FEW SYMBOLS OF OUR COUNTRY carry so much emotional and patriotic freight as does the American flag, and many people seem ready to deal out a harsh justice to those whom they consider disrespectful of Old Glory. Honoring that symbol can take many forms, but requiring a person to do so, and in a particular way, may also infringe upon that individual’s religious beliefs. That is the story behind the flag-salute cases of 1940 and 1943, cases that are part of the beginning of rights consciousness in modern America. These and related cases all grew out of the tenacity of members of a small religious sect, the Jehovah’s Witnesses, to cling to their beliefs despite public opprobrium and even physical danger. Justice Harlan Fiske Stone wrote to Chief Justice Charles Evans Hughes that “I think the Jehovah’s Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties.”
In October 1935 twelve-year-old Lillian Gobitas and her family, as they did every week, sat around their kitchen table and heard Joseph Rutherford, the head of the Jehovah’s Witnesses, deliver his talk about their beliefs and what they meant for the Witnesses in their daily lives. On this day Rutherford implored the faithful not to salute the American flag, because in essence the salute was nothing more than idol worship prohibited by the Bible. Rutherford also spoke about the bravery of Witnesses in Germany who refused to salute Adolf Hitler, and the persecution they suffered for doing so. American Witnesses, he exhorted, should show the same courage as did their German coreligionists.
Lillian determined to practice what Rutherford had preached, and the next day she and her ten-year-old brother, William, along with another Witness child, Edmund Wasliewski, refused to participate in the morning flag-salute ceremony at their grade school in Minersville, Pennsylvania. As she later recalled, “[E]verybody in the class turned and looked. . . . Then they kind of ignored me after that.” Once out of the classroom, however, the other students began to taunt the Witness children, and to pick on Lillian and her brother: “When I got to school each morning, a few boys would shout ‘Here comes Jehovah!’ and shower me with pebbles.”
School officials also proved unsympathetic, although there was no regulation mandating that students participate in the flag salute. (It should be noted that at the time the form of salute was an outstretched arm, similar to the one used in Nazi Germany.) The head of the local school board, Charles Roudabush, dismissed pleas for religious tolerance from Lillian’s father, Walter; the board then passed a rule requiring participation and expelled the children for their refusal to salute the flag. Walter Gobitas decided to fight the decision in court. He filed a suit on behalf of his children and on his own behalf, asking to be relieved of the financial burden of additional education costs. The state required that all children attend school, yet his children, because of their religious beliefs, could not attend the Minersville schools because of the local school board’s regulations. He appealed to the Witness Watchtower Society for aid, and Joseph Rutherford, an able attorney, secured victories in 1938 in federal district court and afterward in the Court of Appeals for the Third Circuit.
Federal district judge Albert B. Maris, in what the Supreme Court called a “thoughtful opinion,” granted the relief that Walter Gobitas sought. The school board then appealed, but the appellate court upheld Judge Maris’s decision. The Third Circuit panel found that the flag salute impinged on the family’s First Amendment right to free exercise of religion, as applied to the states through the Fourteenth Amendment’s due process clause. During this process the courts, anticipating there would be appeals, did not order the school board to readmit the Witness children, and so they continued to go to a private school. After losing in the court of appeals, the school board decided to appeal to the Supreme Court. In that tribunal, the American Civil Liberties Union (ACLU) and the American Bar Association’s Committee on the Bill of Rights both filed briefs supporting the family.
The fact that much of the jurisprudence that has developed about the First Amendment’s free exercise clause came from litigation initiated by the Jehovah’s Witnesses is somewhat paradoxical. Freedom of expression and conscience is not part of Witness beliefs, which—as a number of sources have testified—can be extremely repressive. The Witnesses practice a rigid faith that leaves practically no room for flexibility or dissent. Witnesses who openly question either the practices or the tenets of the faith can find themselves “disfellowshipped,” or excommunicated and shunned by the others.
The group developed out of the late-nineteenth-century Bible study movement founded by Charles Taze Russell, with the formation of Zion’s Watchtower Tract Society. Following various schisms and organizational changes, the group that won out imposed an authority structure, brought its evangelical practices under centralized control, and adopted the name Jehovah’s Witnesses in 1931.
A central aspect of the movement is extensive study of the Bible, and the belief that in its passages can be found the guide to living today. Witnesses troubled by the flag salute found answers in the relevant passages of the Bible, especially Exodus 20:4–6, Matthew 22:21, and John 5:21. The passage from Exodus in particular seemed to speak directly to the matter by forbidding the worship of anything other than God:
Thou shalt not make unto thee any graven image, or any likeness of any thing 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: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me.
Lillian recalled that her parents studied this passage with her and her brother and helped them to understand it, but they never pressured the children to do anything. That was to be their own decision, a decision that listening to Joseph Rutherford’s radio address helped them to make. After much thought, Lillian and her brother determined that saluting the flag conflicted with their religious beliefs.
Another key tenet of Witness theology involved prosletyzing, a literal “witnessing” of their faith to others and trying to convince them of its truth. This included handing out tracts on street corners, ringing doorbells, talking with potential converts, and otherwise trying to win over adherents. The Witnesses practiced what they believed with such fervency that many townships considered them a nuisance and tried, by various means, to curtail their activities. (This conduct, however, did not seem to be what upset the Minersville School Board; it objected to the refusal of Witness children to salute the flag.)
The modern school flag-salute ceremony dated from 1892, and the first statute making the salute mandatory passed the New York legislature in 1898 on the day after the United States declared war on Spain. By 1940 thirty states had included the ritual as part of its daily school routine, and nearly all made participation mandatory. Attacks in the courts on the compulsory flag salute had been totally unsuccessful. At the time of the Minersville School Board’s petition for review, the Supreme Court had already considered the question of a compulsory flag salute three times, and three times it had disposed of the issue in brief, unsigned per curiam (collectively written) memoranda that held the matter to be of local or at most a state matter, with no federal question involved. As recently as April 1939 the Court had unanimously denied an appeal from the Supreme Court of California, which had upheld a mandatory flag salute in public schools.
When the high court heard the Minersville case, Joseph Henderson, a pillar of the Philadelphia bar, represented the school board, and he made three points:
1. The expulsion of the Gobitas children did not violate their rights under the U.S. Constitution.
2. The expulsion did not violate their rights under the constitution of the Commonwealth of Pennsylvania.
3. The children’s refusal to participate in the flag-salute exercise because they believed doing so would violate a law of God, as contained in the Bible, was not founded on a religious belief.
This last point by itself shows how greatly the majority of people at that time misunderstood the nature not only of what Jehovah’s Witnesses believed, but of the great variety of religious beliefs that differed from mainstream Protestant thought. Baptists, Methodists, Episcopalians, and other Protestant groups had no problem with the flag salute; the many Americans who belonged to the mainline religions could not fathom how one could oppose the salute on religious grounds.
Professor George K. Gardner of the Harvard Law School and Joseph Rutherford himself led the team representing the Gobitas children. Their case rested on two assertions. First, man must be free to exercise his conscientious belief in God and according to what he believes to be the commands of God, and the state may not compel him to obey a rule that he conscientiously believes conflicts with God’s law. Second, the regulation made and enforced by the Minersville School District violated the Fourteenth Amendment of the Constitution.
Lillian Gobitas and her family had traveled to Washington in April 1940 to hear oral argument in the case (the clerk of the Court misspelled the family name as “Gobitis,” which it has remained in Court records and history books until this day), and she remembered the event in great detail:
The nine judges heard another case before us. Some kind of corporate case and, oh, there were interruptions, dropping pencils and paper and this and that and interrupting the lawyers. . . . Then along came Joseph Rutherford and he argued from the Bible standpoint. And instead of all that shuffling and interruptions, there was not a sound. It was so awesome. . . . He compared the Witness Children to the three Hebrews that refused to bow down before Nebuchadnezzar’s image and were ready to be thrown into the fiery furnace. Biblical examples like that. . . . Everyone just paid rapt attention and that surely included me. . . . And so we thought that because we had won in both [lower] courts, well it’s a shoo-in.
It was not. Although Lillian may have been impressed by the performance of Gardner, Rutherford, and the society’s legal counsel, Hayden Covington, legal scholars have considered both the briefs filed by the Watchtower Society as well as the oral argument as woefully inadequate. The historian David Manwaring described the Witnesses’ effort as “a discouragingly bad brief. It ignored all the most crucial constitutional issues, and seemed calculated to produce a negative emotional effect with its repeated recourse to argument ad hominem.” Full of hyperbole, it cast the proponents of the compulsory flag salute as champions of “arbitrary totalitarian rule of the state.”
Although they did little good, the amicus briefs filed by the ACLU and the American Bar Association addressed what we now consider the key constitutional issues of the application and reach of the First Amendment’s religion clauses. In 1940 the process of incorporation, by which the Fourteenth Amendment’s due process clause applied the protections of the Bill of Rights to the states, had not progressed that far. The Court had applied the speech clause as well as the press clause, and in the infamous Scottsboro trial had also declared that states had to provide a fair jury trial, but no decision had yet applied the free exercise clause. The majority of the justices favored a cautious approach, since the idea that the due process clause applied the Bill of Rights to the states was, at least in the high court, a new concept.
This caution can be seen in Palko v. Connecticut (1937), where Justice Benjamin Cardozo laid down the guidelines for which constitutional rights should be incorporated and applied to the states. Cardozo included all of the protections of the First Amendment, for freedom of thought and speech “is the matrix, the indispensable condition, for nearly every other form of [freedom].” As for the Second through Eighth Amendments, the Court should apply only those that are “of the very essence of a scheme of ordered liberty,” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” He did not, however, spell out which rights met these criteria.
At first blush it would seem that the free exercise clause of the First Amendment should be included and applicable to the states, since the notion of religious freedom certainly went far back in American history. Many of the early colonists had fled the Old World seeking to avoid religious persecution, and throughout the nineteenth and twentieth centuries other groups had come for the same reason. The immediate precursor of the religion clauses lay in the Virginia Statute for Religious Freedom of 1786, written by Thomas Jefferson and James Madison. The problem was that although the Court and the nation were familiar with the major Protestant religions, as well as with Catholicism and Judaism, they knew little about sects whose beliefs varied from the mainstream.
The Court had heard very few religion cases, and in 1940 the controlling precedent for the free exercise clause dated back to the 1879 decision of Reynolds v. United States. In 1862 Congress had passed a law prohibiting polygamy in the U.S. territories, an act clearly directed at the Mormons in Utah. George Reynolds challenged the law on the grounds that Congress had impaired his constitutional right to the free exercise of his beliefs, which included polygamy. A unanimous court disagreed. Chief Justice Morrison Waite drew the distinction between belief and practice. People could believe anything they wanted, and Congress could not punish them for those ideas, no matter how outlandish they might seem. Society, however, had the authority to define what it considered immoral or dangerous behavior, and the power to punish it. Reynolds certainly had the right to believe in multiple marriages, and the government equally had the power to put him in jail if he practiced it.
In the Minersville case, the ACLU and the American Bar Association wanted the Court to abandon or at least modify this dichotomy, and to recognize that if a person truly believed in some tenets, then he had to act on them, and had the right to do so if such acts did no harm to others.
The ACLU emphasized that the right “to entertain the belief, to adhere to the principle, and to teach the doctrine, that the act of saluting the flag contravenes the law of Almighty God, is a part of the liberty referred to in the Fourteenth Amendment.” Beyond that the ACLU brief, like the opinion in the Third Circuit, questioned whether mandating the flag salute really fostered true patriotism. Would expelling the Witness children “instruct the youth of Pennsylvania in loyalty to the flag and Constitution of the United States”? In other words, did the flag-salute requirement accomplish its stated purposex?
The Bar Association committee in its brief claimed that no public need existed for the compulsory flag salute “as to justify the overriding of the religious scruples of the children.” The conclusion challenged the Court to look at the world around it, and to adhere to the high ideals of the Constitution:
The philosophy of free institutions is now being subjected to the most severe test it has ever undergone. Advocates of totalitarian government point to the speed and efficiency with which such systems are administered, and assert that democracy can offer nothing to outweigh these advantages. The answer is to be found in the value of certain basic individual rights and the assurance afforded by free institutions that these shall not be required to yield to majority pressure no matter how overwhelming.
The worth of our system must ultimately be judged in terms of the importance of these values and the care with which they are safeguarded. We consider them immeasurably important. We believe that the letter as well as the spirit of our Constitution demand vindication of the individual liberties which are abridged by the challenged regulation.
The argument carried no weight with the justices. During oral argument Justice Felix Frankfurter passed a note to his colleague Frank Murphy questioning whether the Framers of the Bill of Rights “would have thought that a requirement to salute the flag violates the protection of ‘the free exercise of religion’?” Frankfurter, a naturalized American citizen, took ideals of citizenship and patriotism very seriously, and he had little sympathy with those who, as he saw it, refused to meet their civic obligations. This may have been why Chief Justice Hughes assigned the opinion to Frankfurter.
In his opinion for the 8–1 majority, Frankfurter started by noting that when the Court “must reconcile the conflicting claims of liberty and authority, [and] when the liberty invoked is liberty of conscience, and the authority is authority to safeguard the nation’s fellowship, judicial conscience is put to its severest test.” But although he acknowledged the importance of free religious belief, Frankfurter claimed it had never been absolute, and had always been limited by laws of a general nature. He then framed the “precise” issue in terms of judicial restraint—that is, of the Court not second-guessing policies enacted by the elected branches—and called upon the Court to defer to the wisdom and prerogatives of local school authorities:
To stigmatize legislative judgment in providing for this universal gesture of respect for the symbol of our national life in the setting of the common school as a lawless inroad on that freedom of conscience which the Constitution protects would amount to no less than the pronouncement of pedagogical and psychological dogma in a field where courts possess no marked and certainly no controlling competence. . . . To the legislature no less than to courts is committed the guardianship of deeply cherished liberties.
There is a formulaic quality to the opinion, and it reflects Frankfurter’s long-held ideas on judicial restraint, a view he and other liberals had long argued when conservatives imposed their own economic biases to negate progressive reforms. Is the legislative end legitimate? Are the means chosen reasonable? If so, then it is not up to the courts to say there is a better way. The fact that this law affected religious beliefs did not matter to Frankfurter, who made no distinction between laws regulating the economy and laws regulating personal expression or speech. Even some of Frankfurter’s admirers called this his “fall of France” opinion (the decision was announced during the Dunkirk evacuation of Allied soldiers from France after their defeat at the hands of the Germans), since he believed that the United States would soon be drawn into the European conflict and that fostering patriotism was a paramount objective of public schools.
Some of Frankfurter’s defenders believe that in his heart he knew that the practice of mandating flag salutes was wrong, but that given what then existed as settled free exercise doctrine—and there was precious little of it—his core belief in judicial restraint compelled him to write as he did. Frankfurter may have been one of the smartest men ever to sit on the high court, but not one of its most creative. Where Holmes and Brandeis—whom he acknowledged as his heroes—could reach out and create new doctrines where the old ones had failed, Frankfurter could not.
Only Harlan Fiske Stone dissented, and followed the line of reasoning in his 1938 Carolene Products opinion, where he had declared that the Court had a special obligation to protect minorities. “The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs,” he wrote. “It is 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.”
Where Frankfurter willingly left the protection of minority rights to the legislative branch, Stone recognized that the enforcement of liberties could not be left to the polls. The whole idea of the Bill of Rights was to shield minorities from the majority will, and that legislative “protection” of groups like the Witnesses would not be sufficient when a majority of voters felt their beliefs were incorrect, inappropriate, or even offensive.
The three most liberal members of the Court—Hugo Black, William Douglas, and Frank Murphy—voted with the majority but were troubled from the start. Black did not like the law but saw nothing in the Constitution to invalidate the measure. Douglas later claimed that if Stone had not been so late in circulating his dissent he might have joined it. When the Court convened after the summer recess, Douglas told Frankfurter that Black had second thoughts about his Gobitis vote. “Has Black been reading the Constitution?” Frankfurter asked sarcastically. “No,” Douglas replied, “he has been reading the newspapers.”
There Black—and everyone else—would have noted the Justice Department reports that in the weeks following the decision there had been hundreds of attacks on Witnesses, especially in small towns and rural areas, a pattern that continued for at least two more years. In Kennebunkport, Maine, the townspeople burned a Witness meeting hall, and in Rockville, Maryland, just outside the nation’s capital, a mob attacked a Witness Bible meeting. A lawyer who represented the Witnesses in Connersville, Indiana, was beaten and driven out of town. The city council in Jackson, Mississippi, banned Witnesses from living there. Veterans were at the head of mobs in Arkansas, California, Texas, Wyoming, and other places that attacked Witnesses. In Litchfield, Illinois, a mob attacked a caravan of Witness automobiles, overturning and burning them. Several states moved against the group by seizing children who refused to salute the flag, and after local courts declared them delinquents, committing them to reformatories. The St. Louis Post-Dispatch editorialized that while it would be a mistake to attribute all of the violence to the Supreme Court decision, “there can be little doubt that that most unfortunate decision will be an encouragement for self-appointed guardians of patriotism and the national moralists to take the law into their own hands.”
Gobitis is one of the early cases in which the Court wrestled with how far the protection of the Bill of Rights—originally written to restrain the federal government—should apply to the states. In a famous footnote in the Carolene Products case, Justice Stone had written that courts had to look more intensely at issues involving individual rights than at economic regulations. Frankfurter’s majority opinion denied that any difference existed, but at least four members of the Court—Stone, Black, Douglas, and Murphy—disagreed, and over the next few years, as the Witnesses brought one challenge after another to local regulations that they claimed impinged on their freedom of conscience, these four could sometimes pick up one or more votes to expand the meaning of the First Amendment guarantees, although some decisions still went against the Witnesses.
In Cox v. New Hampshire (1941), for example, a unanimous Court upheld a state regulation requiring permits for parades, even religious parades, and the following year sustained the conviction of a Witness who had gotten into a fight after calling a city marshal “a God-damned racketeer” and “a damned Fascist.” Frank Murphy, normally the Court’s champion of free speech, found these “fighting words” outside First Amendment protection (Chaplinsky v. New Hampshire [1942]).
The following term the Witnesses were back in Court after they refused to pay a municipal licensing fee for peddlers prior to selling their religious tracts. The issue in Jones v. Opelika (1942) was essentially the same as in Gobitis—the extent to which the government’s acknowledged power to maintain public order impinged on the free exercise of religion. A majority voted to sustain the ordinance, but this time four judges dissented—Stone, Black, Douglas, and Murphy. Moreover, in an unprecedented step, the latter three appended a statement acknowledging Opelika as a logical extension of Gobitis, and said this was “an appropriate occasion” to confess that they had been wrong in the earlier case. The majority opinions in both decisions, they charged,
suppresses or tends to suppress the free exercise of religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis took against the same religious minority and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis Case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under 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. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and the Gobitis Case do exactly that.
This recantation infuriated Frankfurter, who pointed out that Gobitis had not been challenged in the Opelika litigation or even mentioned in conference.
By this time many Americans had begun to rethink the implications of the earlier flag-salute case, especially after the country entered the war against fascism. The flag salute could hardly compare to the repression practiced in Nazi Germany (and it had been changed from an outstretched arm to one’s hand over the heart in the meantime), but it did strike many people as a needless intrusion on personal liberty in the name of the state. Although Black and Frankfurter disagreed on many things, they did agree, as the latter told Justice Stanley Reed, that the Witness cases “are probably but the curtain raisers of future problems of [great] range and magnitude.”
When Wiley Rutledge joined the Court in January 1943, the dissenters in Opelika finally had a majority. In May 1943 the Court by 5–4 majorities handed the Witnesses two victories on the same day. In Murdock v. Pennsylvania, it struck down a tax on peddlers of religious tracts, and in Martin v. Struthers invalidated an ordinance prohibiting door-to-door distribution of religious materials. In the first case Justice Douglas likened the levy to taxing a minister for the privilege of delivering a sermon, while in the latter Justice Black conceded the need for some police regulation but held that the preferred position of speech and religion took precedence.
Frankfurter, angry at seeing his Gobitis majority vanish, penned a furious dissent that attacked the majority for its “large, uncritical, congenial abstractions” that would confuse and mislead the American people. He also responded to critics who had suggested that he and his allies did not care about the protection of individual liberties. Frankfurter and those who voted with him cared for the Bill of Rights as much as the majority did, but felt themselves bound by the overarching principle of judicial restraint.
These cases set the stage for the Court to revisit its decision in Gobitis. Challenges to the flag salute arose in several states, and the Court accepted an appeal from West Virginia. There the state Board of Education, pursuant to an act of the state legislature, required all schools—public, private, and parochial—to require courses “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.”
In a resolution dated January 9, 1942, and drawing heavily on Frankfurter’s opinion in Gobitis, the school board ordered school authorities in each community to make the flag salute a regular part of the daily program. All teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the flag,” and refusal to salute would be “regarded as an act of insubordination, and shall be dealt with accordingly.” Children were to be expelled, and not readmitted until they agreed to participate in the ritual. An expelled child not in school would be deemed a delinquent, and parents and guardians would be liable to fines and a jail term.
The draconian measure soon elicited a spate of lawsuits. Three Jehovah’s Witnesses—Walter Barnette, Paul Stull, and Lucy McClure—brought suit on behalf of their children in federal district court in Charleston seeking an injunction against enforcement of the new rules (West Virginia Board of Education v. Barnette [1943]). The arguments mirrored those in the earlier case, with the parents claiming an unconstitutional abridgement of religious freedom and free speech for their children, while the school board asserted its authority over children in its care, and citing Gobitis, asked for the suit to be dismissed as without merit. Recognizing the importance of the case, the federal district court set up a special panel to hear it, two judges from the district and a third from the Court of Appeals for the Fourth Circuit, John J. Parker of North Carolina.
Although lower courts are required to adhere to Supreme Court decisions, in this case the judges chose not to follow Gobitis, even though it had been decided less than three years earlier. They noted that at least four members of the Supreme Court now believed the Gobitis ruling to be wrong, and that in Jones v. Opelika the majority had to a large measure ignored Gobitis. Judge Parker, speaking for the entire panel, wrote:
Under such circumstances and believing as we do that the flag salute here required is violative of religious liberty when required of persons holding the religious views of plaintiffs, we feel that we should be recreant to our duty as judges if through a blind following of a decision which the Supreme Court itself has thus impaired as authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties.
The school board appealed to the Supreme Court, which heard oral argument on March 11, 1943. Many of the same names could be found on the briefs of the two parties, as well as those of the ABA Committee on the Bill of Rights and the American Civil Liberties Union. What had changed was the makeup of the high court. Gobitis had been decided by an 8–1 majority, with only Harlan Fiske Stone dissenting. In the subsequent Witness cases Hugo Black, William Douglas, and Frank Murphy had moved to Stone’s side. When President Franklin Roosevelt elevated Harlan Stone to replace Hughes as chief justice and James Byrnes left the Court for an executive position in the war administration, the president named Robert H. Jackson and Wiley Rutledge to their seats. Rutledge had immediately sided with the Stone group, and helped achieve the victories in Murdock and Struthers. Jackson normally allied himself with Felix Frankfurter to uphold governmental regulation, but in this case he voted to support the Witnesses. Stone assigned the decision to Jackson, much to the chagrin of Black and Douglas, who wanted to proclaim the justice of their recantation.
After reviewing the facts, Jackson began by noting that the rights asserted by the Witness children did not bring them into any conflict with the rights of other individuals, the type of conflict that often involved courts weighing the issues, as in the polygamy case. Here “the sole conflict is between authority and rights of the individual.”
Interestingly, Jackson only ventured partway onto the terrain of conscience protected by the free exercise clause. The ACLU in its brief, fearful that the justices might not want to get involved in freedom of conscience issues, had added a section that relied on the speech clause, suggesting that unless the religiously motivated behavior constituted a “clear and present danger” to the public, it could not be regulated, no matter how worthy or reasonable the legislative purpose. Jackson appears to have picked up on this argument, and the bulk of his decision reads as if it were a freedom of speech rather than a free exercise of religion issue. The use of the flag as a symbol, he explained, is a form of utterance, and likewise the decision not to salute the flag is also a type of expression. While the Witnesses objected to the flag salute because of religious beliefs, others could and did object to any form of government-coerced speech for a variety of reasons, all of which would be protected by the First Amendment’s speech clause.
Where Frankfurter had said the rights involved were assigned to the protection of the legislature, and that courts should defer to legislative judgment, Jackson disagreed. “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,” he maintained. “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.”
Frankfurter had used “national unity” as the compelling government rationale to require the flag salute of all students. That national unity is an end that officials may foster by persuasion and example was not the question, Jackson stated. “The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement,” and the majority thought not. Moreover, efforts to secure such unity by coercion were doomed to failure, and those “who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
The issues, Jackson declared, were not difficult; the Court had been elucidating principles of free speech for more than two decades. Only the fact that the symbol involved was the American flag made the case a hard one. He concluded with what remains one of the most ennobling statements of American freedom ever penned by a Supreme Court justice: “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.”
Justice Black, joined by Douglas, concurred, explaining that since they had voted with the majority in Gobitis, they felt compelled to add a few words of their own. Despite the many protections of the First Amendment, it did not go so far as to grant individuals “an absolute right to make final decisions, unassailable by the State, in everything they will or will not do.” Nevertheless, while the state can certainly work to inculcate loyalty, it cannot do so by compulsion. “Love of country must spring from willing hearts and free minds,” a sentiment expanded upon by Justice Murphy in an equally short concurrence.
Three members of the Court dissented. Justices Roberts and Reed merely noted that they believed Gobitis had been rightly decided and that the West Virginia case should have followed that precedent. Felix Frankfurter, however, entered an anguished dissent that 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. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.”
He then went into a lengthy defense of judicial restraint, repeating the general ideas of his earlier opinion in Gobitis that courts should defer to the wisdom of the legislative branches. The truly astonishing aspect of Frankfurter’s original opinion in Gobitis and his later dissent is that he completely ignored any difference between impingements upon individual liberties, even those protected by the Bill of Rights, and economic regulations. In both instances the judgment of the legislatures must be respected. The idea that courts had any special role to play in protecting individuals and groups from majoritarian prejudice, an idea that Holmes, Brandeis, and Stone had embraced, remained then and later foreign to Frankfurter.
When Lillian Gobitas heard the news, she experienced a deep sense of joy that the Witnesses had finally been victorious. “We were thrilled, absolutely thrilled. And you know, things began to wind down. Believe it or not, everything cooled down. The mobbings stopped. . . . It just wound down and everything got calm again. [Witness] kids went back to school.” The Minersville School Board sent a letter reinstating the Gobitas children, but for Lillian it was a bit too late. By then she was twenty years old, and although she lacked that last year of high school, she had been accepted by and attended a local business college. As she put it, she and her brother had gone on with their lives.
Although the flag-salute cases remain an important part of our constitutional history, and of the history of religious freedom in the United States, they play less of a role in courses in constitutional law. The reason is fairly simple—the two cases were decided not on free exercise of religion grounds but on a free speech rationale, the clear and present danger test. In subsequent years the Court moved past this test in speech cases and developed a separate jurisprudence for evaluating the actions of individuals based on their religious beliefs against the needs of the state to maintain order. In Sherbert v. Verner (1963), the Court held that a Seventh-day Adventist who had been discharged from her job because she would not work on Saturdays could not be denied unemployment benefits by the state. In the case the Court established a balancing test that protected religious action as well as speech unless the government could show a compelling state interest to infringe on those actions. While Sherbert swung the pendulum to favor individual beliefs, in later years the Court seemed to back away from that, once again setting up the dichotomy between religious belief and action based on that belief, and allowing states to regulate the latter while protecting the former.
Unfortunately, we do not know much about what happened to the Barnettes, but Lillian Gobitas went on to have a very full life. She wanted very much to work at the headquarters of the Watchtower Society in New York City at a time when they “didn’t take girls much at all,” but because of her role in the case they made an exception for her. The time she spent there led her to do missionary work in Europe, where she met her husband, Erwin Klose, one of the brave German Witnesses who had inspired the young Lillian. At the same time that Lillian was standing up for her religious principles in Pennsylvania, Klose refused to serve in the German army or salute Hitler, because he believed doing so would be an act of worship of a false God. For this he wound up in a concentration camp. Looking back many years later she told an interviewer that “those things would not have happened otherwise. [The case] changed the course of our lives. I call it the storybook life.”
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
Jones v. Opelika, 316 U.S. 584 (1942)
Martin v. Struthers, 319 U.S. 141 (1943)
Minersville School District v. Gobitis, 310 U.S. 586 (1940)
Murdock v. Pennsylvania, 319 U.S. 105 (1943)
Sherbert v. Verner, 374 U.S. 398 (1963)
United States v. Carolene Products Co., 304 U.S. 144 (1938)
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)
The best single volume on these cases and the related religious freedom decisions at the time is Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000). Older but still useful is David Manwaring, Render unto Caesar: The Flag Salute Controversy (1962). To understand the faith, see M. James Penton, Apocalypse Delayed: The Story of Jehovah’s Witnesses (2nd ed., 1997). A good portrait of Lillian Gobitas Klose is in Peter Irons, The Courage of Their Convictions (1990), 25–35. For the Stone Court and its handling of these cases, and especially Felix Frankfurter’s role, see Melvin I. Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941–1953 (1997), chap. 3. A more negative view of the cases is Richard Morgan, “The Flag Salute Cases Reconsidered,” 34 Journal of Supreme Court History 275 (2009).