Although the war was supposed to, in the words of President Woodrow Wilson, make the world safe for democracy, it “left on our shores two evils against which the founders of our Republic had fought most bitterly, centralization of government and rank intolerance.” Independent education came under attack in many states. In April 1919, the Nebraska legislature outlawed the use of any instructional language other than English, for students younger than 9th grade. The law applied to every “private, denominational, parochial, or public” school in Nebraska. The targets were Catholic and Lutheran schools that taught religious subjects in the family language of immigrant children, rather than in English.
At Zion Parochial School, Lutheran schoolteacher Robert T. Meyer provided religious instruction, in German, during recess. As Mullen puts it:
To little blue-eyed boys and flaxen-haired girls [Meyer] was recounting, as teachers have recounted for two thousand years, the tale of the bondage in Egypt, of the boy sold into slavery by his brothers and destined to become their savior in a time of their greatest need. A shadow fell across the sunlight of the doorway.
There stood the county attorney. Mullen continues:
“I had my choice,” [Meyer] told me afterward in that quiet voice which was more impressive than any shouting. “I knew that, if I changed into the English language, he would say nothing. If I went on in German, he would come in, and arrest me. I told myself that I must not flinch. And I did not flinch. I went on in German.”“Why?” I asked him.He widened his gaze a little. “It was my duty,” he said simply. “I am not a pastor in my church. I am a teacher, but I have the same duty to uphold my religion. Teaching the children the religion of their fathers in the language of their fathers is part of that religion.”
Meyer was arrested, tried, convicted and fined $25. Although many people offered to pay his fine, he refused. On appeal, Meyer lost in the Nebraska Supreme Court. Then, Mullen took over the Meyer case in the U.S. Supreme Court, along with a companion case that Mullen had been litigating, Evangelical Lutheran Synod v. McKelvie.
Mullen submitted his brief on Oct. 3, 1922, and argued the case on Feb. 3, 1923. He describes the atmosphere of the time:
[T]he greatest wave of intolerance that has ever deluged the American nation was sweeping high toward the crest of its 1924 power. Throughout the land fiery crosses flamed messages not of Christianity but of heathenish hatred. Everywhere, even in those Eastern communities long famed for religious tolerance, bigotry ran amok. Everywhere the lives, the liberties and the properties of men and women were threatened by the restrictive legislation, the actual physical menace of the head hunters and the witch burners.
In the November 1922 election, the voters of Oregon enacted a law to prohibit all non-government schools, through 12th grade.
Mullen describes the Court at oral argument:
Taft, the Chief Justice, ponderous, conservative, a strong Hamiltonian in political opinions but known to be broadly liberal on all questions of religious tolerance. [Note: Taft was a Unitarian. Privately, he expressed his belief that Jesus was not divine.]Butler, solidly Constitutional and solidly Catholic.Van Devanter and Sutherland, both from the West and unknown quantities on questions of this type.McReynolds, from the Bible Belt [Tenn.], and probably predisposed against the premise of our argument.Brandeis, already famed for fairness and liberalism; andOliver Wendell Holmes, once a great judge but blowing hot and cold now according to unpredictable crotchets.
Mullen knew that he could not win with the First Amendment. In 1845, the Supreme Court had said that the First Amendment Free Exercise Clause limits the federal government, but not states or cities. Permoli v. Municipality No. I, 44 U.S. (3 Howard) 588 (1845). So Mullen instead used the 14th Amendment. The Amendment’s guarantees of Privileges or Immunities, Due Process and Equal Protection were “fifty-two words … more of concern to mankind than any others in our American history.” In Mullen’s theory of the case, those words gave federal courts “the power to forbid legislation hostile to the natural rights of men, as stated in the Federal Constitution.”
In Mullen’s 46 minutes of allotted oral argument, he readily conceded that states could extensively regulate non-government schools. Still, he contended, there was a “constitutional, inherent, and unalienable” right to maintain private schools. Further, there was a right to teach at a private school any subject that was not seditious or immoral.
Every man on the bench above me was listening with tense attention as I spoke; but I could not tell whether it was the attention of friendliness or of hostility. Once, when I had said that a mother had the right to employ a private school to help her in teaching morality and religion to her children, Mr. Justice Holmes interposed, “She is not forbidden to do that at home, is she?” The Chief Justices’s questions, like his manner, were friendly.
In response to a C.J. Taft question, Mullen answered, “surely, religious liberty is a privilege and immunity guaranteed by our Constitution.”
Another Taft question gave Mullen the opportunity to state that 14th Amendment liberty includes “the right to study, and the right to use the human intellect as a man sees fit. . . . .[M]ental liberty is more important than the right to be physically free.”
Mr. Justice Van Devanter’s were noncommital. Mr. Justice McReynolds sometimes pushed me hard. “What about the power of the state,” he demanded, “to require that children to attend public schools. You will admit that, will you not?”“I do not admit that,” I said.“You do not admit it?” he asked in evident surprise.“I do not admit it,” I repeated. “I deny that a state can, by a majority of the legislature, require me to send my child to the public schools. I deny that any such legislative power exists in a constitutional government. The question here is at the very base of this case. It is a blow to education. It is a striking down of the principle that a parent has control over the education of his child. This is one of the most important questions that have been presented for a generation, because it deals with the principles of the soviet. Here is an act requiring the child to be taught religion after dark or on Sundays. In Russia they abolished religious teaching altogether. There are 147 different languages in Russia, and you cannot teach a child religion in any one of them over there. That is the question which is involved in the right to run private institutions.
The Supreme Court’s 7-2 decision was issued on June 4, 1923, written by Justice McReynolds. In forceful and sweeping language, the Court ruled for Robert Meyer. (Justices Holmes and Sutherland dissented.) Clarence Darrow, after studying the argument, told Mullen that the answer to McReynolds had won the Justice over.
For the first time, the Court surveyed the landscape of 14th Amendment “liberty,” listing eight points. Mullen had been fighting for just one right, but the Court had affirmed eight: “Eight points of human liberty defined, and guaranteed, and covering the whole span of human experience. A fenceless land of liberty!” Mullen rejoiced. In the words of Justice McReynolds:
While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not onlyfreedom from bodily restraint, but also the right of the individualto contract,to engage in any of the common occupations of life,to acquire 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.
Concluding his autobiography, Mullen wrote that to Americans, “the Constitution is not merely a document.” It was a “living gift” of each generation to the unborn. “It has opened to mankind the Great Plains of a true freedom. It has given us strength, and given us vision. It is our part, in gratitude to our forefathers, in obligation to our children, to keep it living, and keep it free.” To Mullen, “freedom of education” was even more important than the First Amendment: “if the state can put shackles on the minds of youth,” then it can “throttle desire for freedom of the press and of speech and of religion.”
For decades, Mullen had been a Democratic power broker. He put together the deal that gave the 1932 Democratic presidential nomination to Franklin Roosevelt, with the proviso that U.S. House Speaker John Nance Garner, of Texas, be vice president. Reflecting on a life of political battle, Mullen looked ahead, to final judgment before “the God Who meant all His children to be free.” Mullen acknowledged that he might “have fought too hard and too often in other and less vital wars.” He might “have struggled too bitterly in the ring of politics … battled too long in the dusty arenas of conflict.” So his final “justification” would be: “I took the Meyer case before the Supreme Court of the United States, and I couldn’t have won if I didn’t know how to fight.”