The Supreme Court recently upheld the free exercise rights of a religious group to canvas door-to-door without first obtaining a permit.2 The Jehovah's Witnesses asserted that their right to practice their faith through door-to-door contacts overrode the government's interest in restricting such activities, even through the government's use of neutral laws.3 It was fitting that the Court, in finding the Witnesses' activities were the exercise of their religion, cited the free exercise decisions from the late 1930s and early 1940s.4 The Jehovah's Witnesses brought most of those original cases before the Supreme Court,5 and in doing so, used their beliefs to establish much of the First Amendment free exercise law still in use today. During the late 1930s and early 1940s, the Justices on the Supreme Court used the Witnesses' cases to establish their own constitutional "faiths" about how much protection the Court should give these practices from the effects of "neutral" laws. At the time these cases were coming before the Court, the Court underwent one of the greatest, changeovers in its history. Roosevelt appointed nine Justices to the Supreme Court, virtually remaking the entire Court in the process. The Justices appointed by President Roosevelt essentially remade First Amendment law, and in so doing, these Justices pursued the integration of their own constitutional faith into the law of the land.6 This article tracks this remarkable confluence of forces that together created the First Amendment's free exercise jurisprudence.7
Arguments about where the balance should be struck between government regulation and an individual's freedom to practice their religion are nearly as old as the Republic itself.8 During the 1930s and 1940s, while the world waged a war pitting democratic governments against totalitarian regimes in Europe and the South Pacific, the Jehovah's Witnesses fought a war on the home-front to establish the primacy of their right to freely practice their faith against government interference. Two Supreme Court decisions, one involving the salute to the flag and the other involving the Pledge of Allegiance, marked the beginning and end of their struggle.9 The road from Gobitis10 to Barnette11 is a remarkable story that serves as a confluence of history, theology and law.
Franklin Roosevelt transformed the Supreme Court during his four terms as President. He made nine appointments to the Court between 1937 and 1943.12 The average age of the Justices dropped from seventy-two for the "Nine Old Men" in 1937 to fifty-six in 1943.13 The judicial philosophies of the Court changed along with the change in personnel. The solicitude for individual rights and the Justices' beliefs about the Court's role in protecting those rights both increased. During that same period, the Jehovah's Witnesses' beliefs had evolved in a way that made aggressive preaching of the "good news" central to the practice of their faith.14
During the Court's transition period, the Jehovah's Witnesses brought their arguments before the Supreme Court eight times, and they lost all eight times.15 But the tide turned for the Jehovah's Witnesses on May 3, 1943. On that single day, the Supreme Court decided thirteen cases involving Jehovah's Witnesses; the Jehovah's Witnesses won twelve.16 The Court found the request for injunctive relief in the thirteenth case moot based on their striking down the relevant statute in one of the other twelve cases.17 One month later, on Flag Day, June 14th, 1943, the Supreme Court decided in West Virginia State Board of Education v. Barnette,18 that the schoolchildren, who were Jehovah's Witnesses, could not be compelled to salute the American flag in public school classrooms. This stunning reversal of the Court's own recent precedent19 has been called one of the "strongest opinions in Supreme Court history."20
I. THE WITNESSES
The story of the Jehovah's Witnesses' battle for the First Amendment must begin with a look at the unique characteristics of their faith. …