Adler: Salute to the Flag: A Matter of Speech and Religious Liberty | Columns
It is fair to say that the preeminent responsibility of government is to ensure the defense of the nation. When necessary, the civil liberties protected by the Bill of Rights must yield to the demands of national security. In Minersville v. Gobitis (1940), the Supreme Court, on claims of religious freedom by Jehovah’s Witnesses, upheld a Pennsylvania state law requiring school children to salute the flag on the theory that the oath of allegiance promotes the national unity and national unity protects Security.
The Gobitis court’s 8-1 decision was popular across the country. He perpetuated the traditional doctrine of reverence for the nation’s most sacred national symbols, and only the dissent of Judge Harlan F. Stone supported the witnesses’ contention that the law’s requirement violated their religious freedom. protected by the free exercise clause of the First Amendment. . Chief Justice Charles Evan Hughes’ private note embodied the feelings of the nation: “I just can’t believe the state doesn’t have the power to instill this.”
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But three members of the Court who joined Judge Felix Frankfurter’s Gobitis opinion – Hugo Black, William O. Douglas and Frank Murphy – later expressed regret and, in an unprecedented joint retraction, announced their willingness to reconsider their participation in the decision. This change, combined with the addition of two judges—Robert H. Jackson and Wiley Rutledge—created a new working majority that was poised to topple Gobitis.
West Virginia Board of Education v. Barnette (1943), provided this opportunity. In landmark ruling, court struck down mandatory flag salute law, finding students have a First Amendment right, grounded in freedom of speech and religion, to choose whether or not to recite the oath of allegiance.
Judge Jackson’s opinion, considered by scholars to be one of his best, unreservedly upheld the guarantees of free speech and free exercise and rejected the claim that the nation’s security depends on the forced recitation of the oath of allegiance. “The Bill of Rights,” Jackson said, “denies those in power any legal ability to coerce allegiance.”
In an eloquent defense of the American creed of liberty and First Amendment freedoms made all the more poignant by the backdrop of Hitler’s tyranny and his war on democracy, Judge Jackson said: “If there is a star fixed in our constitutional constellation is that none, high or low, can prescribe what must be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word of mouth or to act their faith. If there are circumstances that allow an exception, they do not come to mind now.
The Salute to the Flag Act, wrote Justice Jackson, “transcends the constitutional limits of power” and “invades the sphere of intellect and mind which the First Amendment to our Constitution is intended to reserve to all official control”. For those who feared the collapse of patriotism without coercive ceremonies, rather than “voluntary, spontaneous ceremonies”, Jackson replied, “is making an unflattering estimate of the appeal of our institutions to free spirits.”
Justice Jackson’s tribute to intellectual freedom emphasized “individualism” and the “rich cultural diversities” that define and sustain America. Great achievements – the product of “exceptional minds” – come “at the cost of occasional eccentricities and abnormal attitudes”. In a nod to the reality of the religious minority whose teachings have been denied, Jackson wrote, “Where they are as innocuous to others or to the state as those with whom we deal here, the price n is not too high. But the freedom to differ isn’t limited to things that don’t really matter. It would only be a shadow of freedom. The test of its substance is the right to differ in matters that touch the core of the existing order.
Judge Frankfurter dissented and took offense at the disappearance of his Gobitis opinion. He insisted that the Court should strictly adhere to the doctrine of judicial self-discipline and its emphasis on deference to the legislature, lest the judiciary become a legislative body. Frankfurter’s objection ran counter to the Court’s adoption of the “privileged liberties” approach, which emphasizes the comprehensive protection of First Amendment freedoms, including the freedoms of religion and of expression, which are essential to the existence of other freedoms.
Where “privileged liberties” are involved, as they were in the flag salute cases, the Court will demand a “strict review” of the legislation and require compelling governmental reasons to violate those liberties. In Barnette, the Court concluded that the reasons for requiring students to recite the oath of allegiance are lacking.
In the years since Barnette, the two well-established doctrinal approaches to interpretation have often been the subject of debate, and probably always will be since the role of the judiciary is central to constitutional government. Sometimes the resolution hinges on a little common sense. After Judge Frankfurter delivered his opinion in Gobitis, he was discussing the case with Eleanor Roosevelt in Hyde Park. The First Lady said that despite the judge’s learning and legal skills, there was something very wrong with a decision that required little schoolchildren to salute a flag when the ceremony violated their fundamental religious beliefs and represented no threat to national security.
David Adler, PHD, is a renowned author who lectures nationally and internationally on the Constitution, Bill of Rights, and Presidential Power. His academic writings have been cited by the United States Supreme Court and lower courts by Democrats and Republicans in the United States Congress. Adler’s column is supported in part by a Wyoming Humanities grant funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by the Andrew Foundation W. Mellon. Adler can be contacted at [email protected]