West Virginia State Board of Education v. Barnette

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a decision by the Supreme Court of the United States holding that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school. The Court's 6–3 opinion, delivered by Justice Robert H. Jackson, is remembered for its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials."

It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs, but instead ruled that the state did not have the power to compel speech in that manner for anyone.

Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis (also involving the children of Jehovah's Witnesses), in which the Court stated that the proper recourse for dissent was to try to change the school policy democratically.

However, in overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Free Exercise Clause.^[1]

Background

In the 1930s, the government of Nazi Germany began arresting thousands of Jehovah's Witnesses who refused to salute the Nazi flag, and sent them to concentration camps. In the United States, Jehovah's Witness national leaders advocated demonstrating solidarity with German Jehovah's Witnesses by refusing to participate in the daily flag salutes that had become compulsory in American schools. The Witnesses taught and still teach that the obligation imposed by the law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: 'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.' They consider that the flag is an 'image' within this command. For this reason they refused to salute the flag. Children of Jehovah's Witnesses had been expelled from school and were threatened with exclusion for no other cause. Officials threatened to send them to reformatories maintained for criminally inclined juveniles. Parents of such children had been prosecuted and were being threatened with prosecutions for causing delinquency. In 1935, 9 year-old Carlton Nichols was expelled from school and his father arrested in Lynn, Massachusetts for such a refusal. Additional refusals followed, one such leading to Minersville School District v. Gobitis^[2] Even after the Gobitis decision, Jehovah's Witnesses continued to refuse to say the pledge.

Facts of the case

Following the Minersville School District v. Gobitis decision, the West Virginia Legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State "for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government." The West Virginia State Board of Education was directed to "prescribe the courses of study covering these subjects" for public schools.

The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the program of activities in the public schools," that all teachers and pupils "shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly." The resolution originally required the "commonly accepted salute to the Flag" which it defined. Objections to the salute as "being too much like Hitler's" were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the General Federation of Women's Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses. What was required after the modification was a "stiff-arm" salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation indivisible, with liberty and justice for all."^{[nb 1]}

Students pledging to the flag with the Bellamy salute, March 1941.

Failure to comply was considered "insubordination" and dealt with by expulsion. Readmission was denied by statute until the student complied. This expulsion, in turn, automatically exposed the child and their parents to criminal prosecution; the expelled child was considered "unlawfully absent" and could be proceeded against as a delinquent, and their parents or guardians could be fined as much as $50 and jailed up to thirty days.

Marie and Gathie Barnett^{[nb 2]} were Jehovah's Witnesses attending Slip Hill Grade School near Charleston, West Virginia, who were instructed by their father not to salute the flag or recite the pledge, and were expelled for their refusal. On the advice of an early attorney, Mr Horace S. Meldahl of Charleston, the Barnetts had avoided the further complications by having their expelled girls return to school each day, though the school would send them home.^[3]

The Barnetts brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses, and prevailed, with the 3-judge panel stating:

Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. … The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority.

The school district subsequently appealed.^[4]

Arguments

The state's principal argument was that Barnette raised no substantial federal question because Gobitis settled the constitutional questions raised by the flag-salute expulsions. The state's brief quoted extensively from Justice Frankfurter's Gobitis opinion. Given the clear indications that at least five justices were ready to lay aside the Gobitis precedent, there was little else the state's lawyers could do. The American Legion's amicus curiae brief filed in support of the state's appeal did little more than duplicate the West Virginia argument.^[5]

Hayden Covington answered the state's appeal in a brief that was a mixture of Jehovah's Witnesses Bible teachings and Constitutional arguments. He included a fiery attack on the Court's Gobitis opinion, especially rejecting Justice Frankfurter's deference to legislative policymaking authority. Such deference, he argued, allowed the legislature to define its own powers. He emphasized the nationwide persecution of Jehovah's Witnesses that had followed Gobitis and concluded with a long list of law journal and newspaper articles that criticized the decision.^[5] The American Bar Association's Committee on the Bill of Rights and the American Civil Liberties Union filed amicus curiae briefs that argued Gobitis was bad law and should be overruled.^[5]

Decision of the Court

The Court held, in a 6-to-3 decision delivered by Justice Jackson, that it was unconstitutional for public schools to compel students to salute the flag. It thus overruled its decision in Minersville School District v. Gobitis, finding that the flag salute was "a form of utterance" and "a primitive but effective means of communicating ideas." "Compulsory unification of opinion," the Court wrote, was doomed to failure and was antithetical to the values set forth in the First Amendment. The Court eloquently stated: "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." To underscore its decision, the Supreme Court announced it on Flag Day.

Majority opinion

Justice Robert Jackson, who had joined the court only two years earlier, wrote the decision, echoing the free-expression sentiments of Stromberg v. California.

The opinion that Justice Felix Frankfurter had authored three years earlier in Gobitis rested on four arguments. In Barnette Justice Jackson addressed each element of Frankfurter's Gobitis decision. Jackson began with Frankfurter's designation of the flag as a national symbol. He did not question Frankfurter's designation of the flag as a national symbol; instead, he criticized the pedestal on which Frankfurter put such national symbols. Jackson called symbols a "primitive but effective way of communicating ideas," and explained that "a person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn."

Next Jackson denied Frankfurter's argument that flag-saluting ceremonies were an appropriate way to build the "cohesive sentiment" that Frankfurter believed national unity depended on. Jackson rejected Frankfurter's argument, citing the Roman effort to drive out Christianity, the Spanish Inquisition of the Jews and the Siberian exile of Soviet dissidents as evidence of the "ultimate futility" of efforts to coerce unanimous sentiment out of a populace. Jackson warned that "[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."

Then Jackson dealt with Frankfurter's assertion that forcing students to salute the flag, and threatening them with expulsion if they chose not to, was a permissible way to foster national unity. Jackson's rejection of this section of Frankfurter's argument has proved the most quoted section of his opinion. In his Gobitis opinion Frankfurter's solution was for the dissenters to seek out solutions to their problems at the ballot box. Jackson responded that the conflict in this case was between authority and the individual and that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. Jackson wrote:^[6]

The very purpose of a Bill of Rights 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.

The last leg of Frankfurter's Gobitis opinion reasoned that matters like saluting the flag were issues of "school discipline" that are better left to local officials rather than federal judges. Justice Jackson rejected this argument as well:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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.

Concurring opinion

Two of the justices who changed their minds between Minersville and West Virginia v. Barnette—Hugo Black and William O. Douglas—would become the most ardent supporters of the First Amendment.

"Words uttered under coercion are proof of loyalty to nothing but self-interest," wrote Black and Douglas in a concurring opinion. "Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions."

Dissenting opinion

Justice Felix Frankfurter

Three years earlier seven justices had followed Frankfurter's reasoning and joined his majority opinion in Gobitis. In Barnette however, only Frankfurter filed a written dissent, while Justices Owen Roberts and Stanley Reed dissented in silence.

Frankfurter said that the court was overstepping its bounds in striking down the West Virginia law. He said, too, that freedom of religion did not allow individuals to break laws simply because of religious conscience. Frankfurter argued that, "Otherwise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws."

Frankfurter's response to Jackson's systematic destruction of his Gobitis decision was one of anger, and Justices Roberts and Murphy tried to get him to revise his opinion, arguing that the first two lines were "much too personal". However, Frankfurter ignored the advice of his fellow justices, taking the overruling of his Gobitis decision as a personal affront and insisting on speaking his mind.

Frankfurter began with a reference to his Jewish roots: "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." This was the passage Justices Roberts and Frank Murphy felt was out of place. Frankfurter, however, insisted that the passage was necessary since he claimed he was "literally flooded with letters" following the Court's decision in Gobitis that said he should be more sensitive to the protection of minorities due to his Jewish heritage. Frankfurter's dissent continued, "Were my purely personal attitudes relevant I should wholeheartedly associate myself with the generally libertarian views in the Court's opinion. ... But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic."

Having responded to his critics and the Court's reversal on a personal level, he now responded on a judicial one, with the remainder of his opinion focusing on judicial restraint. "As a member of this Court I am not justified in writing my private notions of policy into the Constitution. ... It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench."

Frankfurter continued, arguing that if the Court is frequently striking down laws it is circumventing the democratic process, since the Court cannot work to reach a compromise. It either strikes down a law or lets it stand; it cannot simply modify or qualify a law as a legislature can.

Finally Frankfurter rejected Justice Stone's rational basis test that Stone laid out in United States v. Carolene Products Co.. Instead Frankfurter focused on his belief that there were no provisions within the constitution that occupied a "preferred position" over others.

Subsequent history

The majority opinion in Barnette is considered one of the Court's greatest and most sweeping statements about the fundamental freedoms established by the Bill of Rights. After Barnette the Court began to turn away from the belief-action doctrine altogether, creating religious exemption for believers of different creeds. In Sherbert v. Verner (1963), for example, the Court upheld a Seventh-day Adventist's claim to unemployment benefits even though she declined to make herself available to work on Saturday (her Sabbath) as the law required. In Wisconsin v. Yoder (1972), the Court upheld the right of Amish parents not to send their children to public schools past the eighth grade.

At 2006 proceedings cosponsored by the Justice Robert H. Jackson Center and the Supreme Court Historical Society, Supreme Court law clerks from that Court were on a panel with the two eponymous Barnettes. Just as she and her sister had in 1942, Gathie Barnette Edmonds noted that her own son was also sent to the principal's office for not saluting the flag.^[7]

See also

• Wooley v. Maynard
• Criticism of the Pledge of Allegiance
• List of United States Supreme Court cases, volume 319

Footnotes

References

Further reading

• Alley, Robert S. (1999). The Constitution & Religion: Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books. pp. 428–436. ISBN 1-57392-703-1. 
• Irons, Peter H. (1999). A People's History of the Supreme Court. New York: Viking. ISBN 0-670-87006-4. 
• Kommers, Donald P.; Finn, John E.; Jacobsohn, Gary J. (2004). American Constitutional Law. Vol. 2 (2nd ed.). Lanham, MD: Rowman & Littlefield. ISBN 0-7425-2688-7. 
• Sandmann, Warren (2003). "West Virginia State Board of Education v. Barnette". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 100–115. ISBN 0-8173-1301-X. 

External links

Wikisource has original text related to this article: West Virginia State Board of Education v. Barnette

• Text of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) is available from:  Findlaw  Justia  Cornell LII 
• First Amendment Library entry on West Virginia State Board of Education v. Barnett
• What We Owe Jehovah's Witnesses, by Sarah Barringer Gordon, April/May 2011 American History magazine; article on Barnette's effects on Constitutional Law.