West Virginia State Board of Education v. Barnette, 319 U.S. 624; 63 S. Ct. 1178, 87 L. Ed. 1628 (1943)
Facts—Following the decision of the Supreme Court in Minersville School District v. Gobitis, 310 U.S. 586 (1940), permitting school boards to require compulsory flag salutes, even for those, like Jehovah’s Witnesses, who believed the practice to be a form of idolatry, the West Virginia legislature amended its statutes to require all schools to conduct courses in history, civics, and the Constitution. The Board of Education went further and required a salute and a pledge of allegiance to the flag. Failure to conform was insubordination, dealt with by expulsion. Readmission was denied by statute until compliance. Meanwhile the expelled child was unlawfully absent and the parents were subject to a fine. The appellees, who were Jehovah’s Witnesses, sought to restrain the enforcement of this statute.
Question—Does West Virginia’s statute requiring compulsory flag salutes in public schools violate the First and Fourteenth Amendments?
Decision—Yes.
Reasons—J. Jackson (6–3). Denial of the freedoms guaranteed by the Constitution can only be due to present grave and immediate danger to interests that the state can lawfully protect. The limitations of the Constitution are applied with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate social organization. Freedom of religion and expression cannot be hampered when the expressions and the religious practices dealt with are harmless to others and to the state: “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. If there are any circumstances which permit an exception, they do not now occur to us.”
The action of the local authorities in compelling the flag salute and pledge transcended constitutional limitations on their power and invaded the sphere of intellect and spirit that the First Amendment reserves from all official control. Therefore, the Court overruled Minersville School District v. Gobitis and affirmed the order restraining the West Virginia regulations.
J. Frankfurter, who was deeply conscious of his own minority status as a Jew, nonetheless authored a passionate dissent distinguishing between the wisdom and the constitutionality of legislation and arguing for judicial restraint and deference to decisions by local school boards as to whether flag salutes did or did not promote patriotism.