Flag Salute Cases
In 1935, Jehovah’s Witnesses in Germany refused to salute the Nazi flag. Ultimately, more than 10,000 German Jehovah’s Witnesses would be sent to concentration camps for their affront to Nazi authorities. In 1935, the leader of the Jehovah’s Witnesses in America declared that followers of the faith ‘‘do not ‘Heil Hitler’ nor any other creature.’’ He found scriptural support for this position by arguing that saluting the flag was a form of idolatry. After this speech, American Jehovah’s Witnesses refused to take part in flag saluting ceremonies. After this change in their religious practice, Jehovah’s Witnesses began to face disciplinary actions in public schools across America. In Minersville School District v. Gobitis (1940), the Court upheld the school district’s attempt to force students to salute the flag. In West Virginia State Board of Education, v. Barnette (1943) the court reversed course, siding with the claims of religious freedom made by the Jehovah’s Witnesses.
Minersville School District v. Gobitis (1940)
This case resulted from the refusal of twelve-year-old Lillian Gobitis and her ten-year-old brother William to say the pledge of allegiance in the public schools of Minersville, Pennsylvania. The father of these children, Walter Gobitis, had grown up in Minersville and was raised in a Roman Catholic family and of course saluted the flag as a child. In 1931, Gobitis became a Jehovah’s Witness, a faith that regularly denounced the Catholic Church and the Pope. At the time Lillian was eight and William was six. The Gobitis children continued to salute the flag until November 1935, when members of their faith across the nation ceased to salute the flag.
In a more cosmopolitan community, the refusal of the Gobitis children to salute the flag might have gone unnoticed. But, neither Gobitis nor his faith was popular in Minersville, where eighty percent of the population was Roman Catholic. Rather than ignoring what was neither an act of defiance nor a disruption in the schools, the school board adopted a regulation allowing for the expulsion of any students who would not salute the flag. Gobitis then sent his children to a private Jehovah’s Witness school.
Eighteen months later, Gobitis sued the school district. The case was first heard by Judge Albert B. Maris, a recent Roosevelt appointee to the federal court. As a Quaker, Maris was probably more sympathetic to the Jehovah’s Witnesses than most Americans. Although he had a distinguished military record during World War I, as a member of a faith long persecuted for its pacifism, Maris, doubtless understood the nature of prejudice and religious persecution that the Jehovah’s Witnesses faced.
During the trial, the school superintendent was openly hostile toward the Gobitis children and the Jehovah’s Witnesses, asserting that the children were ‘‘indoctrinated,’’ thereby implying that their actions were not based on sincerely held religions beliefs. Judge Maris rejected Roudabush’s contentions. Judge Maris asserted that ‘‘To permit public officers to determine whether the views of individuals sincerely held and their acts sincerely undertaken on religious grounds are in fact based on convictions religious in character would sound the death knell of religious liberty.’’ Maris refused to sustain ‘‘such a pernicious and alien doctrine’’ and reminded the school officials that Pennsylvania itself had been founded ‘‘as a haven for all those persecuted for conscience’ sake.’’ Judge Maris found that ‘‘although undoubtedly adopted from patriotic motives,’’ the flag salute requirement ‘‘appears to have become in this case a means for the persecution of children for conscience’ sake.’’ He noted that ‘‘religious intolerance is again rearing its ugly head in other parts of the world’’ and thus it was of ‘‘utmost importance that the liberties guaranteed to our citizens by the fundamental law be preserved from all encroachment.’’ While not central to his decision, Maris’s point placed the controversy over the Jehovah’s Witnesses in the context of the rise of Nazism, preparation for World War II, and eventually American involvement in the War. In part the cases involving the Jehovah’s Witnesses raised important questions about how much dissent a democracy can allow at a time of crisis and international conflict. Maris took the position that such dissent was vital to the democracy and part of its ultimate strength. The Minersville School Board took the position that national unity required submission to the will of the majority, especially on issues involving outward displays of patriotism. This argument would reemerge among before the Supreme Court in both Gobitis and Barnette.
Having concluded that the flag salute requirement was motivated by a desire to provide ‘‘a means for the persecution of children for conscience’ sake,’’ Maris ordered the children readmitted to the public schools, and a unanimous panel of the U.S. Court of Appeals affirmed this decision. Minersville school officials did not plan to appeal the Supreme Court, but, patriotic groups, including the American Legion, stepped in to help finance the case. Before the Supreme Court, Harvard Law School Professor George K. Gardner argued Gobitis’s case on behalf of the American Civil Liberties Union.
In an eight to one decision, the Supreme Court reversed the two lower court decisions and upheld the right of the Minersville School District to require that students salute the flag. Writing for the Court was Justice Felix Frankfurter, who conceded that ‘‘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. Government may not interfere with organized or individual expression of belief or disbelief.’’ However, Frankfurter noted that there were no absolute guarantees of religious freedom. He found that the task of the Court was to ‘‘reconcile two rights in order to prevent either from destroying the other.’’ He found that ‘‘conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions that contradict the relevant concerns of a political society does not relieve the citizen from a discharge of political responsibilities.’’ Put simply, Frankfurter was arguing that the First Amendment’s guarantee of religious freedom only extended to protection from laws that were overtly religious in nature. Frankfurter rejected the findings of the lower court that the enforcement of the pledge was overt religious discrimination.
In a hyperbolic analogy, Frankfurter compared the dilemma of the Jehovah’s Witnesses to that of Lincoln’s query during the Civil War: ‘‘Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?’’ Frankfurter argued that the flag was a ‘‘symbol of national unity, transcending all internal differences’’ and as such he implied that failure to salute it somehow threatened the existence of the nation.
He further argued that the states should be given great latitude in determining how best to instill patriotism in children. He thought judicial review was ‘‘a limitation on popular government’’ that should be used sparingly. Thus, he urged that issues of liberty be fought out in the state legislatures and ‘‘in the forum of public opinion’’ to ‘‘vindicate the self-confidence of a free people.’’
Justice Harlan Fiske Stone dissented, asserting that ‘‘by this law the state seeks to coerce these children to express a sentiment that, as they interpret it, they do not entertain, and which violates their deepest religious convictions.’’ Stone dismissed Frankfurter’s appeals to patriotism and his unrealistic suggestion that the issue be decided ‘‘in the forum of public opinion’’ by appeals to the wisdom of the legislature. Stone pointed out that ‘‘History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities.’’ Finally, Stone argued that the Constitution was more than just an outline for majoritarian government, it was ‘‘also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey, if it is to adhere to that justice and moderation without which no free government can exist.’’
Stone understood the value of instilling patriotism in future citizens. He declared that the state might ‘‘require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guarantee of civil liberty, which tend to inspire patriotism and love of country.’’ But, forcing children to violate their religious precepts was, in Stone’s mind, not the way to teach patriotic values. He thought it far better that the schools find ‘‘some sensible adjustment of school discipline in order that the religious convictions of these children may be spared’’ than to approve ‘‘legislation which operates to repress the religious freedom of small minorities.. . .’’
The Gobitis decision helped unleash a wave of political, legal, and physical attacks on Jehovah’s Witnesses. Immediately after the decision, there were hundreds of assaults on Jehovah’s Witnesses and their property. Throughout the nation, Jehovah’s Witnesses were beaten, mobbed, and kidnapped. Their attackers often included police officials. In Odessa, Texas, for example, seventy Jehovah’s Witnesses were arrested for their own ‘‘protection,’’ held without charges when they refused to salute the flag, and then released to a mob of more than 1,000 people who chased them for five miles, throwing stones at them. In Wyoming some Jehovah’s Witnesses were tarred and feathered, in Arkansas some were shot, and in Nebraska one Jehovah’s Witness was castrated. In Richwood, West Virginia, the police arrested a group of Jehovah’s Witnesses who sought police protection, forced them to drink large amounts of castor oil, tied them up, and paraded them through the town. By 1943 more than 2,000 Jehovah’s Witnesses had been expelled from schools in all forty-eight states. This was the nationwide answer to Justice Frankfurter’s unrealistic suggestion that the Jehovah’s Witnesses appeal to the state legislatures for relief.
The nation’s intellectual community responded to Gobitis in quite a different way. Overwhelmingly law review articles condemned the decision. The law reviews at Catholic universities, such as Fordham, Georgetown, and Notre Dame, were unanimous in their opposition to Gobitis, even though the Jehovah’s Witnesses had traditionally vilified the Roman Catholic Church. But, the issue here was civil liberties, not theology, as Catholic scholars clearly understood.
Members of the Supreme Court soon came to doubt the wisdom of Gobitis. In another case involving the Jehovah’s Witnesses, Jones v. Opelika (1942), three dissenting justices who had voted with the majority in Gobitis declared they now believe it was ‘‘wrongly decided’’ and that ‘‘the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be.’’
Barnette V. West Virginia State Board of Education
In January 1942, the West Virginia state school board adopted a strict flag salute requirement. The board’s resolution, which had the authority of a statute, began with a long preamble that quoted at length portions of Frankfurter’s Gobitis opinion. The resolution ended by declaring ‘‘that refusal to salute the Flag [shall] be regarded as an act of insubordination, and shall be dealt with accordingly.’’ Shortly after the adoption of this resolution, school officials in Charleston expelled a number of Jehovah’s Witnesses, including the children of Walter Barnette.
In August 1942, attorneys for Barnette and other Jehovah’s Witnesses asked the District Court to convene a three-judge panel to permanently enjoin state school officials from requiring Jehovah’s Witnesses to salute the flag. Writing for a unanimous court, Judge John J. Parker, of the Fourth Circuit Court of Appeals, granted the injunction. Parker acknowledged that ‘‘ordinarily’’ the lower court would ‘‘feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not.’’ However, in the light of the dissents in Opelika, Parker expressed doubt that Gobitis was still binding. The three-judge panel believed that the West Virginia flag salute requirement was ‘‘violative of religious liberty when required of persons holding the religious views of the plaintiffs.’’
West Virginia’s attorney general refused to appeal this decision to the U.S. Supreme Court, so the attorney for the Board of Education appealed the case with an unimaginative argument that relied almost entirely on Gobitis, supported by a weak amicus brief from the American Legion. Attorneys for Barnette attacked Gobitis, comparing it to the Dred Scott decision of 1857. Amicus briefs for Barnette came from the American Civil Liberties Union written by Osmond K. Fraenkel and Arthur Garfield Hays and the American Bar Association’s Committee on the Bill of Rights written by Harvard Law professor Zachariah Chafee, Jr.
On June 14, 1943, which was Flag Day, Justice Robert Jackson, speaking for a six to three majority upheld the lower court and reversed the Gobitis precedent. Justice Frankfurter wrote a bitter dissent.
While the Flag Salute cases are generally seen as involving freedom of religion, that issue is virtually absent from Jackson’s majority opinion. He accepts, without question, that the Jehovah’s Witnesses sincerely held beliefs that made it impossible for them to conscientiously salute the flag. But, Jackson does not offer any analysis of the importance of that belief or even of the role of religious freedom in striking down the mandatory flag salute. Indeed, he links the freedom to worship with other bill of rights protections, noting that the ‘‘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.’’ He finds that the ‘‘freedoms of speech and of press, of assembly, and of worship may not be infringed’’ on ‘‘slender grounds.’’
Rather than grounding his opinion in freedom of religion, Jackson analyzed the case as one of freedom of speech and expression. Jackson argued that the flag salute—or the refusal to salute the flag—was ‘‘a form of utterance’’ and thus subject to standard free speech analysis. He noted that the flag was a political symbol, and, naturally, saluting that symbol was symbolic speech:
Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of the State often convey political ideas just as religious symbols come to convey theological ones.
The question for Jackson was rather simple, did the ‘‘speech’’ of the Jehovah’s Witnesses threaten the rights of any individuals or the peace and stability of the government. If the answer to either question was yes, then Jackson might have allowed the mandatory flag salute. But, if they did not threaten the rights of others or threaten the government, then there was no valid reason to suppress their expression.
Jackson noted that the conduct of the Jehovah’s Witnesses ‘‘did not bring them into collision with rights asserted by any other individuals.’’ The Court was not being asked ‘‘to determine where the rights of one end and another begin.’’ It was, rather, a conflict ‘‘between [governmental] authority and rights of the individual.’’
Jackson compared the forced flag salute to Stromberg v. California, 283 U.S. 359 (1931), which had allowed protestors to carry a red flag. This case and others supported the ‘‘commonplace’’ standard in free speech cases ‘‘that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and publish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence.’’ But, were there such grounds? No one claimed that the silence of the children ‘‘during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression.’’ Jackson pointed out the irony of the flag salute requirement, in light of the expanded freedom of speech found in recent decision. ‘‘To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.’’
Jackson’s shrewd analysis had turned the case inside out. It was no longer one of freedom of religion, but one that in part took the form of an establishment of religion on the part of the government through its ‘‘flag salute ritual.’’ Jackson correctly saw that the Jehovah’s Witnesses were not trying to force their views on anyone else, but rather, that the government was trying to force its views and beliefs on the Jehovah’s Witnesses. He noted that in Gobitis the Court had ‘‘only examined and rejected a claim based on religious beliefs of immunity from general rule.’’ But, Jackson pointed out, this was not the correct question to ask. Indeed, Jackson noted that people who did not hold the religious views of the Jehovah’s Witnesses might still find ‘‘such a compulsory rite to infringe constitutional liberty of the individual.’’ For Jackson the correct question was ‘‘whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority . . . under the Constitution.’’ In other words, did the government have the power to force anyone, regardless of their religious beliefs, to participate in any ceremony or ‘‘ritual.’’ What Jackson might have asked was, did the Constitution allow for the establishment of a secular national religion with the flag as the chief icon? This led him to a discussion, and refutation, of various points in Gobitis.
In Gobitis, Frankfurter had noted Lincoln’s ‘‘memorable dilemma’’ of choosing between civil liberties and maintaining a free society. Jackson had little patience for ‘‘such oversimplification, so handy in political debate.’’ He ‘‘doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school.’’ Here Jackson revealed the fundamental weakness of Frankfurter’s assertion in Gobitis that somehow the safety of the nation depended on whether Jehovah’s Witnesses were forced to salute the flag in the public schools.
Along this line, Jackson noted even Congress had made the flag salute optional for soldiers who had religious scruples against such ceremonies. This act ‘‘respecting the conscience of the objector in a matter so vital as raising the Army’’ contrasted ‘‘sharply with these local regulations in matters relatively trivial to the welfare of the nation.’’
This led Jackson to the national security issue raised by Frankfurter in Gobitis. At the time of Gobitis, the nation was not at war, but war seemed imminent. By the time the Court heard Barnette, the nation had been at war for more than a year. Jackson agreed that in wartime ‘‘national unity’’ was necessary and something the government should ‘‘foster by persuasion and example.’’
But, could the government gain national unity by force? Jackson made references to the suppression of the early Christians in Rome, the Inquisition, ‘‘the Siberian exiles as a means of Russian unity,’’ and the ‘‘fast failing efforts of our present totalitarian enemies.’’ He warned that ‘‘those who begin coercive elimination of dissent soon find themselves exterminating the dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.’’ During a war against Nazism, Jackson’s opinion was a plea for the nation to avoid becoming like its enemies.
Jackson ended his opinion by reminding Americans that the patriotism in a free county could not be instilled by force. Indeed, he argued that those who thought otherwise ‘‘make an unflattering estimate of the appeal of our institutions to free minds.’’ America’s strength, he argued, was found in diversity. The test of freedom was ‘‘the right to differ as to things that touch the heart of the existing order.’’ This led Jackson to a ringing defense of individual liberty: ‘‘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.’’
Justice Felix Frankfurter was unmoved by Jackson’s powerful defense of individual liberty and his condemnation of oppressive ‘‘village tyrants’’ who expelled small children from school because of their religious beliefs. At a time when millions of Jews (and thousands of Jehovah’s Witnesses) were perishing in German death camps, Frankfurter used his ethnicity to justify his support for the suppression of a religious minority in the United States. He began: ‘‘One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.’’ But, he argued that he could not bring his personal beliefs to the Court because, ‘‘as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.’’ He then defended judicial selfrestraint and recapitulated and elaborated on his Gobitis opinion.
Frankfurter argued that ‘‘saluting the flag suppresses no belief nor curbs it’’ because those saluting it were still free to ‘‘believe what they please, avow their belief and practice it.’’ In making this point Frankfurter failed to explain how one could ‘‘practice a belief’’ by doing what that belief prohibited. Nor did he explain how forcing children to say and do one thing, while encouraging them to secretly believe that what they were doing was a violation of God’s commandments, would inspire patriotism in them.
Frankfurter conceded that the flag salute law ‘‘may be a foolish measure,’’ and that ‘‘patriotism cannot be enforced by the flag salute.’’ But he argued that the court had no business interfering with laws made by democratically elected legislatures. Frankfurter argued that because a total of thirteen justices had found the flag salute laws to be constitutional, the state laws ‘‘can not be deemed unreasonable.’’ Because the state legislators had relied the recent decision in Gobitis, Frankfurter thought it unfair to strike down their legislation.
Frankfurter condemned ‘‘our constant preoccupation with the constitutionality of legislation rather than with its wisdom.. . .’’ Yet he refused to strike down the West Virginia law that he conceded was unwise, not because it passed all constitutional tests but because of judicial restraint and respect for stare decisis. He argued that the ‘‘most precious interests of civilization’’ were to be ‘‘found outside of their vindication in courts of law’’ that thus he urged that the Court not interfere in the democratic process but to wait for a ‘‘positive translation of the faith of a free society into the convictions and habits and actions of the community.’’ What would happen to the Jehovah’s Witnesses in the meantime seemed of little concern to Frankfurter.
There was some minor resistance in a few localities to Barnette. The Supreme Court heard a few cases in which various local decisions were overturned. On the same day it handed down Barnette, the court unanimously overturned a conviction for sedition in Taylor v. Mississippi, 319 U.S. 583 (1943). The Jehovah’s Witnesses in that case had been convicted for ‘‘violating a statute making it an offence to preach, teach or disseminate any doctrine which reasonably tends to create an attitude of stubborn refusal to salute, honor, or respect the Government of the United States or the State of Mississippi.’’ The defendants had been sentenced to remain in jail until the end of the War or for ten years, whichever came first. The Court found the act abridged freedom of speech and press and was ‘‘so vague, indefinite, and uncertain as to furnish no reasonably ascertainable standard of guilt.’’ The Mississippi law, and the prosecutions under it, illustrates the extent of official persecution of the Jehovah’s Witnesses. After 1946, the Court heard no more cases on the flag salute issue. Barnette became an important precedent for other free speech and freedom of religion cases.
References and Further Reading
- Manwaring, David. Render Unto Caesar: The Flag Salute Controversy. Chicago: University of Chicago Press, 1962.
- Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence, KS: University of Kansas Press, 2000.