West Virginia v. Barnette and the Flag Case That Protects Every Parent

If you want to find out whether a country believes in freedom, don't ask it during a parade. Ask it in the middle of a war, when the flag is on every porch, the boys are overseas and somebody proposes that every schoolchild be required to say the words, or else.

That is exactly where the United States stood in 1943. Armies were fighting on three continents. The mood at home was fierce and, mostly, admirable. And the Supreme Court chose that moment to tell a state school board that it had no power to make a child salute the flag.

Think about how easy it would have been to go the other way. It would have been the popular decision, the patriotic-sounding decision, the one that would have gotten a nod from every newspaper in America. Six justices wrote the other opinion anyway. Today I want to tell you the story in order, because it is one of the best stories in American law, and because the principle at the end of it is one every conservative parent should keep in the front pocket.

The first round: Minersville v. Gobitis, 1940

Start in Minersville, Pennsylvania, in the 1930s. The school district there required students to salute the flag and recite the Pledge of Allegiance each day. Two children in a Jehovah's Witness family, Lillian and William Gobitas (the Supreme Court's reports spell it Gobitis, a clerical slip that stuck), refused. Their religion taught that saluting any image or symbol was a form of the worship that the Second Commandment forbids. They were not rude about it. They did not disrupt class. They did not insult anyone. They stood quietly and did not say the words, and the district expelled them.

The family sued. The lower federal courts, including the court of appeals, sided with the family. The case went to the Supreme Court, and on June 3, 1940, the Court ruled against the children, 8 to 1. The opinion was written by Justice Felix Frankfurter. Only Justice Harlan Fiske Stone dissented.

Frankfurter's argument is worth stating fairly, because it was not stupid, and it is the argument you will hear in some form from anyone who wants the state to require things of children. Here it is in four steps:

1. A country needs a shared sense of belonging, which Frankfurter called national unity, and national unity is "the basis of national security."
2. Schools are the place where a free society builds that unity in its young.
3. A school board that requires a brief salute is making a reasonable judgment about how to do it, and it asks very little of a child.
4. If parents object, their remedy is the ballot box and the school board, not a federal court. Judges should not sit as a super school board.

Notice what that argument does. It is polite. It is patriotic. It appeals to restraint, which conservatives usually admire in judges. It is the sound of a reasonable man talking himself into a bad idea.

What happened next

The Court's decision did not settle matters. It lit a match. In the months after Gobitis, Jehovah's Witnesses in towns across the country were attacked by mobs, and their meeting halls were damaged. The decision had been read around the country as permission to treat the Witnesses as suspect. Federal officials publicly condemned the violence, and a good number of newspapers that had expected the ruling to settle the matter ran editorials criticising it instead.

Legal scholars criticised the decision as well. And inside the Court, something unusual happened. In 1942 in Jones v. City of Opelika, a different Jehovah's Witness case, Justices Hugo Black, William Douglas and Frank Murphy, three men who had voted with the majority in Gobitis, dissented and stated in print that they now believed Gobitis had been wrongly decided. Judges rarely say that. It takes some character to write "I made a mistake" in a public document with your name on it.

Meanwhile the Court's membership was changing. Justice Robert Jackson, a former Attorney General, had joined in 1941, and Justice Wiley Rutledge in early 1943. And in December 1942 Congress amended the flag code so that the Pledge would be said with the hand over the heart rather than with the outstretched arm, a salute that had begun to look uncomfortably like the one used by the regimes the United States was fighting. That is a small detail with a large meaning: the country was already uneasy about forced displays of loyalty.

The second round: West Virginia State Board of Education v. Barnette, 1943

The second case came from West Virginia. In January 1942 the state board of education adopted a resolution making the salute and pledge a regular part of the school program, and it declared that refusal would be treated as insubordination. A child who refused could be expelled, and an expelled child could be treated as unlawfully absent, which exposed the parents to fines and even jail. The state, in other words, did not merely ask. It threatened.

A Jehovah's Witness family named Barnett (the Court's reports spell it Barnette) in the Charleston area kept their daughters out of the exercise, and the girls were sent home. The family went to federal court and won, and the state appealed. The Supreme Court heard argument in March 1943, and on June 14, 1943, Flag Day, it ruled for the family, 6 to 3.

Justice Jackson wrote the opinion for the Court. He was joined by Chief Justice Stone and Justices Black, Douglas, Murphy and Rutledge. Frankfurter dissented, together with Justices Owen Roberts and Stanley Reed. The Court overruled Gobitis outright, in only three years.

Two points about the reasoning deserve to be underlined, because people get them wrong.

First, it was a free speech case, not only a religion case. Jackson did not say the Witnesses had a special right because of their faith. He said the Constitution forbids the government from compelling anyone to declare belief, whatever the reason. The salute, he reasoned, is a form of speech, and the First Amendment protects the right to refuse to speak just as it protects the right to speak. That means the principle protects the atheist, the skeptic, the immigrant family and the kid who is simply tired of being told what to say.

Second, the Court did not say the Pledge is bad. Schools can teach civics, lead the Pledge and honour the flag. What they cannot do is compel a child to join in. Jackson's opinion says the duty to teach patriotism and respect for the country's institutions is real. The question is the method.

The famous line is this. "If there is any fixed star in our constitutional constellation," Jackson wrote, "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." Read it twice. No official, high or petty. That covers the President and the school board chairman alike. And a few paragraphs on, he gave the whole thing a conservative's warning: forced unity of opinion, he wrote, achieves only "the unanimity of the graveyard."

He also answered Frankfurter's call for restraint in one sentence: "Freedom to differ is not limited to things that do not matter much." If the right to dissent applied only to harmless subjects, it would be a "mere shadow of freedom."

The dissent, stated fairly

Frankfurter did not roll over. His dissent began with a line that deserves to be remembered: that one who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by the Constitution. He was a Jewish man who had come to America as a boy, and he was not indifferent to liberty. His complaint was about the role of judges.

His case was this: the wisdom of a flag salute is a policy question. The Constitution lets states decide policy questions through elected bodies. A judge who strikes down a policy he dislikes is substituting his preferences for the voters'. Conservatives make this argument against judges all the time, and when they do, they are right.

So why did Jackson win? Here is the answer, in numbered points, the way I'd give it to a skeptical friend.

1. The Bill of Rights is a limit on majorities. Judicial restraint means deferring to the political branches within the Constitution's boundaries. It does not mean the boundaries disappear. The First Amendment says Congress shall make no law abridging the freedom of speech, and the Fourteenth Amendment applies that limit to the states. A school board is a state actor.
2. The cost to the child is not "very little." The Gobitas and Barnett children were expelled, and their parents faced prosecution. A rule enforced by expulsion and criminal penalty is not a gentle request.
3. The ballot box is a poor remedy for a small minority. A family with two children in a town of thousands cannot out-vote the town. That is the entire point of a bill of rights.
4. A forced oath is worth less than a freely given one. If saluting is compulsory, it proves nothing about loyalty. If it is voluntary, it means something.

Why this cuts in every direction, and why conservatives should care

Here is where the story stops being history and starts being your business.

The principle in Barnette has no party. It protects whoever is in the minority in a given room, and in a given decade, that could be anyone. Conservatives have used it, and sometimes been protected by it, ever since.

• In Wooley v. Maynard (1977), New Hampshire required drivers to display the state motto "Live Free or Die" on their license plates. George Maynard, a Jehovah's Witness, objected and covered the motto. The Supreme Court held, 6 to 3, that the state could not force him to carry a message on his own car. Chief Justice Warren Burger wrote the opinion.
• In Janus v. AFSCME (2018), the Court held that public employees cannot be forced to subsidise a union's speech. The reasoning builds on the compelled-speech principle.
• In 303 Creative v. Elenis (2023), the Court held that Colorado could not force a web designer to create expressive websites that conveyed a message she did not believe. The case turned on the same idea: the government may not make you say what you do not believe. a baker, a web designer and the line between customers and messages covers the line that case drew.
• And the broader school-speech cases, including Tinker v. Des Moines (1969), which said students do not shed their constitutional rights at the schoolhouse gate, rest on Barnette.

Now do the thing every good debater does: run it the other way. Picture a hypothetical school board, in a hypothetical town, that decides every student must stand each morning and recite a statement on a hot political question of the day. I'm not naming a side, because the point doesn't depend on one. Maybe you'd love the statement. Maybe you'd hate it. Either way, the question is the same: can the board make your child say it? After Barnette, the answer is no, and it is no for the same reason that the Barnett girls could not be forced to salute.

That is the conservative case for limits on what a school may require. Conservatives believe in limited government, in the primacy of the family, and in the idea that the state does not own the child's conscience. A rule that protects a Jehovah's Witness girl in 1943 protects a conservative Christian boy in a district that decides, in some future year, to require him to affirm a view he cannot honestly hold. If you want the constitutional foundation under the family's role, see Meyer, Pierce, Yoder and Troxel Prove the Constitution Puts Parents First. If you want the broader story of religious liberty in school, see Five cases that ended America's religious penalty in school aid and School Prayer, Bibles and the Ten Commandments, Eleven Questions Answered.

The Pledge itself

A little history to finish the picture. Francis Bellamy wrote the Pledge in 1892 for a magazine, The Youth's Companion, as part of a celebration of the 400th anniversary of Columbus's voyage. It had no "under God." Congress added those words in 1954. It was formally codified in the flag code in 1942, the year before Barnette. Through it all, the legal rule has been the same since Flag Day, 1943: a student may decline to recite it, and a state may not punish him for declining. Lower courts have also applied the principle to quiet refusals to stand, so check your state's law and your district's policy for the details.

I'd add one practical thought. If you want your children to love their country, the strongest move is not a rule that forces the words. It's a home where they hear the Gettysburg Address, learn who the Founders were and see their parents vote. A child who says the Pledge because he chooses to has done something worth more than a thousand who said it under threat.

The bottom line

• The Supreme Court got it wrong in 1940 and fixed it in 1943. Minersville v. Gobitis upheld a compelled salute 8 to 1. West Virginia v. Barnette overruled it 6 to 3, on Flag Day, in the middle of a world war.
• The rule is simple. A school may teach civics and lead the Pledge. It may not compel a student to recite it or punish a student for declining.
• This protects you. The same principle that shielded the Witnesses protects any student a school might someday try to make affirm something he does not believe. Defend it for everyone, and it will be there for you.
• Insist on voluntary patriotism. Conservatives win the argument for love of country by example, not by compulsion.
• If a school requires a student to recite or sign something that violates his conscience, ask for the policy in writing and read it against Barnette. Then talk to a lawyer who handles education or First Amendment cases before the situation escalates.