8. THE COURTS AND THE CONSTITUTION

While the battle over authorship kept the Bellamy and Upham camps busy for decades, another set of conflicts over the Pledge raged with greater and greater intensity. They were not about wording or authorship, but about the use of the Pledge as a universal American expression of national loyalty and whether you could force people to say it. Detractors of the Pledge insisted that one aspect or another of what had become an unofficial national oath contradicted the Pledge’s promise of “liberty and justice for all.” Mandatory recitations, quickly common in schools and town halls throughout the land, according to these critics, violated freedoms guaranteed by the Constitution of the very Republic for which the flag stood. So far, and some scholars don’t think we’re done, legal challenges to the Pledge have taken our national oath to the U.S. Supreme Court three different times.

An ever-present backdrop to all the legal fights is the Pledge’s overwhelming and broad-based support and acceptance by Americans. In virtually every poll of adults conducted over the years, the oath gets almost universal approval. No matter how the question is posed, between 80 and 95 percent of Americans consistently judge the Pledge perfect. The wording is perfect. The manner in which it is observed is perfect. The loyalty promises expressed when saying the Pledge are perfect. The emphasis on instructing schoolchildren in universal patriotism through the ceremony of the Pledge is perfect. The legal requirement in many states to recite the Pledge is perfect.

But, this being America, the minority, however small, has rights. And it can express them. And no matter how “perfect” the Pledge and how large the majority that supports it, its very existence calls attention to one of the basic freedoms of Americans: the freedom to opt out, to dissent. The widespread approval for the Pledge is not lost on politicians who frequently “wrap themselves in the flag” to prove their patriotism. Nor is it lost on the judges who have had to weigh the often sticky issues raised by legal challenges to the Pledge against the will of such a large percentage of Americans who don’t want to see it tampered with.

Still, even though faced with such large popular odds against them, the critics of the Pledge, drawn from a wide spectrum of perspectives, from the deeply religious to atheists and from civil rights activists to pacifists, have been persistent in their belief that forced recitation of the Pledge compromises basic rights of freedom of choice—both political and religious—that the flag is supposed to represent.

New York State started this part of the argument in 1898, when it became the first state to pass a law calling for statewide adoption of a Pledge to be used in the schools.

Over the next twenty years, several states copied the New York statute and passed their own flag salute laws, including Washington State, the first to mandate the recitation of the Pledge “at least once in each week.”

In the next few years, as more and more states passed similar statutes—and as more and more local communities passed laws governing the use of the Pledge in those states that did not have statewide statutes—the mandatory nature of the laws became more and more punitive. In most cases they penalized teachers—usually by dismissal—for not leading their students in reciting the Pledge. Presumably, the state legislators thought students would automatically follow the mandatory lead of the teachers; they did not anticipate students refusing. Thus, many local school districts expanded on the mandatory requirement by adopting punishment of students who either failed to recite the Pledge or who refused to.

The common punishment for students was expulsion from school until they agreed to return with the promise to recite the Pledge. Then, by 1918, some local communities started declaring and enforcing punishment for the parents of students who refused to recite the Pledge, including fines and/or imprisonment.

And this is when local controversies developed into a national debate that ultimately spiraled into unexpectedly violent and tragic consequences.

As often happens in a democracy, especially one as unfettered and decentralized as the United States was in the late nineteenth and early twentieth centuries, the Pledge laws came about as popular, almost spontaneous, local expressions and were generally enacted as a patriotic response to some historic event or social movement or political fear of the time. The 1898 New York State statute, for example, was enacted as a display of patriotic solidarity the day after the United States declared war on Spain. One hundred and three years later, following the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, nearly a dozen states that previously did not have Pledge statutes passed them, bringing to forty-six the number of states with laws on reciting the Pledge.

Also, in the early part of the twentieth century, beginning in 1919 and throughout the 1920s and 1930s, there was a general concern about the effects of the Bolshevik Revolution in Russia and the growing incidents of radical political activity in the United States. As minor cracks in the concept of “indivisible” were noticed, there were increasing calls for public displays of loyalty that activities like the Pledge provided. And state and local laws followed.

But the personal convictions of some people found an untenable conflict with those laws. And no matter how popular mandatory recitation laws were, an increasing number of people saw them as stepping on the toes of their constitutional rights of freedom of personal choice and action—and used the principles that the Pledge espoused to fight its mandatory use. Only in America!

Although the use of the Pledge, and the laws that required it, grew fairly rapidly, there are few recorded incidents of protest against the Pledge until 1912. The deficit could be attributed to the fact that there wasn’t any dissent or, more likely, news of any such protest was considered so minor that no one paid much attention. Considering the fact that what we today consider obvious violations of the First Amendment guarantees of free speech and press went almost unnoticed until the 1920s (the American Civil Liberties Union was formed in 1920 in large part to rectify this oversight), it is surely not a historical stretch to think that objections to the Pledge were both few and far between—and unremarked upon—for quite some time after its use became widespread.

Oddly enough, the earliest recorded incidents of protests—almost all of which involved schoolchildren who were required by state or local law to recite the Pledge—concerned foreign nationals who, although they resided in the United States and attended American public schools, still felt loyalty to their native flag of citizenship. To pledge allegiance to the symbol of the United States would, they argued, force them to, in effect, renounce a flag and country with which they felt greater alliance. And, in fact, swearing allegiance to a “foreign” flag would make them traitors to their own countries.

Though this may sound positively traitorous today—and it would sound even more so as soon as the United States entered World War I—it should be noted, again, that historic context suggests otherwise. Despite healthy nationalistic beliefs—the cause of countless wars—laws and customs relating to citizenship and patriotism have not always been so, well, nationalistic. The Romans were thought to have invented the notion of formal citizenship as a way to legitimize their empire-building. And birth in a country has long been considered to automatically impart citizenship. But “citizenship” and “patriotism” didn’t mean much except in times of empire-building, war, or for purposes of taxation in the dividing and redividing that had characterized European history.

The history of loyalties within the United States is something unique. We expect loyalty to the United States as a whole; to the individual State of birth or adoption; and, of course, to the individual and his or her “inalienable rights.” There are also regional loyalties, which at the time of the Pledge’s creation remained intense in the decades following the end of the Civil War. Southern states and local communities of the former Confederacy did not join in on the early push for mandatory Pledge participation with the same enthusiasm as their Northern counterparts, perhaps in an unstated ambivalence about requiring allegiance to a nation that Southern sentiment continued to question for years after the end of the Civil War.

The notion of national loyalty for loyalty’s sake, the patriotic “my country right or wrong,” is at the heart of the mandatory Pledge of Allegiance laws and a relatively new, at least inconsistently enforced, phenomenon. Europeans, for example, didn’t need passports until World War I. The United States, of course, was created by “foreigners,” and so had to invent forms of citizenship and nationalism as it went. Various American states and localities often created their own “passports” at different times in our history and for different reasons. And, as we have seen, “Americanism,” as Francis Bellamy told the National Education Association in 1892, was a significant part of what the country needed to define. But though Bellamy was able to capture Americans’ urge to unity, it was still very much an urge-aborning.

Still, the United States, despite trends and popular sentiment to the contrary, remains deeply suspicious, if ambivalent, about forced allegiances. To this day, for instance, the United States allows “dual citizenship.” And the U.S. Supreme Court, as late as 1952 (Kawakita v. United States), ruled that dual citizenship is a “status long recognized in the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact he asserts the rights of one citizenship does not without more mean that he renounces the other.”

Even if this were the official belief, it’s not one that was exercised on the ground where most Americans live—and still live. Thus, initial reactions to refusals to recite the Pledge were often handled harshly by officials of local communities. During one such incident in New Jersey in 1912, for instance, a student who refused to say the Pledge was expelled with an admonition from a school board member that the student:

should go to a private school and pay for his tuition or go back to Canada or England. But if we make an exception in his favor I suppose that any anarchist might refuse to salute the flag.

Indeed, while this school board member expressed a sense of an implied threat from an “anarchist” when a non-U.S. citizen objected to reciting the Pledge, another New Jersey community during the same year had to contend with the objections of a self-professed political “radical.” In this situation a boy refused to participate in the Pledge ceremony because he claimed that his parents were Socialists who only held allegiance to the “Red flag.” And while political objections of this sort arose, other perspectives offered a different set of objections. In 1916, for example, a black elementary-school student in Chicago refused to Pledge to the flag because the flag represented to him a country purposely oppressive toward black people and not representing the “liberty and justice for all” that the Pledge celebrated.

In each of these early incidents, the local officials, after much huffing and puffing that included expelling the students from school—and in the case of the Chicago student, arrest and trial—the students were quietly let back into school and not forced to participate in the Pledge.

The next wave of challenges would be more serious and prove to be the source of the legal battles that would ultimately take the question of mandatory pledging to the U.S. Supreme Court. These challenges would be based primarily on religious grounds. The first major religious opposition to the Pledge came from the Mennonites, an Anabaptist and generally conservative religious sect that was also adamantly antiwar in all forms. And in 1918, as the United States was entering World War I, the group found in the Pledge a perfect symbol with which to express their pacifist beliefs. (The Amish, or Amish Mennonites, are a separate sect, having broken from the Mennonites in the late seventeenth century. Amish and Mennonite communities, however, are often found clustered together geographically throughout the world.)

The Mennonite objection to the Pledge in 1918 was summarized by one of the sect’s leaders:

Pledging allegiance to a flag as we see it, though we honor and respect it, at least implies a Pledge to defend it against all its enemies, which would mean to resort to arms and to take human life.

One of the first tests of the Mennonite position came in 1918 when a Mennonite father in Ohio was prosecuted, convicted, and sentenced to a twenty-five-day jail term because he had told his nine-year-old daughter not to recite the Pledge at school. The child was sent home each day she refused to say the Pledge and the father was convicted of allowing his child to be truant from school. The father, in appealing this conviction, argued that he did not keep his child home from school but had, in fact, sent her to school every day. It was, he claimed, the school that had sent her home.

The appeals court took the side of the lower court, concluding that if the father had not told the child to refuse to say the Pledge, she would not have been sent home and, therefore, it was the father’s fault the child was truant. The court also offered a stern lecture on the patriotic importance of reciting the Pledge:

Such conduct on the part of our citizens is not conscionable, for conscience would lead to respect for government and to its defense, especially in time of war, but rather it is the forerunner of disloyalty and treason.

For decades, similar court rulings prevailed over comparable religious objections to the Pledge. But none of these cases reached a boiling point of national attention. This was due in large part to the fact that nearly all of these early cases were settled quietly and on a local level. Often the conflict was resolved simply by allowing the student to delay coming to school until after the morning Pledge ceremony was performed.

During the 1920s, however, groups on both sides of the issue—one demanding universal mandatory adherence to reciting the Pledge, the other demanding voluntary involvement that permitted abstention from the ceremony when it compromised personal convictions—began polarizing in stronger and stronger ways.

On the Pledge support side, groups such as the American Legion, the VFW, and the DAR lobbied successfully to broaden and strengthen state statutes requiring the Pledge. They also pushed to force local communities to enforce the statutes. These efforts picked up speed and intensity following the National Flag Conferences of 1923 and 1924—at the same time that Francis Bellamy was beginning to defend his authorship of the Pledge. These conferences, sponsored by the United States Flag Association, provided the first “official” nationwide guidelines for proper flag etiquette—although it wouldn’t be until 1942 that the federal government would adopt truly official guidelines—and would galvanize supporters of the Pledge.

On the other side of the issue, the American Civil Liberties Union (ACLU), formed to defend First Amendment rights, took up the issue as a cause. And though Pledge opponents weren’t as well organized or well funded as those supporting the Pledge, in the early 1930s one religious group emerged with the resolve—and, more importantly, the resources—to ultimately bring the issue to a head in the U.S. Supreme Court: Jehovah’s Witnesses.

The Jehovah’s Witnesses, a Christian sect that today has a worldwide membership of some seven million followers, was founded in the late nineteenth century as the Zion’s Watch Tower Tract Society. Changing its name to Jehovah’s Witnesses in 1931, the group may seem an unlikely champion of First Amendment rights. But the fervently evangelical antiestablishment group had already been the object of mob violence for its contentious views on Catholics. Its “unpatriotic” beliefs included simple spurning of political involvement to pacifist opposition to military service. During the height of World War I, in May 1918, the president and board of directors of the Witnesses were indicted by the U.S. government for violating the Espionage Act. The indictment accused the heads of the group with conspiring to cause disloyalty to the United States and refusal of military duty. They were found guilty and sentenced to twenty years’ imprisonment. However, in March 1919, the judgment against them was reversed, and they were released from prison and the charges later dropped.

Still, these were long odds for a small religious group that was uncompromising in its positions against a force as powerful as the federal government. But the odds got much better when, in 1916, the group chose a leader who had an unusual credential for a religious chief: he was a lawyer—and a damn good one.

Joseph Rutherford was born in 1869 and showed an early interest in the law, working his way through college as a court stenographer and later becoming a trial lawyer and prosecutor in his home state of Missouri. He was drawn to the Watch Tower Society doctrines in his early twenties. In 1906 he became a baptized Bible Student and the following year became the legal counsel for the Watch Tower Society.

Rutherford’s understanding of the court system, constitutional law, and the rights of the individual under the law was so astute that he was soon nicknamed “Judge” Rutherford by both his supporters and his adversaries. Although Rutherford spent time in prison during the group’s run-in with the federal government in the Espionage Act conviction, the masterful way he faced that legal battle and many others over the decades became a model for small groups and individuals seeking to establish their societal rights against heavy odds via the court system. (Besides his legal acumen, Rutherford is credited with devising the system of requiring all Witnesses to distribute literature and preach door to door under a centralized organized system.)

Under Rutherford’s leadership the Jehovah’s Witnesses did not simply react to perceived government intrusions; the group pursued an aggressive, proactive strategy of seeking out ways to limit government power—because all government, Rutherford believed, was an essentially evil force (ruled directly by Satan) that would be destroyed during Armageddon. Rutherford’s attitude about government is said to have hardened as a result of his Espionage Act conviction and imprisonment.

The Witnesses objected not only to military service and reciting the Pledge, but to all government-dictated signs of acquiescence. And it was Rutherford who preached a virulent objection to what he perceived as the “idolatry” practiced by Catholics, themselves a persecuted minority until the great migration of the late nineteenth and early twentieth centuries.

Needless to say, the Witnesses became the focus of considerable hostility within many American communities. And it didn’t help the group’s reputation that they were committed to promoting their beliefs by going door to door, especially on Sunday, and distributing printed publications such as the group’s semimonthly magazine, Watchtower. In fact, many local communities tried to abolish the practice by applying antipeddling ordinances to the Jehovah’s Witnesses. Members were routinely fined, arrested, and often imprisoned under these laws.

While many Witnesses initially accepted this treatment as a sort of martyrdom for their religious commitment, Rutherford and others became increasingly militant. They considered their treatment unfair and illegal, and by the 1930s began a coordinated offensive against the various attacks on the sect’s members. Unpopular, small in size, and lacking any type of political influence, the Jehovah’s, through Rutherford, came to believe that their best ally was part of the evil government itself: the judicial system.

The legal arguments the Witnesses emphasized in all their cases centered on constitutional protections of freedom of the press (for the cases involving distribution of their printed materials), freedom of speech, and freedom of religion.

In 1935 the Jehovah’s Witnesses embarked on a focused campaign against the Pledge. This concentrated effort was sparked by two events.

First, Nazi Germany began its persecution of Witnesses when they refused to perform the “Heil Hitler” salute. (This persecution ultimately resulted in some ten thousand Witnesses being sent off to concentration camps.) The Witnesses saw similarities between that enforced action of the Nazis and the mandatory American flag Pledge of the outstretched hand. It made little difference that the American arm salute had the palm facing upward and the Nazi salute had the palm facing downward; the similarities were far too striking to be ignored.

Second, Carleton Nicholls, Jr., a Witness student in Lynn, Massachusetts, was expelled from his public school in September 1935. Not only was the eight-year-old boy expelled for not saying the Pledge, but his father and a friend of his father’s (a non-Witness who was a nephew of the philosopher William James) showed up one day in the classroom with the boy and all three of them refused to participate in the Pledge ceremony. The police were called. The two adults were roughed up, arrested, and trotted off to jail.

Witness leader Rutherford used a scheduled October 6, 1935, radio speech to express his outrage about the Nicholls case. He linked it to the growing persecution of Witnesses in Nazi Germany and warned that a flag salute of any type, to any nation, was an act of true evil. Rutherford told his followers that the nations of the world “are under control of Satan the Devil” and that the flag salute delivered a Witness into the arms of the devil:

The law of the nation or government that compels the child of God to salute the national flag compels that person to salute the Devil as the invisible god of the nation.

The Rutherford speech was a “call to arms” for Witnesses to begin an aggressive stand against participating in the Pledge ceremony. But given the oath’s widespread popularity and the already contentious reputation of the Witnesses, it’s not surprising that Rutherford’s words were greeted with ferocious antipathy by both the general public and the judges who were called upon to rule in cases that the Witnesses were able to get into court.

In the Carleton Nicholls case against the school district of Lynn, the Massachusetts Supreme Court ruled unanimously in favor of the school board and confirmed the right of the school to expel students who refused to participate in the Pledge salute. Moreover, the court, in its written decision, adamantly found no violation of religious freedom in a mandatory obligation for reciting the Pledge:

The flag salute and Pledge of allegiance here in question do not in any just sense relate to religion. . . . They do not concern the view of any one as to his Creator. They do not touch upon his relations with his Maker. They impose no obligations as to religious worship. . . . There is nothing in the salute or the Pledge of allegiance which constitutes an act of idolatry, or which approaches to any religious observance. It does not in any reasonable sense hurt, molest, or restrain a human being in respect to “worshipping God” within the meaning of the words in the Constitution.

Of the dozen major cases that the Witnesses were involved in against school districts, most of the court decisions echoed the Nicholls opinion by the Massachusetts high court: there was nothing at all religious about the Pledge or the requirement that it be recited; it was, instead, a rightful patriotic act. In this case and in most of the Witnesses’ other court battles the group was supported by the ACLU, which had its roots as an advocacy group defending conscientious objectors to military service during World War I. Formed in 1920 with a stated mission “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States,” the ACLU has pursued this goal through the court system with a diligence that has frustrated many a “patriot.”

The early cases that the Witnesses and the ACLU pursued yielded very little court agreement with their perspective. In fact, a few courts added the opinion that people who were willing to partake in free public education should be required to follow the rules of the public school system. For example, a decision of the New Jersey Supreme Court in a Jehovah’s Witnesses case put it bluntly: “Those who do not desire to conform with the demands of the statute can seek their schooling elsewhere.”

This is indeed what happened. As more and more Jehovah’s Witnesses children were expelled from the public school system, the Witnesses started setting up “Kingdom Schools” in several states that had been chosen by Rutherford’s legal team as possible places that would get them the prize they were looking for. Namely, the chance to take their argument to the U.S. Supreme Court. They could then focus on Witness children in the public school without worrying that they would miss an education while their elders fought over them in court.

Finally, while the number of Kingdom Schools grew to accommodate the larger numbers of Witness children expelled from public schools across the nation, the Witnesses and their partner the ACLU found the case they were looking for in Minersville, Pennsylvania, a small town located halfway between Harrisburg and Allentown in the heart of Pennsylvania’s hardscrabble coal mining country.

The case started when, following the appeal of Rutherford’s October 1935 radio address to abstain from the Pledge ceremony, Witness member Walter Gobitas told his children, William and Lillian, not to say the Pledge at school. (Though the family’s last name was Gobitas—spelled with an a not an i—because of a typo in the papers of the initial court filing, the misspelling is forever frozen in legal history; for consistency we will use “Gobitis” when referring to the family and the case throughout the remainder of this book.)

Ultimately, the Gobitis case would reach the Supreme Court in the Pledge’s first national test of its constitutionality.

As soon as the Gobitis children were expelled from the Minersville school—on November 6, 1935, when the family presented its Pledge objections to the local school board, which rejected their arguments, which prompted the superintendent to stand up and expel them on the spot—the legal team at Witnesses headquarters in Brooklyn jumped at the opportunity to see this case through the court system.

They knew the legal situation in Pennsylvania was different from other jurisdictions.

For one thing, the Keystone State did not have a statute compelling Pledge compliance for its public school students. The Minersville school district followed the ceremony out of custom, which included, coincidentally, the school district superintendent’s adamant requirement of adherence to that custom. Thus, expelling the Gobitis children was more “arbitrary and capricious” than in states with specific laws.

Also, the Witnesses gambled that there was a larger than normal support of their position among the general public in southeastern Pennsylvania, which had an unusually high percentage of antimilitarian Quakers than nearly any other place in the nation. And, in fact, this assumption was true. There was a small, but growing, tolerance of the Witnesses’ perspective. So when Lillian Gobitis stood up in class and declared that she would not recite the Pledge, her teacher embraced the child and commended her on her valor. Then, as school officials dug their heels in deeper in their insistence on their position, local newspaper editorials started expressing support of voluntary acceptance of the Pledge ceremony.

The Witnesses’ gamble paid off when the federal judge randomly assigned to the case turned out to be a Quaker. It was clear from the beginning of the arguments in the case that Judge Albert Branson Maris had absolutely no sympathy for the Minersville school district’s position.

And in his 1938 decision, nearly three years after the matter started, Judge Maris did not mince words about a mandatory Pledge of Allegiance:

. . . the flag salute by children who are sincerely opposed to it upon conscientious religious grounds is not a reasonable method of teaching civics . . . but tends to have the contrary effect upon such children. . . . 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.

This was a major victory for the Witnesses and the ACLU and it introduced into the debate what had not been allowed by all the other previous judicial determinations: that forced patriotism could violate a religious belief. Up to now the courts deemed the Pledge debate a secular one because nothing in the Pledge, or in its forced recitation, mentioned God or religion. Judge Maris had ruled that it was enough that certain people, in this case the Witnesses, believed that a political practice could violate a religious belief.

The Minersville school board reacted by immediately filing an appeal on the decision. In late 1939, four years after the initial incident, the appeals court upheld the Maris decision and confirmed the ruling against the Minersville school district.

Because the Witnesses won on this appeal, it meant that they would not be able to take this particular case on to the U.S. Supreme Court as the test case they had been hoping to find.

But in an odd chain of events, the Minersville school board, angered to fury and now financially backed by the American Legion as well as a now-defunct group called the Association of Patriotic Societies of Schuykill County, voted to apply to the U.S. Supreme Court to reconsider the case. And in early 1940 the Court agreed to hear it.

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