West Virginia State Board of Education v. Barnette

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1943 United States Supreme Court case

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a landmark decision by the United States Supreme Court holding that the First Amendment protects students from being forced to salute the American flag or say the Pledge of Allegiance in public school.

Barnette overruled a 1940 decision on the same issue, _Minersville School District v. Gobitis _, in which the Court had stated that the proper recourse for dissent was to try to change the public-school policy democratically.

This was a significant court victory for Jehovah's Witnesses , whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. However, this ruling relied on freedom of speech principles rather than freedom of religion .

Background

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In the 1930s, the president of the Watch Tower Bible and Tract Society of Pennsylvania , Joseph Franklin Rutherford , began objecting to state laws requiring school students to salute the flag as a means of instilling patriotism, and in 1936 he declared that baptized Jehovah's Witnesses who saluted the flag were breaking their covenant with God and were committing idolatry .

Children of Jehovah's Witnesses had been expelled from school and were threatened with exclusion for refusing to salute the American flag. One such expulsion resulted in the Supreme Court case _Minersville School District v. Gobitis _ in 1940, in which the high court sided with school districts and advised dissenting parents to try to change procedures via standard political processes.

In 1942, the West Virginia Board of Education passed a regulation requiring schoolchildren to salute the flag. Recitation of the Pledge of Allegiance was also required. Failure to comply was considered "insubordination" and dealt with by expulsion ; the expelled student would then be considered a delinquent , and their parents could be fined up to $50 ($985.20 in 2025) and jailed up to thirty days.

Marie and Gathie Barnett (whose surname was spelled incorrectly in the court papers) were Jehovah's Witnesses attending Slip Hill Grade School near Charleston , who were instructed by their father not to salute the flag or recite the pledge. They were expelled for their refusal. Their parents continued to send the girls to school each day, only for the school to send them back home.

The Barnett family filed suit in the District Court for the Southern District of West Virginia , alleging that the regulation violated the Equal Protection clause of the Fourteenth Amendment , and the freedoms of speech and religion under the First Amendment , The District Court enjoined enforcement against students. Due to the case's constitutional implications, the West Virginia School Board appealed directly to the United States Supreme Court.

Arguments

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At the Supreme Court, the School Board argued that the Barnetts raised no substantial federal question, and the Board's stance rested upon the Gobitis precedent. The Barnetts' attorney, Hayden Covington , referenced the frequent persecution of Jehovah's Witnesses via statutes like that in West Virginia, and argued that the Gobitis precedent should be overturned because it enabled states to pass discriminatory laws.

The American Bar Association and the American Civil Liberties Union filed amicus curiae briefs arguing that Gobitis was bad law and should be overruled.

Supreme Court decision

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The Court, in a 6–3 decision delivered by Justice Robert H. Jackson , held that it was unconstitutional for public schools to compel students to salute the flag. It thus overruled its decision in _Minersville School District v. Gobitis _ three years earlier, finding that the flag salute was "a form of utterance" and "a primitive but effective means of communicating ideas", and therefore was speech to which the First Amendment applied. The Court wrote that any "compulsory unification of opinion" was doomed to failure and was antithetical to free speech values. In Jackson's words:

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.

Jackson intricately refuted the arguments that had been made in the Gobitis precedent. First, Jackson rejected the previous court's holding that the United States flag was a national symbol, stating that symbols are merely the prelude to speech, and 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". Second, Jackson rejected the holding that flag-saluting ceremonies were an appropriate way to build "cohesive sentiment" for national unity, 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."

On the Gobitis holding that those who disagreed with a school board's regulation through political processes, Jackson argued that the conflict at issue was between authority and the individual, and that the Founding Fathers intended the Bill of Rights to protect minority rights from the whims of a majority. Jackson wrote:

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.

Justices Hugo Black and [William O. Douglas](https://en.wikipedia.org/wiki/William_O._Douglas "William O. Doug

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