When former San Francisco 49ers quarterback, Colin Kaepernick, kneeled during the National Anthem to protest racism, President Donald Trump demanded that the NFL “Get that son of a bitch off the field right now!” In President Trump’s vernacular: “He’s fired!” To which Mr. Kaepernick’s mother responded: “I guess that makes me a proud bitch.”
While this was a pithy retort, the best response has been provided by the United Sates Supreme Court in the case of West Virginia State Board of Education v. Barnette.
In what may be the Court’s most eloquent and admired statement of First Amendment principles, Barnette found in favor of two Jehovah’s Witnesses school children who refused to salute the flag. To fully appreciate Barnette, it is important to first understand the social climate in which it was decided.
During the World War Two era, Nazi Germany famously required citizens to salute the flag or other symbols of national unity with a stiff-armed salute. Most people may not know that at the same time in America, cities and states across the country enacted laws that made saluting the flag compulsory in public schools.
Although many people complied with the laws, there were dissenters who refused to participate in the American stiff-armed, palms-up salute required by most school districts (which was virtually identical to the Hitler salute). Among the dissenters were Jehovah’s Witnesses, who objected on the basis of their religious prohibition against pledging to symbols of political institutions.
In 1935, two Jehovah’s Witnesses, Lillian Gobitis, then 13 years old, and her younger brother Billy, were thrown out of their school in Minersville, Pennsylvania for not saluting the flag. Expulsion was apparently insufficient—the minor siblings were also stoned and shunned by their neighbors for refusing to salute the flag. Their father filed suit in Federal District Court
Philadelphia District Court Judge Albert Meris found in favor of Lillian and Billy, ruling that “Our country’s safety surely does not depend upon the totalitarian idea of forcing all citizens into one common mold of thinking and acting or requiring them to render a lip service of loyalty in a manner which conflicts with their sincere religious convictions.” The case was promptly overturned by the United States Supreme Court, in Minersville School District v. Gobitas (the children’s last names were misspelled). Justice Felix Frankfurter led the majority in deciding in favor of the school district. In his view, the flag salute represented the school’s rightful attempt “to awaken in the child’s mind considerations of patriotism and national loyalty.” In the words of Justice Frankfurter, “[n]ational unity is the basis of national security,” which presumably reflected the growing concern of war in Europe. The Court’s decision triggered widespread criticism and inspired national debate over the meaning of “national unity” and, more specifically, the right of the government to compel anyone to salute the flag, most of all children.
In 1942, with the apparent blessing of the Supreme Court, the West Virginia Board of Education imposed a requirement for a stiff-armed salute of the American flag. Failure to comply resulted in expulsion. Marie and Gathie Barnette, Jehovah’s Witnesses attending grade school near Charleston, West Virginia, brought suit in federal court. The statute was stricken down by the District Court and again by the Court of Appeals.
The stage was set for an appeal to the United States Supreme Court in West Virginia State Board of Education v. Barnette. In a stunning decision, the Court affirmed the decisions of the lower courts, thereby overturning its prior decision in Gobitas.
Critically, the decision in Barnette framed the analysis in terms of freedom of speech rather than religious liberty. The opinion, which was written by newly-appointed Justice Robert Jackson, is a masterpiece of legal writing that has been admired by lawyers and scholars alike for its soaring statement of the fundamental freedom of speech guaranteed by the Bill of Rights. The legal principles deriving from Barnette have carried through the decades; the case applies not just to obligatory flag saluting during the World War Two era, but also to Colin Kaepernick’s political protest on behalf of oppressed African Americans.
Justice Jackson began his opinion by agreeing with Justice Frankfurter that the flag was a national symbol. The agreement stopped there, however, with Justice Jackson noting that the flag and flag salutes are not totalitarian symbols requiring slavish devotion. Instead, these symbols are a “primitive but effective way of communicating ideas. Moreover, it is essential to recognize 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.”
The Court emphasized that national unity cannot be coerced by state-imposed rituals. The purpose of the First Amendment is to protect “intellectual individualism and the rich cultural diversities” of America. In searing language, Justice Jackson warned that “those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
The decision firmly rejected the argument that issues like compulsory flag salutes could be ordered by elected officials. In language quoted to this day, Justice Jackson wrote: “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.”
Forty-six years later, the reasoning of Barnette was affirmed by the Supreme Court in the 1989 decision of Texas v. Johnson. There, the Court held that the First Amendment protected Gregory Lee Johnson’s right to pour kerosene over an American flag and burn it in public during the Republican National Convention. Relying on Barnette and the wonderful eloquence of Justice Jackson, the Court rejected arguments that anti-flag desecration statutes were necessary to preserve national unity: “To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages, would be to enter territory having no discernible or defensible boundaries.” As noted in Justice Kennedy’s concurrence: “It is poignant but fundamental that the flag protects those who hold it in contempt.”
These decisions by the Supreme Court teach a great constitutional irony: We honor our flag precisely because it protects our right not to honor it all. This is a form of free expression in America, a country where no one dictates what we must believe or how we may pledge allegiance to our beliefs whatever they are.
Justice Jackson said it best: “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… 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 substances is the right to differ as to things that touch the heart of the existing order.”
Long live football and stadiums filled with patriotic fans honoring our flag in any way they see fit.