West Virginia State Board of Education v. Barnette

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West Virginia State Board of Education v. Barnette
Seal of the United States Supreme Court.svg
Argued March 11, 1943
Decided June 14, 1943
Full case nameWest Virginia State Board of Education, et al. v. Walter Barnette, et al.
Citations319 U.S. 624 ( more )
63 S. Ct. 1178; 87 L. Ed. 1628; 1943 U.S. LEXIS 490; 147 A.L.R. 674
Case history
PriorInjunction granted, 47 F. Supp. 251 (S.D. W. Va. 1942)
The Free Speech clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the Pledge of Allegiance. District Court affirmed.
Court membership
Chief Justice
Harlan F. Stone
Associate Justices
Owen Roberts  · Hugo Black
Stanley F. Reed  · Felix Frankfurter
William O. Douglas  · Frank Murphy
Robert H. Jackson  · Wiley B. Rutledge
Case opinions
MajorityJackson, joined by Stone, Black, Douglas, Murphy, Rutledge
ConcurrenceBlack, joined by Douglas
DissentRoberts, Reed
Laws applied
U.S. Const. amends. I, XIV; W. Va. Code § 1734 (1941)
This case overturned a previous ruling or rulings
Minersville School District v. Gobitis (1940)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a landmark decision by the United States Supreme Court holding that the Free Speech Clause of the First Amendment protects students from being forced to salute the American flag or say the Pledge of Allegiance in public school. The Court's 6–3 decision, delivered by Justice Robert H. Jackson, is remembered for its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials".

Supreme Court of the United States Highest court in the United States

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all federal and state court cases that involve a point of federal law, and original jurisdiction over a narrow range of cases, including suits between two or more states and those involving ambassadors. The Court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the U.S. Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The Court may decide cases having political overtones, but it has ruled that it does not have power to decide non-justiciable political questions.

Flag of the United States National flag

The flag of the United States of America, often referred to as the American flag or U.S. flag, is the national flag of the United States. It consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows, where rows of six stars alternate with rows of five stars. The 50 stars on the flag represent the 50 states of the United States of America, and the 13 stripes represent the thirteen British colonies that declared independence from the Kingdom of Great Britain, and became the first states in the U.S. Nicknames for the flag include the Stars and Stripes, Old Glory, and the Star-Spangled Banner.

Robert H. Jackson American judge

Robert Houghwout Jackson was an American attorney and judge who served as an Associate Justice of the United States Supreme Court. He had previously served as United States Solicitor General, and United States Attorney General, and is the only person to have held all three of those offices. Jackson was also notable for his work as the Chief United States Prosecutor at the Nuremberg Trials of Nazi war criminals following World War II.


Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis , in which the Court stated that the proper recourse for dissent was to try to change the public school policy democratically. It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs but instead ruled that the state did not have the power to compel speech in that manner for anyone. In overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Free Exercise Clause. [1]

Minersville School District v. Gobitis, 310 U.S. 586 (1940), was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution. The Court ruled that public schools could compel students—in this case, Jehovah's Witnesses—to salute the American Flag and recite the Pledge of Allegiance despite the students' religious objections to these practices. This decision led to increased persecution of Witnesses in the United States. The Supreme Court overruled this decision three years later, in West Virginia State Board of Education v. Barnette.

Jehovahs Witnesses Christian denomination

Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The group reports a worldwide membership of approximately 8.58 million adherents involved in evangelism and an annual Memorial attendance of over 20 million. Jehovah's Witnesses are directed by the Governing Body of Jehovah's Witnesses, a group of elders in Warwick, New York, United States, which establishes all doctrines based on its interpretations of the Bible. They believe that the destruction of the present world system at Armageddon is imminent, and that the establishment of God's kingdom over the earth is the only solution for all problems faced by humanity.

The Free Exercise Clause accompanies the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:


In the 1930s, the government of Nazi Germany began arresting thousands of Jehovah's Witnesses who refused to salute the Nazi flag and sent them to concentration camps. Jehovah's Witnesses teach that the obligation imposed by the law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them." They consider that the flag is an 'image' within this command. For this reason, they refused to salute the flag. In the United States, children of Jehovah's Witnesses had been expelled from school and were threatened with exclusion for no other cause. Officials threatened to send them to reformatories maintained for criminally inclined juveniles. Parents of such children had been prosecuted and were being threatened with prosecutions for causing delinquency. In 1935, 9-year-old Carlton Nichols was expelled from school and his father arrested in Lynn, Massachusetts, for such a refusal. Additional refusals followed, one such leading to Minersville School District v. Gobitis (1940). [2] Even after the Gobitis decision, Jehovah's Witnesses continued to refuse to say the pledge.

Book of Exodus Second book of the Bible

The Book of Exodus is the second book of the Bible and describes the Exodus, which includes the Israelites' deliverance from slavery in Egypt through the hand of Yahweh, the revelations at biblical Mount Sinai, and the subsequent "divine indwelling" of God with Israel.

Facts of the case

Following the Gobitis decision, the West Virginia Legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State "for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government". The West Virginia State Board of Education was directed to "prescribe the courses of study covering these subjects" for public schools.

West Virginia Legislature state legislature of the U.S. state of West Virginia

The West Virginia Legislature is the state legislature of the U.S. state of West Virginia. A bicameral legislative body, the Legislature is split between the upper Senate and the lower House of Delegates. It was established under Article VI of the West Virginia Constitution following the state's split from Virginia during the American Civil War in 1863. As with its neighbor and former constituent Virginia General Assembly, the legislature's lower house is also referred to as a "House of Delegates."

The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the program of activities in the public schools", that all teachers and pupils "shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly". The resolution originally required the "commonly accepted salute to the Flag" which it defined. Objections to the salute as "being too much like Hitler's" were raised by a variety of organizations, including the Parent and Teachers Association, the Boy Scouts and Girl Scouts, the Red Cross, and the General Federation of Women's Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses. What was required after the modification was a "stiff-arm" salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation indivisible, with liberty and justice for all." [nb 1]

Nazi salute gesture that was used as a greeting in Nazi Germany

The Nazi salute, Hitler salute (German: Hitlergruß, lit. 'Hitler Greeting', [ˈhɪtlɐˌɡʁuːs], also called German: deutscher Gruß, lit. 'German Greeting' by the Nazi Party, or Sieg Heil salute, is a gesture that was used as a greeting in Nazi Germany. The salute is performed by extending the right arm from the neck into the air with a straightened hand. Usually, the person offering the salute would say "Heil Hitler!", "Heil, mein Führer!", or "Sieg Heil!". It was adopted in the 1930s by the Nazi Party to signal obedience to the party's leader, Adolf Hitler, and to glorify the German nation. The salute was mandatory for civilians but mostly optional for military personnel, who retained the traditional military salute until the failed assassination attempt on Hitler on 20 July 1944.

Boy Scouts of America Scouting organization in the United States

The Boy Scouts of America (BSA) is the largest scouting organization and one of the largest youth organizations in the United States, with about 2.3 million youth participants and about one million adult volunteers. The BSA was founded in 1910, and since then, about 110 million Americans participated in BSA programs at some time in their lives. BSA is part of the international Scout Movement and became a founding member organization of the World Organization of the Scout Movement in 1922.

Girl Scouts of the USA non-profit organisation in the USA

Girl Scouts of the United States of America (GSUSA), commonly referred to as simply Girl Scouts, is a youth organization for girls in the United States and American girls living abroad. Founded by Juliette Gordon Low in 1912, it was organized after Low met Robert Baden-Powell, the founder of Scouting, in 1911. Upon returning to Savannah, Georgia, she telephoned a distant cousin, saying, "I've got something for the girls of Savannah, and all of America, and all the world, and we're going to start it tonight!"

Students pledging to the flag with the Bellamy salute, March 1941. Students pledging allegiance to the American flag with the Bellamy salute.jpg
Students pledging to the flag with the Bellamy salute, March 1941.

Failure to comply was considered "insubordination" and dealt with by expulsion. Readmission was denied by statute until the student complied. This expulsion, in turn, automatically exposed the child and their parents to criminal prosecution; the expelled child was considered "unlawfully absent" and could be proceeded against as a delinquent, and their parents or guardians could be fined as much as $50 and jailed up to thirty days.

Marie and Gathie Barnett [nb 2] were Jehovah's Witnesses attending Slip Hill Grade School near Charleston, West Virginia, who were instructed by their father not to salute the flag or recite the pledge, and were expelled for their refusal. On the advice of an early attorney, Mr. Horace S. Meldahl of Charleston, the Barnetts had avoided the further complications by having their expelled girls return to school each day, though the school would send them home. [3]

Charleston, West Virginia Capital of West Virginia

Charleston is the capital and most populous city of the U.S. state of West Virginia. Located at the confluence of the Elk and Kanawha rivers, the city had a population of 51,400 at the 2010 census and an estimated population of 47,215 in 2018. The Charleston metropolitan area as a whole had an estimated 211,037 residents in 2018. Charleston is the center of government, commerce, and industry for Kanawha County, of which it is the county seat.

The Barnetts brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses, and prevailed, with the 3-judge panel stating:

Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. ... The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority.

The school district subsequently appealed. [4]


The board's argument was that the plaintiffs raised no substantial federal question, and their brief relied extensively on Justice Frankfurter's Gobitis opinion.

Hayden Covington answered the state's appeal in a brief that was a mixture of Jehovah's Witnesses Bible teachings and Constitutional arguments. He explicitly called for the overturning of the Gobitis opinion, especially rejecting Justice Frankfurter's deference to legislative policymaking authority. Such deference, he argued, allowed the legislature to define its own powers. He emphasized the nationwide persecution of Jehovah's Witnesses that had followed Gobitis and concluded with a long list of law journal and newspaper articles that criticized the decision. [5] The American Bar Association's Committee on the Bill of Rights and the American Civil Liberties Union filed amicus curiae briefs that argued Gobitis was bad law and should be overruled. [5]

It was widely expected that Gobitis would be overturned. The resignation of James Byrnes the previous year, and Franklin D. Roosevelt's subsequent appointment of Wiley Rutledge, had created a shift on views of the First Amendment—for instance, the Court overturned a precedent set a mere nine months prior in Jones v. City of Opelika (1942) through its ruling in Murdock v. Pennsylvania (1943).

Decision of the Court

The Court held, in a 6-to-3 decision delivered by Justice Jackson, that it was unconstitutional for public schools to compel students to salute the flag. It thus overruled its decision in Minersville School District v. Gobitis (1940), finding that the flag salute was "a form of utterance" and "a primitive but effective means of communicating ideas". The Court wrote that any "compulsory unification of opinion" was doomed to failure and was antithetical to the values set forth in the First Amendment. The Court stated:

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.

The Supreme Court announced its decision on June 14, Flag Day.

Majority opinion

The opinion that Justice Felix Frankfurter had authored three years earlier in Gobitis rested on four arguments. In Barnette Justice Jackson addressed each element of Frankfurter's Gobitis decision. Jackson began with Frankfurter's designation of the flag as a national symbol. He did not question Frankfurter's designation of the flag as a national symbol; instead, he criticized the pedestal on which Frankfurter put such national symbols. Jackson called symbols a "primitive but effective way of communicating ideas", and explained that "a person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn".

Next Jackson denied Frankfurter's argument that flag-saluting ceremonies were an appropriate way to build the "cohesive sentiment" that Frankfurter believed national unity depended on. Jackson rejected Frankfurter's argument, citing the Roman effort to drive out Christianity, the Spanish Inquisition of the Jews and the Siberian exile of Soviet dissidents as evidence of the "ultimate futility" of efforts to coerce unanimous sentiment out of a populace. Jackson warned that "[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."

Then Jackson dealt with Frankfurter's assertion that forcing students to salute the flag, and threatening them with expulsion if they chose not to, was a permissible way to foster national unity. Jackson's rejection of this section of Frankfurter's argument has proved the most quoted section of his opinion. In his Gobitis opinion Frankfurter's solution was for the dissenters to seek out solutions to their problems at the ballot box. Jackson responded that the conflict, in this case, was between authority and the individual and that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. Jackson wrote: [6]

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The last leg of Frankfurter's Gobitis opinion reasoned that matters like saluting the flag were issues of "school discipline" that are better left to local officials rather than federal judges. Justice Jackson rejected this argument as well:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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.

Concurring opinion

Two of the justices who changed their minds between Minersville and West Virginia v. BarnetteHugo Black and William O. Douglas—would become the most ardent supporters of the First Amendment.

Black and Douglas in a concurring opinion:

Words uttered under coercion are proof of loyalty to nothing but self-interest ... Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions.

Dissenting opinion

Justice Felix Frankfurter Frankfurter-Felix-LOC.jpg
Justice Felix Frankfurter

Three years earlier seven justices had followed Frankfurter's reasoning and joined his majority opinion in Gobitis. In Barnette however, only Frankfurter filed a written dissent, while Justices Owen Roberts and Stanley Reed dissented in silence.

Frankfurter said that the court was overstepping its bounds in striking down the West Virginia law. He said, too, that freedom of religion did not allow individuals to break laws simply because of religious conscience. Frankfurter argued that "Otherwise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws."

Frankfurter's response to Jackson's systematic destruction of his Gobitis decision was one of anger, and Justices Roberts and Murphy tried to get him to revise his opinion, arguing that the first two lines were "much too personal". However, Frankfurter ignored the advice of his fellow justices, taking the overruling of his Gobitis decision as a personal affront and insisting on speaking his mind.

Frankfurter began with a reference to his Jewish roots: "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." This was the passage Justices Roberts and Frank Murphy felt was out of place. Frankfurter, however, insisted that the passage was necessary since he claimed he was "literally flooded with letters" following the Court's decision in Gobitis that said he should be more sensitive to the protection of minorities due to his Jewish heritage. Frankfurter's dissent continued, "Were my purely personal attitudes relevant I should wholeheartedly associate myself with the generally libertarian views in the Court's opinion. ... But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic."

Having responded to his critics and the Court's reversal on a personal level, he now responded on a judicial one, with the remainder of his opinion focusing on judicial restraint. "As a member of this Court, I am not justified in writing my private notions of policy into the Constitution. ... It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench."

Frankfurter continued, arguing that if the Court is frequently striking down laws it is circumventing the democratic process since the Court cannot work to reach a compromise. It either strikes down a law or lets it stand; it cannot simply modify or qualify a law as a legislature can.

Finally, Frankfurter rejected Justice Stone's rational basis test that Stone laid out in United States v. Carolene Products Co. (1938). Instead, Frankfurter focused on his belief that there were no provisions within the constitution that occupied a "preferred position" over others.

Subsequent history

The majority opinion in Barnette is considered one of the Court's greatest and most sweeping statements about the fundamental freedoms established by the Bill of Rights. After Barnette the Court began to turn away from the belief-action doctrine altogether, creating a religious exemption for believers of different creeds. In Sherbert v. Verner (1963), for example, the Court upheld a Seventh-day Adventist's claim to unemployment benefits even though she declined to make herself available to work on Saturday (her Sabbath) as the law required. In Wisconsin v. Yoder (1972), the Court upheld the right of Amish parents not to send their children to public schools past the eighth grade.

At 2006 proceedings cosponsored by the Justice Robert H. Jackson Center and the Supreme Court Historical Society, Supreme Court law clerks from that Court were on a panel with the two eponymous Barnetts. Just as she and her sister had been in 1942, Gathie Barnett Edmonds noted that her own son was also sent to the principal's office for not saluting the flag. [7]

See also


  1. This was the wording of the pledge at the time; the words "under God" were added later, in 1954.
  2. "Barnett" is the correct family spelling. A court clerk misspelled the name when filing the papers; see http://www.firstamendmentcenter.org/woman-in-barnette-reflects-on-famous-flag-salute-case

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  1. Johnson, John W. (2001). Historic U.S. Court Cases: An Encyclopedia. Taylor & Francis. p. 953. ISBN   978-0-415-93756-6. Though the Flag Salute Cases are generally seen as involving freedom of religion, that issue is virtually absent from Jackson's majority opinion. He accepted, without question, that the Jehovah's Witnesses sincerely held beliefs which made it impossible for them to conscientiously salute the flag. But Jackson did not offer any analysis of the importance of that belief or even of the role of religious freedom in striking down the mandatory flag salute. Rather than grounding his opinion in terms of freedom of religion, Jackson analyzed the case as one of freedom of speech and expression.
  2. Hanstein, Woody (January 16, 2013). "From the Bulldog's Desk: A lesson on patriotism from a 9-year-old boy". The Daily Bulldog.
  3. "Article: Recollections of West Virginia State Board of Education v. Barnette". St. John's Law Review. Vol. 81 no. 4. Fall 2007. pp. 770–771. From April 28, 2006, proceedings cosponsored by the Robert H. Jackson Center and the Supreme Court Historical Society, at the Jackson Center in Jamestown, New York:
    Moderator: What was your parents' decision about how to handle this situation: The school has a mandatory flag salute, thanks to the State Education Department regulation, and you have your religious belief?
    [Gathie Barnette] Edmonds: When we went home, of course, they understood and they said not to worry about it. And our uncle helped us get a lawyer, Mr. Horace Meldahl in Charleston, who was a very understanding person, a nice person. He told us that we had to go back to school every morning for a while.
    Moderator: Why was that?
    Edmonds: So they wouldn't fine our dad or put him in jail.
    [Marie Barnette] Snodgrass: So they couldn't say we were just being truant. And so we went every morning and stayed until the flag salute, and they'd tell us to go home. It was fortunate that we lived fairly close—we didn't have a long distance to go.
    Moderator: And that was the end of the school day for you?
    Edmonds: Yes. Once the truant officer came and asked my mother why we weren't in school, and she could say, "Well, we sent 'em and they sent 'em home." So that kind of took, you know, the edge off of them. Our parents didn't keep us home.
  4. Hudson, David (December 28, 2009). "Woman in Barnette reflects on the famous flag-salute case". First Amendment Center.
  5. 1 2 Manwaring. Render Unto Caesar .[ full citation needed ]
  6. West Virginia State Board of Education v. Barnette, 319U.S.624 , Majority Opinion, item 3(US1943).
  7. "Article: Recollections of West Virginia State Board of Education v. Barnette". St. John's Law Review. Vol. 81 no. 4. Fall 2007. p. 792 (38/42). From April 28, 2006 proceedings cosponsored by the Robert H. Jackson Center and the Supreme Court Historical Society, at the Jackson Center in Jamestown, New York, "[The older of the two Barnett girls, Gathie Barnett] Edmonds: ...I remember when my older son was sent to the office for not saluting the flag. The principal came back and said your teacher obviously doesn't remember the Supreme Court decision."

Further reading