Supreme Court decision
By: Robert Jackson (majority), Felix Frankfurter (dissent)
Date: June 14, 1943
Source: West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). Reprinted in Kutler, Stanley, ed. The Supreme Court and the Constitution: Readings in American Constitutional History, 3d ed. New York: W.W. Norton, 1984, 511–519.
About the Authors: Robert Jackson (1892–1954) was appointed to the Supreme Court in 1941. Like several Supreme Court justices in the twentieth century, Jackson came to the bench after being attorney general. He was a strong supporter of First Amendment rights.
Before his Supreme Court Appointment in 1939 Felix Frankfurter (1882–1965) was a Harvard Law professor who advised President Roosevelt (served 1933–1945). His strong nationalism appears in many of the opinions he wrote while on the bench.
Jehovah's Witnesses were often disliked and felt intense pressure to conform prior to and during World War II (1939–1945). Jehovah's Witnesses were not well treated during wars in general. One of the religious group's original leaders, Charles Rutherford, and several of his followers were sentenced to 20-year jail terms for their pacifist positions during World War I (1914–1918). They did not have to serve the full sentences as their convictions were overturned in 1919.
The Minersville School District v. Gobitis (1940) decision, which held that Jehovah's Witnesses could be forced to salute the flag, resulted in widespread violence against Jehovah's Witnesses. Vigilantes, mobs, and even public officials attacked Jehovah's Witnesses for their beliefs. The Gobitis decision clashed with most Supreme Court decisions of the period, which had moved toward greater protection of minorities. Thus it was not surprising that the court decided to hear another flag salute case only three years after Gobitis. The West Virginia law in question in Barnette considered failure to salute the flag "insubordination" and allowed expulsion of children and imprisonment of parents for up to 30 days, as well as a fine of up to $50. Parents who removed their children from schools in response to the law disobeyed state compulsory education laws.
The Court's ruling that the Barnette children could not constitutionally be forced to salute the flag may seem surprising, given that it had ruled against Jehovah's Witnesses only three years earlier in Gobitis.Gobitis was decided on a vote of 8-1 and only three years later the Court switched completely, voting 8-1 to overturn its previous flag salute rulings. In the years between these two decisions Justices Douglas, Black, and Murphy stated in another opinion that Gobitis had been wrong, demonstrating that the violence following the case likely affected the Court's opinion. This caused a debate within the court. While Douglas, Black, and Murphy were moved, in part, by the violence against Jehovah's Witnesses to vote in favor of the Barnette family, Frankfurter felt the Court ought to defer to the local legislature in this case. Although Jackson and Frankfurter found themselves on opposite sides of the flag salute issue, the division of the court typifies its division between the Frankfurter-Jackson wing, which gave more deference to the government, and the Black-Douglas wing, which held that the government was prohibited from making "any law" that interfered with the freedom of speech, press, or religion.
The Barnette ruling foreshadowed the Court's expansion of constitutional freedoms in the 1950s and 1960s. The perspective represented by the Black-Douglas wing appeared again in Taylor v. Mississippi (1943). This decision held that states could not convict Jehovah's Witnesses under sedition statutes, laws that prohibited resistance to governmental authority, without direct evidence of a clear and present danger. Throughout the 1950s and 1960s freedom of religion was slowly expanded. The Warren Court in Engle v. Vitale (1962) held that students did not have to recite a state-generated prayer at the start of each school day. The Court said this use of state facilities, supported by public taxes, was a violation of the separation between church and state. The Supreme Court, in School District of Abington Township v. Schempp (1963), also overturned a law requiring daily Bible reading, stating that the First Amendment both prohibited favoring one religion over another and aiding religion in general. State aid to religious schools was, however, allowed by the Warren Court (1953–1969) in order to help pay for textbooks.
In other areas the Supreme Court allowed public officials to drop references to God in the oaths they swore. The Court also expanded conscientious objector status, granted to individuals who refused to go to war on religious or moral grounds, so that it applied to all religions, even ones that did not involve belief in a god. These decisions generally increased protections to religions outside the mainstream. Often such decisions went against public opinion, leading to campaigns and billboards suggesting "Impeach Earl Warren." Some claimed the Supreme Court had taken God out of schools (referring to Engle) while allowing the criminals to go unpunished (referring to other decisions of the Warren Court increasing defendants' rights such as Miranda v. Arizona, which guaranteed that police would read people their rights when arresting them).
Primary Source: West Virginia State Board of Education v. Barnette [excerpt]
SYNOPSIS: Justice Jackson, delivering the opinion of the Court, argues the state cannot impose patriotism on its subjects. He explains that the Fourteenth Amendment prohibits the government from denying individuals liberty, including the First Amendment's freedom of religion, without due process of law. He reasons that West Virginia's flag salute law violates due process and therefore goes against the Fourteenth Amendment. Justice Frankfurter, in a dissenting opinion, maintains that the Fourteenth Amendment does not forbid a state from passing a flag salute law. The case was decided on June 14, 1943.
Mr. Justice Jackson delivered the opinion of the Court
… As the present Chief Justice [Stone] said in dissent in the Gobitis case, the State may "require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country." Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting compulsory salute and slogan. This issue is not prejudiced by the Court's previous holding that where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution. It was held that those who take advantage of its opportunities may not on ground of conscience refuse compliance with such conditions. In the present case attendance is not optional.…
There is no doubt that the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many to these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. 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.
Over a decade ago Chief Justice Hughes led this Court in holding that the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by the free speech guaranties of the Constitution. Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.… It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.…
The Gobitis decision, however, assumed… that power exists in the State to impose the flag salute discipline upon school children in general. The Court only examined and rejected a claim based on religious beliefs of immunity from an unquestioned general rule. The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution. We examine rather than assume existence of this power and… re-examine specific grounds assigned for the Gobitis decision.
- It was said [in Frankfurter's Gobitis opinion] that the flag-salute controversy confronted the Court with "the problem which Lincoln cast in memorable dilemma: 'Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?' and that the answer must be in favor of strength."
We think issues may be examined free of pressure or restraint growing out of such considerations.
It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the State to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies.
Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.
- It was also considered in the Gobitis case that functions of educational officers in States, counties and school districts were such that to interfere with their authority "would in effect make us the school board for the country."…
Such Boards are numerous and their territorial jurisdiction often small. But small and local authority may feel less sense of responsibility to the Constitution, and agencies of publicity may be less vigilant in calling it to account. The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the Army contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation. There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.
- The Gobitis opinion reasoned that this is a field "where courts possess no marked… competence," that it is committed to the legislatures as well as the courts to guard cherished liberties and that it is constitutionally appropriate to "fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena.…" 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.
- Lastly, and this is the very heart of the Gobitis opinion, it reasons that "National unity is the basis of national security," that the authorities have "the right to select appropriate means for its attainment," and hence reaches the conclusion that such compulsory measures toward "national unity" are constitutional. Upon the verity of this assumption depends our answer in this case.…
Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As… moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.… Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
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 un-flattering 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.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
The decision of this Court in Minersville School District v. Gobitis… [is] overruled, and the judgment enjoining enforcement of the West Virginia Regulation is Affirmed.
Mr. Justice Frankfurter, dissenting:
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. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. 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. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the "liberty" secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.…
That claims are pressed on behalf of sincere religious convictions does not of itself establish their constitutional validity. Nor does waving the banner of religious freedom relieve us from examining into the power we are asked to deny the states. Otherwise the doctrine of separation of church and state, so cardinal in the history of this nation and for theliberty of our people, would mean not the disestablishment of a state church but the establishment of all churches and of all religious groups.
The subjection of dissidents to the general requirement of saluting the flag, as a measure conducive to the training of children in good citizenship, is very far from… exacting obedience to general laws that have offended deep religious scruples. Compulsory vaccination… food inspection regulations… the obligation to bear arms… testimonial duties… compulsory medical treatment… these are but illustrations of conduct that has often been compelled in the enforcement of legislation of general applicability even though the religious consciences of particular individuals rebelled at the exaction.
Law is concerned with external behavior and not with the inner life of man. It rests in large measure upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws.… The individual conscience may profess what faith it chooses.… [B]ut it cannot thereby restrict community action through political organs in matters of community concern, so long as the action is not asserted in a discriminatory way either openly or by stealth. One may have the right to practice one's religion and at the same time owe the duty of formal obedience to laws that run counter to one's beliefs.…
The flag salute exercise has no kinship whatever to the oath tests so odious in history. For the oath test was one of the instruments for suppressing heretical beliefs. Saluting the flag suppresses no belief nor curbs it. Children and their parents may believe what they please, avow their belief and practice it. It is not even remotely suggested that the requirement for saluting the flag involves the slightest restriction against the fullest opportunity on the part both of the children and of their parents to disavow as publicly as they choose to do so the meaning that others attach to the gesture of salute. All channels of affirmative free expression are open to both children and parents. Had we before us any act of the state putting the slightest curbs upon such free expression, I should not lag behind any member of this Court in striking down such an invasion of the right to freedom of thought and freedom of speech protected by the Constitution.…
One's conception of the Constitution cannot be severed from one's conception of a judge's function in applying it.… Our system is built on the faith that men set apart for this special function, freed from the influences of immediacy and from the deflections of worldly ambition, will become able to take a view of longer range than the period of responsibility entrusted to Congress and legislatures. We are dealing with matters as to which legislators and voters have conflicting views. Are we as judges to impose our strong convictions on where wisdom lies? That which three years ago had seemed… to lie within permissible areas of legislation is now outlawed by the deciding shift of opinion of two Justices. What reason is there to believe that they or their successors may not have another view a few years hence? Is that which was deemed to be of so fundamental a nature as to be written into the Constitution to endure for all times to be the sport of shifting winds of doctrine? Of course, judicial opinions, even as to questions of constitutionality, are not immutable. As has been true in the past, the Court will from time to time reverse its position. But I believe that never before these Jehovah's Witnesses cases… has this Court overruled decisions so as to restrict the powers of democratic government. Always heretofore, it has withdrawn narrow views of legislative authority so as to authorize what formerly it had denied.…
Of course patriotism can not be enforced by the flag salute. But neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation. Our constant preoccupation with the constitutionality of legislation rather than with its wisdom tends to preoccupation of the American mind with a false value. The tendency of focusing attention on constitutionality is to make constitutionality synonymous with wisdom, to regard a law as all right if it is constitutional. Such an attitude is a great enemy of liberalism. Particularly in legislation affecting freedom of thought and freedom of speech much which should offend a free-spirited society is constitutional. Reliance for the most precious interests of civilization, therefore, must be found outside of their vindication in courts of law. Only a persistent positive translation of the faith of a free society into the convictions and habits and actions of a community is the ultimate reliance against unabated temptations to fetter the human spirit.
Eastland, Terry. Religious Liberty in the Supreme Court: The Cases That Define the Debate Over Church and State. Grand Rapids, Mich.: W.B. Eerdmans, 1993.
Gaustad, Edwin S. Religious Issues in American History. New York: Harper & Row, 1968.
Mauro, Tony. Illustrated Great Decisions of the Supreme Court. Washington, D.C.: Congressional Quarterly Press, 2000.
Newton, Merlin O. Armed With the Constitution: Jehovah's Witnesses in Alabama and the U.S. Supreme Court. Tuscaloosa: University of Alabama Press, 1994.
Danzig, Richard. "Justice Frankfurter's Opinions in the Flag Salute Cases: Blending Logic and Psychologic in Constitutional Decisionmaking." Stanford Law Review 36, no. 3, February 1984, 675–723.
"Judge Backs Berkeley in Dispute over Salute." The New York Times, May 10, 1984, B21.
AUDIO AND VISUAL MEDIA
"Congress Shall Make No Law: Six Cases that Helped Define the First Amendment." Terre Haute, Ind.: The Library, 1988.