In 1942, America was in peril.
It was immersed in a war for survival and faced powerful enemies to the east and west. It had already suffered a sneak attack at Pearl Harbor and faced a long, bloody road to victory. For many, it was a time to demonstrate their patriotism and support for their country.
The West Virginia Board of Education chose to do so by enacting a rule that required children to salute the flag. Students who failed to salute would be subject to disciplinary action, which included the possibility of being expelled or sent to reform school. The parents could be prosecuted for contributing to juvenile delinquency.
At the time, Germany was sending thousands of Jehovah’s Witnesses to concentration camps for refusing to salute the Nazi flag. Jehovah’s Witnesses were forbidden by their religion to salute flags, which they consider a form of idolatry.
Walter Barnette was a Jehovah’s Witness in West Virginia who instructed his two daughters not to salute the flag or recite the pledge of allegiance. The girls were duly expelled, and Barnette took the matter to court, asserting that the salute violated the principles of freedom of religion and of speech.
The case eventually made its way to the Supreme Court.
Three years earlier, the Court had ruled that a Pennsylvania school board had the right to require Jehovah’s Witnesses to salute the flag. These enforced demonstrations, one justice argued, were a means of creating national unity.
On June 14, 1943, the justices reversed this earlier decision. Justice Robert Jackson wrote, “Freedom to differ is not limited to things that do not matter much. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
The Post editors applauded the decision. They recognized that the freedom to express one’s patriotism was one of the things America was fighting to defend.
As the Constitution Center recently noted about the ruling, “Patriotism and free speech still collide now and then. Such debates remind us that individual expression can be criticized and yet still protected by the First Amendment.”
-From a July 10, 1943, editorial in The Saturday Evening Post:
Score for Freedom No. 2
The Supreme Court happened to select Flag Day to hand down the opinion that it had been wrong in an earlier decision in a Jehovah’s Witnesses flag-salute case. The court, in reversing itself, declared that state statutes calling for salutes to the flag by school children were in violation of the Bill of Rights unless they took account of the religious convictions of minorities.
In Justice Jackson’s words: “If there is a 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 of mouth their faith therein.”
The principles of Jehovah’s Witnesses can be pretty annoying to the majority of citizens. They insist on propagating their beliefs at the most inconvenient times and places, and they make no concessions to the sensibilities of the majority. To our way of thinking, this makes all the more impressive the action of the court, taken in time of war, when hysteria can so easily be directed toward eccentric minorities, to protect the elementary rights of unpopular individuals.
The majesty of the flag will not suffer because it has been permitted to remain the symbol of a willing loyalty. While the honest convictions of American citizens are protected by judicial authority from the zeal of well-meaning but often impatient officialdom, the flag, which symbolizes our hard-won privileges, waves more proudly than before over the land of the free. Love of country is not in danger. It springs, to quote Justice Douglas, “from willing hearts and free minds.”