West Virginia State Board of Education v. Barnette,
319 U.S. 624Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1943), was a decision by the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
that held that the Free Speech Clause of the
First Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
protected students from being forced to salute the
American flagThe flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows of five stars...
and say the
Pledge of AllegianceThe Pledge of Allegiance to the United States is an oath of loyalty to the republic of the United States of America, originally composed by Francis Bellamy in 1892. The Pledge has been modified four times since then, with the most recent change adding the words "under God" in 1954...
in school.
It was a significant court victory won by
Jehovah's WitnessesJehovah's Witnesses is a restorationist, millenarian Christian denomination. The religion reports worldwide membership of over 7 million adherents involved in evangelism; they report convention attendance of over 12 million, and annual Memorial attendance of over 17 million...
, 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. GobitisMinersville School District v. Gobitis, , was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution...
(also involving the children of Jehovah's Witnesses), in which the Court stated that the proper recourse for dissent was to try and 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
Religion ClauseThe Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:...
.
Facts of the case
Following the
Minersville School District v. GobitisMinersville School District v. Gobitis, , was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution...
decision, the
West Virginia LegislatureThe West Virginia Legislature is the state legislature of the U.S. state of West Virginia. A bicameral legislative body, the Legislature is split between the upper Senate and the lower House of Delegates. It was established under Article VI of the West Virginia Constitution following the state's...
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 AssociationIn the U.S. a parent-teacher association or Parent-Teacher-Student Association is a formal organization composed of parents, teachers and staff that is intended to facilitate parental participation in a public or private school. Most public and private K-8 schools in the U.S. have a PTA, a...
, the
Boy* Boy Scouts are members of a Scouting organization.* There are thousands of national Scouting organizations or federations; these are grouped into six international Scouting associations with some non-aligned organizations...
and
Girl ScoutsGirl Scouts can refer to* Girl Scouts of the USA* Female members of a Scouting organization. There are thousands of national Scouting and Guiding organizations or federations; these are grouped into six international Scouting or Guiding associations with some non-aligned organizations:**...
, the Red Cross, and the
General Federation of Women's ClubsThe General Federation of Women's Clubs , founded in 1890, is an international women's organization dedicated to community improvement by enhancing the lives of others through volunteer service...
. 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" saluteThe Roman salute is a gesture in which the arm is held out forward straight, with palm down, and fingers touching. Sometimes the arm is raised upward at an angle, sometimes it is held out parallel to the ground. A well known symbol of Fascism, it is commonly perceived to be based on a classical...
, 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."
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 prosection; 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. On the advice of an early attorney, the Barnetts had avoided the further complications by having their expelled girls return to school each day (the school sent them home each day).
The Barnetts brought suit in the
United States District CourtThe 94 United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses. The Witnesses taught and still teach that the obligation imposed by 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.
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 LegionThe American Legion is a congressionally chartered mutual-aid veterans organization of the United States armed forces founded to benefit those veterans who served during a wartime period as defined by the U.S. Congress. The American Legion was founded in 1919 by veterans returning from Europe after...
's amicus curiae brief filed in support of the state's appeal did little
more than duplicate the West Virginia argument.
Hayden Covington answered the state's appeal in a brief that was a mixture of Jehovah's Witnesses
BibleThe Bible contains the central religious texts of Judaism and Christianity. Modern Judaism generally recognizes a single set of canonical books known as the Tanakh, or Hebrew Bible, as it is written almost entirely in the Hebrew language, with some small portions in Aramaic...
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. The
American Bar AssociationThe American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
's Committee on the Bill of Rights and the
American Civil Liberties UnionThe American Civil Liberties Union consists of two separate non-profit organizations: the ACLU Foundation, a 501 organization which focuses on litigation and communication efforts, and the American Civil Liberties Union, a 501 organization which focuses on legislative lobbying...
filed
amicus curiae briefs that argued
Gobitis was bad law and should be overruled.
Decision of the Court
In a 6-to-3 decision, the Court overruled its decision in
Minersville School District v. GobitisMinersville School District v. Gobitis, , was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution...
and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that salutes of the type mandated by the West Virginia State Board of Education were forms of utterance and thus were a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to the values set forth in the
First AmendmentThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
. Writing for the majority, Justice Jackson argued that "[i]f 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 DayIn the United States, Flag Day is celebrated on June 14. It commemorates the adoption of the flag of the United States, which happened that day by resolution of the Second Continental Congress in 1777....
.
Majority opinion
Justice
Robert JacksonRobert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
, who had joined the court only two years earlier, wrote the decision, echoing the free-expression sentiments of
Stromberg v. CaliforniaStromberg v. California, 283 U.S. 359 was a United States Supreme Court case in which the Court ruled 7-2 that a 1919 California statute banning red flags was unconstitutional because it violated the Fourteenth Amendment...
.
The opinion that Justice
Felix FrankfurterFelix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born on November 15, 1882 in Vienna, Austria, third of six children of Leopold and Emma Frankfurter. His forebears had been rabbis for generations...
had authored three years earlier in
GobitisMinersville School District v. Gobitis, , was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution...
rested squarely on four legs. In
Barnette Justice Jackson systematically knocked each leg off 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 derided symbols as a “primitive but effective way of communicating ideas,” and chided 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 utterly rejected Frankfurter’s argument, citing the
RomanThe Roman Empire was the post-Republican phase of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean. The term is used to describe the Roman state during and after the time of the first emperor,...
effort to drive out
ChristianityChristianity is a monotheistic religion based on the life and teachings of Jesus of Nazareth as presented by the revelations in the New Testament....
, the
Spanish InquisitionThe Spanish Inquisition was an ecclesiastical tribunal started in 1478 by Catholic Monarchs Ferdinand II of Aragon and Isabella I of Castile. It was intended to maintain Catholic orthodoxy in their kingdoms, and to replace the medieval inquisition which was under papal control...
of the Jews and the Siberian
exileExile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened by prison or death upon return...
of
Soviet dissidentsSoviet dissidents were citizens of the Soviet Union who disagreed with the policies and actions of their government and actively protested against these actions through non-violent means...
as evidence of the “ultimate futility” of those historical efforts to coerce unanimous sentiment out of a populace. Jackson continued, warning that, “Those 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 boxA ballot box is a temporarily sealed container, usually cuboid though sometimes a tamper resistant bag, with a narrow slot in the top sufficient to accept a ballot paper in an election but which prevents anyone from accessing the votes cast until the close of the voting period...
. Jackson responded that the conflict in this case was between authority and the individual and that the founders intended the
Bill of RightsIn the United States, the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known. They were introduced by James Madison to the First United States Congress in 1789 as a series of articles, and came into effect on December 15, 1791, when they had...
to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. Jackson wrote...
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. In an oft-quoted passage Justice Jackson knocked out the final leg of Frankfurter’s opinion, sending the Gobitis decision to the grave.
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 BlackHugo LaFayette Black was an American politician and jurist. A member of the Democratic Party, Black represented the state of Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to...
and
William O. DouglasWilliam Orville Douglas was a United States Supreme Court Associate Justice. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
— 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
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 ReedStanley Forman Reed was a noted American attorney who served as United States Solicitor General from 1935 to 1938 and as an Associate Justice of the U.S. Supreme Court from 1938 to 1957...
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
MurphyWilliam Francis Murphy was a politician and jurist from Michigan. He served as First Assistant U.S. District Attorney, Eastern Michigan District , Recorder's Court Judge, Detroit . Mayor of Detroit , the last Governor-General of the Philippines , U.S...
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 MurphyWilliam Francis Murphy was a politician and jurist from Michigan. He served as First Assistant U.S. District Attorney, Eastern Michigan District , Recorder's Court Judge, Detroit . Mayor of Detroit , the last Governor-General of the Philippines , U.S...
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
GentileThe term Gentile refers to non-Israelite tribes or nations in English translations of the Bible, most notably the King James Version....
, neither
CatholicThe word Catholic is derived from the Greek adjective , meaning "universal". In the context of Christian ecclesiology, it has a rich history and several usages. For some, the term "Catholic Church" refers to the church in full communion with the Bishop of Rome, made up of the Latin Rite and the 22...
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.United States v. Carolene Products Company, 304 U.S. 144 , was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk from being shipped in interstate commerce...
. 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. VernerSherbert v. Verner, 374 U.S. 398 , was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because his...
(1963), for example, the Court upheld a
Seventh-day AdventistThe Seventh-day Adventist Church is a Christian denomination which is distinguished by its observance of Saturday, the original seventh day of the Judeo-Christian week, as the Sabbath, and by its emphasis on the imminent second coming of Jesus Christ. It is the eighth largest international body of...
'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. YoderWisconsin v. Yoder, 406 U.S. 205 , is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade, as it violated their parents' fundamental right to freedom of religion....
(1972), the Court upheld the right of
AmishThe various Amish or Amish Mennonite church fellowships are Christian religious denominations that form a very traditional subgrouping of Mennonite churches. They are best known for their simple living, plain dress and resistance to the adoption of many modern conveniences...
parents not to send their children to public schools past the eighth grade. But when the Amish asked the government for an exemption from paying Social Security taxes, the Court ruled against them in United States v. Lee (1982). Thereafter, Supreme Court decisions concerning the Free Exercise Clause steered away from constitutional exemptions for particular religious groups.
At 2006 proceedings cosponsored by the Justice Robert H. Jackson Center and the
Supreme Court Historical SocietyThe Supreme Court Historical Society is a private, non-profit organization dedicated to preserving and communicating the history of the U.S. Supreme Court-History:...
, Supreme Court law clerks from that Court were on a panel with the two eponymous Barnetts. Just as she and her sister had in 1942, Gathie Barnett Edmonds noted that her own son was also sent to the principal's office for not saluting the flag.
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