The Flag Salute Case: West Virginia State Board of Education v. Barnette (1943)

On July 11, 1941, President Franklin D. Roosevelt swore in Robert H. Jackson as the 82^nd Associate Justice of the United States Supreme Court.   During his first two years on the Court, Robert Jackson witnessed the attack on Pearl Harbor and the United States entry into World War II.

Just before the United States entry into the war, the Supreme Court agreed to review a case that focused on the powers of the federal government and the free exercise of religion  This case involved a state law that required a daily Pledge of Allegiance and salute to the flag of the United States.  In Minersville School District v. Gobitis (1940), students who practiced the Jehovah’s Witnesses faith argued that the daily pledge and salute to the flag violated their First Amendment rights.  “Their religion held that saluting and pledging an oath to the flag was like worshipping a graven image or idol, an offense against God.”*  The Supreme Court ruled that the Pennsylvania flag-salute law was constitutional.

Three years later, with Associate Justice Robert Jackson on the Supreme Court, a second case, West Virginia State Board of Education v. Barnette, provided Jackson with an opportunity to demonstrate his judicial expertise and his uncompromising respect for the fundamental constitutional rights of all individuals no matter their religion, politics, race, or station in society.

The West Virginia case also involved a rule adopted by the West Virginia State Board of Education and the First Amendment rights of students who belonged to the Jehovah’s Witnesses faith. The West Virginia State Board of Education rule required that all students stand, salute the American flag, and recite the Pledge of Allegiance. Refusal to participate could result in expulsion from school and, in some cases, removal of a student from his or her parents.  Jehovah’s Witnesses believe that they can only worship God and that pledging the United States flag violated their religious beliefs.

After students have viewed that section of the DVD:  Liberty Under Law:  The Robert H. Jackson Story focusing on the Barnette case (see: starts at 30:36), have them review the text of the First Amendment of the United States Constitution and the text of the Pledge of Allegiance.  Then ask students to list the five freedoms contained in the First Amendment.  Discuss with students what each of these freedoms means.  Ask students why these five freedoms are important and why they think that they were placed as the first amendment to the Constitution.  How does the First Amendment apply to their lives?

Ask students to summarize the meaning of the Pledge of Allegiance.  Note that the inclusion of words, “under God,” happened during the Eisenhower administration in 1954.  Ask why some students might find that requiring the pledge and flag salute might violate their religious beliefs or right to freedom of speech. Have small groups of students take opposing sides in the debate whether school officials infringed on students’ First Amendment rights of freedom of religion and freedom of speech when they compelled students to pledge allegiance to the flag.

Text of the First Amendment of the United States Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Text of the Pledge of Allegiance:

“I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”

(The Pledge of Allegiance first appeared in the September 8, 1892 issue of Youth’s Companion.  It was officially recognized by the federal government in 1942, during World War II.  In 1954, President Eisenhower convinced Congress to add the words “under God” after “one nation.”**)

*Taken from:  John J. Patrick, The Bill of Rights:  A History in Documents (New York: Oxford University Press, 2003), p. 121.

**Taken from:  Charles C. Haynes, Sam Chaltain, John E. Ferguson, Jr., David L. Hudson, Jr., and Oliver Thomas, The First Amendment in Schools:  A Guide from the First Amendment Center (Alexandria, VA:  Association for Supervision and Curriculum Development, 2003), pp. 119-120.

Ask students to study this photograph and address the following tasks or questions*:

1. Write 2-3 sentences that summarize what you observe in this photograph.
2. List the people, objects, and activities shown in this photograph.
3. Based on what you have observed list 2 or 3 things you might infer from this photograph. Begin your statement with:  “I think that this photograph shows…” Or, “This photograph was taken to show…”
4. What questions does this photograph raise?
5. Where might you find more information about this photograph?
6. What additional information about this photograph would you like to have and where might you find it?
7. How might photographs such as this one influence public opinion about the flag salute and pledge issue?

Ask students to review the facts of the Barnette case at www.law.cornell.edu/supct/index.html / Search under West Virginia State Board of Education v. Barnette (1943).

Students may also search: https://www.law.cornell.edu/supremecourt/text/319/624.

www.firstamendmentschools.org

www.billofrightsinstitute.org

www.landmarkcases.org

Have students use the case study method described in LESSON FOUR to analyze this case.  Students should summarize the facts, issues, decision, and significance of the Supreme Court decision. Ask students to discuss what other events may have influenced public opinion about this case. Student groups might debate whether the Court made the correct decision.  Have students play the roles of justices who supported the decision and those who dissented.  Ask students how this decision impacts their lives as students.