My new show The Supreme Court vs. Church/State Separation is now available wherever you get your podcasts. Please consider subscribing and giving it all the best reviews. If you like this episode, please consider supporting my work on Patreon.
This season is all about the complicated history of the Pledge of Allegiance and the legal controversies it spawned.
Episode 2 is now available online, and a transcript is below.
If you think back to anytime the Supreme Court has undone one of its previous mistakes, it usually takes a long time. Brown v. Board of Education overturned the whole Separate but Equal rule established in Plessy v. Ferguson. Those cases were nearly 60 years apart. In 2003, Lawrence v. Texas overturned the anti-sodomy laws that the Court said were legal in 1986 in Bowers v. Hardwick. That was 17 years. When it comes to the Pledge of Allegiance, though, the Supreme Court first said that saying it was mandatory and then they issued another ruling saying it was optional. Those cases were only three years apart. The truth is, they could very easily have been three months apart. That’s how fast public sentiment, and the Court’s makeup, and some of the justices’ eagerness to correct their mistake occurred.
What on earth happened in those three years? And how did that first case result in such a horrible ruling?
It’s 1933. The U.S. has not yet entered World War II, but Adolf Hitler has risen to power in Germany and his party, the Nazi Party, demands that everyone in the country pledge allegiance to their flag using a salute that involves raising their outstretched hands at an angle, with palms face down and fingers straight out and bunched together. The salute becomes so well-known that it’s now part of how we think about Nazis.
In the United States, we were doing a very similar salute at the time when we said the Pledge. It was informally called the Bellamy Salute — named after Francis Bellamy who wrote the Pledge — and the key difference is that when you stretched your arm out, you were supposed to put your palm face up. But try doing that. It feels really awkward, like you’re about to serve a platter of food at a restaurant. So a lot of students just did it with their palms facing down — and if you ever search for photos of kids saying the Pledge during this time, you see them doing a gesture that’s virtually identical to that Nazi salute. It wasn’t until 1942, right in the heart of our involvement in World War II, that the U.S. decided you know, maybe we should just put our right hand over our heart instead. It is way less Hitlery that way. So that’s what we did.
But in Germany, where everyone was also forced to say their pledge, the Jehovah’s Witnesses in that country wanted no part of it. They were also pacificists. They opposed military service. They also oppose involvement in government completely — they don’t even vote. But because they were not saying the pledge, Hitler punished them for it. In fact, in 1933, more than 10,000 Witnesses were sent to concentration camps because of their refusal to participate in the ritual. Yes, concentration camps. Those existed then!
Now the Jehovah’s Witnesses in the U.S. knew this was going on. And they were getting scared. This is what actual religious persecution looks like. A man who really understood that was Joseph Rutherford, the American head of the Jehovah‘s Witnesses. Rutherford was a trial lawyer and a prosecutor. His nickname was judge because he supposedly knew the law inside and out. He also the guy responsible for creating the rule that says Witnesses have to go door-to-door to preach and hand out materials. Rutherford was so committed to his principles that he urged Witnesses to resist the World War I draft and was subsequently arrested for violating the Espionage Act of 1917.
So when Germany is punishing Jehovah’s Witnesses, and U.S. Witnesses are getting punished in less severe ways for not saying the Pledge, Rutherford realized the way to fight this battle was through the courts. But to fight a legal battle, you need a good case. And to get a good case, you need devout Witnesses getting punished for refusing to say the Pledge. And to get that, you needed to convince Witnesses that objecting to the Pledge is of utmost importance when it comes to public displays of their faith. And Rutherford knew exactly how to do that.
In 1935, he began making his case to protest the Pledge very overtly. At one Witness convention, he said every country was being controlled by the Devil and participating in the Pledge “compels that person to salute the Devil as the invisible god of the nation.” He also argued that saying the Pledge amounted to worshiping a graven image, something specifically prohibited by the Bible. As the Commandment goes, Thou shalt not worship false idols.
And it worked. A child of Jehovah’s Witness parents who attended a public school in Lynn, Massachusetts refused to say the Pledge. Carleton Nichols, Jr. was only 8 years old, but he said the flag was the Devil’s emblem. He stood for the Pledge but he wouldn’t say it. Things got more heated when his father and another adult came to the classroom with him in late September — and none of them stood for the Pledge. The principal kicked all of them out. Carleton was later expelled.
There was a lawsuit that went all the way to the Massachusetts Supreme Court, but the judges unanimously sided with the school district, saying that, sure, Carleton had genuine religious beliefs about the Pledge, but also, it’s completely irrational for someone to say he can’t pledge allegiance to the flag because his faith only allows him to pledge allegiance to Jehovah. It’s a far cry from how the courts treat religion today, where they don’t really question the seriousness of your faith. If your sincerely held religious beliefs say you can’t sell a cake to a gay couple, then the courts usually play along.
That October, though, just a week after he was kicked out of the school, Rutherford got on the radio to praise Carleton Nichols, Jr. He also encouraged other Witnesses to have the kind of bravery that little Carleton had showed. And within a year of that speech, more than 120 Witnesses had been expelled from their schools for not saying the Pledge. By 1939, that number had risen to more than 200. Three teachers were fired because they refused to lead the flag salute. Some of the protesting kids were even physically assaulted by their teachers for what they did. There’s a story of a ten-year-old boy in Pennsylvania who was “so badly whipped that his thighs were black and blue for two weeks.” And then, just to add insult to literal injury, when his parents pulled him out of the classroom, the school board fined them for it.
Now, let’s just step back for a moment to recognize how hard all of this must have been for the children. I am about as public an atheist as you can get, and I’ve been in situations where the Pledge was recited, and even I stood up rather than stay seated and deal with the aftermath — all the stares and questions. So for all these children to object to the Pledge, even though many of them did it because they were led to believe they were doing it in honor of their God and not for, say, some personal philosophical objection, is still a huge deal. They didn’t just face backlash from their classmates and teachers, they were literally expelled for taking this stand.
It got to the point where Jehovah’s Witnesses actually set up what they called Kingdom Schools in several of the states where they thought they had the best shot of bringing forth a lawsuit. Because if kids were going to get kicked out of school, you still wanted them to get an education.
Pennsylvania was one of those states, and that was not a coincidence for two reasons. The first was that there was no state law requiring objectors to the Pledge be expelled. It was a district by district decision. Now, a lot of districts had policies to expel objectors, but the argument could be made that they didn’t have to do that. It was arbitrary. And yet Pennsylvania actually led the nation in how many Witness children they were expelling.
The other reason Pennsylvania was a good state in which to bring forth a lawsuit was that Jehovah’s Witnesses had a lot of support from Quakers, who were also anti-military and also, historically, victims of religious persecution. In fact, in 17th-century Britain, Quakers were punished because they refused to tip their hats as a show of respect for secular leaders and judges. So these two groups had a kind of kinship with each other even though they didn’t share the same religious beliefs. And there were a lot of Quakers in southeastern Pennsylvania so the Witnesses wouldn’t be alone in fighting this battle. They might have some public support.
Within the first year of Rutherford’s radio address, Lillian and William Gobitis decided they would risk expulsion for their family’s faith. In 1935, Lillian was in seventh grade. William was in fifth. They attended school in the Minersville School District in Pennsylvania. They knew what Rutherford had said. And they obeyed. They did not say the Pledge in their classrooms. In William’s case, his teacher was so furious over his lack of participation that she tried to force his arm up so he would do the salute, but he fought back by keeping his right hand firmly in his pocket.
Lillian’s classroom was a different story. In her case, when she refused to say the Pledge, her teacher, who happened to be a Quaker, commended her for being so brave. She even “hugged her and praised her valor.” The students didn’t feel the same way. Some kids later threw stones at Lillian, and when they saw her, they yelled, Here comes Jehovah! But kids who are bullies aren’t unique. A teacher who refuses to punish a disobedient student is. And since the teacher wasn’t doing anything about Lillian, the superintendent of the Minersville School District stepped in. He asked state officials if he had any legal authority to punish students who wouldn’t say the Pledge, and they said the only way he could do that was if the district passed a policy mandating a formal flag salute. So he got the Board of Education to pass a new resolution requiring kids to “salute the flag of our Country as a part of the daily exercises.” If a student didn’t do that, the policy said it “shall be regarded as an act of insubordination and shall be dealt with accordingly.” By which they meant the kids would be kicked out of school. Even though state law did not require it.
The Gobitas family tried to prevent the school board from passing the resolution. William even wrote in a letter to the board, “I do not salute the flag not because I do not love my country but [because] I love my country and I love God more and must obey His commandments.”
Needless to say, it did not work. Lillian and William were formally expelled on November 6, 1935, and the Jehovah’s Witnesses were… thrilled. They finally had what they felt was the perfect case. You had these two courageous kids standing up for their religion. You had a mean superintendent punishing them for it; in fact, he created a new rule specifically to punish them. You had a state that did not have a law requiring a flag salute. You had parents who were well-liked and well-respected in their community who had to pay good money now to send their kids to a private Kingdom School. All you needed was a sympathetic judge.
And the judge they got just happened to be a Quaker.
When Judge Albert Branson Maris’ decision finally came down in 1938, even though he had admitted the Witnesses’ interpretation of the Bible made very little sense, he did not mince any words:
“… The flag salute by children who are sincerely opposed to it upon conscientious
religious grounds is not a reasonable method of teaching civics, including loyalty to the State and Federal Government, but tends to have the contrary effect upon such children.”
He went on to say this, and I know it’s lengthy, but damn, it’s good.
“The safety of our nation largely depends upon the extent to which we foster in each individual citizen that sturdy independence of thought and action which is essential in a democracy. The loyalty of our people is to be judged not so much by their words as by the part they play in the body politic. Our country’s safety surely does not depend upon the totalitarian idea of forcing all citizens into one common mold of thinking and acting or requiring them to render a lip service of loyalty in a manner which conflicts with their sincere religious convictions. Such a doctrine seems to me utterly alien to the genius and spirit of our nation and destructive of that personal liberty of which our flag itself is the symbol.”
If it’s not obvious, Judge Maris had no sympathy for the school district.
Not only was this a victory for the Witnesses and the ACLU, Maris’ ruling did something new: It said that forced patriotism could violate someone’s religious beliefs. That was unusual because, at this time, it’s not like Under God was even in the Pledge. But the judge was saying that a forced political gesture could violate someone’s religious convictions. He didn’t talk about the First Amendment’s Establishment Clause, but rather the Fourteenth Amendment’s Due Process clause, which says no one can interfere with your rights of conscience. The school district, Maris said, was getting in the way of that — and costing Walter Gobitas $3,200 to send his kids to a private school.
When the Minersville School District appealed, then, their argument was that they were not trying to get in the way of anyone’s religion. But even the appeals court said yes you are. That decision actually opens with this line: “Eighteen big states have seen fit to exert their power over a small number of little children.” And then, referring to how badly the school district treated the Gobitas children, they noted “the school board’s mistake in the domain where they are not supposed to make mistakes.”
At this point, the district figured it had lost. Why not just end this battle. But conservative groups like the American Legion and the Patriotic Orders of the Sons of America offered financial and legal backing if they kept fighting it, so they did. They kept fighting even after losing at the appellate court. The Supreme Court eventually agreed to hear their case in 1940.
A little side note here: The Gobitas family’s last name is actually spelled G-O-B-I-T-A-S. But because a clerk screwed up when typing the court documents, history will forever know their last name as G-O-B-I-T-I-S. You would think getting the name of the case right would be the one thing you double-check when you’re a clerk, but what do I know.
The question in front of the Supreme Court was simple: Did requiring kids to say the Pledge, even when they didn’t want to for religious reasons, infringe upon the due process rights they have via the 14th Amendment?
The school district said no, of course not. This was about patriotism. That was valuable, right? And they weren’t getting in the way of religion. C’mon now. Asking kids to salute the flag was not in any way asking them to worship a false idol. Just because they chose to interpret the Bible that way, it didn’t mean the school district was getting in the way of their faith. Have some common sense here!
Now, a reasonable lawyer would have responded to all these suggestions in a calm, cool, collected way and explained that it’s not the Court’s job to decide whether someone’s religious beliefs are valid. If the Witnesses said saluting the flag went too far, then it did, end of story. Letting them sit out during the Pledge was hardly asking too much of the school.
Instead, the person who wrote the main brief for the Witnesses was Joseph Rutherford, the U.S. head of the Jehovah’s Witnesses — the guy nicknamed judge — and he really didn’t do their side any favors.
He said that the Supreme Court should obey God’s law, not the Constitution. He cited 61 Bible passages in his brief. He used hyperbolic language, saying that saluting the flag showed “the arbitrary totalitarian rule of the State.”
If you’re an advocate for church/state separation, I imagine you looked at that brief and thought, You’ve got to be kidding me. That guy is on my side? The ACLU and the American Bar Association wrote separate amicus briefs that went into the actual legal problems with the school district’s position, but the main brief was from Rutherford and it was heavy on the religious language. And you could tell how much it bothered the Supreme Court. If these were the best arguments the Witnesses had on their side, the Court had no reason to say they were in the right.
In 1940, they ruled against the Gobitas family. It wasn’t even close. It was an 8-1 decision. And while the majority opinion, written by Felix Frankfurter, correctly said this was a battle between religious liberty and government authority and how the Court had to reconcile “two rights in order to prevent either from destroying the other,” his decision basically ignored the religious argument altogether.
Now, this was a surprise coming from Frankfurter of all people. He was a non-practicing Jew, an immigrant who came to the United States when he was 12. He was politically progressive and nominated to the court by President Franklin Roosevelt. He was one of the founders of the ACLU. If anyone should have supported someone’s right not to say the Pledge, you would think the ACLU founder would be right on board. But that wasn’t the case here.
You may know that our rights are not absolute. We have freedom of speech, but you can’t yell fire in a crowded theater. Frankfurter said the same kind of principle applied here. He said that “national unity is the basis of national security,” and states had to have the ability to determine how to foster that unity. If the flag is the symbol we’re using to represent unity, then Frankfurter argued that allowing students to protest the Pledge would have this awful ripple effect. It would “cast doubts in the minds of the other children” and weaken their patriotism!
What about the people who say protesting is a form of patriotism? When football player Colin Kaepernick kneeled during the National Anthem before a game, he wasn’t doing it because he hated the country; he was doing it to draw attention to a problem in the hopes that our country could get better. Viewed that way, dissent is patriotic!
Frankfurter never knew Kaepernick, obviously, but he anticipated that argument when he wrote, “We might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most crotchety beliefs… but the courtroom is not the arena for debating issues of educational policy.” In other words, it wasn‘t his job to tell a school district that their punishments in the name of unity were too harsh. He said that would “make us the school board for the country. That authority has not been given to the Court, nor should we assume it.”
So requiring students to say the Pledge under the threat of expulsion was okay by him.
An editorial in the Washington Post actually celebrated the skillfully drawn line that the Court had created:
“Freedom of religion extends only to the realm of spiritual belief and ritualistic practice. It
does not permit any group to interfere with legitimate functions of the state under the guise of practicing their religion.“
Thanks for that, Washington Post. Now, Frankfurter did express some reservations with the punishment. He didn’t think expelling kids over this was necessarily the right move, and he urged school districts to exercise judicial restraint, an idea he became well known for advocating. But he didn’t say they couldn’t do it. His whole philosophy was to stay out of the way of local lawmakers whenever possible, even when, like now, it was a devastating decision.
But as I said, the case was decided 8-1. And that lone dissent set the stage for what would happen over the next few years.
That one dissenter was Justice Harlan Fiske Stone, an appointee of President Calvin Coolidge. He wrote that there’s no way the “country will be better served by conformity than by the observance of religious liberty which the Constitution prescribes.” He argued that there was no way this temporary nixing of someone’s civil liberties could be a good idea. He even made it clear that these kids and their father were U.S. citizens who had never shown any disloyalty to the country, who always obeyed its laws (at least when they didn’t conflict with their religion), and whose religious sincerity was never in doubt.
He said the requirement to say the Pledge in Minersville was a form of persecution against a helpless minority.
And then he lashed out against his colleagues: He said the majority’s decision did more than suppress freedom of speech. It did more than prohibit the free exercise of religion. In fact, he wrote, the state of Pennsylvania was trying 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 majority said they had no right to get in the way of the district’s policies, but Justice Stone said it made no sense to allow the government to use an educational policy to force kids to give public affirmations that violated their personal beliefs.
There was an alternative solution, he said. In this case, where national unity was up against religious freedom, it would be easy to accommodate both sides by keeping the Pledge, but allowing students to not participate. If loyalty and unity were so important, there were other ways to teach it.
And then, as if to rub it in, he said the government wasn’t losing anything by respecting the civil liberties of these children. Justice Frankfurter, the guy who helped found the American Civil Liberties Union, should have known better.
But the decision was made. Forcing students to say the Pledge was okay because you were doing it for the good of the country. Can you imagine the slippery slope from that reasoning? If our government, today, could make all kids say something quasi-patriotic in the name of nationalism, what do you think they would do? In my mind, I’m picturing kids starting the school day chanting build the wall, build the wall. What would kids do in return if they didn’t agree? Even if you support the party in power, surely you don’t want the other party having that kind of power. You may not even want your own side doing that. And yet the Pledge was deemed totally fine under the guise of patriotism.
According to Steven K. Green, a church/state separation scholar, there were really three points of contention between Stone and Frankfurter. And because these points would be dissected for years to come, it’s important to know what they are. First, how much of a burden was the Pledge placing on the Witnesses’ religion? Frankfurter obviously did not think it was too much. Second, did a religious freedom claim override legitimate public policy interests? Frankfurter said no. And third, how much deference should the Supreme Court give to the democratic institutions that enacted these policies? Frankfurter was happy to give them plenty of space even if he said he didn’t love their decision making.
The fact that Justice Stone was all in on the religious liberty side of this debate was shocking to the 8 other justices, who thought this was going to be a unanimous decision. In fact, Green said, Stone didn’t even tell anyone he was dissenting until one day before they all finalized their votes. Frankfurter knew about it and tried to change Stone’s mind. He actually sent Stone a letter basically saying, look, I know my decision seems hypocritical, being the ACLU guy and all, but this is what the Constitution requires me to do. And also, c’mon, we’re not really burdening the religion of those Jehovah’s Witnesses. It’s not like we’re forcing them to take part in a school dance against their will. It’s the Pledge! Relax!
But the letter didn’t work. Stone was still planning on dissenting. One of the other liberal justices on the Court, Frank Murphy, apparently told the chief justice he was thinking about ruling in favor of the Gobitas family, too, but he was persuaded not to. And after Stone told his colleagues he was dissenting, there were three other justices who realized they very well could have joined him… but they stuck to their earlier promises and joined the decision against the family. Still, they told Stone in private that if another case like this ever came in front of them, they would join his side. Which is a really weird thing to say when it’s still not too late to do that right now. So it was an 8-1 decision, but it really was far from unanimous. I know that sounds weird. It’s almost like a basketball team winning by 30 points and the commentator says it really felt a lot closer than that. What?! No, it didn’t. Look at the score! But numbers don’t always tell you the complete story.
That decision had a nasty side effect, too. Because you had these Jehovah’s Witnesses on the wrong side of a decision involving, in essence, American patriotism, they were tagged as enemies of the state. For the next few years, people burned down their meeting places, known as Kingdom Halls. Some Witnesses were physically beaten up. When Witnesses were handing out literature on the streets, vigilante gangs would steal their pamphlets and beat them up. Some were literally tarred and feathered. There’s one case of a man being castrated. In one instance, a Witness child was forced to drink castor oil and later urinated blood. Witnesses’ cars were tagged with the graffiti of their era, saying things like Hitler’s Spies, which was an especially weird way to describe people who were literally being persecuted by Hitler. One sheriff even told a reporter, “They’re traitors. The Supreme Court says so. Ain’t you heard?”
At one point First Lady Eleanor Roosevelt jumped into the fray. She had an almost-daily newspaper column called My Day, and in one column just weeks after the Gobitis ruling, she wrote about how six Jehovah’s Witnesses had been “dragged from their homes and forced to pledge allegiance to the flag.” She asked if that was really the America she knew, where we violently forced people to do something against their religion. Eleanor Roosevelt also complained about the ruling directly to Justice Frankfurter during a dinner at the White House, when she told him his ruling would “generate intolerance, especially in a period of rising hysteria.” So you know that was an awkward meal.
The situation for Witnesses was awful. And it was ironic, too. The Supreme Court had upheld the Pledge policy in the name of national unity, and what did their decision do? It created a domestic enemy out of people who were fully patriotic but just had different ideas about what that meant. (Where have we heard that one before?)
The bulk of the violence occurred in the summer of 1940, in the months right after the Gobitis decision was announced, and then it picked up again in December of 1941. Because, just as many American Muslims were beaten up by vigilantes after 9/11, Jehovah’s Witnesses were still perceived to be unpatriotic after the attack on Pearl Harbor.
Newspapers were reporting on many of these incidents, and public sentiment was that this was a travesty. How on earth was this good for the country? World War II was starting up for us in Europe and the last thing we needed was for people in the United States beating each other up over how patriotic we all were. By one estimate, more than 170 newspapers published editorials against the Gobitis decision.
The St. Louis Dispatch gives you an idea of how strongly worded some of these editorials were:
“If patriotism depends upon such things as this – upon violation of a fundamental right of
religious freedom — then it becomes not a noble emotion of love for country, but something to be rammed down our throats by the law.”
The Christian Science Monitor also made an excellent point when it said, “A voluntary unity of 99 per cent makes the flag a more impressive symbol than an artificial ‘unity’ of 100 per cent.”
The editors of the magazine New Republic said the nation was now “in great danger of adopting Hitler’s philosophy in the effort to oppose Hitler’s legions.” I imagine that statement really bothered a guy who once wrote for that magazine. His name was Felix Frankfurter.
A lot of Catholic law schools also defended the Gobitas family, publishing law review articles denouncing the Court’s decision. One Catholic publication called America joined in but they also made it clear this was about principle, not those evil little Jehovah’s Witness kids whom they really had no love for. Seriously. They wrote:
“Lillian and William Gobitis are inconsiderable persons. But their case is the case of
every man who holds that freedom in education and religion are our most precious rights.”
They were talking about children.
President Roosevelt helped, too, in part because he didn’t say much about the Gobitis decision in public, which suggested his disapproval. When he did talk about it, it was indirectly. Like in January of 1941, during his State of the Union address, he talked about the importance of the country upholding the Four Freedoms, the first two of which were the freedom of speech and expression and the freedom to worship God however you want. It’s not hard to read between those lines. It helped that the artist Norman Rockwell later made a series of very popular paintings celebrating those freedoms. As the country entered World War II, Roosevelt ramped up his rhetoric about spreading freedom of conscience. In fact, constitutional scholar Robert Tsai says that Roosevelt so thoroughly swamped the field with First Amendment oratory about the importance of expressive liberty that “adhering to Gobitis put a person not only on the wrong side of the Constitution, but also on the wrong side of history.”
As all this was going down, those three liberal justices who had quietly joined Frankfurter’s majority opinion admitted they screwed up. They didn’t hold a press conference or anything. But in a separate case in 1942 involving Jehovah’s Witnesses who were being charged licensing fees for distributing their pamphlets, those three justices wrote, “Since we joined in the opinion in the Gobitis Case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided.” All four of them, including Justice Stone, joined in that dissent. Their side, the side of the Jehovah’s Witnesses, lost the case 5-4, but you could see the movement in their direction.
You might wonder why on earth did it take all this backlash for them to realize what they had done? It seems so obvious to us now that they were wrong. One of those justices, Hugo Black, actually said they were all just flat-out mesmerized by Frankfurter. “Felix was an immigrant, passionate about the flag and what it meant to him. We were so moved by his appeal that we went for it.”
It’s kind of disheartening to think that Supreme Court justices can be so easily swayed by emotion over principle. Their one job is to look at the facts and use their reason and not get caught up in the pageantry of it all. But here was Black admitting that, yeah, that guy just seemed like he knew what he was talking about.
Their public change of heart made Felix Frankfurter so angry that he started calling those three justices the Axis. Which was especially troubling given that this was right in the middle of our involvement in World War II.
It also had to infuriate him to learn what the state of Washington’s Supreme Court did with a major Pledge case in front of it. The basics were not new. You had children of Jehovah’s Witnesses refusing to say the Pledge for religious reasons. They were expelled from school. But now the judges had to decide if it was legal for the state of Washington to take custody of those kids because they were deemed juvenile delinquents. The justices could very easily have said the U.S. Supreme Court ruled this way in Gobitis, so we should follow their lead, but instead, they referenced Justice Stone and said it was really hard to not quote his dissent at length because it was so clearly and forcefully stated. They said the Gobitis decision “can scarcely be deemed to have become authoritative” because three justices had already changed their minds. The decision wasn’t perfect, I should point out. They said disrespecting the flag was still illegal and should not be tolerated, but they also added that if the kids stood up during the Pledge, even if they didn’t say it, that would be fine. But still. They were saying the U.S. Supreme Court had it wrong and it was only a matter of time before Justice Stone’s view was the majority’s view. The Kansas Supreme Court later did the same thing in another case involving the Witnesses.
But keep in mind those were state courts. They could always say that while federal law said one thing, their state laws forced them to take a different or more strict approach. In Washington, for example, the law said “Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual.” By that logic, those kids had to be protected if they didn’t want to say the Pledge.
If someone wanted to overturn Gobitis once and for all, the U.S. Supreme Court had to have a new case involving the Pledge. And they couldn’t have cases resolved by state-level supreme courts, either, like the ones in Washington or Kansas. They needed a federal case. They also needed a new justice or two in order to gain a majority on the Court.
Now, as far as a new case went, there were plenty of options. With mandatory Pledge recitals across the country, there were a bunch of stories about kids getting punished for not saying it and courts not ruling in their favor. According to one history of the Pledge, by 1942, thousands of Jehovah’s Witnesses had been expelled from their schools over this matter. But one seemingly perfect case sprang up in West Virginia that year.
A month after the attack on Pearl Harbor, West Virginia’s Board of Education passed a policy requiring students and teachers to take part in Pledge ceremonies, and that policy clearly drew from the Supreme Court’s decision. It mentioned, for example, how national unity was the basis for national security. It also said that refusing to salute the flag should be regarded as an act of insubordination and dealt with accordingly.
And the policy very quickly led to the expulsion of many, many Jehovah’s Witness families, in every county in the state, including the two children of a pipe-fitter named Walter Barnette. His two girls would stand during the Pledge, but they wouldn’t say it and they didn’t salute it.
And just to make sure their case was airtight, at the advice of a lawyer, the Barnette girls kept going back to school even after they were expelled, just so the district wouldn’t punish their father for keeping them at home. Barnette didn’t actually have money to file his own lawsuit, but the Jehovah’s Witnesses had their own lawyers and the ACLU was helping out, too. So the organizations sued on behalf of the Barnette family and several others, though the truth was, they were suing on behalf of all of those Witnesses who had to choose between a public education and their faith. The Barnettes just happened to be listed first, alphabetically, among all the plaintiffs, so their name is the one associated with this case.
A little side note here: The family’s name is spelled B-A-R-N-E-T-T. But once again, some incompetent court clerk typed it in wrong. So if you ever look up this case, the family’s name is spelled with an “E” at the end of it. Moral of the story: If you ever sue over the Pledge of Allegiance, make sure you have a really easy-to-spell last name.
However it was spelled, the Barnettes won in a lower court. The district judge even said of the Pledge ceremony, “The salute to the flag is an expression of the homage of the soul. To force it upon one who has conscientious scruples against giving it, is petty tyranny unworthy of the spirit of this Republic and forbidden, we think, by the fundamental law.”
By 1943, the state had appealed the decision back up to the Supreme Court. Essentially, they were saying We did exactly what you wanted us to do so reward us for it with a victory, and also, this situation didn’t raise any concerns regarding federal law. The Witness side said yes, there are plenty of concerns, because the Gobitis decision was wrong and it was directly impacting these kids.
So we had the right case. But did we have the right judges? Because even if there were four dissenters, that wasn’t enough. Thankfully the Supreme Court was finally changing in the right direction.