West Virginia State Board of Education v. Barnette

Summary

West Virginia State Board of Education v. Barnette, 319 U.S. 624, decided on Flag Day, 14 June 1943, held that no state may compel public school pupils to salute the flag and recite the pledge of allegiance. After Minersville School District v. Gobitis (1940), the West Virginia legislature required instruction in history and civics, and on 9 January 1942 the State Board of Education, quoting heavily from Gobitis, made the salute mandatory for all teachers and pupils. A refusing child was treated as insubordinate and expelled, could be proceeded against as a delinquent, and exposed his parents to fines and jail. Jehovah's Witness families, among them Walter Barnette, sued on behalf of their children, and a three-judge district court enjoined the regulation despite Gobitis. The board relied on Gobitis: the salute was a reasonable civic exercise, applied to every pupil without regard to creed, and the means of teaching loyalty belonged to legislators and educators rather than judges. The families answered that the regulation compelled religious dissenters to profess a belief against conscience, punishing children and parents alike for silence. The Court affirmed by a vote of six to three, overruling Gobitis. Justice Robert H. Jackson wrote for the majority and reframed the case: the salute is a form of utterance, and the question is not whether believers deserve an exemption but whether the state has power to compel anyone to declare a belief. Censorship is tolerated only to prevent a clear and present danger, he reasoned, and compelled affirmation would need even stronger grounds. He then answered the Gobitis premises one by one, holding that individual freedom of mind is a source of national strength, that school boards are bound by the Bill of Rights, that the very purpose of that Bill was to place certain subjects beyond the reach of majorities, and that coercive attempts at unity have historically ended in failure. His opinion closes with the fixed star passage forbidding officials to prescribe orthodoxy in politics, nationalism or religion. Justices Roberts and Reed noted that they adhered to Gobitis. Justice Felix Frankfurter dissented, insisting that his personal sympathies were irrelevant to the judicial task, that judges may set aside only legislation no reasonable legislature could pass, and that religious freedom secures equality rather than exemption from general civic duties. The library text contains Jackson's opinion, the Roberts and Reed notation, and an excerpt of Frankfurter's dissent; the concurrences of Black and Douglas and of Murphy, together with the footnotes, are not included. The Barnett children's surname was misspelled in the record. Barnette has remained a leading authority on compelled speech, relied on in Wooley v. Maynard (1977) and in later cases on student expression.

Top Lessons

• Changing the question

  Gobitis had asked whether religious objectors deserved an exemption from a valid requirement. Jackson asked a prior question: whether the state could require the salute of anyone at all. By reframing the issue as one of compelled speech, the majority made the case about every citizen's freedom of mind rather than one group's faith.

• Rights withdrawn from the vote

  Jackson writes that the very purpose of a Bill of Rights was to remove certain subjects from political controversy and place them under the protection of courts. This directly answers Frankfurter's view in Gobitis that remedies should be sought at the ballot box, and it remains one of the clearest statements of why written guarantees exist.

• Unity by persuasion or by force

  Jackson does not doubt the value of national unity; he doubts that compulsion produces it. He surveys efforts from Rome's campaign against Christianity to the totalitarian regimes then at war with America, and concludes that coercion fails. Frankfurter, in turn, warned that judges who substitute their own views for a legislature's endanger democratic self-government.

• The judge's private views and public duty

  Frankfurter opens his dissent by acknowledging his own background as a Jewish immigrant and his sympathy with the majority's libertarian views, then insists that judges must set such sympathies aside. His dissent is a classic statement of the distinction between what a judge would prefer and what the Constitution permits him to do.

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Medical Lens

The opinions address compelled speech, religious liberty and judicial review in public schools and contain no medical material.