June 2018 Church & State Magazine | Featured

A U.S. Supreme Court opinion issued 75 years ago this month forms the unlikely connection between former San Francisco 49er quarterback Colin Kaepernick and two 1940s West Virginia schoolgirls named Gathie and Marie Barnett.

The Barnett sisters – ages 9 and 8 – stepped into the national spotlight and constitutional law history in early 1942 when they were expelled from their four-room schoolhouse in Charles­ton for refusing to salute the American flag.

The girls were Jehovah’s Witnes­ses, a Christian denomination that in the 1930s and ’40s became known for door-to-door and street-corner evangelism, refusal to serve in the military and refusal to recite the Pledge of Allegiance. Witnesses believe saluting the flag is equivalent to idolatry; they say their allegiance is to their God, not the government or its symbols.

The Pledge of Allegiance was becoming mandatory in schools amid wartime nationalism, and refusal to salute was seen by many as unpatriotic. When the Barnetts returned to school from winter break – a month after the bombing of Pearl Harbor and the United States’ entry into World War II – the girls were expelled when they continued to refuse to salute. The expulsion led to the federal lawsuit West Virginia State Board of Education v. Barnette.

The law was on the school board’s side at the time, thanks to a Supreme Court decision in a nearly identical case, Minersville School District v. Gobitis. The court in 1940 had ruled that two Jehovah’s Witness school­children in Pennsylvania – Lillian Gobitas, 12, and her younger brother William, 10 – could be compelled to salute the flag. (The Barnett and Gobitas children’s last names were misspelled in the court cases.)

Justice Felix Frankfurter wrote the near-unanimous majority opinion in the Gobitis case that stressed the importance of “national cohesion” and “national security,” and credited flag salutes with helping “to promote in the minds of children who attend the common schools an attachment to the institutions of their country.” (At that time, students did a stiff-armed salute toward the flag, a practice that was replaced with the hand-over-heart gesture during World War II.)

Justice Harlan Fiske Stone was the lone dissenter. He wrote that forcing children to participate in flag salutes “does more than suppress freedom of speech, and more than prohibit the free exercise of religion. ... For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.”

In interviews as an adult, Lillian Gobitas Klose reflected on the ostracism and threats of violence her family faced in their small coal-mining community in eastern Pennsylvania following the court’s decision. Her brother was beaten, she was taunted and local churches led boycotts of her father’s store.

“It got real ugly. People, they thought we were Communists, Nazis. They felt real righteous about it,” said Klose at age 64 in a 1988 interview with The Morning Call in Allentown, Pa.

“We were traumatized, very sad, but not bitter,” recalled William Gobitas, then 63, in the same article. (Gobitas died a year after the article was published; Klose lived until 2014.)

The fallout from the Supreme Court’s decision spread far beyond Minersville: 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 paraded them out of town.

“People throughout the country mistakenly believed that the Supreme Court had said that the Jehovah’s Witnesses were traitors,” said Shawn Francis Peters, author of the book Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. His remarks came during a 2011 presentation with the Barnett sisters at the Robert H. Jackson Center in New York.

“The Court never even came close to saying that,” Peters continued. “But that was the misperception that took hold in small towns throughout the country. And what transpired was a really amazing public reaction to a Supreme Court decision, one unparalleled in American history. … People contemporaneously and subsequent­ly have recognized it as the worst outbreak of religious persecution in the United States in the 20th century.”

The anti-Jehovah’s Witness fervor sparked concern in many corners. First Lady Eleanor Roosevelt used one of her newspaper columns to admonish the mob mentality and question the value of forced patriotism, asking, “Must we drag people out of their homes to force them to do something which is in opposition to their religion?”

President Franklin D. Roosevelt him­self weighed in without directly addressing the Gobitis decision, according to Robert L. Tsai’s 2008 article in the Washington University Law Review, “Reconsidering Gobitis: An Exercise in Presidential Leadership.” Roosevelt had already begun to reshape the narrative around personal liberties, and just six months after the Gobitis decision he delivered his 1941 State of the Union address that is known as the “Four Freedoms” speech. He outlined the four fundamental freedoms he believed people worldwide were entitled to: freedom of speech and expression, freedom to worship, freedom from want and freedom from fear.

The persecution of Jehovah’s Witnesses, Roosevelt’s rhetoric and a shakeup on the Supreme Court – Gobitis dissenter Stone was named chief justice and two new FDR appointees had been seated on the high court – had apparently swayed enough justices to Stone’s way of thinking.

Sure enough, on June 14, 1943 – almost exactly three years after the Gobitis decision – the Supreme Court ruled in favor of the Barnett girls. New Justice Robert H. Jackson wrote the majority opinion that included a now famous phrase: “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.”

Notably, the Barnette case was the second involving both Jehovah’s Witnesses and the First Amendment in which the Supreme Court reversed itself in 1943.

A year earlier, the court had ruled against the Witnesses in Jones v. City of Opelika, in which Rosco Jones was charged with violating an Alabama town’s law requiring the purchase of a license before distributing religious books. Jones argued the law violated his rights to both freedom of religion and freedom of the press, but the court initially ruled that selling the pamphlets was more of a commercial transaction than a religious one and that since the law didn’t discriminate between religious and non-religious sales, it was constitutional.

Stone and three other justices dissented, likening the licensing fees to the stamp taxes used to suppress colonial American pamphleteers. The four dissenters gained an ally in early 1943 when Wiley B. Rutledge joined the bench; when several similar cases came up for argument that spring, the Supreme Court, in a rare move, agreed to rehear Jones v. City of Opelika. The court reversed the previous decision, ruling that municipal laws in Alabama, Ohio, Pennsylvania and Texas that required permits, charged fees or banned the distribution of religious materials in the public square outright were unconstitutional constraints on the freedom of religion, speech and the press.

“[W]e can restore to their high, constitutional position the liberties of itinerant evangelists who disseminate their religious beliefs and the tenets of their faith through distribution of literature,” wrote Justice William O. Douglas in the majority opinion for Murdock v. Pennsylvania, one of the related cases.

But legal scholars note the “high, constitutional position” of First Amendment liberties was a relatively new concept in 1943. And lawsuits brought by Jehovah’s Witnesses played a major role in the evolution of First Amendment jurisprudence.

“This idea that the First Amendment is so core to who we are comes out of the language of these opinions,” said Julie Silverbrook, executive director of the Constitutional Sources Project, during an episode of The Washington Post’s “Constitutional” podcast earlier this year. “Free speech, religious liberty, freedom of the press, the right to assemble – these are all core parts of what it means to be an American. And having those things protected robustly is what it means to be in America. And so all of that, that modern understanding, is coming out of the case law from this period.”

Sarah “Sally” Barringer Gordon, professor of constitutional law and history at the University of Pennsylvania Law School, said during the podcast, “Jehovah’s Witnesses actually are more famous today among constitutional lawyers and scholars than in the broader society, because those people who study constitutional change think of the Witnesses as true heroes, having brought into existence a new constitutional world.”

The Witnesses famously argued nearly two dozen cases before the Supreme Court from 1938 to 1946 – and they won most of them. The streak began in 1938 and 1939 with wins in two cases – Lovell v. City of Griffin in Georgia and Schneider v. New Jersey (Town of Irvington) – that both dealt with restrictions on the distribution of religious materials.

In 1940, the same year the court ruled against the Jehovah’s Witnesses in the Gobitis case, the justices offered both the Witnesses and future defenders of First Amendment rights a significant win in Cantwell v. Connecticut, which involved a father and son arrested for proselytizing without a permit and disturbing the peace in New Haven.

The Supreme Court found that the town’s permits and the Cantwells’ arrest unconstitutionally suppressed their religious speech. Americans United Associate Legal Director Alex J. Luchenitser said the Cantwell decision is noteworthy because it was the first time the court ruled that the First Amendment’s religious- freedom protections could be applied to state and local governments, not just the federal government.

The Witnesses didn’t win every case. 1944’s Prince v. Massachusetts decision upheld a state child-labor law. A Witness named Sarah Prince had challenged the law after she was arrested for allowing her 9-year-old ward to distribute religious literature.

But the Witnesses won the majority of their cases that continued through the 1940s and into the ’50s, most of them related to restrictions on the distribution of religious materials and whether Jehovah’s Witnesses could evangelize and gather on public property.

While their petitions to the Sup­reme Court began to taper off in the late 1950s, there were two other noteworthy Jehovah’s Witness cases toward the end of the 20th century: Thomas v. Review Board of Indi­ana Employment Security Division in 1981 and Watchtower Bible & Tract Society of New York v. Village of Stratton in 2002.

In Thomas, the court held that Eddie Thomas of Indiana should be eligible for unemployment benefits, even though he had voluntarily quit his manufacturing job. Thomas had been transferred to a division that produced military tanks and his religious beliefs prevented him from be­ing involved in the production of weapons used for war.

Americans United had filed a friend-of-the-court brief in support of Thomas. AU’s legal counsel at that time, Lee Boothby, heralded the decision in a May 1981 edition of Church & State.

AU also lauded the 2002 Watchtower decision, in which the court once again struck down municipal restrictions on door-to-door religious canvassing. The Rev. Barry W. Lynn, AU’s executive director at the time, applauded the ruling in Church & State, observing, “Whether it’s the Jehovah’s Witnesses asking people to join their denomination or an atheist group asking people to reject religion, Americans shouldn’t have to get a permit from the government to spread their opinions.”

AU’s Luchenitser said the precedents set by Jehovah’s Witness cases continue to impact AU’s First Amendment litigation today.

“Members of the Jehovah’s Witness faith brought many cases that established modern constitutional protections for religious freedom and prohibitions against religious discrimination,” Luchenitser said. “I regularly cite many of these cases in briefs supporting lawsuits that we bring to defend the rights of religious minorities and nonbelievers today.”

Outside the courtroom, the real-world implications of Barnette have been on prominent display over the past two years as Colin Kaepernick and many other athletes exercised their right to dissent by “taking a knee” during the National Anthem to protest racial injustice.

And stories of schoolchildren singled out or disciplined for refusing to recite the Pledge of Allegiance continue to pop up. Last year, a substitute teacher in New York physically forced a 6-year-old Jehovah’s Witness to stand and put her hand over her heart during the pledge. The school superintendent told a CBS television station in Albany that the teacher misunderstood why the girl wasn’t saluting the flag, and that she would be allowed to abstain from the Pledge.

In a 2003 videotaped interview for the Robert H. Jackson Center, Gathie Barnett Edmonds, then about 71 years old, said her own son once faced pressure from a teacher to salute the flag.

“When our children [were] in school, my oldest son, one of his teachers tried to make him salute and sent him to the office, but the principal knew about the case and that she didn’t have no right to do that,” said Edmonds, who died in 2012.

“I’m just glad we had a chance to uphold our beliefs in the Supreme Court and that they decided in our favor,” Edmonds said. “Because it helped everybody, all the children all over. … [T]hey can’t make a person go against their conscience.”