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#TBT: West Virginia v. Barnette

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In 1940, the United States Supreme Court released a decision in Minersville School District v. Gobitis, which stated that children were not allowed to refuse to salute the flag because it fostered an “un-American” atmosphere. After this decision, West Virginia legislature amended its statutes to require all schools to conduct courses of instruction in history, civics and in the Constitution of the United States and of the State “for the purpose of teaching, fostering and perpetuating the ideas, principles and spirit of Americanism and increasing the knowledge of the organization and machinery of the government”. They made it the duty of private, parochial and denominational schools to prescribe courses of study “similar to those required for the public schools”. The Board of Education on January 9, 1942, ordered that the salute to the flag had to become a regular part of the school program and anyone who did not comply with it would be faced with expulsion. An expelled child could then be considered “unlawfully absent” and prosecuted as a delinquent with their parents or guardians also liable to prosecution. A group of Jehovah’s Witnesses brought the case to the Supreme Court because saluting the flag was considered unlawful in their religion.

The court decided that a ceremony, like the flag salute had its basis in opinion and political attitude, so it could not be enforced on citizens without their consent. The Fourteenth Amendment, as now applied to the states, protects the citizen against the state itself and all of its parts, including the Board of Education so the Supreme Court can interfere with the authority of the Board of Education if it violates the Constitution. The purpose of the Bill of Rights is to withdraw certain subjects, like Jehovah’s witnesses, from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.  other matters of opinion or force citizens to confess by word or act their faith therein.

The court decided, in Minersville v. Gobitis that the flag salute promoted national unity and was therefore enforceable by the States. Yet if an individual feels coerced into displays of loyalty the enforcement of the flag salute becomes a counter effective measure. Their first amendment right to freedom of expression is effectively ignored, or taken away from them. The majority opinion acknowledges this breach in trust between a citizen and the law and removes the barrier of trust. Those citizens who feel the government respects their beliefs and rights will feel even more patriotism then those who feel oppressed by the government.

 

Source:

Lawrence, Susan E., ed.  LAW AND POLITICS IN THE SUPREME COURT:

CASES AND READINGS, REVISED SECOND EDITION, Kendall/Hunt Publishing, 1993

 

 

Joseph M. Ghabour
Auto, Bus, Pedestrian, Motorcycle accident, medical malpractice and worker's compensation attorney.
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