West virginia state board of education v barnette

West Virginia State Board of Education v. Barnette

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), was a decision by the Supreme Court of the United States that held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school.

It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to political institutions or symbols. 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. Gobitis (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. In Barnette Justice Robert H. Jackson wrote for the majority and his opinion is considered one of the great statements of freedom in American history.

However, in overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Religion Clause.

Facts of the case

When the Court issued its decision in Gobitis it appeared that the long string of litigation brought by Jehovah’s Witnesses's might be at an end. It seemed that any further challenges to the practice of saluting the flag and the Pledge of Allegiance would be pointless. In the year following the Gobitis decision the United States entered World War II and a reversal appeared even less probable. However, following the Court’s decision in Gobitis the Justice Department was almost immediately flooded with reports of physical assaults and threats against Jehovah’s Witnesses and these incidents turned public sentiment against the Court’s decision in Gobitis. Even the American Legion, widely known as an extremely patriotic if not conservative organization, supported the enactment of a law making flag observance voluntary. Following this turn in public sentiment Walter Barnette and other Jehovah’s Witnesses brought suit in West Virginia challenging that state’s law making flag observance compulsory in its public schools. When the lower court heard the case they rejected the Supreme Court’s holding in Gobitis and sided with Barnette and the other parents.

Decision of the Court

To underscore its decision, the high court announced it on Flag Day.

Majority opinion

Justice Robert Jackson, who had joined the court only two years earlier, wrote the decision, echoing the free-expression sentiments of Stromberg v. California.

Justice Felix Frankfurter authored the opinion three years earlier in Gobitis and his opinion 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 try and build the “cohesive sentiment” that Frankfurter believed national unity depended on. Jackson utterly rejected Frankfurter’s argument, citing the Roman effort to drive out Christianity, the Spanish Inquisition of the Jews and the Siberian exile of Soviet dissidents 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 box. Jackson responded that the conflict in this case was between authority and the individual and that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. "The very purpose of the 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. "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 Black and William O. Douglas — 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 Reed 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 anger, and Justices Roberts and Murphy 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 Murphy 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 Gentile, neither Catholic 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.. Instead Frankfurter focused on his belief that there were no provisions within the constitution that occupied a “preferred position” over others.

See also

Further reading

  • Alley, Robert S. (1999). The Constitution & Religion: Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books.
  • Irons, Peter H. (1999). A People’s History of the Supreme Court. New York: Viking.
  • Kommers, Donald P.; Finn, John E.; Jacobsohn, Gary J. (2004). American Constitutional Law. 2nd edition, Lanham, MD: Rowman & Littlefield.
  • Sandmann, Warren (2003). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press.

External links

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