Washblog

A variety of State Legislatures passed laws putting this idea into motion, including Pennsylvania’s; a law was passed there allowing school districts to choose to make this a part of the daily ritual. Minersville, Pa.’s School District chose to do so.

You should know that the Pledge of Allegiance was a bit different than it is today.
Here’s the description as provided in Justice Felix Frankfurter’s eventual Supreme Court opinion on the matter:

…The right hand is placed on the breast and the following pledge recited in unison: "I pledge allegiance to my flag, and to the Republic for which it stands; one nation indivisible, with liberty and justice for all." While the words are spoken, teachers and pupils extend their right hands in salute to the flag…

Now if any of that sounds a bit Nazi-esque to you, you’re not alone; but to address that issue is to digress, and we have bigger fish to fry.

The law stated that refusal to comply with demands to say the Pledge were to be treated as insubordination, leading to expulsion. The expulsion did not relieve the child of the burden of attending school, making violators truants. Under Pennsylvania law, parents of truants were subject to fines and jail time.

And with that, allow me to introduce William Gobitas. In 1935 10 year-old William and his 12 year-old sister Lilllian, both Jehovah’s Witnesses, refused to obey the District’s command to join the other students in the Pledge. Billy’s original letter to the Minersville School District can be seen at the Library of Congress, and it is presented here exactly as it was written:                                                        
                                                                                 

Our School Directors                                        Minersville, PA
Dear Sirs                                        Nov. 5, 1935

I do not salute the flag because I have promised to do the will of God. That means that I must not worship anything out of harmony with God's law. In the twentieth chapter of Exodus it is stated, "Thou shalt not make unto thee any graven image, nor bow down to them nor serve them for I the Lord they 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. I am a true follower of Christ. I do not salute the flag not because I do not love my country but I love my country and I love God more and I must obey His commandements.

Your pupil,
Billy Gobitas

The District felt there was no need for accommodation, and the two kids were promptly expelled. The kids were eventually enrolled in private schools at the parent’s expense; lawsuits were filed all around, and in April of 1940 (roughly a year-and-a-half before Pearl Harbor) Minersville School District v. Gobitis was argued before the United States Supreme Court. (There is a difference between the spelling of the last name in Billy’s letter and the spelling as it appears in the opinion; it is reported the Court is incorrect.) A ruling followed not quite six weeks later.

The court offered no sympathy for the religious objections offered by the Gobitas children. Justice Felix Frankfurter (who would later become Chief Justice), instead, took the approach that the most important question was national unity:

…The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities… We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security… The ultimate foundation of a free society is the binding tie of cohesive sentiment…

Beyond that, the Court questioned whether it could even competently rule on the case at all:

…But it is a very different thing for this Court to exercise censorship over the conviction of legislatures that a particular program or exercise will best promote in the minds of children who attend the common schools an attachment to the institutions of their country…

Finally, there was this:

…That the flag salute is an allowable portion of a school program for those who do not invoke conscientious scruples is surely not debatable. But for us to insist that, though the ceremony may be required, exceptional immunity must be given to dissidents... might cast doubts in the minds of the other children which would… weaken the effect of the exercise…

There was dissent on the court, and the historically notable dissenting opinion of Justice Harlan Stone is quoted below:

… The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech, and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions…

...The very essence of the liberty which they [civil liberties] guaranty is the freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion. If these guaranties are to have any meaning, they must, I think, be deemed to withhold from the state any authority to compel belief or the expression of it where that expression violates religious convictions, whatever may be the legislative view of the desirability of such compulsion.

History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities…

… The very terms of the Bill of Rights preclude, it seems to me, any reconciliation of such compulsions with the constitutional guaranties by a legislative declaration that they are more important to the public welfare than the Bill of Rights…

…The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. 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…

In a time of growing patriotism, particularly after Pearl Harbor, public sentiment turned against the Witnesses; and there were reports of meetings being attacked by the general public, many examples of individual Witnesses being harassed…and even murders of Witnesses because of their “unpatriotic” views.

Billy and Lillian had lost, but they were not to be forgotten.

Just three years later (August 1943) the issue resurfaced in West Virginia State Board Of Education v. Barnette; and the change in attitude on the part of the Court has rarely been more dramatic in such a short period of time. Consider these quotes from the majority opinion; which overturned the law in question and ended the right of school districts to compel students to utter the Pledge:

… To sustain the compulsory flag salute we are required to say that a Bill of Rights which 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 Court next addresses the question of how much power a democracy needs to remain viable:

… Government of limited power need not be anemic government… 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…  

An additional question: is it even more important to ensure children are taught these principles of national unity than adults, justifying the School District’s legal position?

…The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted…That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes…

Does the Legislature even have the right to demand that those who object upon religious grounds disregard their objections in the name of the common good?

…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…

From time to time we are treated to an eloquent reminder of the bedrock notions of what it is to be American—and every one of us should take a moment to read this ruling…particularly its ending paragraphs, which should ring like a bell in the minds of those who value freedom as the core of our belief system:

… Lastly, and this is the very heart of the Gobitis opinion, it reasons that "National unity is the basis of national security,"…

… 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… As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity… Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard…

… 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…

… 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…

So that’s pretty much our story for the day: two children who would not bow to the authority of the State caused a debate that made its way to the Supreme Court of the United States-twice-before justice was done…other members of the same religion paid with their lives for subscribing to the same beliefs…but in the end, even in the middle of a World War, with our very national survival literally at stake, freedom won a victory.

However, that’s not quite the entire story.
After all, I never did tell you anything about the author of the Barnette opinion.

Justice Robert H. Jackson, who wrote the majority opinion in Barnette, has a significant history all by himself. After serving as Solicitor General (the Office of the Solicitor General defends the United States Government against lawsuit), and then Attorney General, and then a Supreme Court Justice, Justice Jackson became the lead prosecutor for the United States for the Nuremberg trials; where, in addition to designing the format for the trials (which required him to negotiate with British, French, and Soviet representatives) and selecting the staff of prosecuting attorneys, he personally cross-examined Hermann Goering and Albert Speer.

And now, as Paul Harvey says, you know “the rest…of the story”.