West Virginia Board of Education et. al. v. Barnette

319 U.S. 624 (1943)

Decision: Justice Jackson delivered the opinion of the Court. After reversing, the US Supreme Court decided that based on the Establishment Clause of the First Amendment, school secular interest in fostering patriotism through saluting the flag is not sufficient to overcome overcome the student's right of religious freedom. Concluding:

    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. If there are any circumstances which permit an exception, they do not now occur to us.

    We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and 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.

Significance: Neither students or teachers can be compelled to say the Pledge of Allegiance if they have religious based objections.

Historical Background: There are two clauses regarding religion in the First Amendment. One is the Establishment Clause, which prohibits the government from establishing any sort of official religion; the other is the Free Exercise Clause, which forbids the government from restricting an individual's religious practices. Free exercise claims often overlap claims to freedom of expression, and several of the most important religion cases mixed issues of free speech and free exercise together.

A key element in religion clause jurisprudence is the dichotomy between belief and action originally enunciated by Chief Justice Morrison Waite in 1879. While the First Amendment absolutely prohibits government efforts to restrict beliefs, it does not prevent the state from forbidding practices that threaten public order or safety. In the example Waite used, if a sect believed in human sacrifice, the government could do nothing to restrict that belief; but it could, without violating the Free Exercise Clause, bar the actual sacrifice. While this belief/action analysis remains useful even today, the Court came to recognize that in some areas belief and action overlapped.

The Jehovah's Witnesses are a relatively small sect in the United States, but they are responsible for some of the most important cases establishing religious freedom. The Witnesses claimed a right to proselytize, an action, without state regulation, as essential to the free exercise of their creed, a belief. In several cases the Court upheld these claims, but primarily on speech rather than religion clause grounds, yet these decisions are in fact the basis for modern jurisprudence on the Free Exercise Clause.

Undoubtedly the most famous of the early free exercise cases involved the Witnesses' refusal to salute the American flag. The sect takes literally the biblical command not to "bow down to graven images," and considers the flag an icon. In the first case, Minersville School District v. Gobitis (1940), Justice Felix Frankfurter sustained local school board requirements that all students participate in the morning flag salute ritual. Frankfurter rejected the free exercise claim almost summarily, noting that civic obligations outweighed religious convictions. One should note that Gobitis was decided with Europe already at war and the United States rearming. Patriotism seemed the highest value to many, including eight members of the Court; only Justice Harlan Fiske Stone dissented, charging that the required salute violated freedom of speech and of religion.

The Witnesses refused to compromise and, in spite of enormous public hostility, clung to their outspoken religious beliefs. But in the growing climate of intense patriotism that accompanied American entry into the war, the Witnesses suffered considerably for their beliefs, and there were numerous instances of persecution, including physical assaults on children. Such a condition could hardly win approval as news began to filter out of Europe about Hitler's "final solution" to the Jewish problem.

As a result, the Court took another flag salute case, and this time reversed itself. Justice Jackson, using Holmes's clear and present danger test, found that the Witnesses' refusal to salute the flag harmed no one, did not violate anyone else's rights and posed no danger to public order. Probably no other case so clearly caught the intent of the framers of the First Amendment that religious freedom meant not only the absence of an established church, but also the right of each individual to worship -- or not to worship -- as he or she saw fit, as long as it did not interfere with the rights of others. Democracy demanded, according to Jackson, not merely toleration of the majority of differing beliefs, but full freedom for the minorities to practice their faiths without fear of the majority.


Corkill, Phillip. The Law and American Education. Tucson, Arizona. 1991 (Lecture presented at the Flowing Wells School District Administrative Office).
David Manwaring, Render unto Caesar: The Flag Salute Controversy (1962); Leo Pfeffer, Church, State and Freedom (1967 rev. ed.).

Important Landmark Cases in Educational Law

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