West Virginia State Board of Education v. Barnette

This time, by a vote of 6-3, the Supreme Court struck down a state flag salute law, overruling Gobitis in the process. But whereas the earlier decision had relied primarily on the First Amendment's Free Exercise of Religion Clause, the Barnette Court couched its decision in language evoking freedom of speech. The choice to salute the flag was speech, the Court said, and the First Amendment protected individuals from compelled speech. It almost did not matter that the Jehovah's Witnesses had religious objections to pledging allegiance to the American flag; neither they, nor anyone, could be forced to verbally espouse beliefs they did not hold.

To underscore the interrelatedness of the fundamental freedoms memorialized in the first ten amendments to the Constitution, Justice Jackson, writing for the Court, delivered an oratory to the Bill of Rights:

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. 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; they depend on the outcome of no elections.

After Barnette, the Court began to turn away from the belief-action doctrine altogether, creating religious exemption for believers of different stripes. In Sherbert v. Verner (1963), for example, the Court upheld a Seventh-Day Adventist's claim to unemployment benefits even though she declined to make herself available to work on Saturday (her Sabbath) as the law required. In Wisconsin v. Yoder (1972), the Court upheld the right of Amish parents not to send their children to public schools past the eighth grade. But when the Amish asked the government for an exemption from paying Social Security taxes, the Court ruled against them in United States v. Lee (1982). Thereafter, Supreme Court decisions concerning the Free Exercise Clause steered away from constitutional exemptions for particular religious groups.