Charleston Gazette June 15, 1943
W. Va. School Regulation Held Unconstitutional
WASHINGTON, June 14. - (INS)
The U. S. supreme court today upheld the constitutional right of children in public schools to refuse to salute the American flag.
Reversing its 1940 judgment, the court held, 6 to 3, that it is unconstitutional and a violation of the bill of rights for public schools to expel pupils who renounce allegiance to the symbolic banner of the United States.
"Symbolism is a primitive but effective way of communicating ideas," the court stated. "The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind."
"To sustain the compulsory flag salute," the court added, "we are required to say that a bill of rights, which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind."
The supreme court reversal supported an injunction issued by a three-judge federal court against the West Virginia state board of education which had issued an order for flag salute exercises in public schools.
Justice Jackson delivered the court's majority opinion from which Justices Robert, Frankfurter and Reed dissented.
The first decision upholding the compulsory salute of allegiance to the flag was handed down by the court on June 3, 1940, in a case involving the Minserville, Pa., school district. The decision was 8 to 1 with Chief Justice Stone the only dissenting vote.
Of the seven justices who participated in both the earlier and today's decision, three - Justices Black, Douglas and Murphy - some months later announced that their opinion sustaining the constitutionality of the flag salute was wrong.
The West Virginia case which today dramatically reversed the 1940 ruling, originated when three members of Jehovah's Witnesses, a religious sect, claimed that the state law compelling their children to salute the American flag violated their religious principles.
The court today declared that the flag is a symbol of "adherence to government as presently organized," requiring the individual to convey by sign or words his acceptance of the political ideas the flag conveys.
"Objection to this form of communication, when coerced, is an old one, well known to the framers of the bill of rights," the court said.
"Struggles to coerce uniformity of sentiment in support of some end, thought essential to their time and country, have been waged by good as well as by evil men."
As government pressure toward unity becomes greater, the supreme court declared, "strife becomes more bitter as to whose unity it shall be."
"Nationalism is a relatively recent phenomenon," the court held in pointing to historic instances of efforts to compel people to adhere to religious or political beliefs.
"It seems trite but necessary to say that the first amendment to our constitution was designed to avoid these ends by avoiding these beginnings."
"There is no mysticism in the American concept of the state or of the nature and origin of its authority. We set up government by consent of the governed, and the bill of rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
Leading the three justices who dissented from the court decision against the compulsory flag salute was Justice Felix Frankfurter who wrote the opinion in the 1940 decision.
Frankfurter, standing pat on his original opinion, wrote:
"One who belongs to the most villified and persecuted minority in history is not likely to be insensitive to the freedoms guaranteed by our constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the court's opinion.
"But as judges we are neither Jew nor Gentile, neither Catholic nor Agnostic. We owe equal attachment to the constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shore."
Contending that "it is self-delusive to believe that the liberal spirit can be promoted by judicial invalidation of illiberal legislation," Justice Frankfurter stated:
"Most unwillingly therefore I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the liberty clause secured by due process gives this court authority to deny to the state of West Virginia the attainment of that which we all recognize as a legitimate end, namely the promotion of good citizenship by employment of the means here chosen."