In West Virginia Board of Education v. Barnette, the U.S. Supreme Court found that the mandatory salute of the flag and the recitation of the Pledge of Allegiance in the public schools violated the First Amendment rights of those individuals—in this case Jehovah’s Witnesses—who objected to the compelled expression on religious grounds. In one of the most famous, and eloquent, defenses of vibrant individual First Amendment freedom in the Court’s history, Justice Robert Jackson famously asserted:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
But to appreciate the significance of the Barnette decision, it is important to understand the precedent set just three years before, in Minersville v. Gobitis (1940), wherein the Court considered virtually the same facts, but ruled in the opposite direction.
Gobitis involved a mandatory requirement that all public schoolchildren salute the flag or be disciplined for insubordination. The two children of Lillian and William Gobitis, Jehovah’s Witnesses, refused to salute the flag, contending that the act amounted to worship of a graven image and thus violated the First Commandment. The lawsuit challenging the Minersville school board policy was successful at the district court level and on appeal. At the U.S. Supreme Court, however, Justice Felix Frankfurter argued for the Court that while ‘‘the affirmative pursuit of one’s convictions about the ultimate mystery of the universe and man’s relation to it is placed beyond the reach of law[,]’’ the ‘‘manifold character’’ of these relations may ‘‘bring his conception of religious duty into conflict with the secular interests of his fellowmen.’’ He continued: ‘‘National unity’’ is the basis for ‘‘national security’’ and thus—in trademark Frankfurter fashion—if the government deemed that ‘‘the binding tie of cohesive sentiment’’ was best protected via the activity of a morning flag salute, then it was ultimately up to the legislature (not the Court) to draw such conclusions.
Following the Court’s decision in Gobitis, the West Virginia legislature amended its statutes to require all schools therein to conduct courses of instruction in history, civics, and the state and federal constitutions for purposes of ‘‘teaching, fostering, and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of government.’’ Moreover, the act required private, parochial, and denominational schools to also include courses of study akin to those of the public schools. Thus, under the direction of the West Virginia State Board of Education, specific courses of instruction were devised and the flag salute was made mandatory, with the provision that those students who refused to comply would be expelled. Interestingly and ironically—given that the United States was by now involved in World War II—the gesture toward the flag that students were expected to offer was identical (right arm extended straight, palm out) to the signature salute of members of the Nazi Party in Germany. Walter Barnette challenged the law in court on the behalf of his three children, and in a six-to-three ruling, the Court reversed course from its opinion just three years before and found the statute to be in violation of the First Amendment as applied to the states through the Fourteenth Amendment to the federal Constitution.
Writing for the majority, Justice Robert Jackson explained that the circumstances of this case went beyond ordinary civics; the flag salute and attendant pledge, in other words, took the situation into the realm of compelled belief and thus ran afoul of the Constitution. ‘‘Symbolism is a primitive but effective way of communicating ideas,’’ he noted, and so the use of flag is thus a ‘‘short-cut from mind to mind’’ that, with the pledge, is used to instill loyalty and ultimately compels ‘‘affirmation of a belief and an attitude of mind.’’ Moreover, Jackson argued, to accept the premise put forth by Justice Frankfurter in Gobitis—that the witnesses were free to pursue their cause through the political process—missed the point. ‘‘The very purpose of the Bill of Rights,’’ he offered as a counter,
was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Barnette is significant for several reasons. For one thing, the legal doctrine of stare decisis (roughly, ‘‘let the decision stand’’) strongly discourages such an about-face as was evident in this opinion, especially a mere three years later. However, precedents are reassessed as conditions and circumstances warrant, and, as the United States was by then embroiled in fighting in Europe, it seems likely that the context of war figured prominently in the justices’ reversal of course.
And yet, the war context did not lead the Court to contract free expression—as was the case in the World War I opinions (for example, Schenck v. United States , Abrams v. United States )—but rather facilitated an expansion of the domain of individual freedom. This expansion, it seems, is at least partly attributable to the nature of the enemy in World War II: the doctrine of National Socialism, specifically, but totalitarian regimes more generally. That is, the Barnette opinion portrays an understanding of political ideology that acknowledges the irony in fighting the forces of fascism and authoritarianism abroad, while mandating uniformity in thought, compelled belief, and lockstep loyalty on the home front. A truly free society, the Court instructed here, does not eradicate dissent, but rather relies on its tradition, values, and culture to generate genuinely felt loyalty among the citizenry.
BRIAN K. PINAIRE
References and Further Reading
Cases and Statutes Cited
See also American Civil Liberties Union; Bill of Rights: Structure; Flag Salute Cases; Jehovah’s Witnesses and Religious Liberty