You can probably recall the disturbing images: roving hordes intent on spreading mayhem; bonfires where offensive literature was consigned to flames; and school children extending their hands in a salute of fealty. Dissent from state mandated edicts was tantamount to treason. At best it could result in expulsion from schools, eviction from homes, and economic sanctions. At worst it could lead to imprisonment, to the burning of homes and places of worship, and to be subject to mercy of frenzied riff-raff where victims were forced to ingest large amounts of castor oil, where cars were carved with swastikas, and where impromptu beatings were common.
What grievous transgression sparked such outrages? The purported wrongdoing was expressing contrarian beliefs. Even the highest court helped fuel the hysteria. By now you have pieced together the clues and realize that I am not talking about Nazi Germany. No, indeed, this was the United States in the 1930s and 40s and the targets of the wrath were Jehovah’s Witnesses. The incidents I described occurred in such diverse settings as Odessa, Texas; Sanford and Kennebunkport, Maine; Richfield, West Virginia; and elsewhere across America.
The trigger was something seemingly trivial, the refusal to salute the flag in schools. In 1930s America the gesture with the arm extended resembled the Heil Hitler salute in Nazi Germany. That similarity was objectionable to the Jehovah’s Witnesses and at a 1935 convention they denounced it as idolatry. Thereafter students from the religion refused to participate in school flag salutes. In 1935, in Minersville, Pa., with the endorsement of the superintendent and school board, the Gobitas children were expelled from school for their non-compliance. The superintendent called them ” perverts.” Sigh, God bless America and freedom of religion. A wave of expulsions ensued. The trampling of rights would be challenged in the courts.
Lower level jurisdictions sided with the aggrieved families but the haughty hyper-patriotic board persisted and in 1940 the case reached the Supreme Court. Felix Frankfurter, himself Jewish so one would think he would be sympathetic to the the plight of the persecuted, wrote the majority opinion in Minersville School District v. Gobitas. He declared that “the Court should not become the school board for the country.” To wit, the dismissals now had legal validation. Justice Harlan Stone penned a scathing rebuttal but the fuse had been lit. It was a signal to the rabble, the mob if you will, to embark on their cruelty spree. President Roosevelt denounced the brutality. That’s what presidents do in such circumstances. Three of the majority opinion justices were horrified at the tempest they unleashed. They wanted to put it back in the box. Wow, that rings so contemporary.
Amends would be made, somewhat. In 1942, the flag pledge and salute would be modified, that is, the outstretched hand would find its way to the heart. After all, what sensible Americans wanted to be associated with the crackpot Nazis? No, we can’t, rather couldn’t have that. Nevertheless, the ritual was still mandatory and in enlightened Charleston, West Va., those pesky Jehovah’s Witnesses were shown the door again. Out, out damn delinquents and heretics. Only approved believers and nationalists need attend. Sigh, God bless America. What’s the point of a First Amendment if we can’t have state approved convictions and canons?
Wisdom suffused the Supreme Court justices as the esteemed arbiters contemplated that very issue and after some minor squabbling in a 6-3 decision, they decreed that the Barnette children in question had their rights violated and if they didn’t want to salute the flag, they could exercise that right. The 1943 – West Va. School Board v. Barnette case became a marker for First Amendment rights under the “Compelled Speech” doctrine. Disappointingly, Frankfurter remained steadfast in his opposition, but Stone was vindicated. It was also retroactive to the Gobitas family and other casualties of the flag-waving excesses.
In sum, what transpired with the Jehovah’s Witnesses is instructive. Free expression, free speech, and freedom of religion are precious but fragile liberties. One hopes that the courts will safeguard those liberties. Along with the president and other elected officials, they stand as the guardians of democracy. Central to the whole fabric of democracy and society is respect for the rule of law. When the rule of law is undermined by any party, democracy becomes enfeebled, and the mob runs rampant.
smokingmule 