Cude v. State

Archie Cude, a farmer who was born and reared around Houston, Texas, moved his young family in 1948 to the remote community of Board Camp nine miles east of Mena in the mountains of Polk County. Years later, he refused to put his children in school due to his claims that God opposed the smallpox vaccinations children had to take before enrolling. Cude’s long-running legal fight over his unvaccinated children, which embroiled Governor Orval E. Faubus, finally produced an order from the Arkansas Supreme Court in 1964 that his religious beliefs did not exempt him from obeying laws requiring the education of his children and also helping to protect children and teachers from the dreaded smallpox virus.

Cude v. State, as the case became known, forms a basic foundation of public health policy in Arkansas and in the United States as a whole, as similar decisions in other states and the U.S. Supreme Court, sometimes citing Cude v. State, established that governments could and should regulate personal behavior, such as vaccinations and masking, when public health and safety were at stake. The Arkansas court said it was so firmly settled in the United States that governments could require vaccinations and other steps to protect the health and safety of people that no extensive discussion of the matter was needed. Even religious excuses, the justices said, were beyond the pale.

Archie Theodore Cude had an uncommon family history, even before his battle to keep his children unvaccinated and out of school. The eldest of five sons of Theodore and Lucy Cude in Houston, he was working as a furniture upholsterer by 1940 and had married a Houston woman, Lena Nell Highnote. They had a son, whom they named Archie Jr., and also a daughter, who died when she was five months old. In September 1942, Cude married Lena Nell’s sister, Mary Frances Highnote, and Lena Nell the next year married George W. Cude. Archie and Mary Frances then brought their passel of children to his small farm between Coyote Canyon and Apache Ridge in Polk County in 1948.

An older son apparently had been vaccinated and attended school in Mena for a time. Cude would explain that God had not yet informed him of his opposition to vaccinations. The Cudes were not known to have ever had any religious affiliations. Cude said he developed his ideas from reading passages of the Bible. Polk County school officials began to insist that the Cudes obey the compulsory-attendance law, and he was fined three years in a row for not enrolling his children before, finally, the county decided to get state custody of the children. Cude said he would never take the children back if they were vaccinated.

When the probate court in Polk County in 1963 awarded custody of the children—ages twelve, ten, and eight—to the state Welfare Department to get them vaccinated and to find a guardian or adoptive parents if the parents rejected the vaccinated children, Cude’s attorneys, the Mena law firm of Shaw and Shaw, appealed to the Arkansas Supreme Court.

The state Supreme Court majority—James Douglas “Justice Jim” Johnson cast the lone dissent—dismissed Cude’s and his law firm’s claims that vaccinating his children violated his constitutional right to worship as he chose. Justice Sam Robinson wrote that Arkansas law unquestionably required the Cudes to put the children in school somewhere and also required that every schoolchild be vaccinated against the killer disease smallpox. That left only the religious-freedom argument. Robinson recited the long religious-liberty provision of the Arkansas Constitution and summarized it this way: “The foregoing provision of the Constitution means that anyone has the right to worship God in the manner of his own choice, but it does not mean that he can engage in religious practices inconsistent with the peace, safety and health of the inhabitants of the State, and it does not mean that parents, on religious grounds, have the right to deny their children an education.”

He recited decisions by both the U.S. Supreme Court and earlier by the Arkansas high court. In the 1943 case of Prince v. Commonwealth of Massachusetts, the U.S. Supreme Court proclaimed: “The right to practice religion freely does not include the liberty to expose the community or the child to communicable disease or the latter to ill health or death. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”

In his solitary dissent, Justice Johnson said the majority had made a good case that children should be vaccinated and sent to school and that the laws requiring them were valid, but he said the only thing the state was allowed to do to Cude for violating the school-attendance and vaccination laws was fine him ten dollars a day when the children were not put in school. He said the state was powerless to force Cude to obey the law with his children, even if his acts posed a threat to the life and health of his children and of others.

The children’s forcible vaccinations and enrollment in school in the fall of 1964 did not end the trouble. The children were disruptive in class and were suspended for misconduct after several weeks. The chancery judge held a hearing and, on the recommendation of two Mena physicians, ordered the sheriff to take Cude to the Arkansas State Hospital in Benton (Saline County) for a mental evaluation, where it was found that he was sane. The next year, the prosecuting attorney charged Cude again with violating the school-attendance law, and he relented and sent the children to school, this time with fewer disciplinary problems.

Governor Orval Faubus, facing reelection for his last term against Republican Winthrop Rockefeller that year, had embraced Cude’s cause when the local dispute over the children’s mandatory school attendance first came to the state’s attention in 1963. When the state finally took custody from the father and mother after the Supreme Court decision, and the sheriff headed for Little Rock (Pulaski County) to deliver the children to the state Welfare Department, Faubus had the youngsters diverted to the Governor’s Mansion for three days. The statewide papers carried front-page pictures of Faubus and his wife, Alta, with the children on the lawn of the mansion. His stand portrayed him as the champion of the little guy. The legal fight and the governor’s intervention attracted state and national coverage for four years.

Although it has often been cited in subsequent cases, including a landmark decision by the U.S. Supreme Court, Cude v. State was not a groundbreaking decision. In fact, the Arkansas court had ruled in three previous cases—State v. Martin in 1918, Allen v. Ingalls in 1930, and Seubold v. Fort Smith School District in 1951—that the government’s constitutional charge to protect the health and safety of American citizens overrode any religious objection or claim of individual rights. While Justice Robinson and his five colleagues argued forcefully that the religious-freedom exemption from state laws should not be applied where public health and safety and the universal right to education were imperiled, they were careful to point out that a number of precedents in state and federal courts supported the conclusion. Nevertheless, the U.S. Supreme Court, in an opinion in 1990 (Department of Human Resources of Oregon v. Smith) written by Justice Antonin Scalia, cited Cude v. State in support of a radical interpretation of the free-exercise-of-religion clause of the U.S. Constitution. The Scalia majority upheld the state of Oregon’s firing of two Native Americans, and then denying their unemployment claims, because they had ingested peyote, a hallucinogenic substance used in the religious rituals of their Native American Church. Scalia said the Court was following examples such as Cude v. State in which state or local governments denied people’s claims that they were exercising their religion by refusing vaccinations or claiming other exemptions from laws like compulsory military service or child-labor laws. The Court minority said the courts had never before denied religious exemptions in cases in which, unlike exemption from vaccinations, the religious exercise resulted in no harm to society.

The decision in Cude v. State did not end the dispute over whether constitutional religious-liberty provisions, or the Declaration of Independence’s guarantee of personal freedom, prohibited governments from imposing mandates to protect public health, such as requiring vaccinations or wearing masks in crowded areas during a viral pandemic. Political and legal battles over such issues surfaced with vehemence in the Arkansas General Assembly and state courts and in other states during the deadly COVID-19 pandemic beginning in 2020, with the Republican Party taking the position that mandatory vaccinations and mask wearing in certain situations violated individual rights. Those states tended to lead the country in cases, hospitalizations, and deaths.

Five years after his first brush with the Arkansas Supreme Court, Archie Cude confronted the court with another legal dilemma arising from a family conflict. In the 1970 decision in Ida Hiler v. Archie Cude, the court split again, this time five to two, but in Cude’s favor. The case involved the estate of Rose Gordon, a seventy-two-year-old widow who had moved to Polk County and was befriended by Cude, who helped her change her will to make him the executor of her estate and to leave much of it to his teenage sons, Clark and Wayne. Some months earlier, her Mena lawyers, Shaw and Shaw—Archie’s lawyers in 1964—had prepared a will at her request that left most of her estate to a foster son (she had no biological children). Gravely ill, she became angry at the foster son’s insistence that she go to a nursing home rather than live alone and invited Cude, who had worked some on her farm, to help her burn the previous will and write a new one making him the executor of her estate and his sons the primary beneficiaries. The widow’s three sisters and brother, represented by Cude’s former attorneys, contested the Cude will and accused him of fraud and undue influence on the dying and incapacitated woman. After a trial, during which all of her mental and physical agonies were brought out in great detail, the chancellor ruled that he could not conclude that Gordon was mentally incapable of making an independent decision about who should be rewarded or punished for the conditions of her care. The state Supreme Court upheld his decision five to two. The dissenting justices were Chief Justice Carleton Harris and Justice George Rose Smith, who had cast votes against Cude in the vaccination case.

Cude eventually moved to Sallisaw, Oklahoma, where he died on February 11, 1993. He is buried in Akins Cemetery in Sallisaw.

For additional information:
Allen v. Ingalls, Supreme Court of Arkansas (182 Ark. 991), December 22, 1930.

Archie Cude, et ux., v. State of Arkansas, Nos. 5–3239, 5–3240, Supreme Court of Arkansas (237 Ark. 927), April 6, 1964.

“Cudes Lose Religious Battle: Justices Order Children Vaccinated.” Arkansas Gazette, April 7, 1964, pp. 1A, 2A.

Ida Hiler, et al., v. Archie Cude, No. 5–4970, Supreme Court of Arkansas (248 Ark. 1065), June 15, 1970.

Seubold v. Fort Smith Special School District, Supreme Court of Arkansas (218 Ark. 560), March 26, 1951.

State v. Martin, Supreme Court of Arkansas (134 Ark. 420), June 3, 1918.

Valachovic, Ernest. “Faubus Opens Home to Children of Cude; Assails Ruling as Too Drastic On Simple Law.” Arkansas Gazette, April 8, 1964, p. 1A, 2A.

Ernest Dumas
Little Rock, Arkansas