, I think, of apparent inequity in the dissent’s view in the Mahmoud case was that one remedy would simply be to tell parents to could go ahead and opt out of public schools, educate their children at home or put them in private schools. That’s fine for parents who have the resources to do that, but what about everybody else? And so in that sense this case was important to give parents a fighting chance in our public schools to transmit that faith to the next generation and to have that respect and understanding shown by the court.

William Haun: That argument has been used in lower courts to turn down claims like ours before. And I think the Supreme Court rightly called it both offensive and legally unsound. It’s legally unsound because the idea that, somehow I would have more free exercise rights if I were in prison, for example, than if I were in public school, creates an impossible double standard in government programs.

It’s also offensive because the parents are already paying for the public schools. We’ve already paid for them out of our taxes. And now I have to basically choose to just pay more. The Becket Fund has one client, Grace Morrison, whose child has special learning needs and she took her daughter, for religious reasons, out of Montgomery County public schools at a cost of roughly $25,000 a year. I mean, this is crippling, it is not even conceivable for many other families. So the idea that parents could just be doubly taxed like that is, as the court said, offensive.

Rabbi Soloveichik: Yoder is one of the great free exercise cases in American history because it places education of the next generation at the very heart of religious life and of the exercise of one’s faith. You know, just to add one other point, it just struck me as Will was speaking.

You know, as he was describing the recent Mahmoud case, on the one hand, how great is it that you had this victory. On the other hand, how terrifying is it that you had to fight this? How scary is it that as soon as the school heard that parents wanted to opt out, it swiftly moved to ensure that on this and this alone, students’ parents couldn’t protect their children and educate them with their values and their faith. On the one hand, incredibly true what you said John, that we owe so much to this country and thank God, thanks to the efforts of Will and his colleagues at Becket but how much more protection we need and how many threats there are to families.

John Huleatt: In closing, if you had one recommendation to parents and or religious communities about how to further the spirit of Pierce, what would it be?

William Haun: I would say similar to what Rabbi Soloveichik said before, if you have children, raise them up. I know it sounds basic but be involved in your child’s life and build a community that’s asserting this frequently.

Rabbi Soloveichik: I’ll just echo that, what Will said. The great Catholic comedian Jim Gaffigan, when he had his fifth child, said, “If you want to know what it’s like to have five kids, just imagine you’re drowning and then someone hands you a baby.” There is nothing harder, but there is nothing more rewarding than raising children. And if you actually raise them, not have the iPads raise them, and if you, as Jews do, with a Sabbath, make sure to spend time not just face to face, but soul to soul, that will be the greatest furthering of the legacy of Pierce that you can bring about.

This transcript was recorded on October 9, 2025, and has been edited for length and clarity.