Excerpts from Arnaldo Testi, Capture the Flag: The Stars and Stripes in American History, New York University Press, 2010, pp. 47-49
The rituals surrounding the Stars and Stripes are quite recent. The shaping of their features, so highly infused with civil religiosity, has elicited many a conflict that has involved the citizens’ civic and religious beliefs, the role of religion in public life, and the country’s most sacred institutions. The school ceremonies of saluting the flag and reciting the Pledge of Allegiance have been one of the main causes of these conflicts.
The hostilities were begun in the 1930s by the Jehovah’s Witnesses, a millenarian church that refuses any act of loyalty to secular governments, only recognizes the Kingdom of Christ, and interprets the precepts of the Bible literally. A Pennsylvania family of Witnesses refused to allow their children to take part in those ceremonies, then compulsory in the state’s schools, because they contradicted the biblical prohibition of worshipping images (Exodus 20:4 – 5). The children were expelled, and the episode gave rise to a court case centered on the Bill of Rights of the Constitution, in particular on the First Amendment, which prohibits the government from establishing an official religion and guarantees the right of individuals to the free exercise of their beliefs. The case reached the federal Supreme Court.
At first the justices, with a majority of eight to one, said that the Jehovah’s Witnesses were in the wrong. In the decision Minersville School District v. Gobitis (1940), they maintained that states have the authority to provide for schoolchildren’s civic education using whatever means they deem most appropriate and that these means cannot be called into question even by the Court itself. The oath and the salute to the flag come within this jurisdiction and do not violate any constitutional rights. Religious beliefs cannot exempt an individual from obeying a general law that does not aim at promoting or hindering a faith but rather aims at inspiring feelings of national cohesion. “The flag is the symbol of our national unity, transcending all internal differences,” stated the Court, and “national unity is the basis of national security.” The justices, in effect, were saying that civic obligations are superior to religious ones and that the common civil cult of the flag is superior to the various religious cults present in society. The call to unity and national security was quite strong in 1940, when the Second World War was already under way and the United States was rearming. To many Americans it seemed that patriotism should take precedence over everything and against everyone.
Against the Jehovah’s Witnesses, who refused to compromise, there were acts of state repression and hostility on the part of public opinion, especially after the country actually entered the war. Other pupils were expelled; some were subjected to physical threats. The situation was becoming dangerous. The Court agreed to discuss a second similar case, and this time, in its decision in West Virginia Board of Education v. Barnette (1943), it overturned its previous ruling. With a majority of six to three, it concluded that the Pledge of Allegiance and the flag salute are a coercion and, if compulsory, are unconstitutional. These rituals cannot be but voluntary, and that is how they are today. Even in states that provide for them by law, there is no obligation to participate either for teachers or for students.
A few things had changed in the Supreme Court. There were two new justices, who had just been appointed by President Franklin D. Roosevelt; and Justice Harlan Fiske Stone, the only one who had been opposed to the majority decision in the Gobitis case, had become chief justice. Other things had changed in society; the antifascist war had increased sensitivity to forms of intolerance and ideological discipline that were typical of the enemy regimes. Precisely recalling the tragic experiences of “our present totalitarian enemies,” the Court maintained that the First Amendment, always and under any circumstances, protects individuals’ freedom of conscience, even against the states’ civic education programs, even in times of national emergency and heightened patriotism. The ruling, written by Justice Robert H. Jackson (one of the recently appointed justices, who was subsequently the prosecuting attorney in the Nuremberg trials against the Nazi war criminals), contains resounding statements that today still find an echo in the public debate:
Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
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.