9. A VICTORY FOR JEHOVAH

The first oral arguments about the Pledge were presented to the U.S. Supreme Court on April 25, 1940. While the number of incidents of protest over the Pledge had grown over the previous several years and spread to many communities, the controversies were viewed as isolated local problems. Local, that is, until Minersville School District v. Gobitis reached the Supreme Court.

Now the American public had started to pay attention to the issues underlying the opposing views. In part, the American psyche was turning away from the consuming financial concerns of the Great Depression and was increasingly focused on troubling world events and the related role of nationalism—both within the United States and abroad. Newspapers followed the case with blow-by-blow descriptions. Editorials in newspapers, general magazines, as well as scholarly and special-interest publications started expressing opinions and strong support of one side of the issue or the other.

“Judge” Rutherford presented part of the oral arguments himself in front of the Supreme Court in defense of the Witnesses’ position. The Witnesses had picked up outside support beyond the help of the ACLU when the Bill of Rights Committee of the American Bar Association filed an amici curiae (friend of the court) brief in support of the Witnesses. “[T]he compulsion of a child to participate in a ceremony which he considers idolatrous worship cannot be brushed aside as raising no issue of religious liberty,” it said. As David Manwaring pointed out in his classic 1962 work, Render Unto Caesar: The Flag-Salute Controversy, the brief, thought to be written by Harvard professor Zechariah Chafee, Jr., was “a direct assault on the bases of [Justice Felix] Frankfurter’s Gobitisopinion. . . . Chafee also slapped at Frankfurter’s reliance on the political processes to correct abuses, noting the political helplessness of Jehovah’s Witnesses.” Wrote Chafee: “Such a small religious group is very unlikely to attain sufficient voting power to overthrow compulsory flag salute laws. It must obtain protection from the Bill of Rights, or nowhere.”

The Witnesses arguments repeated the basic positions that had been successful in the lower courts in Pennsylvania; namely, that they were allowed by the First Amendment to practice their religion. And they were protected under the Fourteenth Amendment from being singled out as a group by state or local laws for special adverse treatment. The Fourteenth Amendment, passed after the Civil War to protect the rights of newly freed slaves from discriminatory state and local laws, had become a powerful tool to protect minority groups by extending national rights to all localities. In many ways, the amendment was the straw that broke the back of the states’ rights camel and would become an especially powerful weapon in the civil rights dramas of the 1960s.

The Minersville school board lawyers argued that the Pledge did not violate religious freedom because it made no reference to a religious matter. “The act of saluting the national flag at daily school exercises can not be made a religious rite by the respondents’ mistaken interpretation of the Bible,” argued Minersville. There was nothing wrong in teaching children, even requiring them to learn, a little national loyalty. It was not just good for the country, it was a necessity:

Any breakdown in the esprit de corps or morale of this country may conceivably have a more devastating effect upon the nation than a catastrophe resulting from disease, breach of peace, or even an invasion of the realm.

The briefs were presented and the oral arguments made in late April 1940. And over the next month, the justices wrangled.

Often during Supreme Court deliberations a single individual justice will emerge as a highly influential, dominant figure on a case, setting the decision-making path in a particular direction. In the Gobitis case, Justice Frankfurter served in that role. And it was an unexpected one.

Frankfurter, a nonpracticing Jew whose father was a rabbi, moved with his family to the United States from his native Austria in 1894 at the age of twelve. His family settled in the predominately Jewish neighborhood of New York City’s Lower East Side. Knowing no English, Frankfurter struggled along with other immigrants to assimilate into American life and, in Horatio Alger style, broke anti-Semitic barriers, excelled at P.S. 25 on the Lower East Side, and went on to graduate from the City College of New York before going to Harvard. He graduated with a law degree from Harvard Law School in 1906 and would later became a professor at Harvard, specializing in administrative law, but not before throwing himself into politics. Frankfurter campaigned for Theodore Roosevelt’s Bull Moose Progressive Party in 1912 and was one of the founders of the American Civil Liberties Union, which, of course, would become a principal legal ally of the Jehovah’s Witnesses in their anti-Pledge campaign.

With his academic credentials and liberal political perspective, Frankfurter found a place in President Franklin Roosevelt’s New Deal government, serving as an informal, yet influential White House adviser at the beginning of the New Deal. In 1938, Roosevelt appointed Frankfurter to the U.S. Supreme Court.

Frankfurter’s appointment to the Court came on the heels of Roosevelt’s unsuccessful attempt the year before to expand the number of Supreme Court justices in order to tip the balance of ideology on the court so that its rulings would be more sympathetic to Roosevelt’s New Deal agenda, some of which the Court had rejected. Roosevelt wanted an immediate and expanded opportunity to appoint his own judicial allies and counter the influence that he derisively called the “nine old men.” Ironically, federal judges, including Supreme Court justices, were holding on to their positions longer than usual because in the early 1930s Roosevelt had been successful in cutting the pensions of retired judges in half.

Roosevelt claimed that presidents had the power to appoint additional Supreme Court justices for every sitting member over the age of seventy and a half, up to a maximum of an additional six judges. The proposal, famously dubbed the “court-packing plan,” was soundly defeated—the Senate voted 70 to 20 to send the bill back to the Judiciary Committee, from which it did not reemerge.

Beginning in late 1938, however, the natural forces of death and voluntary retirement ultimately gave Roosevelt the opportunity to shift the political perspective on the country’s highest court. While it is generally agreed that Roosevelt didn’t achieve his full goal of majority control of the Supreme Court until 1941, his appointment of Felix Frankfurter was considered at the time to have been an important step in the process.

Frankfurter had been on the high court’s bench for less than two years when the Gobitis case arrived, and it was expected that his perspective would favor his ACLU roots and the Witnesses. But when the decision was announced, on June 3, 1940, it was clear that Frankfurter, who authored the decision, had switched hats. He had suddenly become a supporter of “judicial restraint,” which was the tendency to uphold a law whenever possible, even when a constitutional right might have been violated, in order to support local legislative prerogative. In fact, though the term had been around since the nineteenth century, Frankfurter would become known as a “model of judicial restraint” because of his stand in the Gobitis case. He favored filtering national rights through the laws enacted by local elected officials, the Fourteenth Amendment notwithstanding. Judicial restraint, Frankfurter and others believed, was the best way of ascertaining the correctness of the collective wisdom, the will of the people. The intricacies of his judicial restraint philosophy were often lost on the general public, but in this case, it meant that the Minersville School District won. While the exercise of judicial restraint in the Gobitis case would later spark further controversial actions, most notably in the high court’s 2000 decision to intervene in Florida to guarantee that George W. Bush would win the presidency, Gobitis set the standard by which future cases would be judged.

In the 8 to 1 Gobitis decision, Frankfurter showed the concept of judicial restraint in action by expressing a firm reluctance to interfere with existing local laws. “The courtroom is not the arena for debating issues of educational policy,” he wrote. The language of the decision implied, and was certainly interpreted by many people at the time, that the need to establish national unity among citizens was more important than the possible, but unreasonable, positions of individual liberties. “National unity is the basis of national security,” he wrote. “To deny the legislature the right to select appropriate means for its attainment presents a totally different order of position from that of the property of subordinating the possible ugliness of littered streets to the free expression of opinion through handbills.”

Frankfurter also rejected the claim that mandatory compliance with saluting the flag compromised religious beliefs:

Conscientious scruples have not, in the course of the long struggle for religious freedom toleration, relieved the individual from obedience to a general law.

Then Frankfurter expressed a specific opinion about the flag and its importance as a symbol:

The flag is the symbol of our national unity, transcending all internal differences.

The sole dissenter in the Minersville decision was Justice Harlan F. Stone, a Calvin Coolidge appointee who had served on the Court since 1925. Perhaps one of the most conservative members of the court at the time, Stone emphatically rejected the notion that “national unity” trumped individual freedom:

The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them. . . . The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say. . . .

Stone’s lone voice of dissent was drowned out by a wave of fury and violent actions against the Jehovah’s Witnesses.

Thousands of Witness children were expelled from schools across the nation. In some communities, Witnesses were rounded up and jailed for sedition or run out of town. A sheriff in one Southern town who had helped escort some sixty Witnesses to the city limits famously remarked to a reporter, “They’re traitors. The Supreme Court says so. Ain’t you heard?”

The ACLU recorded violent actions against Witnesses in some three hundred communities across the nation, ranging from an incident of tarring and feathering a Witness in Wyoming to castration of a Witness in Nebraska to public beatings overseen by police and city officials in Texas and Illinois.

One of the largest displays of violence occurred just a few days after the Supreme Court decision, when a mob of some twenty-five hundred people in Kennebunk, Maine, rampaged through the town, attacking Witnesses’ homes and ultimately sacking and burning down the town’s Kingdom Hall, the name of the groups’ place of worship. A similar mob of some one thousand people stormed the Kingdom Hall in Klamath, Oregon.

Eleanor Roosevelt made a public plea for calm and called for a halt to the violence against the Witnesses.

Newspapers and magazines debated the issue at length on their editorial pages. Increasingly, as the violence got uglier, the mood changed to expressions of doubt about the Supreme Court’s decision. This was particularly true among religious publications. For example, the Christian Science Monitor said:

A voluntary unity of 99 per cent makes the flag a more impressive symbol than an artificial “unity” of 100 per cent.

Felix Frankfurter’s friends at the ACLU and The New Republic, a liberal periodical that he had written for prior to joining the high court, were particularly critical of the decision, thus isolating Frankfurter from the liberal mainstream that dominated Washington during the Roosevelt years. And within a few months of the barrage of violence against the Witnesses and editorial condemnation of the decision, three of the justices who had voted with Frankfurter recanted their decisions. The three newly dissenting justices were Hugo Black, William Douglas, and Frank Murphy. Perhaps influenced by the torrent of violence, the three justices made an unprecedented joint announcement that their vote in the case was wrong. The public recanting was expressed as part of a June 1942 dissenting opinion involving a case about Witnesses being charged special licensing fees in three states—Alabama, Arkansas, and Arizona—for distributing their religious materials. Although the case was decided against the Witnesses, Justices Black, Douglas, and Murphy now stated that this related case made it clear to them that they had been wrong in Gobitis:

The opinion of the Court sanctions a device which in our opinion suppresses or tends to suppress the free exercise of a religion practiced by a minority group. . . . Minersville School Dist. v. Gobitis . . . against the same religious minority is a logical extension of the principles upon which that decision is related. 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.

This change of position infuriated Frankfurter. He started calling the three judges who changed their minds “the Axis,” a particularly nasty comment given the horrors of Hitler and his allies—the Axis—at the time. But Frankfurter maintained his view that the Pledge expressed the importance of loyalty to the United States and that was of utmost importance during World War II. Others, however, lauded the decision of the three judges to change their minds—who were helped by the agreement of new Justice Robert Jackson (who had replaced Charles Evans Hughes in July of 1941)—as well as Stone.

The Witnesses were encouraged in their struggle by the growing number of editorial comments denouncing the Gobitis decision, particularly in influential scholarly publications. The Harvard Educational Review said that the decision “goes quite as far toward the subordination of the civil liberties of minorities to the will of the majority as any other decision of the Supreme Court.”

And in what must have been a surprising amount of support from a longtime religious adversary, the law journals of Catholic schools took a hard stand against the Gobitis decision. Fordham Law Review, Georgetown Law Journal, Jurist, Notre Dame Lawyer, St. Johns Law Review, and University of Detroit Law Journal each published scathing denunciations of the Gobitis decision. In the Catholic publication America this perspective was summarized:

Lillian and Walter 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.

All the opposition meant that a new case, raising similar issues, would have to work its way through the procedural process of the court system from an initial suit—perhaps on a local level with someone’s arrest by a municipality—through trials at lower court levels, then on to an appeal and then, if one party in the suit or another had the appetite to continue the battle without coming to some arbitrated agreement, ultimately on to the U.S. Supreme Court.

There were no lack of opportunities for the Witnesses to find adversaries to challenge in court. Immediately after the Gobitis decision was declared, many states and local communities passed new laws requiring Pledge conformity or tightened existing laws with stronger language. Also, the incidents of punishment for not performing the Pledge as required became more stringent and more widely enforced. The lower courts became more certain about ruling against any type of challenge to the Pledge (in any form) and widely cited the Gobitis decision.

The Witnesses, however, kept up their legal battles and were particularly heartened by the public support of the justices who had previously voted against their arguments.

The perfect situation surfaced in West Virginia in January 1942, when the State Board of Education passed a statewide requirement for participation in the Pledge ceremony. The wording of the requirement was directed specifically at the Jehovah’s Witnesses and included language that was a direct paraphrasing of the Frankfurter decision in the Gobitis case. The state board’s resolution stated, for example, that “national unity is the basis of national security” and “conscientious scruples have not in the course of the long struggle for religious toleration relieved the individual from obedience to the general law. . . .”

The law struck a particular chord of dissent in West Virginia because there was an unusually large number of Jehovah’s Witnesses living in the state. The original founder of the sect that became the Jehovah’s Witnesses, Charles Taze Russell, had lived in Pittsburgh and the first following that he attracted spread geographically into southwestern Pennsylvania and West Virginia.

The law passed in West Virginia said, in part, that “conscientious scruples have not in the course of the long struggle for religious toleration relieved the individual from obedience to the general law not aimed at the promotion or restriction of religious beliefs. . . .” It went on to emphasize the importance of promoting “national unity” as part of the goal of teaching citizenship among schoolchildren and, specifically, that “refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.”

Once the West Virginia resolution was passed, local public school districts started expelling Witnesses’ children who continued to refuse to salute the flag. Among those expelled were seven children from three Witness families in Charleston. The Barnette family had few financial resources due to Walter Barnette’s uneven employment as a pipe fitter. But with the support of the Witnesses’s lawyers and the ACLU, it would be the Barnette name that ultimately became associated with the next Pledge case to reach the Supreme Court. The original suit filed in the district court in West Virginia was actually a class action suit filed on behalf of all the students expelled within the state. Later it would become focused primarily on the Barnette situation.

It took from early 1942, when the Barnette children were expelled, until early 1943, for the case to reach the U.S. Supreme Court.

The state lost in the lower courts. The decision of the lower court to uphold the right of the Witnesses’ children to refuse to recite the pledge followed the interpretation of the Fourteenth Amendment that the Witnesses’s lawyers and the ACLU lawyers had hoped for. The district court decision said in part: “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.”

Having lost the case on this judicial level, it was the State of West Virginia that applied to the Supreme Court for their case to be heard. Thus, the case is known as West Virginia State Board of Education v. Barnette.

By the time oral arguments started, on March 11, 1943, most court observers and scholars believed that the Court would overturn Gobitis. Since four justices had already proclaimed publicly that they believed the Gobitis decision was wrong, only one other justice was needed to render a decision to overrule. Justice Harlan Stone had already expressed his opinion about the issue in his original dissenting opinion in Gobitis and Justices Black, Douglas, and Murphy had publicly stated that they had voted incorrectly in the Gobitis case. The only question was would there be another vote to overturn the earlier decision.

It’s important to consider that the makeup of the Supreme Court had changed dramatically in the few years between the Gobitis case and the Barnette case. There were two new justices on the court—Robert Jackson, who had been the U.S. attorney general, and Wiley Blount Rutledge, a Kentucky minister and lawyer whom Roosevelt had appointed to the U.S. District Court of Appeals in Washington. And Harlan Stone, the sole dissenter in Gobitis, had been elevated to chief justice after the retirement of Charles Hughes in 1941.

The arguments made in the Barnette case varied little from the arguments presented in the Gobitis case—religious freedom, freedom of speech, due process. The lawyers representing the West Virginia side quoted the Frankfurter decision in Gobitis at length and argued that the Barnettecase was essentially the same.

The Witnesses had lost its longtime leader and legal kingpin, “Judge” Rutherford, before this rehearing of their argument. He had died on January 8, 1942. For the Barnette case, the Witnesses repeated the arguments concerning religious freedom and constitutional rights under the Fourteenth Amendment. Then the Witnesses added arguments that directly addressed the issue of “judicial restraint.” Calling reliance on popular opinion through legislative process to change “foolish legislation” a failure to protect the constitutional liberties of minority groups, the Witnesses argued that it was the constitutional duty of the Supreme Court to correct laws that created inequities. At one point the Witnesses’ lawyer compared Frankfurter’s policy of judicial restraint to the actions of Pontius Pilate when he washed his hands of making a decision against the crowd’s call for the execution of Jesus.

Frankfurter was furious about the clear direction the case seemed to be taking. He railed against the Court’s Axis and repeated his arguments in ever more forceful terms. But this time his arguments fell on deaf ears. In fact, an antagonistic feeling among a few of the justices against Frankfurter lingered from that moment until he retired from the Court in 1962.

The decision was announced, symbolically, on Flag Day, June 14, 1943. The ruling to overturn the Gobitis decision was 6–3. Frankfurter wrote a scathing dissent, repeating his judicial restraint perspective by arguing the overriding importance of legislative laws passed by elected representatives. The high court’s job, he believed, was to interpret the Constitution, not to overturn local laws. The other two dissenters who voted with Frankfurter did not make public statements.

The majority opinion reflected the wartime mood. It obliquely compared the freedoms of American democracy against the rising evidence of the totalitarian behavior of Nazi Germany. The Court also tried to distance itself from a Nazi German court that had declared Witnesses who refused to perform the “Heil Hitler” salute in violation of the law. At the time, most Americans were self-consciously trying to distinguish their patriotic traditions from those of Germany. Just the year before the outstretched arm salute had been eliminated to avoid any resemblance to the Nazi salute. The hand-over-the-heart gesture that replaced it was encouraged by President Roosevelt, who reminded the people that Abraham Lincoln put his hand to his heart to show honor to the flag during the dedication ceremonies at Gettysburg in 1863.

The majority decision was written by newcomer Robert Jackson, fresh from his one-year stint as attorney general. In fact, Jackson’s predecessor as attorney general was Frank Murphy, who had been appointed to the Court just the year before (February 5, 1940) and was among “the Axis” that overturned Gobitis. Jackson was no sympathizer. In a commencement address at his alma mater, Albany Law School, in June of 1941, he clearly rejected the notion that the Constitution was some kind of straitjacket:

Of course our constitutional system is no ready-made garment for peoples of different stature and station. There is a culture and habit of the constitution among our people quite as vital to stability and freedom as the written law of the Constitution. We lawyers must maintain not alone the integrity of the system but the integrity of the public opinion and understanding which supports the constitutional system.

But he also signaled a clear determination to honor and respect core American values. And he used the war then raging in Europe to make the point. “The values that the Nazi prizes are not our values,” he told the graduates. “We prize too much for them the lives of our young men. We do shrink from war. Hitler does not. We do have confidence in legal processes. Hitler does not.” After World War II, Jackson would serve as chief U.S. prosecutor in the Nuremburg trials of Nazi leaders.

Without specifically mentioning Nazi Germany in the Barnette case majority decision, Jackson said:

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. . . . 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.

The decision did not prompt the type of violence that the Gobitis decision had. The question of mandatory recitation of the Pledge had finally been resolved, having been brought to lower courts in some twenty states over the decade before the Barnette decision. In the 1930s and 1940s the Witnesses alone brought almost forty cases to the Supreme Court. Following the Barnette ruling, numerous cases against the Witnesses in the pipeline were dropped or reversed.

But the Barnette decision did not stop continued efforts to make the Pledge a required part of American life.

The controversies and strong feelings expressed on both sides of the issue revealed the powerful attachment that the large majority of Americans had to the Pledge and the patriotic feelings it expressed. For politicians viewing this broad-based display of allegiance not only to the flag but to the Pledge itself, it offered an issue that could be translated into something more tangible than philosophical musings of Supreme Court decisions; namely, votes.

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