West Virginia State Board of Education v. Barnette
Supreme Court of the United States
Argued March 11, 1943 Decided June 14, 1943
Full case name: West Virginia State Board of Education, et al. v. Walter Barnette, et al. Citations: 319 U.S. 624; 63 S. Ct. 1178; 87 L. Ed. 1628; 1943 U.S. LEXIS 490; 147 A.L.R. 674 Prior history: Injunction granted, 47 F. Supp. 251 (S.D. W. Va. 1942)
Holding
The Free Speech clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the Pledge of Allegiance. District Court affirmed.
Court membership
Chief Justice: Harlan Fiske Stone Associate Justices: Owen Josephus Roberts, Hugo Black, Stanley Forman Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert H. Jackson, Wiley Blount Rutledge
Case opinions
Majority by: Jackson Joined by: Stone, Black, Douglas, Murphy, Rutledge Concurrence by: Black, Douglas (jointly) Concurrence by: Murphy Dissent by: Frankfurter Dissent by: Roberts, Reed (without opinion)
Laws applied
U.S. Const. amend. I; W. Va. Code § 1734 (1941)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) was a decision by the Supreme Court of the United States that held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school. Image File history File links Seal_of_the_United_States_Supreme_Court. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... The Federal Supplement is a case law reporter published by West Publishing in the United States that includes select opinions of the United States district courts. ... The United States District Court for the Southern District of West Virginia is a federal court in the Fourth Circuit. ... Harlan Fiske Stone (October 11, 1872 – April 22, 1946) was an American lawyer and jurist who served as the dean of Columbia Law School, Attorney General of the United States, Associate Justice of the U.S. Supreme Court and later Chief Justice of the United States. ... Owen Josephus Roberts (May 2, 1875 – May 17, 1955) was an Associate Justice of the United States Supreme Court for fifteen years. ... Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ... Stanley Forman Reed ( December 31, 1884 – April 2, 1980) was an Associate Justice of the Supreme Court from 1938 to 1957. ... Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Associate Justice of the United States Supreme Court. ... William Orville Douglas (October 16, 1898 – January 19, 1980) was a United States Supreme Court Associate Justice. ... For the Australian rules footballer, see Frank Murphy (footballer). ... Robert Houghwout Jackson (February 13, 1892–October 9, 1954) was United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). ... Wiley Blount Rutledge (July 20, 1894 - September 10, 1949) was a U.S. educator and jurist. ... “First Amendment” redirects here. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... “First Amendment” redirects here. ... Union Jack. ... The Pledge of Allegiance is a promise or oath of allegiance to the United States as represented by its national flag. ...

It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to political institutions or symbols. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs, but instead ruled that the state did not have the power to compel speech in that manner for anyone.

Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis (also involving the children of Jehovah's Witnesses), in which the Court stated that the proper recourse for dissent was to try and change the school policy democratically. In Barnette Justice Robert H. Jackson wrote for the majority and his opinion is considered one of the great statements of freedom in American history. Holding The First Amendment does not require States to excuse public school students from saluting the American flag and reciting the Pledge of Allegiance on religious grounds. ... Robert Houghwout Jackson (February 13, 1892–October 9, 1954) was United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). ...

However, in overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Religion Clause.

Facts of the case

When the Court issued its decision in Gobitis it appeared that the long string of litigation brought by Jehovah’s Witnesses's might be at an end. It seemed that any further challenges to the practice of saluting the flag and the Pledge of Allegiance would be pointless. In the year following the Gobitis decision the United States entered World War II and a reversal appeared even less probable. However, following the Court’s decision in Gobitis the Justice Department was almost immediately flooded with reports of physical assaults and threats against Jehovah’s Witnesses and these incidents turned public sentiment against the Court’s decision in Gobitis. Even the American Legion, widely known as an extremely patriotic if not conservative organization, supported the enactment of a law making flag observance voluntary. Following this turn in public sentiment Walter Barnette and other Jehovah’s Witnesses brought suit in West Virginia challenging that state’s law making flag observance compulsory in its public schools. When the lower court heard the case they rejected the Supreme Court’s holding in Gobitis and sided with Barnette and the other parents. Combatants Allied powers: China France Great Britain Soviet Union United States and others Axis powers: Germany Italy Japan and others Commanders Chiang Kai-shek Charles de Gaulle Winston Churchill Joseph Stalin Franklin Roosevelt Adolf Hitler Benito Mussolini Hideki Tōjō Casualties Military dead: 17,000,000 Civilian dead: 33,000... The United States Department of Justice (DOJ) is a Cabinet department in the United States government designed to enforce the law and defend the interests of the United States according to the law and to ensure fair and impartial administration of justice for all Americans. ... This article or section is in need of attention from an expert on the subject. ...

Decision of the Court

Majority opinion

The Majority opinion in Barnette was written by Justice Robert H. Jackson and it is Jackson’s eloquent remarks that have become the legacy of the decision. Justice Felix Frankfurter authored the opinion three years earlier in Gobitis and his opinion rested squarely on four legs. In Barnette Justice Jackson systematically knocked each leg off Frankfurter’s Gobitis decision. Robert Houghwout Jackson (February 13, 1892–October 9, 1954) was United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). ... Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Associate Justice of the United States Supreme Court. ... Holding The First Amendment does not require States to excuse public school students from saluting the American flag and reciting the Pledge of Allegiance on religious grounds. ...

Jackson began with Frankfurter’s designation of the flag as a national symbol. He did not question Frankfurter’s designation of the flag as a national symbol; instead, he criticized the pedestal on which Frankfurter put such national symbols. Jackson derided symbols as a “primitive but effective way of communicating ideas,” and chided that “a person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”

Next Jackson denied Frankfurter’s argument that flag-saluting ceremonies were an appropriate way to try and build the “cohesive sentiment” that Frankfurter believed national unity depended on. Jackson utterly rejected Frankfurter’s argument, citing the Roman effort to drive out Christianity, the Spanish Inquisition of the Jews and the Siberian exile of Soviet dissidents as evidence of the “ultimate futility” of those historical efforts to coerce unanimous sentiment out of a populace. Jackson continued, warning that, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

Then Jackson dealt with Frankfurter’s assertion that forcing students to salute the flag, and threatening them with expulsion if they chose not to, was a permissible way to foster national unity. Jackson’s rejection of this section of Frankfurter’s argument has proved the most quoted section of his opinion. In his Gobitis opinion Frankfurter’s solution was for the dissenters to seek out solutions to their problems at the ballot box. Jackson responded that the conflict in this case was between authority and the individual and that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. "The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities ... 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."

The last leg of Frankfurter’s Gobitis opinion reasoned that matters like saluting the flag were issues of “school discipline” that are better left to local officials rather than federal judges. In an oft-quoted passage Justice Jackson knocked out the final leg of Frankfurter’s opinion, sending the Gobitis decision to the grave. "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."

Frankfurter's dissent

Three years earlier seven justices had followed Frankfurter’s reasoning and joined his majority opinion in Gobitis. In Barnette however, only Frankfurter filed a written dissent, while Justices Owen Roberts and Stanley Reed dissented in silence. For the Indian newspaper editor and British politician, see Stanley Reed Stanley Forman Reed (December 31, 1884 – April 2, 1980) was an Associate Justice of the Supreme Court from 1938 to 1957. ...

Frankfurter’s response to Jackson’s systematic destruction of his Gobitis decision was anger, and Justices Roberts and Murphy tried to get him to revise his opinion, saying the first two lines were “too personal”. However, Frankfurter did not heed the advice of his fellow justices. He took the overruling of his Gobitis decision as a personal affront and he wanted to speak his mind.

Frankfurter began with a reference to his Jewish roots: “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.” This was the passage Roberts and Murphy felt was out of place. Frankfurter, however, felt that the passage was necessary since he claimed he was “literally flooded with letters” following the Court’s decision in Gobitis that said he should be more sensitive to the protection of minorities due to his Jewish heritage. Frankfurter's dissent continued, “Were my purely personal attitudes relevant I should wholeheartedly associate myself with the generally libertarian views in the Court’s opinion . . . But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.”

Having responded to his critics and the Court’s reversal on a personal level, he now responded on a judicial one, with the remainder of his opinion focusing on judicial restraint. “As a member of this Court I am not justified in writing my private notions of policy into the Constitution.... 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.”

Frankfurter continued, arguing that if the Court is frequently striking down laws it is circumventing the democratic process, since the Court cannot work to reach a compromise. It either strikes down a law or lets it stand; it cannot simply modify or qualify a law as a legislature can.

Finally Frankfurter rejected Justice Stone’s rational basis test that Stone laid out in United States v. Carolene Products Co.. Instead Frankfurter focused on his belief that there were no provisions within the constitution that occupied a “preferred position” over others. United States v. ...

See also

• List of United States Supreme Court cases, volume 319

This is a list of all the United States Supreme Court cases from volume 319 of the United States Reports: , 319 U.S. 1 (1943) , 319 U.S. 21 (1943) , 319 U.S. 33 (1943) (per curiam) , 319 U.S. 38 (1943) (per curiam) , 319 U.S. 41 (1943) (per...

External links

• First Amendment Library entry on West Virginia State Board of Education v. Barnett
• Frankfurter, J., Dissenting Opinion

Further reading

• Kommers, D. P. , Finn, J. E., Jacobsohn, G. J. (2004) American Constitutional Law, Volume 2, Second Edition. United States of America: Rowman & Littlefield Publishers Inc.
• Irons, P. (1999) A People’s History of the Supreme Court. New York, New York: Penguin Books.