West Virginia Bd. of Ed. v. Barnette
319 US 624 (Decided June 14, 1943)
At issue in this case was whether a West Virginia statute requiring recitation of the Pledge of Allegiance in public schools and punishing unwilling students with expulsion and their parents with fines and possible jail time, violated the First Amendment Free Expression clause. The Court held (6-3), reversing Minersville (1940), that "the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which is the purpose of the First Amendment to our Constitution to reserve from all official control."*
[*The Court didn't rigidly set out a separate approach to the various 1st Amendment protected freedoms at this time. In this decision as in many others from the 1940s and 1950s, the Court would say that the issues at stake included freedom of religion, press and speech.]
In the wake of the 8-1 Minersville decision, the West Virginia Legislature passed a statute directing the state Board of Education to prescribe courses of study promoting the "principles and spirit of Americanism." In response, the Board adopted a resolution ordering that the salute to the flag become "a regular part of the program of activities in the public schools." Failure to conform to salute program was, according to the original statute, "insubordination" dealt with by expulsion, while the parents of such insubordinate children were liable to prosecution and, if convicted, subject to a fine not to exceed $50 or a jail term not to exceed 30 days. The case emerged not because students were expelled (as the Gobitis children were in Minersville) but because a group of WV citizens brought suit to enjoin enforcement of the law and its application especially against Jehovah's Witnesses. The Witnesses refused to salute the flag because they believed that such a salute violated their eading of Exodus 20:4, forbidding the people of Israel from "bowing down" and "serving" a graven image of God.
Justice Jackson, writing for the majority, stated the issue baldly: "The sole conflict is between authority (of the state) and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child." It was the issue of "compulsion of students to declare a belief" that would be at the heart of his analysis.
In so framing the issue, Justice Jackson had to distinguish the case from the significant precedent, Hamilton, in which the Court held that a state requirement for all undergraduate students at UC Berkeley to take a ROTC course did not violate their free exercise of religion rights. Ultimately he distinguished that case by arguing that since a student first made a voluntary decision to enter UC Berkeley, he or she could be required to take courses which the Regents thought were necessary.
In this case, however, Justice Jackson spoke about the symbolism of the flag salute in addition to the fact that a compulsory flag salute requires the affirmation of a belief as well as an attitude of mind. The important question for him was whether the State has the power to make the salute a legal duty. Thus, he would like to "examine rather than assume the existence of this power."
Four principles informed his analysis: (1) A government of limited power need not be an anemic government. Without the promise of a limiting Bill of Rights it is doubtful if our Constitution would have mustered enough strength to enable its ratification. (2) Because the public school system educates the young for citizenship, it is essential that there be scrupulous protection of Constitutional freedoms of the individual. (3) The very purpose of the Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy and to place them beyond the reach of majorities. Freedoms of speech, assembly and religion are "susceptible of restriction only to prevent grave and immediate danger to interest which the state may lawfully protect." (4) National unity, which was the overriding concern in the Minersville v. Gobitis decision, is "an end which officials may foster by persuasion" and not compulsion . His conclusion is among the most frequently quoted portions of any Free Exercise decision:
"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 a word or act their faith therein."
Frankfurter in Dissent
In one of his more eloquent (and seemingly self-righteous) dissents, Justice Felix Frankfurter stressed that if personal preference were the issue, which he interpreted the majority opinion as representing, he too might be inclined to overturn the law. But, his job as a justice was to ignore and even suppress his private opinions for the sake of the principle at stake in the case. The WV legislature passed a law (mentioned above). "The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law." That is, what Justice Frankfurter wanted to emphasize was what we today call the "standard of review" in the case. Since a duly constituted legislature passed a statute, the only role of the Court was to ascertain if a reasonable process and statute resulted. Thus his conclusion is stated in the first paragraph of his 20-page dissent,
"I cannot bring my mind to believe that the 'liberty' secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen."
His dissent, therefore, is one of the more articulate expositions of the philosophy of judicial restraint. He rooted this philosophy not only in Justice Holmes but in his highly admired teacher at Harvard Law School at the beginning of the 20th century: James Bradley Thayer, whom he quotes at length.
Beyond this issue of federalism, as we might call it, rested also the issue of free exercise of religion. When, in this case, people requested an "exceptional immunity" from "civic measures of general applicability," measures indeed that were not "disguised assaults upon such dissident views," they were in fact creating new privileges rather than seeking a protection of religious freedom.
This kind of analysis would be of signal importance to the Courts in the 1980s, 1990s and 2000s, as it sought to revive the principle of neutral laws of general applicability and its relationship to Free Exercise jurisprudence. Nevertheless, in the context of 1943, Frankfurter lost. Perhaps he was not simply decrying the reversal of precedent from 1940 but was getting a glimpse into a manner of thinking and judging that would be part and parcel of the Court's operation for the next generation and would be then attacked from the 1980s until our day: judicial activism. We have the Jehovah's Witnesses to thank for opening the door to this most difficult and absorbing jurisprudential problem.
Copyright © 2004-2007 William R. Long