Rulings by the United States Supreme Court have myriad effects on our lives; we frequently see echoes of their influence in events many decades after the Court makes its statement. In some cases we don’t even have to strain our analyses to see the connection. Unfortunately, even the most obvious legal and social consequences too often demonstrate that too many people, even among our political leaders, are ignorant about too many Supreme Court decisions.
One case in point was decided 75 years ago this month. It was West Virginia State Board of Education v. Barnette, a decision presented on June 14, 1943. The question involved the two Barnette children, both Jehovah’s Witnesses, who were students in a public school. They were expelled from school for refusing to participate in the Pledge of Allegiance to the Flag. Members of this religion regard any such pledge or secular ritual to be a violation of at least two of their most important rules: (1) the biblical injunction against veneration of idols (Exodus 20:4-5) and, more importantly, (2) their concept of primary allegiance to “God’s kingdom”, not to any secular government or its representatives or symbols. Witnesses also generally refuse to participate in political and military activities. The actions by the school against the Barnette children prompted the legal case that eventually made it to the Supreme Court, which ruled (by a 6 to 3 vote) that no student could be required to participate in ideological activities of this type.
This ruling was a direct challenge to an almost identical case the Court had ruled on only three years earlier. The Barnette decision reversed Minersville School District v. Gobitis, 1940, in which the court had rejected the arguments of two schoolchildren, also both Jehovah’s Witnesses. That ruling stated that students in school could in fact be compelled to recite the Pledge despite their strong religious convictions. The change in the Court’s collective mind occurred in large part because President Roosevelt had modified the Court by replacing two conservative justices and promoting Harlan Fiske Stone to the position of Chief Justice. Stone had been the lone dissenter in the 8 to 1 Gobitis decision. The Court’s 1943 ruling rejecting mandatory pledges was broad and unambiguous and has stood since then, despite frequent attempts by presidents and congress to pass laws to enforce recitation of the pledge, and also despite almost continuous demagoguery on the issue by conservative activists.
Pro-pledge counterattacks in 1943 began immediately. The backlash against the Supreme Court decision was exacerbated by arguments that misunderstood, misinterpreted, distorted, and exaggerated the intent of the ruling and the motives of the plaintiffs. Some of the events were described in an article of the June 2018 issue of Church and State (Page 12):
“Jehovah’s Witnesses were attacked and persecuted across the country. One of
their houses of worship, known as Kingdom Hall, was torched in Kennebunk, Maine.
In Nebraska, a Witness man was castrated. In Illinois, Witnesses were tarred and
feathered. In Richwood, W.Va., a police chief and a deputy sheriff led a mob as they
rounded up Witnesses, forced them to drink castor oil and marched them out of town.
People throughout the country mistakenly believed that the Supreme Court had
said that the Jehovah’s Witnesses were traitors.”
The atmosphere back then was in many ways similar to what we are experiencing in the United States today. There was an atmosphere of patriotic fervor and fear resulting from the attack on Pearl Harbor and the war, somewhat similar in emotional impact to the aftermath of the 2001 World Trade Center attacks and our current “war on terror”. There was widespread confusion regarding the characteristics and motives of unfamiliar religious groups, as there is today. There were, and are today, active demagogues who built their careers and enhanced their donor funding by distorting the differences between religions, exploiting the fears and ignorance of their audiences. Today those demagogues include the president among their ranks, and the messages they are promoting include memes demanding universal participation in the national anthem and the pledge, and prayer in school, and use of the phrase “Merry Christmas”, and other concessions to the demands of one specific religious faction. Their propaganda is disseminated rapidly through social media. And as there was a surge of violence in the 1940s, roday we have seen a spike in attacks on Muslims and Sikhs and refugees and anyone else who is identified, mistakenly or not, as “the other”. Recently a group of Trump supporters (all appearing to be Euro-Americans) approached an Arizona state legislator in Phoenix and told him to go back to the country he came from. That legislator was a member of the Navajo tribe. Irrational inanity inspired by ignorance.
One of the most recent controversies related to the Barnette case is one that has largely been kept active by our demagogue-in-chief. In the 2016 football season, the NFL quarterback Colin Kaepernick took a knee during the national anthem at the beginning of most games. He was protesting injustice against black people, in support of the Black Lives Matter movement. At the time his protest didn’t inspire more than a few other players to join him, and, as the ACLU website noted, “Kaepernick silently knelt, making no attempt to disrupt the singing of the anthem. He did not try to prevent anyone from standing. This textbook nonviolent protest is totally American.” Still, his action ignited a national controversy, with many fans expressing strong opposition and many others avid support. For several weeks, Kaepernick jerseys were the fastest-selling clothing items on the NFL official online shop despite the fact that it was a season during which he and his 49ers struggled. At the end of the season he chose to become a free agent. No team chose to hire him for the 2017 season, and it was likely that any continued protests would have quickly died out as the season progressed.
Then President Trump intervened. In a rally at the beginning of the 2017 season Trump said that Kaepernick and anyone who followed his example were disrespecting the anthem and the flag and our country and our military, and that any football players who kneeled during the anthem should be fired. In short, he completely misrepresented the purpose of the protest, vilified the protestors as unpatriotic, and threatened them with loss of their jobs. All because of simple nonviolent protests. Unfortunately he found that this faux-patriotic theme was very popular with his base, so he doubled down, both on Twitter and at every rally since then. What happened then? The NFL protest became widespread and partly anti-Trump. It may well continue into the 2018 NFL season, despite the new NFL rule change that requires players to stand during the anthem (if they are on the field). We will see.
At this point you may be asking what the NFL controversy has to do with the Supreme Court rulings about the pledge of allegiance. First, let me note that Trump supporters, like the large numbers of people who attacked Jehovah’s Witnesses in the 1940’s, are outraged and potentially violent because they falsely believe that the targets of their rage are unpatriotic ingrates, perhaps even traitors. Second, their rage is misguided because neither the Witnesses nor the NFL protestors are opposed to the United States or its government. If anything, our NFL players have demonstrated their patriotism, in the sense that they believe in the higher ideals of our country and want the government to live up to those ideals. So there are similarities. But the most important factor was outlined effectively by Justice Robert H. Jackson when he wrote the 1943 Barnette ruling:
“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.”
Not only is it counterproductive to force people to participate in standardized ideological rituals—whether they believe in the expressed sentiments or not—but it is also a violation of both the wording and the spirit of our most important founding document, the Constitution of the United States. The Supreme Court said as much 75 years ago, but we should not have needed their reminder, not then or now.