On June 3, 1940, headlines told of the British evacuating from the beaches of Dunkirk, the Germans bombing Paris from the air, and the Japanese continuing their ruthless advance in China.

That same day at the Supreme Court in Washington, Justice Felix Frankfurter read his opinion for the 8 to 1 majority in the case of Minersville School District v Gobitis, in which the Court held that children could constitutionally be expelled from public school for refusing to participate in a daily ceremony saluting the American flag and reciting the Pledge of Allegiance. The two children in question, Lillian and William Gobitis, were expelled as a result of their Jehovah Witness faith which informed them not to serve gods other than the Almighty.

“A grave responsibility confronts this Court,” Frankfurter said, “whenever … it must reconcile the conflicting claims of liberty and authority.”  But he found that the felt necessities of society could sometimes compel it to override even the free exercise of religion.  National unity, he reasoned, is the basis of national security, and a legislature, or school board, was within its constitutional authority to foster a “binding tie of cohesive sentiment” by insisting that children educated in a public-school salute the flag. He described the flag as “the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution.”

He cited a previous Court decision which held that “the flag is the symbol of the nation’s power, the emblem of freedom in its truest, best sense…it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.” 

The Gobitis decision led to numerous instances of violent persecution of Witnesses throughout the United States.  In Kennebunkport, Maine, a Kingdom Hall was burned.  In Richwood, West Virginia, a police chief, taking his cue from Mussolini’s black shirts, administered large dosages of castor oil to several Witnesses, bound them with ropes, and paraded them through the streets of the town.  In Iowa, a Witness was beaten and castrated by vigilantes.

Barbarities of this kind, amplified by what was learned of the atrocities committed by the Axis Powers with whom within the year we would be at war, caused three Supreme Court justices to go on record saying they now believed the Gobitis case had been wrongly decided. Two other justices, after long and noteworthy service, retired from the Court. 

President Roosevelt nominated the lone Gobitis dissenter, Harlan Fiske Stone, to fill the vacancy as Chief Justice. To the other open position, Roosevelt nominated his Attorney General, Robert Jackson.

These altered circumstances on the Court led several Witnesses in West Virginia to challenge a law there which expelled from public school Witness children who refused to salute the flag. The West Virginia law was largely based on Frankfurter’s language in the Gobitis decision. 

This second case is known to history as West Virginia v Barnette. The Court in 1943 reversed Gobitis – even as the nation continued in a world war with an outcome by no means certain. Symbolically, Chief Justice Stone had the decision read on June 14, Flag Day. Robert Jackson wrote the opinion for the 6 to 3 majority.

Justice Frankfurter, a Jew, wrote an eloquent and bitter dissent. “One who belongs to the most vilified and persecuted minority in history,” he began, “is not likely to be insensible to the freedoms guaranteed by our constitution.”

“But as judges,” he continued, “we are neither Jew nor Gentile, neither Catholic nor agnostic….As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.”

Frankfurter’s firm judicial opinion remained that for the removal of unwise laws from the statute books, “appeal lies, not to the courts, but to the ballot and to the processes of democratic government.”

During their time together on the Court, Robert Jackson’s judicial philosophy and voting behavior paralleled the moderate conservatism of Frankfurter.  In other words, for most of the matters the Court was asked to resolve concerning the legal and constitutional controversies swirling about legislation passed by Congress and the state legislatures, Frankfurter and Jackson shared a recognizable tendency to defer to the wisdom of legislative bodies. It is for legislatures, not courts, to set public policies.  Legislatures are, after all, the “voice” of the people.

But in this constitutional conflict between liberty of conscience and governmental authority, Jackson got to the crux of the matter in words even more profound and eloquent than Frankfurter’s:

“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, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

He went on to say: “[F]reedom 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.” 

Thank you, Robert Jackson. God save the United States and its honorable court.  

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