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Supreme Court: A Right to Refuse to Salute the Flag?

In 1940, in Minersville v. Gobitis, the Supreme Court upheld a state law requiring school children to salute the flag, despite religious objections by Jehovah Witnesses, who said the statutory requirement violated their religious liberties under the Free Exercise Clause of the First Amendment.

Three years later, on June 14, 1943, in West Virginia Board of Education v. Barnette, the Court changed its mind and, in a landmark opinion, held that school children have a constitutional right to refuse to salute the flag. What was the Court thinking? What accounts for its dramatic reversal in such a short span of time?

These completely different rulings on a question of authority versus liberty, open a window to a judicial landscape marked by the arrival of two new Justices, second thoughts by three Justices who changed their minds, and the influence of world events on the concept of governmental coercion to induce patriotism.

The first flag ceremony in the public schools was introduced in New York in 1898, the day after the start of the Spanish-American War. By 1940, the year of the Gobitis ruling, nine states had passed compulsory flag salute statutes, but the practice of requiring school children to recite the pledge of allegiance was common throughout the United States. This widespread practice reflected the influence of veterans’ groups which, after World War I, embraced the cause of promoting respect for the flag as part of a broader effort to teach “Americanism.”

As part of this movement, Pennsylvania enacted a statute that required students in public schools to participate in a daily ceremony of saluting the national flag while reciting in unison a pledge of allegiance to it “and to the Republic for which it stands; one Nation indivisible, with liberty and justice for all.” Two students, Lillian and William Gobitas (misspelled by the Court as Gobitis), refused to participate in the ceremony. As Jehovah’s Witnesses, they objected, explaining that they were being required to pledge loyalty to the flag, which violated the Biblical injunction against serving other gods or graven images, and violate their duty to pay supreme loyalty to God.

At that juncture, the pledge of allegiance made no reference to God. The words, “under God,” were not added to the pledge by Congress until 1954 when it sought to invoke the deity in response to the threat of communism. As it happened, the Gobitas children were willing to recite a pledge that declared ultimate loyalty to God, allegiance to laws consistent with the Bible and respect to the flag as a symbol of justice and freedom for all.

For their refusal to obey the state law, the Gobitas children—12- year-old Lillian and 10 -year -old William-- were expelled from the Minersville School District. Their parents sued in federal district court and prevailed, and the Third Circuit Court of Appeals upheld the district court ruling. The principal issue was whether the flag ceremony carried religious significance.

Justice Felix Frankfurter wrote the Court’s 8-1 opinion upholding the Pennsylvania law. Frankfurter gave short shrift to the assertion of a religious exemption from the compulsory flag-salute statute. His opinion reflects a life-long commitment to judicial self-restraint, an approach to the exercise of judicial review which cautions against a robust exercise of the power in favor of deference to legislative determinations on matters of public policy.

Justice Frankfurter wrote that disputes over the meaning of religious liberty or the freedom of speech do not provide exceptions to the duty of courts in constitutional cases to uphold laws and policies of the legislature, “except where the transgression of constitutional liberty is too plain for argument.”

In the view of the majority, the flag ceremony was not unduly burdensome since it played a reasonable role in inculcating patriotism. The ceremony promotes national cohesion and unity and “national unity is the basis of national security.” On balance, the claims of religious liberty are of secondary importance to national security.

Justice Harlan F. Stone was the lone dissenter in the case. He doubted that a religious exemption for school children from the flag ceremony would threaten the nation’s security. He referred to the Jehovah’s Witnesses as a “small and helpless minority,” entitled to “searching judicial inquiry” into the legislative judgments, rather than broad deference to determinations of educational policy that impair the “strong religious” convictions of a “discrete and insular minority” unable to protect itself in the political arena. Finally, Stone doubted the effectiveness of a “compulsory affirmation” of beliefs that are at odds with fundamental religious teachings.

The Court’s ruling in the Gobitis case was delivered at a time when, an ocean away, a Fascist leader in Germany had plunged Europe into World War II, and was demanding, for the purpose of securing national unity and loyalty, a salute that too closely resembled the salute expected of children when they pledged loyalty to the American flag.

The coercive similarity was not lost on three Justices—Hugo Black, William O. Douglas and Frank Murphy—who had voted with Frankfurter, but soon after the ruling had been rendered, announced their regrets and intention to change their votes. The addition of two new Justices paved the way in Barnette for them to do just that.

David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

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