Tuesday is Flag Day, the 73rd anniversary of the U.S. Supreme Court’s decision that the constitutional right to free religious exercise trumps a public school’s requirement that students salute the Red, White and Blue and recite the Pledge of Allegiance.
The high court’s 8-1 ruling in West Virginia State Board of Education v. Barnette was a victory for religious freedom in general and particularly for the pupils who belonged to Jehovah’s Witnesses, who believe their allegiance is to God and not the “graven image” of a flag. That the court issued its ruling in 1943, in the midst of World War II, bespeaks the strength of the U.S. Constitution (although the justices disregarded the founding document’s majesty in Korematsu v. United States the following year).
“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,” Justice Robert H. Jackson wrote for the majority. “We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”
Justice Felix Frankfurter, the sole dissenter, referred to his Jewish faith in begrudgingly deferring to the West Virginia legislature.
“One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution,” Frankfurter wrote. “Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the ‘liberty’ secured by the Due Process Clause gives this court authority to deny to the state of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.”
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