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West Virginia State Board of Education v. Barnette

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Title: West Virginia State Board of Education v. Barnette  
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Subject: Pledge of Allegiance, List of court cases involving the American Civil Liberties Union, 1943 in West Virginia, Education in West Virginia, Greenhouse effect (judicial drift)
Collection: 1943 in Education, 1943 in Religion, 1943 in United States Case Law, 1943 in West Virginia, American Civil Liberties Union Litigation, Christianity and Law in the 20Th Century, Education in West Virginia, Flag Controversies in the United States, Jehovah's Witnesses Litigation in the United States, Legal History of West Virginia, Pledge of Allegiance, United States Education Case Law, United States Free Speech Clause Case Law, United States Supreme Court Cases, United States Supreme Court Cases of the Stone Court, United States Supreme Court Decisions That Overrule a Prior Supreme Court Decision
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West Virginia State Board of Education v. Barnette

West Virginia State Board of Education v. Barnette
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 (more)
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)
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
Case opinions
Majority Jackson, joined by Stone, Black, Douglas, Murphy, Rutledge
Concurrence Black, joined by Douglas
Concurrence Murphy
Dissent Frankfurter
Dissent Roberts, Reed
Laws applied
U.S. Const. amend. I; W. Va. Code § 1734 (1941)
This case overturned a previous ruling
Minersville School District v. Gobitis (1940)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a decision by the Supreme Court of the United States holding 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. The Court's 6-3 opinion, delivered by Justice Robert H. Jackson, is remembered for its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials."

It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. 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 to change the school policy democratically.

However, in overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Free Exercise Clause.[1]


  • Facts of the case 1
  • Arguments 2
  • Decision of the Court 3
    • Majority opinion 3.1
    • Concurring opinion 3.2
    • Dissenting opinion 3.3
  • Subsequent history 4
  • See also 5
  • References 6
  • Further reading 7
  • External links 8

Facts of the case

Following the

The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the program of activities in the public schools," that all teachers and pupils "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." The resolution originally required the "commonly accepted salute to the Flag" which it defined. Objections to the salute as "being too much like Hitler's" were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the General Federation of Women's Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses. What was required after the modification was a "stiff-arm" salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation indivisible, with liberty and justice for all."

Students pledging to the flag with the Bellamy salute, March 1941.

Failure to comply was considered "insubordination" and dealt with by expulsion. Readmission was denied by statute until the student complied. This expulsion, in turn, automatically exposed the child and their parents to criminal prosecution; the expelled child was considered "unlawfully absent" and could be proceeded against as a delinquent, and their parents or guardians could be fined as much as $50 and jailed up to thirty days. On the advice of an early attorney, Mr Horace S. Meldahl of Charleston, the Barnettes had avoided the further complications by having their expelled girls return to school each day, though the school would send them home.[2]

The Barnettes brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses. The Witnesses taught and still teach that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: 'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.' They consider that the flag is an 'image' within this command. For this reason they refused to salute the flag. Children of Jehovah's Witnesses had been expelled from school and were threatened with exclusion for no other cause. Officials threatened to send them to reformatories maintained for criminally inclined juveniles. Parents of such children had been prosecuted and were being threatened with prosecutions for causing delinquency.


The state's principal argument was that Barnette raised no substantial federal question because Gobitis settled the constitutional questions raised by the flag-salute expulsions. The state's brief quoted extensively from Justice Frankfurter's Gobitis opinion. Given the clear indications that at least five justices were ready to lay aside the Gobitis precedent, there was little else the state's lawyers could do. The American Legion's amicus curiae brief filed in support of the state's appeal did little more than duplicate the West Virginia argument.[3]

Hayden Covington answered the state's appeal in a brief that was a mixture of Jehovah's Witnesses Bible teachings and Constitutional arguments. He included a fiery attack on the Court's Gobitis opinion, especially rejecting Justice Frankfurter's deference to legislative policymaking authority. Such deference, he argued, allowed the legislature to define its own powers. He emphasized the nationwide persecution of Jehovah's Witnesses that had followed Gobitis and concluded with a long list of law journal and newspaper articles that criticized the decision.[3] The American Bar Association's Committee on the Bill of Rights and the American Civil Liberties Union filed amicus curiae briefs that argued Gobitis was bad law and should be overruled.[3]

Decision of the Court

In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that salutes of the type mandated by the West Virginia State Board of Education were forms of utterance and thus were a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to the values set forth in the First Amendment. Writing for the majority, Justice Jackson eloquently 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." To underscore its decision, the Supreme Court announced it on Flag Day.

Majority opinion

Justice Robert Jackson, who had joined the court only two years earlier, wrote the decision, echoing the free-expression sentiments of Stromberg v. California.

The opinion that Justice Felix Frankfurter had authored three years earlier in Gobitis rested on four arguments. In Barnette Justice Jackson addressed each element of Frankfurter’s Gobitis decision. 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 called symbols a “primitive but effective way of communicating ideas,” and explained 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 build the “cohesive sentiment” that Frankfurter believed national unity depended on. Jackson 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 efforts to coerce unanimous sentiment out of a populace. Jackson warned that “[t]hose 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. Jackson wrote:[4]

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.

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. Justice Jackson rejected this argument as well:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. 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 only at the price of occasional eccentricity and abnormal attitudes. When 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. 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.

Concurring opinion

Two of the justices who changed their minds between Minersville and West Virginia v. Barnette — Hugo Black and William O. Douglas — would become the most ardent supporters of the First Amendment.

"Words uttered under coercion are proof of loyalty to nothing but self-interest," wrote Black and Douglas in a concurring opinion. "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."

Dissenting opinion

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.

Frankfurter said that the court was overstepping its bounds in striking down the West Virginia law. He said, too, that freedom of religion did not allow individuals to break laws simply because of religious conscience. Frankfurter argued that, "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."

Frankfurter's response to Jackson's systematic destruction of his Gobitis decision was one of anger, and Justices Roberts and Murphy tried to get him to revise his opinion, arguing that the first two lines were “much too personal”. However, Frankfurter ignored the advice of his fellow justices, taking the overruling of his Gobitis decision as a personal affront and insisting on speaking 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 Justices Roberts and Frank Murphy felt was out of place. Frankfurter, however, insisted 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.

Subsequent history

The majority opinion in Barnette is considered one of the Court's greatest and most sweeping statements about the fundamental freedoms established by the Bill of Rights. After Barnette, the Court began to turn away from the belief-action doctrine altogether, creating religious exemption for believers of different creeds. In Sherbert v. Verner (1963), for example, the Court upheld a Seventh-day Adventist's claim to unemployment benefits even though she declined to make herself available to work on Saturday (her Sabbath) as the law required. In Wisconsin v. Yoder (1972), the Court upheld the right of Amish parents not to send their children to public schools past the eighth grade.

At 2006 proceedings cosponsored by the Justice Robert H. Jackson Center and the Supreme Court Historical Society, Supreme Court law clerks from that Court were on a panel with the two eponymous Barnettes. Just as she and her sister had in 1942, Gathie Barnette Edmonds noted that her own son was also sent to the principal's office for not saluting the flag.[5]

See also


  1. ^ "The Flag Salute Cases", Historic U.S. Court Cases by John W. Johnson, ©2001, Routledge, page 953, "Though the Flag Salute Cases are generally seen as involving freedom of religion, that issue is virtually absent from Jackson's majority opinion. He accepted, without question, that the Jehovah's Witnesses sincerely held beliefs which made it impossible for them to conscientiously salute the flag. But Jackson did not offer any analysis of the importance of that belief or even of the role of religious freedom in striking down the mandatory flag salute. Rather than grounding his opinion in terms of freedom of religion, Jackson analyzed the case as one of freedom of speech and expression." Online
  2. ^ "Article: Recollections of West Virginia State Board of Education v. Barnette", ST. JOHN’S LAW REVIEW, Fall 2007, Volume 81, Number 4, page 770-771, from April 28, 2006 proceedings cosponsored by the Robert H. Jackson Center and the Supreme Court Historical Society, at the Jackson Center in Jamestown, New York:
    Moderator: What was your parents’ decision about how to handle this situation: The school has a mandatory flag salute, thanks to the State Education Department regulation, and you have your religious belief?
    [Gathie Barnette] Edmonds: When we went home, of course, they understood and they said not to worry about it. And our uncle helped us get a lawyer, Mr. Horace Meldahl in Charleston, who was a very understanding person, a nice person. He told us that we had to go back to school every morning for a while.
    Moderator: Why was that?
    Edmonds: So they wouldn’t fine our dad or put him in jail.
    [Marie Barnette] Snodgrass: So they couldn’t say we were just being truant. And so we went every morning and stayed until the flag salute, and they’d tell us to go home. It was fortunate that we lived fairly close—we didn’t have a long distance to go.
    Moderator: And that was the end of the school day for you?
    Edmonds: Yes. Once the truant officer came and asked my mother why we weren’t in school, and she could say, “Well, we sent ‘em and they sent ‘em home.” So that kind of took, you know, the edge off of them. Our parents didn’t keep us home.
  3. ^ a b c Manwaring, Render Unto Caesar
  4. ^ West Virginia State Board of Education v. Barnette, 319 U.S. 624, Majority Opinion, item 3 (US 1943).
  5. ^ "Article: Recollections of West Virginia State Board of Education v. Barnette", ST. JOHN’S LAW REVIEW, Fall 2007, Volume 81, Number 4, page 792 (38/42), from April 28, 2006 proceedings cosponsored by the Robert H. Jackson Center and the Supreme Court Historical Society, at the Jackson Center in Jamestown, New York, "[The older of the two Barnett girls, Gathie Barnett] Edmonds: ...I remember when my older son was sent to the office for not saluting the flag. The principal came back and said your teacher obviously doesn’t remember the Supreme Court decision."

Further reading

  • Alley, Robert S. (1999). The Constitution & Religion: Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books. pp. 428–436.  
  • Irons, Peter H. (1999). A People’s History of the Supreme Court. New York: Viking.  
  • Kommers, Donald P.; Finn, John E.; Jacobsohn, Gary J. (2004). American Constitutional Law. Vol. 2 (2nd edition ed.). Lanham, MD: Rowman & Littlefield.  
  • Sandmann, Warren (2003). "West Virginia State Board of Education v. Barnette". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 100–115.  

External links

  • Text of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) is available from:  Findlaw  Justia  Cornell LII 
  • West Virginia State Board of Education v. BarnettFirst Amendment Library entry on
  • What We Owe Jehovah's Witnesses, by Sarah Barringer Gordon, April/May 2011 American History magazine; article on Barnette's affects on Constitutional Law.
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