Saluting the flag: a matter of speech and religious liberty

By: 
David Adler

It is fair to say that the government’s preeminent responsibility is to provide for the nation’s defense. When necessary, civil liberties protected by the Bill of Rights must yield to the demands of national security. In Minersville v. Gobitis (1940), the Supreme Court, over assertions of religious liberty by Jehovah’s Witnesses, upheld a Pennsylvania state law requiring school children to salute the flag on the theory that the pledge of allegiance promotes national unity and national unity protects national security.

The Gobitis Court’s 8-1 decision was popular throughout the country. It perpetuated the traditional doctrine of paying respect to the nation’s most sacred national symbols, and only Justice Harlan F. Stone’s dissent provided support for the Witnesses’ assertion that the statute’s requirement constituted a violation of their religious liberty protected by the First Amendment’s Free Exercise Clause. Chief Justice Charles Evan Hughes’ private note epitomized the feelings of the nation: “I simply cannot believe that the state has not the power to inculcate this.”

But three members of the Court who joined Justice Felix Frankfurter’s Gobitis opinion — Hugo Black, William O. Douglas and Frank Murphy — subsequently declared their regrets and, in an unprecedented joint recantation, announced a desire to reverse their participation in the ruling. That shift, combined with the addition of two Justices — Robert H. Jackson and Wiley Rutledge — created a new working majority that was prepared to overturn Gobitis.

West Virginia Board of Education v. Barnette (1943), provided that opportunity. In that landmark decision, the Court struck down a compulsory flag salute statute, holding that students enjoy a First Amendment right, grounded in speech and religious freedom, to choose whether to recite the pledge of allegiance.

Justice Jackson’s opinion, considered by scholars to be one of his very best, stood four-square behind Free Speech and Free Exercise guarantees and rejected the claim that the nation’s security hinges on coerced recitation of the pledge of allegiance. “The Bill of Rights,” Jackson declared, “denies those in power any legal opportunity to coerce allegiance.”

In an eloquent defense of the American creed of liberty and First Amendment freedoms made more moving by the context of Hitler’s tyranny and his war on democracy, Justice Jackson stated: “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.”

The flag salute statute, Justice Jackson wrote, “transcends constitutional limitations on 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.” For those who feared the collapse of patriotism without coercive ceremonies, rather than “ceremonies that are voluntary and spontaneous,” Jackson replied, “is to make an unflattering estimate of the appeal of our institutions to free minds.”

Justice Jackson’s tribute to intellectual freedom emphasized the “individualism” and “rich cultural diversities” that define and sustain America. Great achievements — the product of “exceptional minds” — come at “the price of occasional eccentricity and abnormal attitudes.” In a nod to the reality of the religious minority whose teachings were denied, Jackson wrote: “Where 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.”

Justice Frankfurter dissented and took offense to the demise of his Gobitis opinion. He insisted that the Court should adhere rigorously to the doctrine of judicial self-restraint and its emphasis on deference to the legislature, lest the judiciary becomes a legislative body. Frankfurter’s objection flew in the face of the Court’s embrace of the “preferred freedoms” approach, which emphasizes over-arching protection of First Amendment freedoms, including religion and speech liberties, which are indispensable to the existence of other freedoms.

When “preferred freedoms” are implicated, as they were in the flag salute cases, the Court will require “strict scrutiny” of the legislation and demand compelling governmental reasons for breaching those liberties. In Barnette, the Court found the reasons wanting for requiring students to recite the pledge of allegiance.

In the years since Barnette, the two well-heeled doctrinal approaches to interpretation often have been the subject of debate, and likely always will be since the role of the judiciary is central to constitutional government. Sometimes, resolution hinges on a little common sense. After Justice Frankfurter delivered his opinion in Gobitis, he was discussing the case with Eleanor Roosevelt at Hyde Park. The First Lady stated that despite the Justice’s learning and legal skills, there was something very wrong about a ruling that forced little school children to salute a flag when the ceremony violated their fundamental religious beliefs and represented no threat to the nation’s security.

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