Today the test-of-patriotism spotlight is on professional football players, but in 1942 it was on Jehovah’s Witnesses. Specifically, two elementary school girls from Charleston, West Virginia.
At that time, West Virginia required all students and teachers to salute the flag. Jehovah’s Witnesses objected because they believed this violated the Bible commandment against worshiping images. Gathie and Marie Barnett’s family was of that faith, so when they refused to recite the Pledge of Allegiance, authorities sent them home with the threat of reassigning them to reform school and prosecuting their parents for causing juvenile delinquency. So the family did what any principled American would do — they sued.
The complication was a precedent already existed. In 1935, Jehovah’s Witnesses Lillian and William Gobitis had been expelled from Pennsylvania public schools for refusing to salute the flag. Their case, Minersville School District v. Gobitis, was decided by the U.S. Supreme Court on June 3, 1940 — mandatory flag salutes were upheld by a decisive 8-1 margin (https://www.oyez.org/cases/1940-1955/310us586).
Unfortunately, and perhaps predictably, the main result was a wave of recrimination against the Witnesses. To quote Wikipedia —
“On June 9, a mob of 2,500 burned the Kingdom Hall in Kennebunkport, Maine. On June 16, Litchfield, Illinois police jailed all of that town’s sixty Witnesses, ostensibly protecting them from their neighbors. On June 18, townspeople in Rawlins, Wyoming brutally beat five Witnesses; on June 22, the people of Parco, Wyoming tarred and feathered another.
“The American Civil Liberties Union reported to the Justice Department that nearly 1,500 Witnesses were physically attacked in more than 300 communities nationwide. One Southern sheriff told a reporter why Witnesses were being run out of town: “They’re traitors; the Supreme Court says so. Ain’t you heard?”
“First Lady Eleanor Roosevelt appealed publicly for calm, while newspaper editorials and the American legal community condemned the Gobitis decision as a blow to liberty. On June 8, 1942, Supreme Court Justices Black, Douglas and Murphy stated in their opinion on Jones v. City of Opelika that, although they had concurred with the majority in the Gobitis case, they now believed that that case had been wrongly decided ( https://en.wikipedia.org/wiki/Minersville_School_District_v._Gobitis ).”
In one of the few occasions in American history, the Supreme Court got a do-over. The Barnett family’s case, misspelled as West Virginia State Board of Education v. Barnette, quickly made its way through the legal system and was decided by the Supreme Court on June 14, 1943 (only three years after Minersville). This time, the decision was 6-3 in favor of free speech — “…compelling public schoolchildren to salute the flag was unconstitutional. In an opinion written by Robert Houghwout Jackson, the Court found that the First Amendment cannot enforce a unanimity of opinion on any topic, and national symbols like the flag should not receive a level of deference that trumps constitutional protections. He argued that curtailing or eliminating dissent was an improper and ineffective way of generating unity.” ( https://www.oyez.org/cases/1940-1955/319us624 )
So today the law seems to be on the side of free speech. But will it stay that way?