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Flag Salute Cases

Within a span of four years, the U.S. Supreme Court took two different stands on whether disciplining students who refused to salute the American flag violated their FIRST AMENDMENT rights of FREEDOM OF SPEECH and religion. In Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940), the Court upheld the constitutionality of a Pennsylvania regulation that permitted the expulsion of children for not saluting the flag or reciting the Pledge of Allegiance to it. However, in West Virginia State Board of Education v. Barnette, 319U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Court reversed itself and overturned a West Virginia law that compelled public school children to salute the flag and recite the Pledge of Allegiance. The two decisions have come to be known as the Flag Salute cases and are important for the First Amendment issues that were raised and decided.

In the first case, Lillian and William Gobitis, ages ten and twelve, were expelled from the Minersville, Pennsylvania public schools in 1935 for failing to salute the flag and recite the Pledge of Allegiance. The school district had required the salute and pledge since WORLD WAR I, but the Gobitis children were the first to challenge the practice. They refused because they were members of the Jehovah's Witnesses, a religious group whose members believe that it is blasphemous to worship, serve, or pledge allegiance to any secular image because such idolatry interferes with their undivided loyalty to God. As a result of their expulsion, their father had to pay for them to enroll in a private school. Their parents filed a lawsuit, claiming that the children's DUE PROCESS rights had been violated by the school district.

The U.S. Supreme Court, in an 8–1 decision, upheld the right of the school district to mandate the salute and pledge, concluding that school district's interest in creating national unity was enough to allow them to require students to salute the flag. Justice FELIX FRANKFURTER, in his majority opinion, rejected the idea that the freedom to follow religious conscience under the First Amendment was unlimited. Therefore, the Court needed to determine what standard to apply when reviewing religious-freedom issues. The Court opted for a BALANCING test, pitting the state's secular interests against the religious interests of the children.

In this case, the school district's interest in creating national unity was more important than the rights of the students to refuse to salute the flag. Justice Frankfurter noted that national unity is the basis of national security. To allow children not to salute the flag or to recite the Pledge of Allegiance would weaken the effect of the collective patriotic exercise and thereby injure national unity and security. In his view, "The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." Despite the fact that members of the Court disagreed that a compulsory flag salute was the best way to create national unity, the school district's error in judgment was not sufficient to declare their practice unconstitutional. In addition, the Court concluded that students would not be pulled away from their faith by reciting the pledge, because their parents had a much greater influence than the school in their religious faiths.

Justice HARLAN F. STONE, in his dissenting opinion, argued that it was the task of the courts to demand a reasonable accommodation between the interests of government and the interests of liberty. He concluded that 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." The government may suppress religious practices that are dangerous to morals and the public safety, "but it is a long step, and one which I am unable to take, to the position that government may, as a supposed educational measure and as a means of disciplining the young, compel public affirmations which violate their religious conscience."

The U.S. entry into WORLD WAR II after the Japanese attack on Pearl Harbor on December 7, 1941, was followed with renewed public displays of patriotism. Barnette arose in 1942, when the West Virginia State Board of Education responded to events by adopting a resolution requiring all public school children to salute the American flag and recite the Pledge of Allegiance as part of the official activities carried out by teachers of kindergarten through twelfth grade. Students who failed to salute the flag or to recite the Pledge of Allegiance at appropriate times were subject to discipline, including expulsion from school and detention at state institutions for juvenile delinquents. Parents were subject to prosecution for the nonconforming behavior of their children.

A lawsuit was filed on behalf of the Jehovah's Witnesses, whose children had been disciplined in West Virginia schools for refusing to salute the flag or to recite the Pledge of Allegiance. In addition, a number of parents had been prosecuted for allowing their children to engage in such unpatriotic demonstrations. The West Virginia federal district court issued an INJUNCTION restraining the state from continuing to enforce the school board's resolution. Barnette v. West Virginia State Board of Education, 47 F.Supp. 251 (1942). The school board then appealed the case directly to the U.S. Supreme Court.

In a 6–3 decision, the Court struck down the resolution because it contravened the First Amendment to the United States Constitution. The dramatic shift came, in part, with the replacement of three justices on the Court after Gobitis. Justice ROBERT JACKSON, in his majority opinion, wrote that the resolution violated the students' freedom of speech and freedom of religion. "The very purpose of a Bill of Rights," the Court explained, is "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities… ."The Court emphasized that under the BILL OF RIGHTS, neither freedom of speech nor freedom of worship may be curtailed by the popular vote of a legislative assembly, unless it is through the amendment process set forth in Article V of the U.S. Constitution, and then only with the approval of three-fourths of the states.

Justice Jackson observed that the Founding Fathers "set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. "Saluting the American flag and reciting the Pledge of Allegiance are forms of symbolic expression, the Court ruled. Refusing to salute the flag or recite the Pledge of Allegiance may be a form of political protest, the Court pointed out, or it may reflect a conscientious decision made by a person of devout religious belief. In either case, the Court concluded, such symbolic expression is protected by the First Amendment. "If there is any fixed star in our constitutional constellation," the Court wrote, "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."

In overruling Gobitis, the Supreme Court questioned that case's premise that national security is contingent upon national unity. The Court noted that Gobitis had been subjected to much criticism, and cited a number of civic organizations that compared the mandatory flag salute regulations in the United States to similar laws that had been promulgated in Nazi Germany. The Court in Barnette stated that national security is hardly vindicated by permitting the government to expel a handful of children from school.

The government may instruct children on the value of patriotism, and it may acquaint students with the historical importance of the American flag, but the Court cautioned that government must not become a partisan of any religion, class, or faction in doing so. When states are fulfilling their crucial mission of educating impressionable children, the Court stressed, public schools must not "strangle the free mind at its source, and teach youth to discount important principles of government as mere platitudes."


Stevens, Leonard A. 1973. Salute! The Case of the Bible vs. the Flag. New York: Putnam Group.


Symbolic Speech.

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