Chapter 10: The Flag-Salute Cases

Minersville School District v. Gobitis (1940) , West Virginia State Board of Education v. Barnette (1943)

In a constitutional democracy such as the United States, there inevitably is tension between majority rule and the rights of individuals in the minority. Citizens and their government continually confront two challenging questions. At what point, and under what circumstances, should the will of the majority be limited in order to protect the rights of individuals in the minority? And, conversely, what limits must be placed on the rights of dissenting individuals in order to maintain the authority of majority rule? These questions are never answered definitively, because the justifiable placement of limitations will inevitably vary according to the circumstances of particular cases. Further, a conclusive response in favor of one principle over the other majority rule over minority rights or vice versa—would deeply disturb a delicate balance necessary to maintain justice in a constitutional democracy.

During the early 1940s, the U.S. Supreme Court confronted two cases in which majority rule came into conflict with minority rights. Both cases involved clashes between the authority of majorities in state or local governments to mandate patriotic rituals in public schools and the rights of individuals in the minority not to comply. In the first case, Minersville School District v. Gobitis, the Court decided in 1940 to uphold a local school board requirement that all students must recite the Pledge of Allegiance while saluting the flag of the United States in a classroom ceremony. Only three years later, the Supreme Court faced essentially the same issue in West Virginia State Board of Education v. Barnette and struck down a state school board mandate that public school students must participate daily in the same kind of patriotic ritual upheld by the 1940 Gobitis decision.

The Court’s decision in the Barnette case to overturn a decision made only three years earlier in Gobitis was most unusual. Ordinarily, the Court follows its rule of stare decisis, a Latin phrase meaning, “let the decision stand.” According to stare decisis, judges should maintain consistency and stability in the law by following precedents of earlier decisions in similar cases. The rule of stare decisis is binding upon judges in federal district courts and circuit courts of appeals. By contrast, Supreme Court justices, while reluctant to tamper with precedents, have more latitude to modify or overturn them. This is not done often and hardly ever within a three-year period, as the Court did in the Barnette decision in 1943. The flag-salute cases, as they came to be called, are instructive examples of how and why the Court may overturn a precedent.

Minersville School District v. Gobitis

  • 310 U.S. 586 (1940)
  • Decided: June 3, 1940
  • Vote: 8–1
  • Opinion of the Court: Felix Frankfurter
  • Dissenting Opinion: Harlan Fiske Stone

The central issues of the Gobitis and Barnette cases arose in 1936, when twelve-year-old Lillian Gobitas and her ten-year-old brother William came home from school with news that disturbed their parents. (The family’s name is correctly spelled “Gobitas,” but a court clerk misspelled it “Gobitis” and the case involving this family is officially known by the misspelled name.) The Gobitas children had been expelled from their Minersville, Pennsylvania, school for refusing to salute the American flag during the morning patriotic exercises. The Gobitas family belonged to the Jehovah’s Witnesses, a religion that prohibits any act, including saluting the flag, that is like worshipping a graven image or idol, which is an offense against God.

Lillian and William’s father, Walter Gobitas, appealed to the Minersville School Board to excuse his children from the flag-salute requirement. The board refused, and Gobitas withdrew his children from the public school and placed them in a private school, where the patriotic exercises were not required. Then he sued in the federal district court at Philadelphia to stop the school board from requiring children in public schools to salute the flag. He claimed that his children’s rights to religious liberty under the First and Fourteenth Amendments to the U.S. Constitution had been violated.

Lawyers for the Minersville School Board argued that the flag-salute requirement was a reasonable way to teach good citizenship to students. They claimed that it was strictly a “secular regulation” that had nothing to do with religion and everything to do with patriotic education. Furthermore, they argued that permitting some students to opt out of the ceremony would interfere with the school’s duty to promote national loyalty and unity. They concluded by claiming that the school’s expulsion of children who dissented against the flag-salute ceremony did not violate their constitutional rights.

Judges of the federal district court and later the U.S. Court of Appeals for the Third Circuit decided against the Minersville School District. The local school board responded with an appeal to the U.S. Supreme Court, which heard the case in 1940.

Three times previously, the Court had let stand flag-salute requirements in terse, unsigned per curiam (by the court) opinions that deferred to lower court decisions and the rights and powers of state governments to deal with this issue. Only one year earlier, for example, the Court had unanimously denied an appeal of a California Supreme Court decision that had ruled in favor of a local flag-salute law. However, the Gobitis case was different because this time the lower courts had ruled against a flag-salute requirement on the grounds that it denied the plaintiff ’s constitutional right to religious liberty. The context had also changed; patriotic sentiment was rising throughout the United States in response to national security threats posed by the eruption of World War II in Europe and Asia.

Big-time legal talent came forward to argue against the flag-salute requirement of the Minersville School District. George Gardner of the Harvard Law School faculty was the leading advocate, and lawyers representing the American Civil Liberties Union and the Bill of Rights Committee of the American Bar Association filed supporting briefs. Zechariah Chafee, another professor at Harvard Law School and the primary author of the Bill of Rights Committee’s brief, wrote that “there is no such public need for the compulsory flag salute as to justify the overriding of the religious scruples of the children.”

The weighty arguments of the lawyers were to no avail. The Court voted 8–1 to reverse the two lower federal court decisions and thereby to uphold the school district’s requirement that students participate in the daily flag-salute ceremony.

Justice Felix Frankfurter wrote the opinion of the Court. He maintained that the individual’s right to religious liberty in this case must give way to state authority, as long as the state neither directly promoted nor restricted religion. The school board’s flag-salute requirement was constitutional because it met this requirement.

Frankfurter reasoned that the students’ right to religious liberty in this case had to be balanced against the school board’s right to exercise authority in regard to a patriotic ceremony. The Court’s challenge was to “reconcile two rights to prevent either from destroying the other.” He assumed that national unity is the basis for national security, which must be promoted for the common good. Thus, if a local school board believed that a compulsory flag salute promoted national unity, especially in a time of crisis, then the Court should not prevent that school board from requiring such a patriotic ceremony.

Frankfurter concluded that in cases such as this one the Court should not use judicial review to thwart majority rule. Instead, it should defer to the will of the people and their democratically elected representatives in government. At this time, when World War II had begun and America seemed threatened, public opinion strongly favored patriotic and civic obligations, which undoubtedly influenced the Court’s Gobitis decision.

Justice Frankfurter had hoped for a unanimous decision, but he could not dissuade Justice Harlan Fiske Stone from writing a strong dissent. Stone argued that when the government attempts to force individuals to express a belief they do not genuinely hold, it violates their First and Fourteenth Amendment rights. Furthermore, he pointed to other ways in which patriotism could be instilled in students without recourse to coercion or punishment.

Within three years, the majority of the Court came to agree with Stone’s dissent, and the precedent set by Gobitis was overturned. Two factors appear to account for this reversal. First, there was an outburst of negative responses to the Gobitis decision in newspaper editorials and magazine articles. More than 170 newspapers throughout the country opposed the Court’s decision. For example, the St. Louis Post-Dispatch repudiated the Gobitis ruling with this abrupt statement: “We think this decision of the United States Supreme Court is dead wrong.” Most professors at the leading law schools were also very critical of the Gobitis decision, which certainly caught the attention of the justices.

Second, the Gobitis decision aroused a nationwide rash of violence by misguided “super-patriots” against members of the unpopular Jehovah’s Witnesses, which likely prompted reconsideration among some of the justices about their ruling. For example, a mob in Kennebunk, Maine, burned a Jehovah’s Witnesses meeting hall. In Connersville, Indiana, an unruly crowd assaulted a lawyer who was trying to help besieged Jehovah’s Witnesses and drove him out of town. In Odessa, Texas, townspeople rounded up Jehovah’s Witnesses and told them to salute their nation’s flag; when the Witnesses refused this command, the mob threw stones at them. These are three examples of the violence that typified the harsh treatment of Jehovah’s Witnesses in all regions of the United States. This flagrant persecution of a vulnerable minority certainly aroused concern among the justices and among many in the general public. Such a blatant violation of human rights in America seemed especially appalling at a time when the Nazis were persecuting and killing Jews and other targeted minorities in Europe.

Two years after the Gobitis decision, three justices publicly reported that they had changed their minds about compulsory flag-salute ceremonies in schools. Hugo L. Black, William O. Douglas, and Frank Murphy, who had joined Justice Frankfurter in the Gobitis decision, dissented from the Court’s majority opinion in a 1942 case, Jones v. Opelika, about free exercise of religion by Jehovah’s Witnesses. In their dissent, they declared, “Since we joined in the opinion of the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided.”

Another factor accounting for the Court’s reversal of opinion about the Gobitis decision was a change in its membership and leadership. Two new members, Robert H. Jackson and Wiley B. Rutledge, who joined the Court after the Gobitis decision, were known for their strong support of civil liberties, and both seemed likely to oppose coerced participation in patriotic rituals. And Harlan Fiske Stone, the lone dissenter against the Gobitis decision, had replaced Charles Evans Hughes as chief justice. A new point of view regarding compulsory flag-salute ceremonies seemed to be emerging within the Court.

West Virginia State Board of Education v. Barnette

  • 319 U.S. 624 (1943)
  • Decided: June 14, 1943
  • Vote: 6–3
  • Opinion of the Court: Robert H. Jackson
  • Concurring opinions: Hugo L. Black (William O. Douglas) and Frank Murphy
  • Dissenting opinion: Felix Frankfurter

An opportunity for the Supreme Court to reverse the Gobitis decision came in 1943 with the case of West Virginia State Board of Education v. Barnette. At issue was a state board of education resolution that required all schools to make the flag-salute ceremony a regular part of the daily schedule. The resolution ominously declared that noncompliance would be “regarded as an act of insubordination and shall be dealt with accordingly”; noncomplying students would be expelled from school. Schools could not readmit them until they agreed to perform the salute, and the state would consider them “unlawfully absent.” Recalcitrant students could be punished by confinement in a state reformatory for juvenile offenders, and their parents could be fined fifty dollars and sentenced to thirty days in jail.

Soon after proclaiming the flag-salute resolution in January 1942, public school officials in Charleston, West Virginia, expelled several Jehovah’s Witnesses, including the children of Walter Barnette, for refusing to participate with their classmates in the required patriotic ceremony. Barnette, joined by other Jehovah’s Witnesses, asked the federal district court for an injunction to stop enforcement of the flag-salute requirements, and this request was granted by a three-judge panel. The lower federal courts usually followed precedent, but the three-judge panel in this instance chose to break away from the Gobitis precedent.

Judge John J. Parker acknowledged that the lower federal court typically would “feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not.” But he doubted that Gobitis was still binding because the strong dissents of three justices in the Opelika case appeared to have undermined the decision’s authority. Furthermore, Parker explained that the three-judge panel considered the West Virginia flagsalute requirement to be “violative of religious liberty when required of persons holding the religious views of the plaintiffs.” He concluded that it would be a dereliction of judicial duty to “deny protection to rights which we regard as among the most sacred of those protected by constitutional guarantees.”

West Virginia school officials reluctantly obeyed the federal court’s order. No more Jehovah’s Witnesses were expelled from schools for noncompliance with the flag-salute resolution, and those previously punished were permitted to return to their classes.

The issue seemed to be settled until the West Virginia State Board of Education decided to appeal the case directly to the U.S. Supreme Court, which readily accepted this opportunity to settle the status of constitutional law on this hot issue. Once again the American Civil Liberties Union and the American Bar Association’s Committee on the Bill of Rights rallied to support the constitutional rights of an unpopular minority group, and they submitted briefs to the Court in support of Barnette.

By a 6–3 vote, the Supreme Court upheld the lower federal court’s ruling and reversed the precedent that had been established in the Gobitis decision. Voting with the Court’s majority were Chief Justice Stone and Justices Black, Douglas, Murphy, Jackson, and Rutledge. Justice Robert Jackson wrote the opinion of the Court. Felix Frankfurter, who had written for the Court in Gobitis, was now in the minority, and he wrote a dissenting opinion.

In his opinion for the Court in Barnette, Justice Jackson did not focus narrowly on the abridgment of the individual’s First Amendment right to free exercise of religion, as others had done in cases of this kind. Instead, he based his opinion broadly on several individual freedoms in the Bill of Rights, especially freedom of speech, which he linked to free exercise of religion. Jackson thought the basic issue in Gobitis and Barnette was whether the government has authority under the Constitution to compel participation in any kind of public ceremony, regardless of the person’s religious beliefs. He held that the government had no such authority to infringe upon the individual’s constitutionally protected rights to freedom of expression.

Deeply embedded in Justice Jackson’s opinion is a fundamental principle of constitutional democracy in the United States regarding majority rule and minority rights. There is majority rule by representatives of the people, who are elected by voters in free, fair, and competitive elections, but the First Amendment rights to freedom of speech, press, religion, assembly, and petition cannot be overridden by the opinions or the votes of a majority. Rather, these rights, the inviolable possession of each individual, are guaranteed by the rule of law in the Constitution, and they will continue to be protected as long as this document is the supreme law of the land.

Justice Felix Frankfurter opened his dissenting opinion with a memorable statement that evoked pathos, especially in view of Nazi atrocities against Jews during the world war that was raging at the time of the Barnette decision. Frankfurter, a Jewish immigrant to America from Austria, wrote,

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court’s opinion, representing, as they do, the thought and action of a lifetime. But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution, and are equally bound by our judicial obligation whether we derive our citizenship from the earliest or the latest immigrants to these shores.

Having revealed his deep and abiding sentiments, Justice Frankfurter expressed his sense of judicial duty, which was, in his opinion, to observe stare decisis and respect the precedent of the Court’s Gobitis decision, and thereby to support the constitutional authority of the state school board in requiring public school students to salute the U.S. flag. He argued that the Court had overstepped its bounds by imposing its judgments on the people in place of decisions by their democratically elected representatives in government. In a democracy, argued Frankfurter, public policy is properly made by the political branches of government, and the judiciary, exercising restraint, should not readily overturn these decisions.

Frankfurter especially objected to Jackson’s argument that questions associated with the Bill of Rights, especially the First Amendment, should be beyond the reach of local officials and legislatures, who presumably represented the majority opinion of the people. Frankfurter believed judges had a duty to respect and defer to the discretion of democratically elected legislatures and the laws they enacted.

Justice Frankfurter’s opinions in Gobitis and Barnette have passed away, while Justice Jackson’s opinion in Barnette has not only persisted as a precedent, but has been hailed as one of the greatest statements on civil liberties ever written. Because of the Barnette ruling, students today may choose not to participate in patriotic ceremonies conducted in their schools.

An Inspirational Defense of First Amendment Rights

Justice Robert Jackson’s opinion for the Court in West Virginia State Board of Education v. Barnette, presented on Flag Day, June 14, 1943, is a masterpiece. He explained brilliantly and memorably the relationships among limited government, the rule of law, and security for the rights of individuals against the ever-present threat of majority tyranny in a democracy. And Justice Jackson took a strong stand for the immutable First and Fourteenth Amendment rights of unpopular individuals against the majority’s representatives in government, who might abuse their power to abridge those rights.

Justice Jackson’s opinion overturned the short-term precedent set by the Court in its Gobitis decision. He replaced it with the enduring precedent of the Barnette decision. And he did it with words that remind us of a foundational principle of constitutional democracy: majority rule must be limited by the rule of law in the people’s Constitution in order to equally protect the rights of everyone, including disliked minorities.

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followers to a flag or banner, a color or design . . .

It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind . . . To sustain the compulsory flag salute we are required to say that a Bill of Rights, which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind . . .

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 election.

In weighing the arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake.

The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard . . . It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case . . .

National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement . . .

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinions achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or the State as those we deal with here, the price is not too great. But freedom to differ 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.

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. If there are any circumstances which permit an exception, they do not now occur to me.

We think 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 it is the purpose of the First Amendment to our Constitution to reserve from all official control.

The decision of the Court in Minersville School District v. Gobitis and the holdings of those few per curiam decisions which preceded and foreshadowed it are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is Affirmed.