Wisconsin v. Yoder and the Amish Fathers Who Stopped School at Eighth Grade

The fine was five dollars. That is what the county of Green, Wisconsin, assessed against each of three farmers in 1968 for the crime of declining to send a fourteen-year-old and two fifteen-year-olds to high school. Five dollars. A state with the whole apparatus of law enforcement at its disposal went to trial, won convictions and defended them all the way to Washington over a sum that would not cover a tank of gas today. When a government spends that much effort on that little money, the money is not the point.

The point was authority: who decides what a child learns after the age at which a farm family has taught him to farm. The answer the Supreme Court gave in Wisconsin v. Yoder in 1972 is one of the most important statements of religious liberty in American law, and one of the most misunderstood. I want you to read it carefully, because the case is both a shield and a warning about how fragile a shield can be.

The three fathers and the Old Order

The defendants were Jonas Yoder, Wallace Miller and Adin Yutzy. They belonged to the Old Order Amish and the Conservative Amish Mennonite Church, and they lived near New Glarus, in Green County. Wisconsin law required children to attend school until age sixteen. The Amish children, by the families' decision, stopped after the eighth grade. The three children whose absence was prosecuted were Frieda Yoder, Barbara Miller and Vernon Yutzy.

Here is what made the case unusual. The Amish did not object to schooling. They objected to a specific stretch of it. They sent their children through eighth grade, which gave them reading, writing, arithmetic and the habits of study. What they refused was formal high school, because in their understanding of Scripture a life separate from the surrounding world is the faith, and not an accessory to it. High school, with its competition, its emphasis on worldly success and its long hours of peer pressure, pulled adolescents away from the community at exactly the age when the community was supposed to be making them adults.

So the Amish taught the rest at home and in the field. The children learned farming, homemaking, the care of animals, the trades of the community and the religious practice that gave the whole thing its meaning. This was not a loophole. It was a deliberate system, a sort of vocational apprenticeship wrapped in a church, and it had worked for centuries.

The three men were convicted in the county court and fined. The Wisconsin Supreme Court reversed, holding that the state's compulsory attendance law, as applied to them, violated the Free Exercise Clause. Wisconsin took the case to the United States Supreme Court, which heard it in December 1971 and decided it on May 15, 1972.

The holding

Chief Justice Warren Burger wrote the opinion, and the Court affirmed the Wisconsin Supreme Court. Justices Powell and Rehnquist took no part, Justices Stewart and White wrote concurrences, and Justice Douglas concurred in part and dissented in part.

Burger began with the weight of the state's claim and did not treat it lightly. Universal education, he said, is a high interest. But he held that it is "not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children." That is the center of the opinion. The state's interest is real, and it is not an absolute that defeats every other right.

The Court then did two things. It examined the sincerity and the nature of the Amish claim, and it concluded that this was a true religious belief, not a personal preference dressed up for litigation, and that the compulsory attendance law placed a heavy burden on it. And it examined the state's reason for insisting on two more years, and found it thin as applied to these children. The Amish were self-sufficient, law-abiding and productive. The state had not shown that two more years of formal school would do anything for a young person headed into that community that the community's own training did not do. The Court noted the long history of the Amish in America, their record of not becoming a public charge, and the fact that their children were prepared for a life they would actually live.

Burger was careful about what the case did not decide. He wrote that a way of life, however virtuous and admirable, may not be used as a barrier to reasonable state regulation if it rests on purely secular considerations. In other words, the Amish won because their claim was religious in the fullest sense, because it was a way of life inseparable from belief and tradition, and because the evidence showed the community's long success. It was not a general license for any family to leave school at fourteen.

Premises: why Yoder was right

Let me put the argument in order.

1. The First Amendment forbids Congress to prohibit the free exercise of religion, and the Fourteenth applies that to the states. The text is categorical. It does not say "unless the state has a good reason," but the Court, from the 1960s on, had read it to require the government to justify a burden on religious practice.
2. Compelled schooling past eighth grade burdened the Amish religion. The families' faith required separation from the world during adolescence, and the state's law required them to expose their teenagers to it.
3. The state's interest in two further years of schooling was not compelling as applied. Education is a great good, but the state did not show that these children, in this community, were harmed by the choice.
4. The parents' interest was old and deep. Pierce v. Society of Sisters (1925) had said that the child is not the mere creature of the State. Burger tied the Amish claim to that line.
5. Therefore the exemption was required.

I think that is correct, and I think it is the right way to treat a religious minority that asks for nothing except to be left alone. The Amish do not seek tax money, do not run for office and do not march. They ask for the freedom to raise their own children in the way their fathers did. A free country has room for that. The price to the rest of us is two high-school classrooms with a few fewer farm kids in them.

The strongest objection, stated fairly

Justice Douglas wrote the dissent in part, and it is the best objection to the majority. It deserves its due.

Douglas pointed out that the Court's opinion spoke of the rights of parents, but the case was about children. The three children whose schooling was at stake were not parties. No one had asked them what they wanted. Perhaps one of them wanted to be a doctor, or a pilot, or a schoolteacher, or to leave the community for another life. If a parent may keep a child out of high school, then, in Douglas's words, "the child will be forever barred from entry into the new and amazing world of diversity that we have today." He thought the Court should have heard from the children, at least those old enough to have views, before deciding on their behalf.

That is a serious argument, and I will not insult it by pretending it is weak. The state does have an interest in each child as a future adult, and no parent's authority is unlimited. The law has always recognized that. A parent cannot, for religious reasons, withhold medical care from a child in some circumstances, and the Court said as much in earlier cases.

Here is my answer, in three parts.

First, the majority did consider the children's interests. It reviewed the record and found that Amish children were being prepared, through a long and successful tradition, for the lives they would live. The Amish community had a history of producing capable, self-supporting adults. The state's own evidence did not show harm.

Second, the Douglas position proves too much. If the state may override a parent whenever a child might have wanted something else, then no family tradition, religious or secular, is safe. Every child might wish to do something other than what his parents have chosen for him. The question is not whether a child could wish otherwise, but who holds the primary authority, and in a free society the answer has always been the parent, subject to the state's power to intervene in cases of real harm.

Third, the remedy is available to those who leave. The Amish do not imprison their members. A young person who wishes to leave can do so, and the Amish practice of rumspringa, a period of exposure to the wider world, exists in many communities for just that reason. The law should not assume that a child cannot choose later what a parent has chosen for him now.

What came afterward: Smith and the hybrid theory

For eighteen years Yoder stood as a leading free exercise precedent, and lawyers cited it for the proposition that religious practices burdened by general laws deserved a hard look from the courts. Then, in 1990, the Court decided Employment Division v. Smith, in an opinion by Justice Scalia. It held that a neutral law of general applicability does not violate the Free Exercise Clause even if it burdens religious practice, and that the state need not show a compelling interest. The case concerned two members of a Native American church who were fired for using peyote in a religious ceremony and denied unemployment benefits.

Scalia had to deal with Yoder. He did not overrule it. He recast it. He said that Yoder did not rest on the Free Exercise Clause alone but involved what came to be called a hybrid situation: a free exercise claim coupled with another constitutional right, namely the right of parents to direct the education of their children under Pierce. On that reading, Yoder survives, but as a case about parental rights joined to religion, and not as a free-standing rule that religious objectors win against general laws.

The hybrid theory has been criticized from every direction. Lower courts have struggled to apply it, and some have called it unworkable, since it is hard to see why two weak claims combined should be stronger than either one alone. I share some of that skepticism. But for parents the practical meaning is plain: a claim that joins religious conviction and the parent's right to direct a child's upbringing stands on firmer ground than a bare religious objection. Yoder is the proof.

A Founding measure

I said this case is a warning as well as a shield. Here is the warning.

The Founders did not write the Free Exercise Clause to protect only popular beliefs. James Madison, in his Memorial and Remonstrance of 1785, argued that religion is a duty owed to the Creator and that this duty is precedent in both order of time and degree of obligation to the claims of civil society. Whatever one makes of that language, the principle is clear: some obligations come before the state, and the state must give way when its demands collide with them, unless the cost to the common good is grave.

The Amish case is a good test of the principle because the Amish are, to most Americans, strange. They dress differently, use no electricity in many homes and speak a German dialect in their communities. If the Free Exercise Clause protects only the practices we find reasonable, it protects nothing. It earns its keep when a small, quiet, unpopular community stands before a judge and says, we cannot do what the law asks.

And the warning is this: the shield only works if courts apply it. After Smith, the Court's free exercise doctrine moved toward a rule that general laws win. Congress responded with the Religious Freedom Restoration Act of 1993, which restored the compelling interest test by statute at the federal level, and many states passed their own versions. A right that depends on a statute can be amended by the next Congress. A right that depends on a court's reading can be narrowed by the next court. The only lasting protection is a public that understands the right and insists on it.

I will add that Yoder is also a lesson in what the state can fairly ask of the family. Wisconsin did not ask for much. It asked that a child be in a classroom two more years. Yet the Court held, correctly, that even a modest demand has to justify itself when it meets a sincere religious claim. A state that is confident in the value of its schools should be willing to make its case on the merits, and not on compulsion alone. For more on how this line of thinking supports a parent's choice of school, see The 1922 Oregon Law That Tried to Abolish Private Schools, and Lost, and for how the Court reapplied it to the classroom in 2025, see Mahmoud v. Taylor and the Storybooks That Brought Opt-Outs Back to School.

A related point about the home: the movement to homeschool, which began in the 1970s and 1980s and was largely legal in all fifty states by the early 1990s, drew on the same ideas about the family's primary role in education. I have written about that history in Homeschooling Went From Legal Gray Zone to Legal in Fifty States by 1993.

The case in brief

1. Three Amish fathers in Green County, Wisconsin, were fined five dollars each for keeping their teenagers out of school after eighth grade.
2. In Wisconsin v. Yoder (1972), the Supreme Court held that the Free Exercise Clause, joined to the traditional interest of parents in the religious upbringing of their children, protected them from the attendance law.
3. Justice Douglas's partial dissent asked what the children themselves wanted, a fair question that the majority answered with the record of the Amish way of life.
4. Employment Division v. Smith (1990) recast Yoder as a hybrid-rights case, and Congress restored a stricter standard by statute in 1993.
5. The lesson is that rights need defenders: courts, legislatures and a public that reads the text.

What you can do: read the first sixteen words of the First Amendment aloud to a child, then look up your state's compulsory attendance statute on its legislature's website and see what it says about age and exemptions.