West Virginia State Board of Education v. Barnette (1943)

Background:

• After the Gobitis decision, the West Virginia state legislature passed a law stating that: as "a regular part of the program of activities in the public schools", all students "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."
• Being Jehovah's Witnesses, the Barnette girls refused to take part in the mandatory salute, were expelled from school, and were not to be readmitted until they complied with the compulsory salute.
• The Barnette parents were also being threatened by prosecutors, who claimed that the parents could be charged with causing such delinquency.
• Appellees sought an injunction from the United States District Court to curb enforcement of these laws against Jehovah's Witnesses.
• The Board of Education “[alleged] that the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the ‘due process’ and ‘equal protection’ clauses of the Fourteenth Amendment."

Supreme Court decision:

• The Supreme Court ruled 6-3 in favor of overturning Gobitis
• The Supreme Court found that mandating the salute of the flag was unconstitutional
• "Compulsory unification of opinion" was deemed unconstitutional
• Patriotism is better achieved through elevation of different opinion rather than compulsion and uniformity

Justice Black and Justice Douglas concurring:

• "Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men."

Justice Frankfurter dissenting:

• Frankfurter joined his majority opinion in Gobitis
• The court is overstepping its bounds
• People should not be able to break laws for religious reasons
• The Court is circumventing the democratic process by striking down state laws
• "The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which, except by leave of religious loyalties, is within the domain of temporal power. Otherwise, each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws."  

Judgment: Reversed

Key Quotes:

• "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." --Jackson (456)
• "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." -- Jackson (457)
• "Compulsory unification of opinion achieves only the unanimity of the graveyard." -- Jackson (458)
• "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. 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 other or to the State as those we deal with here, the price attitudes. When they are so harmless to other 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." --Jackson (458)