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The Flag Salute Cases: A
Turning Point for Religious Liberty In this lecture, we will examine two of those 23 cases. Both cases deal with the question of whether Jehovah’s witnesses in public schools can be forced to salute the flag and recite the Pledge of Allegiance. The second of those cases, West Virginia v Barnette, is a landmark decision that represents a turning point in the Court’s willingness to protect civil liberties. Chapter 20 of the Book of Exodus says: “Thou shalt not make unto thee any graven image, or a likeness of anything that is heaven above, or that is in the earth below, or that is in the water under the earth. Thou shalt not bow down to them, nor serve them: for I the Lord thy God am a jealous God.” In the early to mid-1930s, German Witnesses (or Bible Students, as they were called at the time) refused to give “the German Greeting”, or what we would call “the Hitler salute.” They believed that the salute was a form of idolatry and that it violated the command of Exodus 20. As you might guess, their refusal led to persecution. Adolf Hitler, in 1935, called the Jehovah’s Witnesses “troublemakers” and “quacks.” Because of their stubborn refusal to pay tribute to the Third Reich, more than one-third of German witnesses would be die over the next decade. Many more would spend years in concentration camps. Joseph Rutherford became the Watch Tower leader, the most important figure in the Jehovah’s Witnesses community, in 1918. He, more than any one, determined the literature and set the goals for the Watch Tower establishment. Rutherford opposed American entry into World War 1. He argued that the only war worth waging were for God against the “beast” at Armageddon. The government prosecuted Rutherford for his opposition to the War under the Espionage Act. He was convicted and spent a year in prison before his conviction was thrown out by a higher court. Rutherford looked at what was happening in Germany in 1935. There were lessons there, he said, for American witnesses. It takes courage to obey God. There will be costs to pay. Rutherford saw a parallel between the “Hitler salute” and the American tradition of saluting the flag. The similarity in 1935 was especially disturbing. At that time, the common way to honor the flag while reciting the Pledge of Allegiance was not, as today, to place one’s hand over one’s heart. Rather, as in Germany, the custom was to offer a military salute and then extend the arm forward at eye level toward the flag. The 1935 annual convention of Jehovah’s Witnesses took place Washington DC. In his speech at the convention, Rutherford said that saluting the flag showed unfaithfulness to God. He said, in light of what was happening in Germany, it was something he could no longer do. In Minersville, Pennsylvania, in the home of Walter and Ruth Gobitas, the flag salute became a topic of much conversation. The Gobitas family, including six children, were devout Jehovah’s Witnesses. Lillian was the oldest child. Like other Jehovah’s Witnesses she traveled door to door with “testimony cards” and literature. Witnesses considered proselytizing a duty they owed God. Rutherford told Witnesses, “Advertise, advertise, advertise the King and his Kingdom!” But it wasn’t always easy. The attacks of Witness leadership on “the hypocrisy” of other religions and what Rutherford called the “harlot” Roman Catholic Church made them enemies. And many found their constant evangelizing annoying. Lillian, at age 11, was among 40 Witnesses going door-to-door in New Philadelphia, Pennsylvania one day in 1935. After receiving complaints, police rounded up the Witnesses and put them in cells in the fire house. Lillian was punched in the process by a member of a mob. A crowd of hundreds gathered at the fire house, trying to break down the doors—yes, it wasn’t easy being a Witness in the 1930s. When school opened in the fall of 1935, Lillian and her younger brother, Billy, agreed they would not salute the flag or recite the Pledge of Allegiance at school. But when the time came, Lillian raised her arm and mouthed the words of the Pledge. “I was chicken,” she said. Lillian was a popular, a straight-A student, and had been elected president of her seventh-grade class. She thought, “Oh, if I stop saluting the flag, I will blow all this.” But she felt, she said, incredibly guilty. On October 22, Billy Gobitas came home from school and announced, “I stopped saluting the flag.” He said, “The teacher tried to put up my arm, but I held on to my pocket.” Inspired by her brother’s courage, Lillian told her teacher the next morning that she would have to stop saluting the flag because it violated her faith. “We can’t have any other gods before Jehovah God” she said. Her teacher was supportive. She hugged Lillian. When the other students stood to salute the flag, Lillian took her seat and remained silent. Lillian recalled, “Soon everyone was staring at me, but I felt elated.” The reactions of her classmates varied. Some mocked her. Some shunned her. Some were simply curious and asked why she did what she did. And a few students, her best friends, stood by her side. For two weeks, as the Gobitas children, and one other child Witness, refused to salute the flag, school authorities did nothing. But Charles Roudabush, the Superintendent of the Minersville School District, was angry. He asked the state’s Department of Public Instruction for authority to punish the children. After consulting with the state attorney general, the Department told Rouabush he had authority to punish the children if they violated an established school rule. Roudabush quickly convened a school board meeting to adopt a rule requiring that students salute the flag. Walter Gobitas appeared at the meeting to argue against adoption of the rule. “We are not desecrating the flag. We show no disrespect for the flag, but cannot salute it. The Bible tells us this, and we must obey.” Both Lillian and Billy Gobitas wrote letters to the school board echoing their father’s views. “I do not salute the flag because I have promised to do the will of God,” wrote Billy. The school board was unmoved. It voted unanimously to require all students to salute the flag and recite the Pledge of Allegiance. Just minutes after the rule was adopted, Superintendent Roudabush made an announcement: “I hereby expel from the Minersville schools Lillian Gobitas, William Gobitas, and Edmund Wasliewski for this act of insubordination, to wit, failure to salute the flag in our school exercises.” When Walter Gobitas left the meeting, he stopped to yell back at Roudabush: “I’m going to take you to court for this!” Represented by the Witness’s national legal counsel, Gobitas filed a complaint in federal district court in Philadelphia. The complaint alleged that the expulsion of Lillian and Billy violated their rights to freely exercise their religion and to be free from cruel and unusual punishment. Federal Judge Albert Maris rejected the school board’s effort to dismiss the complaint and set the case for trial. Walter Gobitas and his children each testified. Walter described how he taught his children to read the Bible and follow its commands strictly. Both Lillian and Billy cited a number of Bible verses in support of their refusal to salute. A Witness from the group’s national headquarters also testified. He said saluting the flag amounted to idolatry. The only witness for the school board was Charles Roudabush. The superintendent called the views of the Gobitas children “perverted.” He claimed they had been “indoctrinated.” He told the judge, “As I see it, your Honor, I feel that this is not a matter of religion at all, it has nothing to do with religion.” Judge Maris sided with the Gobitas family. The judge wrote, “The refusal of these two earnest Christian children to salute the flag cannot even remotely prejudice or imperil the safety, health, morals, property, or personal rights of their fellows.” He congratulated Lillian and Billy on their “sincerity” and “their sturdy independence of thought and action.” The judge called the school policy “utterly alien to the genius and spirit of our nation.” Roudabush vowed to appeal the decision to the Third Circuit Court of Appeals. With the appeal, Judge Maris’s injunction was stayed. This meant no public school for the Gobitas children. They spent the first few weeks of school studying at home—until Roudabush threatened to send them “to reform school” if they weren’t taught be a qualified teacher. The Gobitas children weren’t alone in their dilemma. In their corner of Pennsylvania, at least 40 other Witness children had been thrown out of schools for failing to salute the flag. The problem was solved when a Witness couple converted their farm house into a school for 40 students, grades 1 to 8. The Kingdom School, as it was called, included both standard and spiritual instruction. Walter Gobitas provided transportation for the students after he transformed the delivery van for his grocery store into a bus. It might not have met modern safety standards, but it got them there. The Third Circuit gave another sweeping victory to the Gobitas family. The court’s 1939 decision explicitly compared to flag salute to the Hilter salute. The opinion quoted George Washington, who said that “conscientious scruples” should be treated “with great delicacy and tenderness.” Roudabush and the school district decided to fight on—to the Supreme Court of the United States. The Court took the case. The Gobitas children traveled to Washington to hear oral arguments in April 1940. Joseph Rutherford argued the case for the family. His oral argument was thin on the law and more closely resembled a sermon. He told the Court that the Jehovah’s Witnesses were “not a sect or a cult,” but just people “who bear testimony in the name of Almighty God.” Rutherford quoted the Bible and even went off on a digression about Daniel’s deliverance from the lion’s den. Although Rutherford’s argument, such as it was, might not have impressed the Court, Lillian found it “electrifying.” Fortunately for the Gobitas family, the Court had also granted argument time to a lawyer for the ACLU, which had filed an amicus brief. His argument raised the relevant constitutional objections to the school board policy. The Court’s consideration of the Gobitas case came at Europe’s darkest hour. Justice Felix Frankfurter was a Jewish immigrant from Vienna and a patriot. He could be heard whistling “Stars and Stripes Forever” in the Court’s hallways. The war in Europe had a lot to do with Frankfurter’s take on the Gobitas case. As he saw, during wartime especially, authorities had a legitimate interest in promoting national unity. And making school kids stand up and salute the flag might help promote that unity. Justice Frankfurter wrote the majority opinion in Gobitis v Minersville School District. While he personally called the school board’s action a “vulgar intrusion of law in the domain of conscience,” he wrote that the policy was valid and the expulsions could stand. Frankfurter wrote that the Court should not become “the school board for the country.” So long as local school boards have a legitimate reason for a policy, the Court should not exercise “our independent judgement.” The Gobitas children might have rights, but so do local communities, and judges shouldn’t meddle. Clerks called it “Felix’s Fall-of-France” Opinion. Justice Stone dissented. He felt so strongly that the Court’s decision was wrong, that on decision day he took the very unusual step of reading his entire opinion from the bench. He read it with obvious emotion. Stone said: “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.” Lillian Gobitas and her mother learned about the decision on the radio while working in their kitchen. It never occurred to Lillian she could lose the case. She recalled later, “We just stood there, frozen in disbelief. We couldn’t speak for a few minutes, and then we went downstairs and told dad and Bill.” Things would soon get worse for Jehovah’s Witnesses around the country—much worse. It seemed to some that the Supreme Court had declared “open season” on Witnesses. Some Americans got it in their heads that Jehovah’s Witnesses were unpatriotic and were attempting to undermine the war effort. An American “Fifth Column.” In the month or so after the Gobitis decision, Witnesses were victimized from Wyoming and Texas to West Virginia and Maine. In Odessa, Texas Witnesses were herded into a local jail, beaten, and called “Nazi spies.” The next morning, about 75 Witnesses were loaded into a truck, dropped off at the county line, and told by the sheriff to “start walking.” According to witnesses, the sheriff said, “When the sun quits shining on your navel and starts shining on your hind part, keep going! And if I ever see a one of you in Odessa again, it will not be good for you.” There was a virtual reign of terror against the Witnesses in southern Maine. The Kingdom Hall in Kennebunk was heavily vandalized. In Sanford, a large crowd lighted a bonfire and burned piles of Witness literature stolen from an office. The Kingdom Hall in Kennebunk was set on fire and left with only exterior walls standing. In Biddleford, a Witness was dragged from the home he shared with his two children. The mob was ready to tar and feather the man when police intervened. In Wyoming, six witnesses were taken from their homes and forced to recite the Pledge of Allegiance. In Litchfield, Illinois, Witnesses were pulled from their cars and beaten. One of the worst assaults was in Richwood, West Virginia. A group of Witnesses went to the office of the town’s mayor, hoping to explain that they were not disseminating “communist literature,” as rumor had it. Instead, the mayor called fellow members of the American Legion to let them know he had “the damned sons-of-bitches.” When the veterans assembled, a deputy sheriff took off his badge. He said, “What is done from here on will not be in the name of the law.” He tied the hands of each Witness and then bound them together in a human rope chain. Each of the Witnesses was forced to drink bottles of castor oil, enough to require later hospitalization. Still roped together, they marched to their boardinghouse to pick up belongings. At least 500 people followed them. The march then continued to their cars. The cars had been dosed with castor oil—and swastikas and the words “Fifth Column” painted on the cars’ sides. In a radio “fireside chat,” President Roosevelt denounced the violence. The president said, “It is pitifully easy to crush out freedom in an overzealous attempt to preserve it.” The violence also attracted the attention of several justices of the Supreme Court. Three of the justices who joined the Gobitis majority concluded that their decision was wrong. They decided to advertise for another flag salute case. Their chance came in another decision involving an alleged deprivation of the civil liberties of Witnesses. Justices Frank Murphy, William O. Douglas, and Hugo Black joined in a dissent. In it, they wrote: “Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we are now believe it was also wrongly decided.” All three justices were new to the Court at the time of the Gobitis case. They said they were overawed by Frankfurter and impressed with his fervent patriotism. They would not have to wait long for another flag case. West Virginia had adopted a statewide regulation requiring all public schoolchildren to salute the flag. (As an aside, I should note that flag salutes in the US after the summer of 1942 no longer typically included the arm extended outward. Images from Nazi Germany changed that.) In the Charleston area, a number of Witnesses had been expelled for violating school flag salute rules. Two of the expelled children were Gathie and Marie Barnette. Their teacher had noticed they hadn’t saluted the flag and reported them to the principal. They were told to either salute the flag or go home. Gathie and Marie continued to show up at school each morning. There was a worry that their parents would be charged a truancy violation if they didn’t. And each day they were sent back home. The Barnette children’s uncle helped obtain a lawyer to fight their expulsion. And, to the surprise of many, they won an injunction against the school board in federal district court. Judge John Parker wrote that it is rare not to follow “an unreversed decision of the Supreme Court of the United States.” But he made an exception here. In light of recent comments by justices, he called the Gobitis decision “impaired authority.” In his decision for the Barnettes, Parker wrote: “It certainly cannot strengthen the Republic…to require persons to give a salute which they have conscientious scruples against giving, or to deprive them of an education if they refuse to give it.” In March of 1943, the Supreme Court heard oral arguments in West Virginia v Barnette. Witness attorney Hayden Covington didn’t pull any punches. He compared Gobitis to the Court’s infamous Dred Scott decision. It was, he said, “one of the greatest mistakes the Court has ever committed.” And, he added, it unleashed a wave of hatred and violence against Jehovah’s Witnesses around the country. The Court announced its decision three months later. Justice Robert Jackson wrote the opinion of the Court. It stands as one of the most eloquent ever written. Jackson wrote, "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." Jackson said the state had failed to show “that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression.” Jackson rejected Frankfurter’s arguments that decisions like this should be left to local communities: “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.” Justice Frankfurter bitterly dissented. He suggested the justices in the majority were writing their “private notions of policy into the Constitution.” He added that if that were the way cases should be decided, he would have joined them: “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.” Once again, the Gobitis family had traveled to Washington DC to hear a flag salute case argued in the nation’s highest Court. Back in Pennsylvania, when they learned of the decision in Barnette, they were overjoyed. Walter Gobitis told a reporter for Newsweek, “I never doubted we would win. We knew the Lord would arrange it. The victory is His.” Harlan Fiske Stone, the lone justice to dissent in Gobitis, also felt vindicated. He wrote in a letter, “All’s well that ends well.” Most public schools continued make the Pledge of Allegiance part of the regular school day. I remember in elementary school standing to pledge my allegiance to flag and the Republic for which it stands. Many of you probably do as well. But students who chose not to participate, either because of their faith or for other ideological reasons, could no longer be punished. A quick digression. The Pledge of Allegiance I recited—and you recited—differs slightly from that required of the Gobitis and Barnette children. In 1954, Congress voted to add two words to the Pledge. It is now one nation under God. Congress decided the additional words were a necessary response to the growing menace of what was often called “godless communism.” You may be asking whether adding “under God” to the Pledge is unconstitutional? Isn’t that an “establishment of religion”? Good question. The Ninth Circuit ruled that the law was in violation of the Establishment Clause because it lacked a significant secular—or non-religious—purpose. The Supreme Court took the case in 2004, but punted on the constitutional issue. The Court dismissed the case on procedural grounds. Barnette versus West Virginia was a seminal decision in our constitutional jurisprudence. It established the principle that the First Amendment prevents the government from requiring private citizens to recite or convey an ideological messages they find morally objectionable. In constitutional law circles, it’s called “the compelled speech doctrine.” The Barnettes were not the last Jehovah’s Witnesses to take a compelled speech case to the US Supreme Court. The State of New Hampshire has for years embossed its vehicle license plates with the state motto, “Live Free or Die.” New Hampshire residents George and Maxine Maynard found the motto to be repugnant to their moral and religious beliefs as Witnesses. George said that his government is Jehovah’s Kingdom and it would be wrong to give up his life for the state, even if it meant living in bondage. So, in 1974, the Maynards snipped the motto off their license plates and covered up the resulting hole with tape. It must have been a slow fall day on New Hampshire highways when George Maynard was pulled over in his Plymouth wagon. He was issued a citation for violating a state law making it a misdemeanor to obscure any letters on a license plate. In fact, Maynard was convicted of this same offense three times before bringing an action in federal court. The case eventually worked its way to the Supreme Court. New Hampshire’s attorney general, David Souter, later to become Justice Souter, wrote the state’s brief defending the license plate law. In 1977, the Supreme Court issued its decision relying on the Barnette case. New Hampshire, Chief Justice Burger wrote for the Court, cannot compel individuals to be "couriers for ideological messages" and "mobile billboards" they find morally objectionable. The state’s interest in having the motto visible was said to be the promotion of an appreciation for the state’s history. But the interest, the Court said, was not sufficiently weighty to justify the restriction on the Maynard’s liberty. The claim of Maynard probably seems less sympathetic to you than that of the Gobitas’s or the Barnettes in the flag salute cases. After all, the Maynards could get a horse or, today at least, Uber all around New Hampshire. And no one would assume, if they saw the state’s motto on their New Hampshire cars, that they completely bought its message. But a current once sent in motion can carve new and surprising channels. The compelled speech doctrine has been used by the Court recently to reach results beyond the imagination of the justices who decided Barnette. It has been used to strike down laws that required non-union government workers to nonetheless pay a fee to unions. It has been used to strike down a California law that required anti-abortion pregnancy centers to inform patients that free or low-cost abortions can be provided elsewhere. The current set in motion by the flag-salute cases flows on. Finally, we should note something else significant about the Barnette case. And more generally about the Court’s jurisprudence of the era immediately before and during World War II. This is the time the Supreme Court finally gets into the game. This is when the Supreme Court really begins to seriously consider, and often protect, individual liberties. From this point forward in this course, many—but not all--of the legal battles we consider will be fought primarily in the appellate courts, not the trial courts. What happens of importance in these cases will not be decided by juries, but by justices. It will be the Court that, more than ever, defines for our one indivisible nation what should be the measure of liberty and justice for all. |