West Virginia State Board of Education v. Barnette
Supreme Court of the United States
Argued March 11, 1943
Decided June 14, 1943
Justice JACKSON delivered the opinion of the Court.
. . . The Board of Education on January 9, 1942, . . . order[ed] that the salute to the flag become “a regular part of the program of activities in the public schools,” that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly.”[1]
The resolution originally required the “commonly accepted salute to the Flag” which it defined. Objections to the salute as “being too much like Hitler’s” were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the Federation of Women’s Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah’s Witnesses. What is now required is the “stiff-arm” salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.”
Failure to conform is “insubordination” dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile the expelled child is “unlawfully absent” and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days.
. . . [C]itizens of the United States and of West Virginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah’s Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: “Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.” They consider that the flag is an “image” within this command. For this reason they refuse to salute it.
Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted and are threatened with prosecutions for causing delinquency.
. . .
. . . [T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. 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.
. . .
Nor does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. It is not necessary to inquire whether non-conformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.
. . . The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution.
. . .
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.
. . .
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.
Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion 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 to 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 us.[2]
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.
. . .
Affirmed.
Justice MURPHY, concurring.
I agree with the opinion of the Court and join in it.
The complaint challenges an order of the State Board of Education which requires teachers and pupils to participate in the prescribed salute to the flag. . . . In effect compliance is compulsory and not optional. It is the claim of appellees that the regulation is invalid as a restriction on religious freedom and freedom of speech, secured to them against State infringement by the First and Fourteenth Amendments to the Constitution of the United States.
A reluctance to interfere with considered state action, the fact that the end sought is a desirable one, the emotion aroused by the flag as a symbol for which we have fought and are now fighting again,-all of these are understandable. But there is before us the right of freedom to believe, freedom to worship one’s Maker according to the dictates of one’s conscience, a right which the Constitution specifically shelters. Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.
The right of freedom of thought and of religion as guaranteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all, except insofar as essential operations of government may require it for the preservation of an orderly society, as in the case of compulsion to give evidence in court. Without wishing to disparage the purposes and intentions of those who hope to inculcate sentiments of loyalty and patriotism by requiring a declaration of allegiance as a feature of public education, or unduly belittle the benefits that may accrue therefrom, I am impelled to conclude that such a requirement is not essential to the maintenance of effective government and orderly society. . . . Official compulsion to affirm what is contrary to one’s religious beliefs is the antithesis of freedom of worship which, it is well to recall, was achieved in this country only after what Jefferson characterized as the “severest contests in which I have ever been engaged.”
Justice FRANKFURTER, dissenting.
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 whole-heartedly 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 obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the “liberty” secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.
Exercise 2.1.
In Barnette, the Court held that the First Amendment prevents school officials from compelling a student to stand and salute the flag during the Pledge of Allegiance. Although public schools may continue to have a Pledge of Allegiance ceremony every morning, students may not be forced to participate or be punished for not participating. Do you think this decision was right? Write a one-page statement on your assessment of the majority’s opinion in West Virginia v. Barnette. Was it right or wrong? Why? Read your reactions aloud and talk about them.
Exercise 2.2.
What does the American flag represent to you? Does the flag have a single meaning or multiple meanings? If someone decides to sit out a flag salute, does it diminish the meaning of the flag in your eyes? Does it diminish the person in your eyes? What reasons might a student have for not joining in a flag salute? Do you think that businesses like Ralph Lauren, Speedo, and Tommy Hilfiger should be able to use the American flag as part of their clothing and advertising and to put it on products like underarm deodorant? Explore the use of the flag in advertising and popular culture.
Exercise 2.3.
In Texas v. Johnson (1989), the Supreme Court upheld the right of the people under the First Amendment to use the American flag for expressive purposes, including even the burning of a flag at a demonstration in order to protest government policy. Since that time, there have been several attempts to add to the Constitution language that would give Congress power to enact a law making it a crime to burn or desecrate the flag. Congress has voted several times on versions of the following proposed amendment:
“Congress shall have power to prohibit physical desecration of the flag of the United States.”
Although he proposed “Flag Amendment” has repeatedly won two-thirds majorities in the House of Representatives, it has consistently fallen just short of the two-thirds mark in the Senate. (Article V of the Constitution provides that new amendments must be passed by a two-thirds vote in both the House of Representatives and the Senate and then ratified by three-fourths of the states.)
The issue of flag desecration is not going away. But what does “desecration” mean? Look it up. Is it clear that flag burning is a form of desecration? Federal law today actually recommends burning flags as the proper form of disposal. Indeed, any boy scout or girl scout knows that this is proper flag protocol!
Pretend that you and your classmates are members of the Senate Judiciary Committee once again considering the proposed Flag Desecration Amendment. Research Texas v. Johnson and the pros and cons of the proposed constitutional amendment to ban flag desecration. (Check magazine and newspaper articles, as well as Internet commentary.) Prepare a speech on how you plan to vote and why.
For the Class
The All-American High School Fight Song. All-American High School has a school anthem “fight song” that is played and sung at athletic events. The school requires all students to stand and sing the words. Adam and Betty are high school juniors who wear tye-died shirts and are avid vegetarians. They love to watch the All-American High football team games, but they refuse to stand and sing the fight song because they think that sports should be played for fun, noncompetitively, without winners and losers. They think that the fight song is too aggressive and has excessively macho lyrics. (They particularly object to a line that says, “All-American, let’s all hail/ Let’s go kick some Eastern High tail/When we fight, fight, fight/ They’ll all start to bail/ All-American, hail, hail, hail!”)
The school principal asserts that “Adam and Betty are causing a disturbance by setting a bad example for younger students and undermining school spirit.” He suspends them for one day for failing to stand and sing. The school also bars them from going to football games until they agree to participate in the song with the rest of the school. Adam and Betty go to federal court to get an injunction–that is, an order from a court commanding or preventing an action–overturning their one-day suspension and the principal’s order banning them from games. The district court judge strikes down the discipline but the appeals court reinstates it. Now the case is in the Supreme Court.
Select two teams of two students each to argue the case. One team should represent Adam and Betty and the other team should represent the school system. Then select nine students to serve as Supreme Court justices. The student-attorneys should compose ten-minute oral arguments to present before the Court to explain why the Barnette decision supports their position. (Try not to read your arguments, but speak from the heart based on an outline.)
During oral argument, the justices may jump in and interrupt at any time to ask questions about the attorneys’ positions and their implications. Attorneys should answer the questions to the best of their abilities and try to keep the Court focused on their main arguments. (This process of active questioning teaches you to think on your feet and is good practice for future lawyers because this is what actually happens in oral argument in the Supreme Court and lower courts.) The chief justice should keep time and call the attorneys to argue before the bench.
At the end of the oral argument, the nine justices should meet secretly and return to deliver their opinion. Recall that it is perfectly acceptable to have a majority opinion with separate concurring opinions and a dissenting opinion (or several). Each student-justice should carefully explain his or her reasoning.
Hints for your first oral arguments: Be creative and have fun! Attorneys arguing for the right not to stand and sing along might consider arguing on the basis of the Barnette holding that citizens are free not to be forced to speak against conscience even in the face of majority insistence. Voltaire is quoted as saying, “I disapprove of what you say, but I will defend to the death your right to say it.” What values are served by a community’s toleration of dissenting opinions? Is there a danger to coercing individual conformity in this way? What passages from Barnette can you quote on your side?
Attorneys for the school system arguing that Adam and Betty have no right to refuse to participate can distinguish this case from Barnette by explaining how it does not involve rights of religion or conscience. They might point out that students are asked to do things all of the time that they may disagree with (like homework) and that finding a right to refuse to participate in this case would lead down a “slippery slope” that would end with students getting out of doing anything they disliked, like writing essays on books that they disapprove of or taking tests on human evolution when they believe in creation. Moreover, Barnette focused on freedom of thought in politics and nationalism, but nothing so exalted is at stake here. Brainstorm what could happen if the precedent were set that students could get out of required exercises whenever they disagreed with them.]
Soft Drinks, Hard Choices. Hypothetical High School enters a national competition sponsored by Coca-Cola in which it tries to show its “Coca Cola pride” in order to receive various educational tools, such as computers and printers. On the appointed day, all Hypothetical High students wear a Coca-Cola T-shirt (donated by the company) to school–that is, all students except senior cut-up Randy Rabblerouser, who wears a Pepsi T-shirt. When told by the principal to take it off and put on a Coca-Cola T-shirt, he says, “I’m no robot, man.” Randy is suspended for two days for refusing to follow the rules and policies of the school. He goes to federal court to ask for an injunction against his suspension.
Divide the classroom into two teams of students and argue before a panel of three (student) federal district judges whether the suspension is constitutional or not. How do you rule and why?
[This exercise is based on actual events that took place in Georgia. In fact, an increasing number of public high schools are signing big-dollar contracts with large corporations, selling them exclusive rights to sell and market their products on campus and at athletic events. For example, the Martin County, Florida, school district a few years ago okayed a $155,000—contract between South Fork High School and Pepsi-Cola in which South Fork contracted to “make its best effort to maximize all sales opportunities for Pepsi-Cola products.”]
Class Exercise:
Channel Fun. The Medium County Public School System has installed a television in every one of its schools’ classrooms. The televisions were donated by the for-profit corporation Channel Fun in return for Medium County Schools’ promise to broadcast daily in each homeroom at least seven minutes’ worth of Channel Fun programming, which includes news and sports reports, commercials for fast food and candy, and a segment entitled “Tips for Teens.” Saying that they “refuse to be part of this commercial sell-out of our education,” ninth- graders Sarah Sassy and Robert Rad walk out of the classroom whenever the television is turned on. They are suspended from school after they are told to stop their protest, but they continue walking out. Sarah and Robert appeal their suspensions to federal district court.
Form two teams of students and argue whether the suspensions of Sarah and Robert should be struck down on First Amendment grounds or whether the school acted reasonably within its powers. What language in Barnette do you cite for your position? Select a panel of three federal appeals court judges to determine whether Barnette protects the students’ right to walk out.