1942: Protesting the Pledge

A mob of 1,000 people destroyed the vehicles of Jehovah’s Witnesses in Litchfield, Ill., on June 16, 1940. A group of 65 church members arrived in the town to distribute pamphlets and play recordings as they sought new followers. However, a large group of residents who knew about the Witnesses’ opposition to the saluting the U.S. flag and other controversial beliefs blocked them. The crowd beat several individuals and destroyed 15 vehicles. Jehovah’s Witnesses’ messages were often critical of other religions, but the Witnesses themselves were also the target of religious discrimination.

After the Supreme Court's ruling on June 3, 1940, that Jehovah's Witnesses could not refuse to salute the flag in schools, attacks on them like this one were common. By the end of 1940, more than a thousand church members had been attacked. This outbreak of violence in response to the Minersville School District v. Gobitis ruling is thought to have influenced the three members of the Supreme Court who changed their vote when this issue came before the court again three years later in West Virginia State Board of Education v. Barnette.

When Francis J. Bellamy wrote the Pledge of Allegiance in 1892, he created a special salute to go with it, in which "every pupil gives the flag the military salute — right hand lifted, palm downward, to a line with the forehead and close to it." By the early 1940s, however, the adoption of this salute by fascists in Italy and Nazi Germany was making many Americans uncomfortable, particularly after the United States entered World War II in December 1941. A year later, the United States amended the Flag Code to replace the raised arm salute during the pledge with "standing with the right hand over the heart."

This photo dates from March 1943, the same month that the West Virginia State Board of Education v. Barnette case was being argued before the Supreme Court. In 1935, the American leader of the Jehovah's Witnesses, Joseph "Judge" Rutherford, noted the persecution of German Witnesses for not making the Nazi "Heil Hitler" salute while explaining why Witnesses should not salute the U.S. flag. In subsequent years, young Jehovah's Witnesses such as Billy and Lillian Gobitas and Gathie and Marie Barnett would be expelled for refusing to salute the flag and pledge allegiance in schools. Their cases ended up before the Supreme Court.

The American Legion was founded after World War I as a "patriotic veterans organization," which aimed to "foster and perpetuate a one hundred percent Americanism" among other goals. As part of promoting Americanism, the Legion petitioned states and local school districts to incorporate mandatory flag salutes and the Pledge of Allegiance into class routines, such as the law passed by West Virginia that became contested by Jehovah's Witnesses in 1942. In their zeal to promote the American flag, Legionnaires frequently participated in physical attacks on Jehovah's Witnesses who refused to salute the flag during the early 1940s, and encouraged schools to take a hard line against students who would not salute the flag or say the pledge. Jehovah's Witnesses consider saluting or pledging allegiance to the flag to violate their religious beliefs.

When the West Virginia State Board of Education v. Barnette case came before the Supreme Court, the American Legion submitted an amicus curiae brief in favor of upholding West Virginia's law requiring students to pledge allegiance to the flag. An amicus curiae is a "friend of the court," or a third party who is not directly involved in the case but wants to offer information or expertise on the issues that could help the Supreme Court justices in their decision.

To continue reading this legal brief, see part 2 and part 3.

The American Legion, a veterans organization that promotes patriotism, wrote this "friend of the court" brief to persuade Supreme Court justices to support the West Virginia State Board of Education in its case against the Barnett family and other Jehovah's Witnesses who wanted to opt out of saluting and pledging allegiance to the flag in school. West Virginia had passed a law in 1942 making it compulsory for children in public schools to participate in the acts or face expulsion. In its desire to promote the American flag, the American Legion had a record of antagonism against Jehovah's Witnesses, whose religious beliefs prevent them from pledging to any symbol or object.

In this excerpt, the American Legion claims that having young people say the Pledge of Allegiance and salute the flag in school promotes the "national cohesion" and "national unity" necessary to preserve "the liberties upon which freedom of religion is based." In this way, the Legion dismisses the arguments that West Virginia's law should be struck down to preserve freedom of religion.

The brief also refers to the ongoing occupation of much of Europe by the Nazis during World War II when it warns that "during the past few years we have witnessed the fall of many nations composed of liberty-loving people because their national security was not adequate."

To continue reading this brief, see part 3. To read the first page of this section, see part 1.

Unlike other Christian sects, Jehovah's Witnesses interpret the biblical commandment to not worship idols to include demonstrations of loyalty to flags. This belief angered the American Legion, a veterans organization that works to promote patriotism, and which had successfully lobbied many states to include a flag salute and the Pledge of Allegiance in schools between the 1920s and the early 1940s. When the Supreme Court took up the West Virginia State School Board v. Barnette case in early 1943, the American Legion wrote this brief to support the state's law requiring all students to salute and pledge or face expulsion.

In this excerpt, the American Legion argues that Jehovah's Witnesses are wrong to view the pledge as a religious rite or the flag as "an image to be worshiped [sic]." They say the acts are merely a "promise" of "support to a political system which has established the right to worship Jehovah as the individual conscience dictates." Therefore, the law is "not in conflict with the exercise of the religious views" of the Jehovah's Witnesses, it says.

To read the beginning of this section of the brief, see part 1 and part 2.

This front page discusses the outcome of the West Virginia State Board of Education v. Barnette case, in which Gathie and Marie Barnett (the 'e' in the court case name was a clerical error) and other young Jehovah's Witnesses were suing after being expelled from school for not participating in the state's mandatory flag salute and Pledge of Allegiance ritual. Jehovah's Witnesses are a Christian sect that believe that the biblical commandment forbidding them to "bow down" to any "graven images" includes saluting a flag.

The story notes that the Supreme Court chose to release the decision on Flag Day, which falls on June 14. It discusses how the court had reversed its position on this issue three years after deciding mandatory flag salutes were constitutional, and begins to quote from the majority decision. While the Barnetts had largely argued their case based on the First Amendment's protection for the free exercise of religion, Justice Robert H. Jackson also made the case strongly about free speech in writing the majority opinion. The story quotes his complaint that "to sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind."

To continue reading the article, see Supreme Court Ends Forced Flag Salute, 1943 (2 of 2).

As the article continues in the two middle columns, The New York Times includes the most famous quote from this case, Justice Robert H. Jackson's line that "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 matter of opinion, or force citizens to confess by word or act their faith therein." Jackson also observed that "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."

The article notes that in his dissent, Justice Felix Frankfurter insisted that "saluting the flag did not curb religious beliefs," so West Virginia's law forcing students in school to participate in this ritual did not violate the Jehovah's Witnesses' constitutional rights. He also emphasized that having students salute the flag and recite the Pledge of Allegiance had the "legitimate legislative end" of "the promotion of good citizenship." Frankfurter had written the majority opinion in Minersville v. Gobitis, the 1940 decision being overturned.

To read the beginning of this article, see Supreme Court ends Forced Flag Salute, 1943 (1 of 2).

In 1942, West Virginia made saluting the flag and reciting the Pledge of Allegiance required in public schools. There were penalties for students who refused to comply. Gathie Barnett and her sister, Marie, were Jehovah's Witnesses, a Christian sect that forbids its members from "worshipping" any idols, including flags. After they were repeatedly sent home from school for refusing to pledge allegiance, they sued, and eventually the Supreme Court ruled in 1943 that their actions were protected by the First Amendment.

This interview took place 60 years after the Supreme Court decision, when she was in her 70s. The Robert H. Jackson Center, which conducted the interview, honors the life and legacy of the Supreme Court justice who wrote the majority opinion in West Virginia State Board of Education v. Barnette. (The title of the case has an "e" at the end of Barnett because a clerk misspelled their name).