West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), argued 11 Mar. 1943, decided 14 June 1943 by vote of 6 to 3; Jackson for the Court, black, Douglas, and Murphy concurring, Frankfurter, Roberts, and Reed in dissent. In 1940, in
Minersville School District v. Gobitis, the Supreme Court had upheld a law mandating flag salute and recitation of the Pledge of Allegiance in public schools, rejecting a challenge brought on grounds of religious conscience by a member of the Jehovah's Witnesses. Only one dissent, that of Justice Harlan
Stone, had been registered in the
Minersville decision. Only three years later, the Court ruled to the contrary. The majority opinion in
West Virginia State Board of Education v. Barnette, written by Justice Robert
Jackson, became one of the great statements in American constitutional law and history.
The Court's opinion in
Minersville had been taken as a signal by many that further attacks on flag salute and the pledge by Jehovah's Witnesses would now be futile. The onset of
World War II made refusal to pledge loyalty to the flag even more suspect. In one week alone, the Justice Department received reports of hundreds of physical assaults on Jehovah's Witnesses. Officials threatened to send nonconformist Witnesses' children to reformatories for juvenile delinquents. Witnesses' meeting places were burned and their leaders driven out of town.
In turn, these actions aroused a backlash. The
Gobitis decision was widely criticized by scholars, and even organizations as staunchly patriotic as the American Legion supported enactment of a 1942 law making flag observance voluntary at the federal level. When Walter Barnette and other Jehovah's Witnesses brought suit challenging a compulsory flag‐salute law in the schools of West Viriginia, a law patterned directly on the rationale of the Supreme Court's opinion in
Minersville, the lower court simply rejected the
Minersville holding and ruled for the parents.
None of this was lost on the Supreme Court, which overruled
Minersville and held the West Virginia statute unconstitutional. But it did so by invoking the broad Free Speech Clause of the
First Amendment rather than relying primarily on the Religion Clause.
The flag salute, said the Court, was a form of speech. The government could not compel citizens to express beliefs without violating freedom of speech. Hence, regardless of whether objections to saluting the flag were religiously based or not, that freedom had to be respected.
In a sense, the Barnette decision marked the end of an era. Not only was it the last of the major Supreme Court victories of the Jehovah's Witnesses, it was also the last case for many years to subsume claims for religious liberty under the free speech clause. Indeed, beginning with
Sherbert v. Verner (1963), the Court began carving out constitutional exemptions exclusively for religious believers. This trend has continued, although the Court still resorts on occasion to dealing with religious issues in terms of free speech.
The true legacy of Barnette is less its jurisprudence than its defense of the principles of freedom. The opinion's eloquent closing has been cited in both religious and secular contexts. Thus, it said, in part: “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 and to establish them as legal principles to be applied by the courts' (p. 1185).
See also
National Security;
Religion;
Speech and the Press.
Leo Pfeffer
