In 1940, the U.S. Supreme Court ruled that it was constitutional for public schools to expel children who refused to salute the American flag. Three years later, in West Virginia State Board of Education v. Barnette, the Court overturned its decision, ruling that under the First Amendment the state had no authority to compel political speech.
In 1872, in the state of Pennsylvania, a new American religious sect was born that, in time, spread around the globe. Its founder was Charles Taze Russell, who became the first president of the Watch Tower Bible and Tract Society
Members of the sect became unpopular with many Americans because of both their religious beliefs and their aggressive door-to-door proselytizing. Jehovah’s Witnesses believed that they alone were God’s chosen people, and they believed that the clergy of other faiths were working for Satan. While they did not spare Protestant and Jewish clergy, they reserved the worst of their epithets for the Roman Catholic hierarchy. Many people who opened their doors to Jehovah’s Witnesses’ knocks became quite irate when they heard their religions and their clergy maligned. Even when the Witnesses were clearly unwelcome, they would return repeatedly.
Besides being offended by their proselytizing tactics, many people questioned whether Jehovah’s Witnesses were loyal Americans. Witnesses were willing to obey the laws of the United States or any other government under which they lived, as long as the laws were not contrary to what they believed to be God’s law. Because they believed that God had no interest in World War I, Jehovah’s Witnesses refused to serve
As events in Europe unfolded in the 1930’s, increasing the possibility that the United States might once again be involved in a world war, local American communities sought to inculcate patriotism and penalize nonconformity. Such was the case in Minersville, Pennsylvania. Pursuant to state law, the school board in that town sought to encourage patriotism in public school children by making a flag salute ceremony, including the Pledge of Allegiance, a required part of the school day. Believing the flag salute to be the equivalent of worshiping a graven image, which is prohibited in the Old Testament, children of Jehovah’s Witnesses refused to participate in the ceremony. The penalty for their refusal was expulsion.
The Jehovah’s Witnesses sought a decision from the federal courts exempting them on religious grounds from participation in the flag salute ceremony. They were successful in the lower federal courts, but the school board appealed to the U.S. Supreme Court. In 1940, in the case of Minersville v. Gobitis,
Following the Gobitis decision, such patriotic ceremonies became increasingly common in the public schools of the nation, forcing hard choices on Jehovah’s Witnesses with children in the public schools. Many chose to follow their religion rather than the law, and their children were expelled from school. In some instances, after expulsion the children were treated as delinquents, taken from their families, and placed in institutions. Also in the aftermath of the Gobitis decision, Jehovah’s Witnesses increasingly became victims of violence.
In the midst of this wave of violence, one event occurred that offered the Witnesses some hope in the legal arena. In another Supreme Court case involving Jehovah’s Witnesses, three justices who had been with the majority in Minersville v. Gobitis took the highly unusual step of saying that they had reconsidered the matter and now believed the earlier case to have been incorrectly decided. The statement was almost an invitation to the Witnesses to try again. They had their opportunity in West Virginia State Board of Education v. Barnette.
Relying on the Gobitis opinion for its authority, the West Virginia State Board of Education had adopted a resolution ordering that the flag salute become a regular school activity. The Witnesses again sought judicial vindication of their rights when some of their children were expelled for refusing to salute the flag. The case again progressed to the Supreme Court, and this time, the Court ruled in favor of the Jehovah’s Witnesses.
Harlan Fiske Stone, who had been the lone dissenter in the Gobitis case, had become chief justice of the United States in 1941. In addition to the chief justice, the Witnesses knew they had the support of the three justices who had indicated that they had changed their minds: Hugo L. Black, William O. Douglas, and Frank Murphy. Only one more vote was needed for a majority. Justice Robert H. Jackson, who had been appointed to the Court by President Franklin D. Roosevelt in 1941, provided that vote. Chief Justice Stone assigned Justice Jackson the task of writing the opinion of the Court, which was handed down on Flag Day, June 14, 1943.
Justice Jackson viewed the controversy from a different perspective than had the justices in the Gobitis majority. To them, the question was whether the religious beliefs of the Jehovah’s Witnesses exempted them from the compulsory flag salute. To Justice Jackson, the question was whether the state had the authority to compel children to salute the flag in the first place. He did not consider the controversy to revolve around the free exercise of religion but rather around the freedom of speech. He saw no need to determine whether the religious convictions of the Witnesses exempted them from the requirement to salute the flag if the state lacked the authority to make the flag salute a legal duty.
In Justice Jackson’s opinion, the First Amendment’s guarantee of freedom of speech deprived the state of authority to compel the flag salute, because the freedom of the individual to speak implies the freedom of the individual not to speak what he does not believe. Jackson denied that patriotism needed to be propped up by compulsory ceremonies. He further denied that the Court was invading the sphere of competence of school boards. Through the due process clause of the Fourteenth Amendment, the First Amendment’s guarantee of freedom of speech placed limitations on what states and their instrumentalities, such as school boards, could do. He asserted that it was the responsibility of the Court to see that limitations imposed by the Bill of Rights were not exceeded. In this case, the West Virginia State Board of Education had exceeded one of these limitations. The compulsory flag salute was unconstitutional.
Justice Frankfurter, an Austrian Jew and naturalized citizen who had written the majority opinion in Minersville v. Gobitis, was now in the position of having to write a dissent. Clearly uncomfortable with the possibility of being perceived as one who sanctioned the persecution of unpopular minorities, he reminded the majority that he himself was a member of “the most vilified and persecuted minority in history.” Frankfurter asserted that he would have voted with the majority if his personal opinion were all that mattered. As a judge, however, he could not permit his personal opinion to control his vote. He continued to consider the flag salute an educational exercise, one which did not interfere with anyone’s freedom of speech.
Frankfurter noted that Jehovah’s Witnesses, children and parents, were free to use their right of free speech to denounce the flag salute and everything it stood for. If any law attempted to prevent that, Frankfurter said that he would be the first to rule that it was unconstitutional. He continued to believe, however, that a compulsory flag salute ceremony was a legitimate educational measure within the scope of school officials’ authority.
West Virginia State Board of Education v. Barnette, by overruling Minersville v. Gobitis, removed the legitimacy which the Court had conferred on compulsory flag salute exercises in 1940. Moreover, because the decision was rendered on the basis of the right to freedom of speech rather than the right to free exercise of religion, persons could choose not to participate in the flag salute even if they held no specifically religious beliefs prohibiting their participation. It was, however, the Jehovah’s Witnesses and others who refused to salute the flag for religious reasons who were the primary beneficiaries of the decision.
The Supreme Court’s Barnette decision, in combination with other factors, resulted in decreased persecution of Jehovah’s Witnesses. Mindful of the need for enforcement to give weight to the Court’s ruling, the Department of Justice conscientiously sought to enforce that ruling without engaging in widespread prosecutions. United States attorneys spoke with school officials who attempted to require flag salutes and tried to persuade them to end the practice. The threat of federal prosecution usually brought compliance.
Also contributing to the decreased persecution of the Jehovah’s Witnesses was that the nation was at war. The flag salute controversy had been going on for a long time, but by 1943 most Americans had more on their minds than a few children who would not salute the flag. Adolf Hitler was clearly a greater threat than the school behavior of children of the Jehovah’s Witness sect.
Beyond its effect upon the Jehovah’s Witnesses, the Court’s decision in West Virginia State Board of Education v. Barnette contributed to a growing body of law asserting that the First Amendment protected both the right to speak and the right to refuse to speak, as well as the rights to act and to refuse to act when the actions in question were primarily expressive or interpretable as a form of speech. It was the precedent of the Barnette case, for example, that led the Court to decide in 1989 that flag burning was a constitutionally protected form of speech, since the earlier decision suggested that neither speech nor expressive actions could be curtailed for the purpose of preserving the American flag’s symbolic value.
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Conant, Michael. Constitutional Structure and Purposes: Critical Commentary. Westport, Conn.: Greenwood Press, 2001. Commentary on a range of constitutional issues. Includes sections on both the Supreme Court’s flag salute cases and its flag desecration cases. Bibliographic references and index. -
Dilliard, Irving. “The Flag-Salute Cases.” In Quarrels That Have Shaped the Constitution, edited by John A. Garraty. Rev. ed. New York: Harper & Row, 1987. Brief account of the flag salute cases written for the general reader. Although its primary focus is on the reasoning of the justices of the Supreme Court, it does not neglect the plight of the Jehovah’s Witnesses. -
Jackson, Robert H. Dispassionate Justice: A Synthesis of the Judicial Opinions of Robert H. Jackson. Edited by Glendon Schubert. Indianapolis: Bobbs-Merrill, 1969. Includes Justice Jackson’s majority opinion in West Virginia State Board of Education v. Barnette, as well as discussion of Jackson’s position in other Jehovah’s Witnesses cases. -
Lee, Francis Graham. Church-State Relations. Westport, Conn.: Greenwood Press, 2002. Discusses the flag salute cases in the context of the general history of separation of church and state in the United States. Bibliographic references and index. -
Manwaring, David Roger. Render unto Caesar: The Flag Salute Controversy. Chicago: University of Chicago Press, 1962. Thorough case study of the flag salute controversy. Discusses the parties to the cases, the opinions of Supreme Court Justices, public reactions to the decisions, and the impact of the decisions. -
Penton, M. James. Apocalypse Delayed: The Story of Jehovah’s Witnesses. Toronto, Ont.: University of Toronto Press, 1985. A useful history of the Jehovah’s Witnesses by a Canadian historian who was himself a fourth generation Jehovah’s Witness until being expelled for heresy. Includes some discussion of the flag salute controversy. Contains bibliography and index. -
Simon, James F. The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America. New York: Simon & Schuster, 1989. Using an engaging writing style to reach a general audience, the author focuses on the above-named justices, emphasizing their human qualities and their competition for leadership on the Supreme Court. He devotes several pages to their conflict in the flag salute controversy. Indexed, well researched and documented, but no bibliography.
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