The Supreme Court case that incited violence

In Dissent is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country. 

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Many dissents take decades to become law, if ever. Justice Harlan Fiske Stone’s dissent in Minersville School District v. Gobitis took just three years. In Gobitis, the majority upheld a school board’s policy of expelling students who refused to salute the flag – including Jehovah’s Witnesses, who objected on religious grounds. The resulting outbreak of mob violence against Witnesses, combined with a rapidly changing court, led to one of the fastest reversals in Supreme Court history.

Compelled unity

In the fall of 1935, 10-year-old William and 12-year-old Lillian Gobitas were attending their school in Minersville, Pennsylvania, when their teachers asked them to rise and say the Pledge of Allegiance. Both children declined. They were Jehovah’s Witnesses, and they believed that the Book of Exodus’ command that “thou shalt not make unto thee any graven image” forbade saluting the flag. Billy’s teacher tried to forcibly raise his hand while he kept it down at his side. Lillian’s teacher, a Quaker committed to freedom of conscience, celebrated her decision. The students, by contrast, united in scorn and teased the Gobitas siblings mercilessly.

Billy later told the school board, “I do not salute the flag not because I do not love my country but I love my country and I love my god more and I must obey his commandments.” The school board was unmoved. It expelled the children, forcing their parents to bear substantial costs to send them to private school.

The Gobitases sued, launching what would eventually become one of nearly 200 Supreme Court petitions filed by Jehovah’s Witnesses during the late 1930s and early 1940s – more than 20 of which resulted in written opinions. The suits came during a time of national skepticism towards the Witnesses, whose pacificism and refusal to enter the military draft gave rise to fears that they were disloyal or even part of a German sleeper cell inside the United States. They were often targeted socially and even legally for handing out literature, preaching door to door, and refusing to participate in the pledge or to join the draft.

The irony was that Witnesses had been persecuted in Germany exactly because of their refusal to participate in German patriotic exercises, and yet now many Americans believed they were working for that country. A further irony was that the American pledge itself looked an awful lot like the Hitler salute. In its first iteration, people didn’t just hold their hands over their heart – as they do now. Instead, they extended their right hand, with the palm facing up, toward the flag in what was called the “Bellamy salute,” named for the author of the pledge. Because of the gesture’s resemblance to the Nazi salute, in 1942 Congress amended federal law to require the right hand to be placed over the heart instead.

The Gobitas family’s lawsuit initially succeeded. The district court ruled in their favor and the U.S. Court of Appeals for the 3rd Circuit upheld that decision. The school district even wanted to drop the case, but outside groups – determined to compel uniform patriotic expression – offered to fund the litigation. So the school appealed, and the case made its way to the Supreme Court. Because the clerk mistakenly spelled Gobitas with an i, the case became known as Minersville School District v. Gobitis.

The decision

In an opinion written by Justice Felix Frankfurter (yes that Felix Frankfurter, featured heavily in my last column), the court ruled 8-1 that the school board’s policy did not violate the Gobitases’ 14th Amendment rights to due process – that is, fair treatment by the government. To Frankfurter, what was at stake was nothing less than civil society itself: “the case before us is not concerned with an exertion of legislative power for the promotion of some specific need or interest of secular society — the protection of the family, the promotion of health, the common defense, the raising of public revenues to defray the cost of government. But all these specific activities of government presuppose the existence of an organized political society. The ultimate foundation of a free society is the binding tie of cohesive sentiment.”

Frankfurter believed that laws must be upheld “[e]xcept where the transgression of constitutional liberty is too plain for argument.” This admittedly begged the question, but Frankfurter thought it resolved the case. In his mind, invalidating the law would be based not on any discernible principle, but rather on judicial whim/political considerations, which he called the actual “dogma” in this case. If the Gobitases didn’t like it, they should seek recourse at the ballot box. Frankfurter concluded without irony that “personal freedom is best maintained … when it is ingrained in a people’s habits and not enforced against popular policy by the coercion of adjudicated law.” That is, freedom was best served by the court refusing to enforce freedom; otherwise the justices would be acting as a “school board for the country.”

Only Justice Harlan Fiske Stone dissented.

As far as I can tell, there is no major biography of Stone. He led a quiet but distinguished life, first as a lawyer and academic, then as a judge, and finally as chief justice. Born in Massachusetts, Stone played football at Amherst College, where he befriended a fellow student named Calvin Coolidge. After graduating from Columbia Law School, he split his early career between private practice (arguing twice before the Supreme Court) and teaching at Amherst, before being named dean of Columbia Law School. Stone was widely respected for his integrity and once remarked that the attorney general must act “without fear, without favor, and without oppression to secure” the enforcement of the law. He appointed a young J. Edgar Hoover to root out corruption in the FBI – before Hoover’s authoritarian streak came to define the agency.

As one of the so-called “Three Musketeers” along with Justices Benjamin Cardozo and Louis Brandeis, Stone generally voted to uphold New Deal legislation and to protect civil liberties. To the extent he has a legacy at all – perhaps as remembered by the “Stone Agers,” which was a nickname for his allies – he is known for authoring the famous footnote four in United States v. Carolene Products Co. (which set up tiers of judicial scrutiny for different constitutional rights) and for dying on the bench while reading a dissent. And of course, he wrote the lone dissent in Gobitis, which soon became the law of the land.

In Stone’s view, which he expressed succinctly in Gobitis, it was “the function of courts” to determine how to resolve the “competing demands of the interests of government and of liberty under the Constitution.” Judicial review was not a mere exercise of whim; instead, courts evaluate whether the government’s ends are legitimate and whether it could achieve those ends without infringing upon a constitutional right. Frankfurter’s approach, he said, was “no less than the surrender of the constitutional protection of the liberty of small minorities to the popular will.” He continued: “If [First and 14th Amendment] guaranties are to have any meaning, they must, I think, be deemed to withhold from the state any authority to compel belief or the expression of it where that expression violates religious convictions, whatever may be the legislative view of the desirability of such compulsion.”

After all, the government will always justify infringing people’s rights “in the name of righteousness and the public good.” He concluded (in words concerning issues strikingly similar to those before the court today) that the government’s argument that allowing kids to opt out of the Pledge of Allegiance would “cast doubts in the minds of the other children” was not “a problem so momentous or pressing as to outweigh the freedom from compulsory violation of religious faith which has been thought worthy of constitutional protection.” The school was free to teach many things intended to inspire love of one’s country. But it could not force students to take an oath.

What happened next?

Even before Gobitis was decided, Witnesses were already facing social hostility. But after the court released its opinion, the backlash exploded into widespread – and sometimes state-sanctioned – persecution. One 1941 Department of Justice report noted mob violence in over 40 states, often with police or public officials complicit. Witnesses were beaten, stoned, and dragged from their homes. In at least one case, a Witness was castrated. There were over a thousand separate incidents of violence reported between 1940 and 1943. And thousands of Witness kids were expelled from schools.

Meanwhile, the composition of the Supreme Court was changing dramatically. Stone replaced Charles Evans Hughes as chief justice and Robert Jackson and Wiley Rutledge were nominated to the bench, replacing two of the justices who had voted in favor of the school board. In addition, three of the justices in the Gobitis majority had a change of heart. In 1942, Justices Hugo Black, William O. Douglas, and Frank Murphy wrote separately in Jones v. Opelika to say they now believed that Gobitis was wrongly decided. (Frankfurter privately called the triad the “Axis of Three” – a loaded term in the World War II era – based on their united and aggressive judicial enforcement of civil liberties.)

And then, two Jehovah’s Witness sisters were expelled from school for refusing to salute the flag. Their parents sued and the case made its way to the Supreme Court. A clerk misspelled their name, Barnett, with an “e,” and so the case became known as West Virginia v. Barnette.

Vindicated

The court’s reversal came swiftly. Only three years after reaching a contrary conclusion, the justices ruled 6-3 that the government could not compel students to salute the flag or recite the pledge. Writing for the majority, Jackson rejected the idea that forced patriotism fostered unity or could override the constitutional right of free conscience. In what would become one of the most memorable lines in Supreme Court history, he wrote: “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.”

That line was good, but it’s unfortunate that it eclipsed the rest of his tremendous opinion. The entire thing is worth reading. Jackson dismantled Frankfurter’s reasoning in Gobitis, starting with a Lincoln quote Frankfurter had invoked: “Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?”

Jackson responded: “It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the State to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning.”

In other words, it was Frankfurter, not the majority, who was operating without a guiding constitutional principle. In fact, Frankfurter’s approach would resolve every conflict in favor of power and override every liberty in its way. The Constitution requires judges to limit government power, but a “government of limited power need not be anemic.” In fact, the majority was choosing the plaintiffs’ constitutional rights “as a means of strength,” since history had shown that forced unanimity led to the reverse.

To Frankfurter’s argument that the justices should stay out of local matters, Jackson responded that “[t]here are village tyrants, as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.” To Frankfurter’s suggestion that the plaintiffs should resort to the ballot box, Jackson said that “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.” And to Frankfurter’s statement that national unity is national security, Jackson observed that coerced unanimity had historically led to dark results: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

It’s difficult to believe that just three years earlier, the court had said exactly the opposite. But the outpouring of violence against the Witnesses, and Stone’s lonely insistence that courts must protect politically powerless minorities, contributed to a rapid about-face. That kind of reversal is unlikely to be repeated today. The modern court prefers to move slowly and incrementally, and the doctrine of stare decisis – the idea that the court should not normally overturn its earlier decisions unless there is a good reason to do so – favors stability over course correction. Barnette represents a rare moment when the court not only admitted its mistake but corrected it with remarkable speed.