Severe Blows at the Hands of the Courts

The flag-salute issue as it related to the schoolchildren of Jehovah’s Witnesses first reached the American courts in 1935 in the case of Carlton B. Nicholls v. Mayor and School Committee of Lynn (Massachusetts).f The case was referred to the Massachusetts Supreme Judicial Court. The court ruled, in 1937, that regardless of what Carleton Nichols, Jr., and his parents said they believed, no allowance need be made for religious belief because, it said, “the flag salute and pledge of allegiance here in question do not in any just sense relate to religion. . . . They do not concern the views of any one as to his Creator. They do not touch upon his relations with his Maker.” When the issue of compulsory flag salute was appealed to the U.S. Supreme Court in the case of Leoles v. Landersg in 1937, and again in Hering v. State Board of Educationh in 1938, the Court dismissed these cases because there was, in their opinion, no important federal question to consider. In 1939 the Court again dismissed an appeal involving the same issue, in the case of Gabrielli v. Knickerbocker.i That same day, without hearing oral argument, they affirmed the adverse decision of the lower court in the case of Johnson v. Town of Deerfield.j

Finally, in 1940, a full hearing was given by the Court to the case styled Minersville School District v. Gobitis.k An array of celebrated lawyers filed briefs in the case on both sides. J. F. Rutherford presented oral argument on behalf of Walter Gobitas and his children. A member of the law department of Harvard University represented the American Bar Association and the Civil Liberties Union in arguing against compulsory flag saluting. However, their arguments were rejected, and with only one dissenting vote, the Supreme Court, on June 3, ruled that children who would not salute the flag could be expelled from the public schools.

About a month later—on June 14, the nation’s annual Flag Day—the Supreme Court again reversed itself, this time as to its decision in the Gobitis case, doing so in the case styled West Virginia State Board of Education v. Barnette.c It ruled 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.” Much of the reasoning set out in that decision was thereafter adopted in Canada by the Ontario Court of Appeal in Donald v. Hamilton Board of Education, which decision the Canadian Supreme Court refused to overrule.

Consistent with its decision in the Barnette case, and on the same day, in Taylor v. State of Mississippi,d the Supreme Court of the United States held that Jehovah’s Witnesses could not validly be charged with sedition for explaining their reasons for refraining from saluting the flag and for teaching that all nations are on the losing side because they are in opposition to God’s Kingdom. These decisions also set the scene for subsequent favorable rulings in other courts in cases involving Witness parents whose children had refused to salute the flag in school, as well as in issues involving employment and child custody. The tide had definitely turned.e

[Box on page 684]

A Witness to the U.S. Supreme Court

When appearing before the Supreme Court of the United States as legal counsel in the “Gobitis” case, Joseph F. Rutherford, a member of the New York Bar and the president of the Watch Tower Society, clearly focused attention on the importance of submitting to the sovereignty of Jehovah God. He said:

“Jehovah’s witnesses are those who bear testimony to the name of Almighty God, whose name alone is JEHOVAH. . . .

“I call attention to the fact that Jehovah God, more than six thousand years ago, promised to establish through the Messiah a government of righteousness. He will keep that promise in due season. The present-day facts in the light of prophecy indicate that it is near. . . .

“God, Jehovah, is the only source of life. No one else can give life. The State of Pennsylvania cannot give life. The American Government cannot. God made this law [forbidding the worship of images], as Paul puts it, to safeguard His people from idolatry. That is a small thing, you say. So was the act of Adam in eating of the forbidden fruit. It was not the apple that Adam ate, but it was his act of disobeying God. The question is whether man will obey God or obey some human institution. . . .

“I remind this Court (it is hardly necessary that I do so) that in the case of ‘Church v. United States’ this Court held that America is a Christian nation; and that means that America must be obedient to the Divine law. It also means that this Court takes judicial notice of the fact that the law of God is supreme. And if a man conscientiously believes that God’s law is supreme and conscientiously deports himself accordingly, no human authority can control or interfere with his conscience. . . .

“I may be permitted to call attention to this: that at the opening of every session of this Court the crier announces these words: ‘God save the United States and this honorable Court.’ And now I say, God save this honorable Court from committing an error that will lead this people of the United States into a totalitarian class and destroy all the liberties guaranteed by the Constitution. This is a matter that is sacred to every American who loves God and His Word.”

[Box on page 687]

Setting the Stage for a Reversal

When the American Supreme Court ruled, in 1940, in “Minersville School District v. Gobitis,” that schoolchildren could be required to salute the flag, eight of the nine justices concurred. Only Justice Stone dissented. But two years later, when registering their dissent in the case of “Jones v. Opelika,” three more justices (Black, Douglas, and Murphy) took the occasion to state that they believed that the “Gobitis” case had been wrongly decided because it had put religious freedom in a subordinate position. That meant that four of the nine justices were in favor of reversing the decision in the “Gobitis” case. Two of the other five justices who had downplayed religious freedom retired. Two new ones (Rutledge and Jackson) were on the bench when the next flag-salute case was presented to the Supreme Court. In 1943, in “West Virginia State Board of Education v. Barnette,” both of them voted in favor of religious freedom instead of compulsory flag saluting. Thus, by a vote of 6 to 3, the Court reversed the position it had taken in five earlier cases (“Gobitis,” “Leoles,” “Hering,” “Gabrielli,” and “Johnson”) that had been appealed to this Court.

Interestingly, Justice Frankfurter, in his dissent on the “Barnette” case, said: “As has been true in the past, the Court will from time to time reverse its position. But I believe that never before these Jehovah’s Witnesses cases (except for minor deviations subsequently retraced) has this Court overruled decisions so as to restrict the powers of democratic government.”

[Pictures on page 686]

Justices of the U.S. Supreme Court who, by a vote of 6 to 3 in the “Barnette” case, rejected compulsory flag saluting in favor of freedom of worship. This reversed the Court’s own earlier decision in the “Gobitis” case

Children involved in the cases

Lillian and William Gobitas

Marie and Gathie Barnette