A 1943 Supreme Court decision resonates today.
A 1943 Supreme Court decision resonates today.
‘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.”
Those are possibly the most majestic words ever penned in a U.S. Supreme Court opinion. They are as resonant today as they were when applied to strike down the compulsory flag salute in public schools in West Virginia State Board of Education v. Barnette, which celebrates its 80th anniversary this year. A judicial opinion proclaiming that our nation’s constitutional values are so strong that they can tolerate dissent is as worthy of celebration as are the values themselves.
Wartime is rarely good for civil liberties. World War II was no exception. It produced such egregious rights violations as the infamous Supreme Court decision Korematsu v. United States, which sustained the internment of Japanese citizens. But in the midst of patriotic fervor, Barnette established a constitutional lodestar for free speech. It has been repeatedly invoked in subsequent decisions to protect free-speech rights.
Yet the decision came only after the Court made a major misstep in the reverse direction. Only three years earlier, in Minersville School District v. Gobitis, the Court by an 8–1 vote rejected a religious-liberty objection by Jehovah’s Witnesses to a mandatory flag salute in public schools. The Gobitis family considered the flag salute a form of idolatry that violated their religious beliefs. The Minersville, Pa., school district expelled the Gobitis children for refusing to salute.
Writing for the majority, Justice Felix Frankfurter wrote that “national cohesion” was “inferior to none in the hierarchy of legal values.” The sole dissenter was Justice Harlan Stone, who declared that the “very essence” of the Bill of Rights “is the freedom of the individual from compulsion as to what he shall think and what he shall say.”
Unleashed, school boards across the country enforced mandatory flag salutes. But even those inclined to support such a compulsory practice would find disturbing the form it was required to take during the 1940s: the Bellamy salute, with outstretched arm and an upward palm. Chilling photographs from that time show rows of American schoolchildren making what appears to be a Nazi salute. Recognizing the troubling resemblance, public officials abandoned the Bellamy salute in 1942 in favor of hand over heart. But the practice remained mandatory in the midst of wartime passions.
But two developments undermined Gobitis. The first was that all hell broke loose against Jehovah’s Witnesses. More than a thousand were lynched, arrested, beaten, or tarred and feathered. One Southern sheriff explained why Witnesses were being run out of town: “They’re traitors; the Supreme Court says so. Ain’t you heard?”
Three justices in the Gobitis majority soon expressed second thoughts about their position. Their epiphany was fortified by the second development: the 1941 Court appointment of Robert H. Jackson, a devoted civil libertarian and brilliant writer. (Justice Antonin Scalia, himself an accomplished wordsmith, called Jackson “the best legal stylist of the 20th century.”) Jackson would go on to pen an eloquent dissent in Korematsu and prosecute Nazis in the Nuremburg trials.
But first, Justice Jackson fixed the Court’s profound error in Gobitis. Following that decision, the West Virginia state board of education adopted a mandatory flag salute. Students who refused were expelled; they were ineligible for readmission until they complied; and their families could be criminally prosecuted and fined for violating compulsory-attendance laws.
Again the plaintiffs were Jehovah’s Witnesses. But this time, they argued that the salute law violated their First Amendment free-speech rights, not their religious liberty.
Jackson, joined by five other justices, wrote for the Court and overturned Gobitis. Unlike in recent controversies, the Court barely paused to consider stare decisis (the doctrine of following precedent). The prior decision was merely and profoundly wrong.
At the outset, Jackson noted that the students who found the flag salute objectionable were not disorderly, nor did they violate the rights of others to participate. “The sole conflict is between authority and the rights of the individual,” he wrote. “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 own mind.”
Indeed, Jackson declared, 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. . . . 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.”
Jackson also concluded that national unity cannot be conscripted. “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.”
His views in Gobitis now vanquished, Frankfurter authored a poignant dissent. A Jew, Frankfurter said that “one who belongs to the most vilified and persecuted minority in history is not likely to be insensitive to the freedoms guaranteed by our Constitution.” But: “I cannot bring my mind to believe that the ‘liberty’ secured by the Due Process Clause gives this Court authority to deny [the state] the attainment of that which we all recognize is a legitimate legislative end, namely, the promotion of good citizenship.”
Jackson had, I believe, the better view. When I hold my hand to my heart, it is a profoundly intimate affirmation, earned in part by the fact that others not so inclined may decline to do so — just as we all may refuse forced fealty to prevailing religious or political orthodoxy.
Barnette surely has stood the test of time. It is repeatedly cited to restrict the government’s power to compel speech — whether to display involuntarily a state’s motto of “Live Free or Die” (which is almost worth moving to New Hampshire to have) on one’s license plate, to pay forced union dues to promote messages with which one disagrees, or for artists or website designers to provide custom products for same-sex marriages.
Thanks to Barnette, that principle applies not only to religious objectors but to everyone by virtue of the freedom of speech. As my Court declared in a 2019 decision striking down a city ordinance subjecting calligraphers to criminal penalties if they refused to violate their religious convictions by creating custom invitations for same-sex weddings, “the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone.”
As we inhabit a balkanized polity, these neutral constitutional principles become ever more precious. Whether on college campuses, in K–12 schools, or on social media, the instinct is strong for officials, “high and petty,” to suppress speech or demand conformity. Thankfully, this octogenarian opinion stands strong and vigorous to protect what may be the most foundational American freedom: the right to dissent.