Beware: Judges with a Vision

By Epps, Garrett | The American Prospect, October 2011 | Go to article overview
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Beware: Judges with a Vision

Epps, Garrett, The American Prospect

In 1940, a small group of children, bullied by intolerant adults, sought the protection of the United States Supreme Court. The nation's highest court spat in their faces. The results were so violent and tragic that the Court reversed itself three years later, trying to call a halt to the injustice it had spawned.

This story--the story of Minersville School District v. Gobitis and West Virginia State Board of Education v. Barnette--still teaches lessons today about the quality of justice, the character of judges, and the role of courts in spurring, or retarding, social change.

The issue was simple but explosive: Could school authorities require all children to recite the Pledge of Allegiance and salute the flag, even if their religious beliefs forbade it? The children at risk were Jehovah's Witnesses; the head of their faith had declared that saluting the flag was idolatry, a violation of the Second Commandment's injunction not to worship "graven images." Thousands of Witnesses in Germany had been persecuted for refusing the Hitler salute, he said. American Witnesses should follow their example.

The Nazi parallel was disquieting. At the time, the prescribed form of taking the pledge, called the Bellamy salute, was a stiff-armed gesture that looked much like the fascist one. When fifth-grader Billy Gobitas and his sister Lillian (the federal courts, never overly concerned with individuals, spelled their name wrong) refused the salute and pledge, they were expelled from school.

Lower federal courts found the case an easy one. Compelling religious objectors to salute a symbol violated the First Amendment's guarantee of "the free exercise" of religion. But when the case hit the Supreme Court, it ran headlong into a judge with a vision: Felix Frankfurter.

Frankfurter, a New Deal liberal, was also an immigrant with an almost mystical love of his adopted country--and an understandable fear of what was happening in Europe. America, not yet in the war, must come together to face the Nazi threat. His emotional plea for unity convinced eight of the justices that the misgivings of a few religious zealots must not obstruct national security.

"National unity is the basis of national security," he wrote. "The preciousness of the family relation, the authority and independence which give dignity to parenthood, indeed the enjoyment of all freedom, presuppose the kind of ordered society which is summarized by our flag. A society which is dedicated to the preservation of these ultimate values of civilization may in self-protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties." To allow any child to stand aloof "might cast doubts in the minds of the other children."

Billy and Lillian lost--the expulsions stood--but there were many other losers that day at the Court. War hysteria was sweeping the country. Jehovah's Witnesses, who refused to fight for any nation, were already under siege around the country. After Gobitis, persecution mounted. It was, according to one Mississippi legislative proposal, "Open Season on Jehovah's Witnesses." School districts coast to coast adopted the forced pledge and salute. Witnesses--whose faith requires them to preach the Word to non-Witnesses--were accosted by mobs demanding they salute on the spot; those who refused were arrested, beaten, forced to drink castor oil, tarred and feathered, or marched out of town. "They're traitors--the Supreme Court says so," one Southern sheriff, watching a mob, told a Northern reporter. As Shawn Francis Peters documents in his book Judging Jehovah's Witnesses, a mob in Nebraska dragged Witness Albert Walkenhorst from his home and cut out one of his testicles.

Rarely has a decision gone so drastically wrong--and rarely, if ever, has the Court repented so quickly.

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