West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) held that students have a constitutional right to refuse to salute the American flag or recite the Pledge of Allegiance. The case is an important landmark in free speech jurisprudence and in the Supreme Court's treatment of the relationship between individual conscience and the state. It is particularly famous for its rhetorical flourishes, both in Justice Robert Jackson's majority opinion and in Justice Felix Frankfurter's personal and vehement dissent. It also figures importantly in the history of American minority religions and in the continuing struggle to define the fundamental kernel of American identity.
The story of Barnette is usually paired with that of Minersville School District v. Gobitis, 310 U.S. 586 (1940). Gobitis involved two young Jehovah's Witnesses who were expelled from school for refusing, on religious grounds, to salute the flag. The children argued that they were entitled, as a matter of the free exercise of religion, to an exemption from the flag-salute requirement. The Court rejected the claim in an eight-to-one opinion by Justice Frankfurter, holding that the “religious liberty which the Constitution protects has never excluded legislation of general scope not directed against the doctrinal loyalties of particular sects.” The opinion incidentally considered, and rejected, a related argument under the free speech clause.
The Court revisited the flag-salute issue only three years later in Barnette. Again, the litigation involved Jehovah's Witness children, and, again, the parties framed the case in terms of a distinctively religious right to be exempt from an otherwise applicable law. The Court, however, this time focused on freedom of speech rather than freedom of religion. It did not ask whether religious objectors were entitled to an exemption from a mandatory patriotic exercise, but whether such an exercise could be made mandatory in the first place. Overruling Gobitis, the Court held that “the action of the local authorities . . . invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Two members of the six-to-three majority—Justice Jackson, the author, and Justice Wiley Rutledge—had not been on the Court when Gobitis was decided. They were joined by Chief Justice Harlan Stone, who while still an associate justice had been the lone dissenter in Gobitis. But the decisive votes were those of Justices Hugo Black, William Douglas, and Frank Murphy, who made the new majority possible by switching their earlier positions. Justices Black and Douglas wrote a concurring opinion. Justices Roberts
and Stanley Reed adhered to their views in Gobitis, and Justice Frankfurter wrote his own impassioned dissent.
Doctrinally, Barnette is important for establishing that the guarantee of free speech embraces not just the right to speak, but the right to refrain from enforced speech. That aspect of the case bore fruit most directly in Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court held that a New Hampshire resident had the right to cover the official motto, “Live Free or Die,” on his car's license plate.
Ironically, given the importance of Barnette in the history of the nation's willingness to abide politically freighted religious diversity, the case does not figure importantly in the doctrinal development of free exercise jurisprudence. Indeed, Justice Jackson's opinion put to one side the question of whether the Constitution could require religion-based exemptions from otherwise applicable laws. The Court's struggle with that issue played out later in a sequence of cases running from Sherbert v. Verner, 374 U.S. 398 (1963), which recognized a prima facie right to religion-based exemptions, to Employment Division v. Smith, 494 U.S. 872 (1990), which—citing Gobitis among other cases—rejected such a right under most circumstances.
The significance of Barnette, however, extends beyond doctrine. For Justice Frankfurter, the majority's holding represented an abdication of “judicial self-restraint” and a disturbing willingness to second-guess the democratic legislature's decision of how best to accommodate individual desires and the “civil concerns of society.” Frankfurter also understood the case through the prism of his own views on patriotic identity, civil symbols, and the benefits of assimilation. All these themes converged in a curious paragraph, with its unique, “intense confessional tone” (Burt 1988, p. 44), at the beginning of his opinion:
One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion. . . . But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. . . . As a member of this Court I am not justified in writing my private notions of policy into the Constitution.
The intensity of Frankfurter's reaction also had a personal dimension. He was wounded by the Court's rejection of Gobitis, and was particularly bitter that former allies had turned against him. Barnette marked “a clear transition for Frankfurter and for the Court” (Hirsch 1981, p. 176). Its legal and interpersonal effects would be felt for at least the rest of Frankfurter's term on the Court.
The Barnette majority, no less than Frankfurter's dissent, framed the case in terms of national identity and patriotism. The majority opinion suggested, however, that it was in the Constitution's commitment to liberty that the nation's identity was to be found. Justice Jackson famously wrote: “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.” Indeed, while it might seem remarkable that the Court would reach this holding in the midst of World War II (1939–1945), it was in fact the felt need to distinguish American respect for conscience from Nazi tyranny (and the resemblance, which the Court noted, between the traditional flag salute, with outstretched arm, and the Nazi salute) that helps explain the Court's change of mind between Gobitis and Barnette (Primus 1999, pp. 197–199). This effort to identify genuine American patriotism with American liberty would resonate over the years, as in Texas v. Johnson, 491 U.S. 397 (1989), which struck down laws punishing flag desecration.
Most commentators now take Barnette's basic doctrinal holding for granted. Some, however, including the philosopher Michael Sandel, think that Justice Jackson's account of American civic identity is too thinly proceduralist and wrongly elevates the “priority of the right over the good” (Sandel 1996, p. 53). Along similar lines, the constitutional scholar Steven D. Smith has argued that Jackson's “big blunder” was in writing that “no official . . . can prescribe what shall be orthodox . . . or”—rather than and—“force citizens to confess . . . their faith therein.” In Smith's view, the choice between and and or is the difference between a straightforward affirmation of individual rights and the unrealistic, unnecessary, and unattractive claim that the American community “stands for nothing” and is fundamentally disabled from engaging in the project of trying to define itself and its substantive values.
Bloom, Lackland H., Jr. 1990. “Barnette and Johnson: A Tale of Two Opinions.” Iowa Law Review 75: 417–432.
Burt, Robert. 1988. Two Jewish Justices: Outcasts in the Promised Land. Berkeley: University of California Press.
Hirsch, H. N. 1981. The Enigma of Felix Frankfurter. New York: Basic Books.
Primus, Richard A. 1999. The American Language of Rights. New York: Cambridge University Press.
“Recollections of West Virginia State Board of Education v. Barnette.” 2007. St. John's Law Review 81: 755–796.
Sandel, Michael. 1996. Democracy's Discontent: America in Search of a Public Philosophy. Cambridge, MA: Harvard University Press.
Smith, Steven D. 2003. “Barnette’s Big Blunder.” Chicago Kent Law Review 78: 625–668.