Historic irony: On Flag Day in 1943, the U.S. Supreme Court issued its decision in the case of West Virginia vs. Barnette.
The case started earlier, in 1935, when a 10-year-old student in West Virginia, sticking to his Jehovah’s Witness principles, refused to salute the U.S. flag in a state-required pledge of allegiance. From the Library of Congress:
“I do not salute the flag because I have promised to do the will of God,” wrote ten-year-old Billy Gobitas (1925-1989) to the Minersville, Pennsylvania, school board in 1935. His refusal, and that of his sister Lillian (age twelve), touched off one of several constitutional legal cases delineating the tension between the state’s authority to require respect for national symbols and an individual’s right to freedom of speech and religion.
The Gobitas children attended a public school which, as did most public schools at that time, required all students to salute and pledge allegiance to the flag of the United States. The Gobitas children were members of the Jehovah’s Witnesses, a church that in 1935 believed that the ceremonial saluting of a national flag was a form of idolatry, a violation of the commandment in Exodus 20:4-6 that “thou shalt not make unto thee any graven image, nor bow down to them. . . .” and forbidden as well by John 5:21 and Matthew 22:21. On 22 October 1935, Billy Gobitas acted on this belief and refused to participate in the daily flag and pledge ceremony. The next day Lillian Gobitas did the same. In this letter Billy Gobitas in his own hand explained his reasons to the school board, but on 6 November 1935, the directors of the Minersville School District voted to expel the two children for insubordination.
The Watch Tower Society of the Jehovah’s Witnesses sued on behalf of the children. The decisions of both the United States district court and court of appeals was in favor of the right of the children to refuse to salute. But in 1940 the United States Supreme Court by an eight-to-one vote reversed these lower court decisions and ruled that the government had the authority to compel respect for the flag as a key symbol of national unity. Minersville v. Gobitis [a printer’s error has enshrined a misspelling of the Gobitas name in legal records] was not, however, the last legal word on the subject. In 1943 the Supreme Court by a six-to-three vote in West Virginia State Board of Education v. Barnette, another case involving the Jehovah’s Witnesses, reconsidered its decision in Gobitis and held that the right of free speech guaranteed in the First Amendment to the Constitution denies the government the authority to compel the saluting of the American flag or the recitation of the pledge of allegiance.
There had been strong public reaction against the Gobitis decision, which had been written by Justice Felix Frankfurter (1882-1965). In the court term immediately following the decision, Frankfurter noted in his scrapbook that Justice William O. Douglas (1898-1980) told him that Justice Hugo LaFayette Black (1886-1971) had changed his mind about the Gobitis case. Frankfurter asked, “Has Hugo been re-reading the Constitution during the summer?” Douglas replied, “No–he has been reading the papers.”1 The Library’s William Gobitas Papers showcase the perspective of a litigant, whereas the abstract legal considerations raised by Gobitis and other cases are represented in the papers of numerous Supreme Court justices held by the Manuscript Division.
1. Quoted in H. N. Hirsch, The Enigma of Felix Frankfurter (New York: Basic Books, 1981), 152.
John E. Haynes and David Wigdor, Manuscript Division
Supreme Court justices do not often get a chance to reconsider their decisions. For example, overturning Plessy vs. Ferguson from 1896 took until 1954 in Brown v. Topeka Board of Education. In the flag salute/pledge of allegiance cases Justice Hugo Black had a change of mind, and when a similar case from West Virginia fell on the Court’s doorstep in 1943, the earlier Gobitis decision was reversed.
Writing for the majority, Justice Robert H. Jackson said:
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.
Jehovah’s Witnesses, and all other Americans, thereby have the right to refuse to say what they and their faith consider to be a vain oath.
And that, boys and girls, is what the First Amendment means.