Two schoolgirls, a flag salute and the 1943 ruling that protected conscience

Imagine a ten-year-old standing at her desk while a roomful of classmates recites the Pledge. She does not recite. She stays quiet, respectful, hands at her sides. And the State of West Virginia decides that this child, who has stolen nothing and hurt no one, is a threat to the Republic.

That is not a fable. It happened, and the Supreme Court of the United States, the same Court that gave us the Bill of Rights as we know it, first said the state could do it. Then, three years later, it said no, on Flag Day, in an opinion that every American who loves his country ought to know by heart.

This is the story of the flag-salute cases. It is a story about two rulings, one that went terribly wrong and one that set it right, and the lesson is that love of country cannot be compelled by the state, and that a country that tries to compel it loses the thing it was trying to protect.

The first ruling: Minersville School District v. Gobitis

The facts began in Minersville, Pennsylvania, in 1935. Two children of a Jehovah's Witness family, Lillian and William Gobitas, refused to salute the flag at school. The court records spelled the family name "Gobitis," and that is how the case is known. Jehovah's Witnesses read the Bible's command against bowing down to graven images as forbidding the salute to any flag; they did not mean disrespect and were, by every account, quiet, law-abiding people. The school board expelled the children. Their father sued.

The case reached the Supreme Court, and on June 3, 1940, the Court ruled eight to one for the school district. Justice Felix Frankfurter wrote the opinion. He argued that national unity is the basis of national security, that the flag is the symbol of that unity, and that the courts must not second-guess a legislature or school board that has chosen to teach patriotism through a ritual. The judgment of the community on how best to cultivate loyalty, he said, ought to prevail over the individual's claim of conscience. The liberty of the child was important, but the Court was not the school board's supervisor.

Justice Harlan Fiske Stone dissented alone. He argued that the Constitution protects the conscience of minorities against exactly this kind of majority decision, and that the state could achieve its goal of civic education by many means that did not force a child to say something she believed false.

I want to be fair to Frankfurter. He was an immigrant from Vienna, a Jew and a man who had himself felt what it was to be a member of a despised minority. He was not a bully, and he wrote with sincerity. His theory was judicial restraint, and it was a conservative theory: judges should be modest about overriding elected bodies. Restraint is a virtue. But restraint has a limit, and the limit is the Bill of Rights. When a majority uses the schoolhouse to compel a confession of faith, restraint stops being modesty and becomes abdication.

What followed Gobitis

The ruling was reported as a green light. The consequences were ugly, and they are the part of the story that patriots ought to know, because patriotism that cannot look at its own failures is not patriotism.

Within weeks, Jehovah's Witnesses across the country were attacked. Mobs assaulted them in towns from Maine to Texas. Meeting halls were burned; a Kingdom Hall in Maine was burned in 1940. The American Civil Liberties Union reported to the Department of Justice that nearly 1,500 Witnesses had been physically attacked in more than 300 communities that year. Local officials, reading the opinion as permission, expelled children by the hundreds and, in some places, charged parents with truancy and neglect. In some communities the children were sent to reform schools. Newspapers that had at first cheered the ruling began to reconsider when the violence spread.

The Gobitis opinion had said, in essence, that the Constitution allowed compulsion. A mob took it as a license for cruelty. That is what happens when government treats dissent as treason: the people who dislike the dissenters feel free to act on it.

The Court's own membership began to change its mind. In 1942, in Jones v. City of Opelika, a case about licensing fees on Witness literature, the Court upheld the fees five to four, with Stone dissenting. Then three of the justices in the majority, Black, Douglas and Murphy, publicly announced that they thought the earlier decisions had been wrong. That is extraordinary. Justices rarely say that. It is a sign of how badly that ruling had aged in two years. The Court soon reversed Opelika in Murdock v. Pennsylvania in 1943. New appointees, Robert Jackson and Wiley Rutledge, had joined the Court by 1943, and it was ready to revisit the question.

The second case: West Virginia State Board of Education v. Barnette

In 1942 the West Virginia Board of Education adopted a resolution making the salute a regular part of public-school instruction and treating refusal as insubordination, with expulsion as the penalty. Expelled children could not return until they complied, and their parents could be prosecuted. Marie and Gathie Barnett, schoolgirls and Jehovah's Witnesses, were among the children affected. The Court's reports spell the name "Barnette," and that is how the case entered the books.

A federal court in West Virginia ruled for the families, an unusual step for a lower court because it meant refusing to follow a recent Supreme Court precedent. The state appealed. The Court heard argument in March 1943 and announced its decision on June 14, 1943, which was Flag Day.

By a vote of six to three, the Court reversed Gobitis. Justice Robert H. Jackson wrote the opinion. It is one of the great pieces of American prose, and I will quote from it carefully, because it deserves quotation.

Jackson's opinion

Jackson began by recognizing that the state's interest in teaching patriotism was legitimate. He did not say the school board was wicked. He asked the right question: does the state have the power to compel a person to declare a belief?

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.

He also made the point that the case turned not on religion alone. The Court decided it under the First Amendment's guarantee of free speech and of freedom of mind, not only under free exercise. The government, he said, could not compel a person to utter a salute any more than it could compel him to sign a loyalty oath to a creed. The flag salute is a form of utterance. Compelling it is compelling speech.

Then came the history lesson, which I think is the heart of the opinion. Jackson wrote that those who begin coercive elimination of dissent soon find themselves exterminating dissenters, and that compulsory unification of opinion achieves only the unanimity of the graveyard. He was writing in 1943, with a world war raging against regimes that had made loyalty rituals the law of the land. He did not have to say which regimes he meant.

He also answered the argument that the state needs the salute to keep its citizens united. The freedom to differ, he said, 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. He distinguished the child who declines to salute from a child who commits a crime. A refusal to salute causes no harm to anyone. It does not interfere with anyone else's right to salute. A state that treats it as a danger is expressing weakness, not strength.

Finally, he reached for the idea that our system rests on persuasion and not on force. The remedy for a failure of patriotism, he suggested, is teaching, example and the voluntary recital of those who believe in it. National unity, he said, can be attained by voluntary means, and where it cannot, the Constitution does not authorize compulsion.

Justices Black and Douglas wrote a concurrence explaining that they had changed their minds about Gobitis, and Justice Murphy concurred separately. Justice Frankfurter wrote a long dissent, and Justices Roberts and Reed also dissented. He opened by observing that one who belongs to the most vilified and persecuted of minorities is not likely to be insensible to the freedoms the Constitution guarantees, and that if his own views were relevant he would associate himself with the Court's libertarian sentiments. But he insisted that judges are not legislators. The question was not whether the compulsion was wise but whether it was beyond the power of a state legislature, and he believed it was not. Restraint was his creed to the end.

Why a patriot should defend Barnette

Now let me make the argument directly. I want to put it in numbered form because it deserves rigor.

1. A salute that is forced is not a salute. The Pledge is a promise, and a promise has no value unless it is freely made. A pledge recited under penalty of expulsion is not a pledge at all, merely a performance. If we want children to love their country, we want that love to be real, and real loyalty cannot be conscripted.
2. The Founders feared exactly this power. The Declaration of Independence rests on consent: governments derive "their just powers from the consent of the governed." The people who wrote it had just fought a government that claimed the right to compel their allegiance. A state that makes you confess a creed is claiming a power the Founders would have called tyranny, whether the creed is the Crown's or the school board's.
3. Conscience is prior to the state. The tradition running from Locke through Madison holds that the duty a man owes his Creator is prior in time and in obligation to the claims of civil society. That is a religious claim, but it is also a political one: it sets a limit on what the state may demand. The Jehovah's Witness child was making a claim about the highest authority in her life. Even someone who thinks she was mistaken about the flag ought to respect that the state should not decide who is right.
4. Compelled orthodoxy is a weapon, and weapons do not stay in friendly hands. If the state may force the Pledge on you today, it may force something else on you tomorrow, and the people who cheer it for their side will not control the next majority. Every conservative who has been told to affirm a slogan at work or in a classroom ought to understand this one instantly. The principle that protected the Barnett girls protects the believer who is told to affirm what he cannot affirm in the twenty-first century.
5. The record of the Gobitis years proves the point. The ruling that said "the state may compel" produced not unity but burned meeting halls and beaten citizens. The Court's reversal came because the first ruling had taught a lesson the country did not want to learn.

The strongest objection

The best objection to my argument is the one Frankfurter made, and it should be stated at full strength. It goes like this: the country needs a shared civic culture. A republic holds together through common rituals, a common language and a common story. Schools are where that culture is built. If every child may opt out of every shared ritual by pointing to conscience, the common culture dissolves, and a free society cannot survive without it. Moreover, the school board is an elected body accountable to the community, and the Court, which is not, should hesitate before overruling it.

That is a good argument, and I take the premise seriously. A republic does need a common culture. Here is why it still fails.

First, Barnette does not abolish the Pledge. It says only that you may not punish the child who declines. The rest of the class still recites it, and the vast majority of children do so willingly. The common ritual survives. The opt-out is exercised by a handful of children, and the sky has not fallen in eighty years.

Second, the objection proves too much. If the community's judgment about civic unity trumps individual conscience, then there is no limit to what a majority may command in the name of unity. The very idea of the Bill of Rights is that some things are off the table no matter how many people want them.

Third, the objection underrates persuasion. A free country's loyalty is stronger because it is chosen. A compelled allegiance is brittle. You can see the difference between countries where people stand because they love their flag and countries where they stand because they are afraid.

The Pledge itself

The history of the Pledge itself is worth a note. Francis Bellamy wrote it in 1892 for a children's magazine, in connection with the four-hundredth anniversary of Columbus's voyage. It did not include "under God." That phrase was added by Congress in 1954, a story told in From a Civil War coin to the Pledge, how 'under God' entered public life. In the early days the salute was made with the arm extended, palm up, a gesture that looked uncomfortably like the fascist salutes of the 1930s. In 1942, Congress adopted the flag code that directed the hand-over-heart form instead. Even before the Court ruled, the country had begun to feel what was awkward about it.

I raise that history because patriots should not be afraid of it. The Pledge is a beautiful thing and so is the flag; you can see our own page on the flag at the flag page. A sincere defender of both can also say that the Pledge was never meant to be a loyalty test.

What it means for conservatives now

Barnette is one of the great free speech cases, and conservatives have reasons to claim it. The principle is that the government may not compel citizens to speak a message they do not believe. The Court has applied it since in cases about license plates, in which a New Hampshire man covered the state motto on his plate, and in cases about professional speech, a theme taken up in California told pro-life pregnancy centers what to say, and the Court said no. Whenever a government, a school district or a workplace demands that a person affirm a belief he does not hold, Barnette is the authority a conservative reaches for.

It also connects with the first post in this series, Sixteen words on religion in the First Amendment, read phrase by phrase, on what the religion clauses guarantee. The case is a Free Speech Clause decision first and a free exercise decision second, but its spirit is the spirit of Madison's "rights of conscience." And it supplies the moral that unites the Court's religious-liberty cases: a state that decides which faith is acceptable has stopped being a servant of the people.

The reversal also teaches a lesson about humility. The Court got it wrong in 1940, and in 1943 it said so. The institution that can admit a mistake within three years is healthier than the one that cannot. I would like to see more of that in public life.

The case in brief

1. Minersville v. Gobitis (1940) let a school district expel children who would not salute the flag, with only Justice Stone dissenting, and the violence against Jehovah's Witnesses that followed showed what the ruling had unleashed.
2. West Virginia State Board of Education v. Barnette (June 14, 1943, Flag Day) reversed it six to three, in an opinion by Justice Jackson holding that no official can prescribe what shall be orthodox or force citizens to confess their faith by word or act.
3. Frankfurter's dissent made the best case for judicial restraint and civic unity, but restraint cannot override the Bill of Rights, and unity that is compelled is a counterfeit.
4. A patriot should defend Barnette because loyalty that is forced is worthless, the Founders feared compelled allegiance, and the same principle shields today's dissenters from tomorrow's majorities.
5. The Pledge survives, the flag survives, and the children who decline to recite do the country no harm.

What you can do: read Jackson's Barnette opinion in full on the Supreme Court's website or on Cornell's Legal Information Institute, then ask your own school board for its policy on students who decline to recite the Pledge.