Minersville School Dist. v. Gobitis
310 US 586 (Decided June 3, 1940)
Bill Long
In this, the second of the so-called Jehovah's Witness cases (Cantwell being the first), the Court reversed the lower courts and thereby upheld, 8-1, the expulsion from public school of two teenage children of the Jehovah's Witness denomination who refused on religious grounds to salute the flag by saying the pledge of allegiance. Three years later this decision would be reversed by the same majority in West Virginia v. Barnette.
Facts and Procedural Background
The Minersville (PA) School District required a daily flag salute in public school classrooms. Interestingly enough, the flag salute in those days began with the hand over the heart and then, as the person began reciting the words "to the flag," the arm would be extended, palm upwards, toward the flag. This gesture, which had been in place since the inception of the salute in the 1890s, was eliminated during WWII because of the similarity of the gesture to the Nazi salute. The Gobitis children, teenagers, refused to salute the flag because it conflicted with their reading of Exodus 20--that one should not worship or bow down to any "graven image" of God. As a result of their actions (or inactions), they were suspended from school and their parents were forced to pay private school expenses for their education. The lower courts enjoined the school district from enforcing the practice.
Decision
Justice Felix Frankfurter, a Roosevelt appointee and the Court's only first-generation immigrant, wrote for the majority. He recognized the significance of the issue: "So pervasive is the acceptance of this precious right (religious freedom), that its scope is brought into question, as here only when the conscience of individuals collides with the felt necessities of society." But the question had to be faced: "When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good?" In deciding that the compelled flag salute did not infringe religious liberty, Justice Frankfurter advanced three arguments.
First, he stated that the religious liberty clause "has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects." He cites the Reynolds and Hamilton cases, among others, for that proposition. Second, the basic principle behind these cases was that the legislature has power to secure and maintain an orderly, tranquil and free society without which religious toleration itself is unattainable. The assumption behind this point is that in this particular case such legislation is a requisite for a "binding tie of cohesive sentiment." Third, the flag is the symbol of our national unity, different from other symbols, and thus transcends "all our internal differences, however large." Since humans live by symbols, and since the school board has determined that such a symbol needs to be so recognized, "the court-room is not the arena for debating issues of educational policy." It is comparatively more important to train children in patriotic impulses through a compulsory flag salute than to recognize the right of religious dissent.
Chief Justice Stone's Dissent
The Chief Justice responded with vigorous language. "The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than...prohibit the free exercise of religion....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."
He recognized that constitutional guarantees of personal liberty were not absolute. But he thought it was a long step between compelling citizens to give military service and take ROTC courses and compelling them to make public affirmations which violate their religious conscience. He would hold that when there are competing demands between the interests of government and liberty under the Constitution "reasonable accommodation" between them ought to be pursued wherever possible. So precious are these rights (of speech and religious liberty) that ways out to be sought to secure the legitimate state end without sacrificing the alleged immunity.
The Chief Justice gave a ringing endorsement of the value of these freedoms: "The very essence of the liberty which they 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." Authority must be withheld from the state to compel belief of this sort. The Constitution may well elicit expressions of loyalty but it ought not to command them.
Concluding Reflection
It may have been the times. Hitler had just taken Poland and was moving on Western Europe. A threat unlike any that anyone had seen was looming over the horizon. Within three years the Court would uphold the relocation of Japanese American citizens. In addition, Justices Black and Douglas, who would become the strongest proponents of free speech and religion in the future, were themselves new to the Court, and possibly were still getting their footing in the shadow of the more distinguished Frankfurter who himself, though new to the Court, had had a long and distinguished tenure at Harvard Law School before coming on the Court. In any case, Gobitis will be overturned within three years, but it shows the way that legal principles can help to support as well as question a national frenzy such as was felt in 1940.
Copyright © 2004-2007 William R. Long |