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Thu Jun 14, 2018, 09:10 AM

Happy 75th anniversary, West Virginia State Board of Education v. Barnette

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.


West Virginia State Board of Education v. Barnette

Argued March 11, 1943
Decided June 14, 1943


West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a 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 63 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."

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.
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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.
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Robert H. Jackson



Robert Houghwout Jackson (February 13, 1892 October 9, 1954) 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.

Jackson was admitted to the bar through a combination of reading law with an established attorney, and attending law school. He is the most recent justice without a law degree to be appointed to the Supreme Court. Jackson is well known for his advice that, "Any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances", and for his aphorism describing the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final." Jackson developed a reputation as one of the best writers on the Supreme Court, and one of the most committed to enforcing due process as protection from overreaching federal agencies.
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Reply Happy 75th anniversary, West Virginia State Board of Education v. Barnette (Original post)
mahatmakanejeeves Jun 2018 OP
elleng Jun 2018 #1
mahatmakanejeeves Jun 2018 #2
kag Jun 2018 #3
mahatmakanejeeves Jun 2018 #4

Response to mahatmakanejeeves (Original post)

Thu Jun 14, 2018, 10:24 AM

1. Thanks for the reminder.

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Response to elleng (Reply #1)

Thu Jun 14, 2018, 10:25 AM

2. I had marked it on my calendar in Outlook. NT

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Response to mahatmakanejeeves (Original post)

Sat Jun 16, 2018, 05:50 AM

3. Thanks for posting this.

I never knew about this decision, but it's a good one.

True story: Since my daughter was in about second grade she seemed to understand instinctively that "forcing" children to recite the pledge of allegiance was a form of indoctrination. (Of course she didn't use those words back then.) Her reasons had to do with having kids recite words that they quite literally did not know the meaning of. To this day (she just turned 20) she talks about trying to start a movement--actually, if it were up to her it would be codified in law--to stop schools from having organized recitations of the pledge until and unless the kids are taught the meaning of the words, and then teaching them that it is voluntary to do so.

I'm looking forward to telling her about this decision.

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Response to mahatmakanejeeves (Original post)

Mon Jun 25, 2018, 09:48 AM

4. Every morning at the shelter for separated immigrant children, they recite the Pledge of Allegiance.

David Fahrenthold Retweeted:

Every morning at the shelter for separated immigrant children begins the same way. The kids are asked to recite the Pledge of Allegiance. w/ @mariasacchetti and @mffisher.


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