“In God We Trust” (Or Else)

June 6, 2021June 4, 2023 ~ Blue Cereal

There are certainly plenty of wonderful individual people of faith around, including many Christians.

I feel obligated to open with this acknowledgement (disclaimer?) because my next several posts are going to focus on clashes between religious folks and public education which have been in the news recently, and it seems like every time you come across a story about someone asserting their Christian beliefs via legislation or the courts, they’re doing it for one of three reasons: (1) they want more government money for something without having to follow the same rules as everyone else, (2) they want the government to like their religion best and tell everyone about it more often because that’s “freedom of religion,” or (3) they want to be horrible to some group of people everyone else is supposed to be kind to.

All in all, it doesn’t paint a very flattering picture of the group as a whole. Then again, we’ve seen their voting habits, so…

Texas Demands Empty Proclamations of Faith Without Substance

The Texas State Legislature has passed a bill requiring that any public schools which just happen to end up with one or more “In God We Trust” signs in their possession post them as prominently as possible. (As of this writing, it’s waiting on the Governor’s signature.) Presumably, they’re hoping this will pass constitutional muster thanks to a combination of factors:

The signage will be donated, not paid for by state tax dollars.
“In God We Trust” is our national motto – a statement of patriotism (supposedly), not religion.
The Supreme Court has previously ruled that some religious statements are so drained of meaning as to no longer trigger “wall of separation” issues.

The “national motto” thing is a remnant of our 1950s terror of all things Communist. If spiritual purity and a commitment to capitalism weren’t synonyms before World War II, they certainly became so by the time of color television. The Commies were “godless,” so one way the U.S. could stand tall was to insert things like “under God” into the Pledge of Allegiance and make “In God We Trust” our official national motto. (For those of you unfamiliar with the teachings of Jesus, he was very big on public rituals and governmental gestures of support.)

This conflation of all things red, white, and blue with orthodox Christianity has only intensified since. In the hearts and minds of the controlling (and voting) majority of American faithful, you can’t love Jesus and favor gun control legislation. You can’t take communion and oppose tax breaks for the uber-wealthy. And it’s easier for an elephant to go through restorative justice training than for a Black man to have equal rights in the eyes of the law because look they must have been asking for it or they wouldn’t have the mark of Cain to begin with. It’s hardly a coincidence that the same Texas legislature pushing the “In God We Trust” signage passed a law requiring sports teams to play the National Anthem before every game.

From FoxNews.com:

Texas Lt. Gov. Dan Patrick was a staunch advocate for the bill, dubbed the “Star Spangled Banner Protection Act.” The measure was first introduced in February after the Dallas Mavericks briefly stopped playing the national anthem before their home games.
“Texans are tired of sports teams that pander, insulting our national anthem and the men and women who died fighting for our flag,” Patrick said in a statement in April. “The passage of SB 4 will ensure Texans can count on hearing the Star Spangled Banner at major sports events throughout the state that are played in venues that taxpayers support. We must always remember that America is the land of the free and the home of the brave.”

Notice the title – the “Star Spangled Banner Protection Act.” Because patriotism, like faith, apparently can’t survive without government propping it up by force. Note also the claim that American soldiers fight and die “for our flag.” Not our values, not our Constitution, and certainly not our people – for the cloth and the symbols and the rituals.

I won’t even try to make sense of mandating adherence to a ritual in order to remind us we’re the land of the free. Modern GOP “reality” gives me a headache. Instead, back to those godless public schools…

“Ceremonial Deism”

In 2004, the Supreme Court heard a case involving the “under God” bit added to the Pledge in the 1950s. A non-custodial parent objected to his daughter being exposed to this daily chant of devotion in her local public school. The Court avoided deciding the case on its merits, finding instead that the plaintiff lacked standing to sue (the girl’s mother, who legally had custody, had no objections to the Pledge).
Several concurring opinions, however, indicated that had they addressed the issue itself, the Pledge would have been fine. The best-known was this bit from Justice Sandra Day O’Connor:

Given the values that the Establishment Clause was meant to serve… I believe that government can… acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

In other words, “under God” was no more spiritual than saying “bless you” when someone sneezed or “OMG!” when you see a cool TikTok video. It was purely ceremonial, stripped of substance by repetition and years of historical impotence.

That’s what Texas is going for with their motto requirement – something barely constitutional because it lacks the slightest spiritual or religious meaning in the eyes of the courts or, presumably, the citizenry at large. Otherwise, it would be blatantly unconstitutional.

A Moment Of Pray—Er… Silence

The same basic approach was taken by numerous states when passing “moment of silence” legislation. These laws require school announcements each day to include 3-4 seconds of silence (some statutes specify a full minute) during which students can “reflect, meditate, or pray” or some variation thereof. These laws pass constitutional muster because they’re so pointless. Sure, kids can pray – but they don’t have to. Of course, they can also pray silently before the moment of silence, or after it. Kids have never ever EVER in the history of the United States been prohibited from praying silently during the school day, or from praying collectively and out loud on school grounds as long as it’s not in the middle of class. Never.

Legislators tried the same disingenuous strategy with the Ten Commandments as well, but the “HOW IS THAT RELIGIOUS?!?” argument somehow didn’t stick with that one. Opening with “Thou shalt have no other gods before me” kinda gave it away.

So if these moments and postings and such are neutered, meaningless symbols, why do some legislators fight so hard to make them happen?

Conservatives have somehow persuaded a majority of religious voters that these little token victories – the ones that slide past First Amendment concerns specifically because they lack substance – are somehow pushing Jesus back into public schools or securing God’s blessings on America. Mumbling “under God” or posting “In God We Trust” operates as a sort of code phrase, opening a spiritual portal for the Lord Almighty to swoop back in and take His rightful place in the big leather chair in the principal’s office. Statues become woodland creatures again, teenagers stop being interested in sex or any music recorded after 1957, and Common Core was never even invented, let alone mandated by many of these exact same legislators.

(OK, that last one wouldn’t be so bad.)

Let There Be (Gas)Light

In other words, the only reason to pass these laws is because those supporting them believe they ARE statements of faith. They DO matter in distinguishing America’s official religion (which they’re willing to pretend isn’t official in order to secure it as such) from all of those other belief systems (which have no place in public schools because of the First Amendment).

Religious legislators have learned to go through the motions of manufacturing pseudo-secular reasons for these theological breaches. They assert that a “moment of silence” rewrites the chemistry of the teenage brain each morning or that the Ten Commandments are purely historical context for the U.S. Constitution (despite the two having not so much as a single line in common). The trick is to do this while still celebrating the banishment of the White Witch from Narnia with their constituents, who believe their nation is so great and their God so powerful that neither can survive without such gestures.

Legislators aren’t the only ones perfectly aware of the power of these little religious “victories.” They’re a reminder to anyone outside the cell group that they don’t belong. You atheists, Buddhists, Hindus, or Muslims, along with you LGBTQ+ teens and anyone else who isn’t showing proper deference to state-mandated religious and patriotic rituals – you can stay for now, but you are outsiders. You. Don’t. Count. And honestly, you’re ruining everything for the good people – the ones who believe and do the right things, in unison, whenever we’re told.

If you think I’m overstating it, go visit another country for a few years where the dominant culture is different than yours and send your kids to school there. Or just ask one of those gay or atheist types you don’t let your kids hang out with. Maybe they’ll try to explain it.

The Governor has about ten days from the time a bill is presented to either sign or veto it in Texas. You’ll know if it becomes law because you’ll hear a cock crow three times.

One Nation Mumbles God (Is the Pledge Constitutional?)

February 10, 2021June 4, 2023 ~ Blue Cereal

You’ve probably heard that I’m working on a follow-up to “Have To” History: Landmark Supreme Court Cases because I mention it every chance I get and won’t talk about anything else so why aren’t more of you buying my book do you hate truth and America? Along the way, I’m posting rough drafts and ramblings that may or may not make it into the final version (working title: “It Followed Her To School One Day…”)

The following is a case that started off as a one-page insert but keeps trying to grow beyond its word count. We’ll see how that goes.

FOLLOW UP: The “final” version of this post (the one that ended up in the book) can be found here.

**Worth A Look: Elk Grove Unified School District v. Newdow (2004)**

The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by a series of rules under which we have avoided passing upon a large part of all the constitutional questions pressed upon us for decision… Always we must balance the heavy obligation to exercise jurisdiction… against the deeply rooted commitment not to pass on questions of constitutionality unless adjudication of the constitutional issue is necessary…
Consistent with these principles… {a} plaintiff must show that the conduct of which he complains has caused him to suffer an “injury in fact” that a favorable judgment will redress… Without such limitations… the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights…
Thus, while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.
(from the majority opinion by Justice John Paul Stevens – internal quotes and citations omitted for clarity)
The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling. On the merits, I conclude that the Elk Grove Unified School District policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words “under God,” does not violate the Establishment Clause of the First Amendment…
Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.
(from the opinion of Chief Justice William Rehnquist, concurring in the judgement)
There are no de minimis violations of the Constitution — no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can… acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”).
These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.
(from the opinion of Justice Sandra Day O’Connor, concurring in the judgement)
Adherence to Lee {v. Weisman (1992) and other precedents established by this Court} would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day…
I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided. Lee depended on a notion of “coercion” that… has no basis in law or reason…
(from the opinion of Justice Clarence Thomas, concurring in the judgement)

Elk Grove v. Newdow involved an issue the Supreme Court has otherwise tried very hard to avoid: the inclusion of “under God” in the Pledge of Allegiance, at least in terms of its mandatory recitation in classrooms across the nation every school day. The Court had determined in West Virginia v. Barnette (1943) that students could not be required to stand and participate in the Pledge. Far more recently, however, in Lee v. Weisman (1992), the Court found state-sponsored prayer at graduation ceremonies – whether students actively participated or not – to be a violation of the Establishment Clause. By inserting religious dogma, however briefly, into an important educational ritual, the State was coercing students who wished to participate into choosing between silent acquiescence or the potential disruption and embarrassment of some form of overt protest.

Michael Newdow, an eccentric but sincere atheist, was convinced the daily conflation of patriotism with religious belief in his daughter’s elementary school classroom was at least equally inappropriate. He filed suit on behalf of both himself and his daughter, claiming among other things that this was a blatant violation of the Establishment Clause and he didn’t want his child subjected to it any longer.

General, brief references to the Almighty have been a part of innumerable American traditions since long before the First Amendment was an ink spot at the top of James Madison’s parchment. It has thus been difficult at times for the Court to reconcile the proverbial “wall of separation” with a history demonstrating that the authors of the sentiment obviously didn’t mean in everything. Unlike compromises over slavery or state vs. federal power, there’s no evidence the Framers willingly kicked this constitutional can down the road for their scions to sort out. They simply saw no conflict between a reasonable degree of religious acknowledgement in public life while shielding personal faith from the machinery of government.

As the nation has evolved and the concept of “personal belief system” has expanded a bit beyond what could have been envisioned a few short centuries ago, this particular balance has proven trickier than expected. It doesn’t help that the religious majority hasn’t always shown itself to be overly accommodating or sympathetic to anyone outside the chosen few. Self-identifying as a spiritual “other” has often resulted in personal, professional, or physical harm, making governmental choices about even ceremonial prayers or displays a tad more problematic than a First Lady supporting one hockey team over another or the ceremonial naming of highways.

Supreme Court decisions sometimes have explosive potential, unfortunately. It matters what our government validates or who it marginalizes. Maybe it shouldn’t, but… it does.

The Ninth Circuit Court of Appeals agreed with Newdow and declared the use of the Pledge in public schools unconstitutional. Other federal courts had ruled differently in similar cases, setting up the exact sort of confusion that often prompts the Supremes to take up a subject they might otherwise prefer to circumvent. Once the details were officially before them, the majority found they had a very convenient out – Newdow was not the custodial parent of his daughter. While sharing custody in practice, the girl’s mother was the legal guardian and not thrilled with her daughter suddenly being in the headlines (not by name, but still!) for such a controversial reason. Besides, Mom was a church-goer, as was the daughter, and neither wanted to take this particular stand.

Thus the Court’s “aw, shucks!” opinion in which it somehow spun “no way we’re touching this” into “across the ages of jurisprudential magnanimity it has proven prudent for this hallowed body to shunneth the touching of grand slam breakfast issues such as these eggs with so much as the proverbial ten cubit pole.” In other words, the Court would not rule on the constitutional question involved because a majority was unpersuaded Newdow had standing to bring the complaint in the first place.

Technically, they may have been correct. Realistically, there were doubtless a number of relieved sighs. Maybe even cupcakes.

Chief Justice Rehnquist, Justice O’Connor, and Justice Thomas concurred with the result, but not the reasoning. Each submitted a separate opinion suggesting that they’d be more than happy to declare a little patriotic Jesus here and there as perfectly acceptable, because… reasons. (With concurrences like that, who needs dissents?)

Despite the attempted pot-stirring by these three justices, the underlying issue remains foggy and unlikely to reach the Supreme Court again anytime soon. It is thus safe to keep stumbling and mumbling your way through the daily Pledge of Uh, Legions before the roughly 3-second “minute of silence.” Apparently this bit of generally unenthusiastic ceremony is constitutionally safe for now.

The Jehovah’s Witnesses Flag Cases (Part Two)

March 16, 2020June 4, 2023 ~ Blue Cereal

I’ve started putting together information and drafts for something which may or may not be titled “Have To” History: A Wall of Separation (Public School Edition). Call me wacky, but I find this stuff fascinating.

Below and in Part One, I’m sharing the drafts of two of earliest cases likely to be included. Both involve little children not saying the Pledge of Allegiance because they believed it violated the Word of God to do so. Both cases were pursued as “freedom of religion” issues, but both were resolved on “free speech” grounds more than anything “wall of separation”-ish. In the second, the Court completely reversed itself only three years after the first – so that was unexpected.

Recap of the Story So Far…

Jehovah’s Witnesses took (and take) literally the Bible’s exhortation to “have no other gods before me.” After experiencing persecution in Germany for not pledging their allegiance to the Fuhrer, leaders of the Witnesses discouraged saluting or reciting oaths to any national symbol – including the American flag. Many public schools in the U.S. required students to salute the American flag and say the Pledge of Allegiance, hoping this would foster patriotism and a sense of civic duty and community in the youth. When young Jehovah’s Witnesses refused, they were punished with expulsion.

The Jehovah’s Witnesses insisted this was a violation of religious liberty. In 1940, the Supreme Court disagreed. “Sorry this offends your beliefs,” the Court ruled, “but national unity is a valid goal of schooling and the law didn’t target your people on purpose.” (I’m paraphrasing.)

Part Two: West Virginia State Board of Education v. Barnette (1943)

After the Supreme Court’s decision in Minersville School District v. Gobitis (1940), harassment and violence towards Jehovah’s Witnesses surged dramatically across the United States. Many felt validated and encouraged by the Court’s decision, which in their mind had essentially prioritized loyalty and being a good American over freedom of religion, speech, or association. It didn’t help that the U.S. entered World War II shortly thereafter, making patriotism and loyalty towards one’s nation and the flag representing it even more essential in the minds of many and any deviance not merely suspect, but dangerous.

Only a few decades before Gobitis was the first “Red Scare,” in which all things foreign or strange were suspected of undermining the American way of life and required hostile, or even violent response. A decade after the Court’s reversal in Barnette, Congress would launch hearings into the “Communist infiltration” of government, publishing, and the entertainment industry, resulting in hundreds – possibly thousands – of loyal citizens losing their livelihoods and enduring ostracism by friends and neighbors.

In other words, being the “other” in the 20th century wasn’t simply a matter of some suspicious looks or hostile tweets. It meant you weren’t safe just going about your business, no matter how hard you worked, how many taxes you paid, or how devoted you were to your faith and your family. The Jehovah’s Witnesses weren’t Communists, of course – but they were weird and often unpleasant. So… close enough.

A Free, Public Re-Education

Perhaps not surprisingly, persecution only strengthened the resolve of the Jehovah’s Witnesses. Their kids still to have other gods before the Big One. It was a mere three years before almost the exact same case as Gobitis came before the High Court once again. This time, the results would be a tiny bit different.

Following the Court’s decision in Gobitis, West Virginia and other states upped their citizenship game and began requiring more intensive public school courses in history, civics, and Constitutional studies. They wanted there to be no doubt about the meaning of traditional American values, like “recite what we tell you and salute the symbols we choose or pay the price!” The West Virginia Board of Education issued a statewide resolution requiring the Pledge and flag salutes at all public school events; refusal to participate would be considered “insubordination” and dealt with harshly. The statute quoted extensively from the Majority Opinion in Gobitis by way of justification.

So… Ouch.

West Virginia and other states did allow some modification of the stiff-arm salute now associated with the Nazi Party. (Presumably, it was OK to behave like fascists as long as one used a slightly different arm motion while so doing.) They also tweaked the rules concerning expulsion. Children not saluting the flag and saying the Pledge would be sent home, after which parents would be prosecuted for not having them in school.

Think what you like about mandatory oaths of fealty, this is a nice touch, statutorily-speaking. It rubs salt into the stripes on their backs, but in a “What? We’re just trying to help!” kind-of-way.

Marie and Gathie Barnette were Jehovah’s Witnesses who quietly refused to swear allegiance to anyone or anything other than the Lord their God. They were expelled, and once again the Witnesses began legal proceedings, despite the Court’s decision only a few years before.

Cases like the Barnettes’s don’t magically appear before the Supreme Court. They’re filed in the appropriate local court first, then potentially appealed up through the hierarchy. Barnette v. West Virginia State Board of Education (the names are reversed because initially the Barnettes were the plaintiffs) began in the U.S. District Court for the Southern District of West Virginia and was heard by a three-judge panel in 1942.

District Courts are generally expected to follow the precedents set by those up the food chain – the Supreme Court or, lacking clarity from D.C., the closest District Court of Appeals. There are many cases involving issues not specifically addressed by the higher courts, of course, and from time to time you’ll get a rogue judge or two who go against the grain, but normally a case like Barnette would have been fairly straightforward, given its similarity to Gobitis a few short years prior. Clearly the Court would decide for the schools and everyone could go home.

Only they didn’t.

“Ordinarily We Would Feel Constrained…”

In a rather bold move, the three-judge court not only decided in favor of the Barnettes, but made no effort to justify their decision by pretending this case was in some way different than its predecessor. Instead, they simply explained their reasoning based on developments since Gobitis, along with their own interpretation of the law and the Bill of Rights. Taken together, it’s a written opinion as eloquent as anything coming from the Supremes in those days:

Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other justices in a special dissenting opinion in Jones v. City of Opelika…
There is, of course, nothing improper in requiring a flag salute in the schools. On the contrary, we regard it as a highly desirable ceremony calculated to inspire in the pupils a proper love of country and reverence for its institutions. And, from our point of view, we see nothing in the salute which could reasonably be held a violation of any of the commandments in the Bible or of any of the duties owing by man to his Maker. But this is not the question before us…
Courts may decide whether the public welfare is jeopardized by acts done or omitted because of religious belief; but they have nothing to do with determining the reasonableness of the belief. That is necessarily a matter of individual conscience. There is hardly a group of religious people to be found in the world who do not hold to beliefs and regard practices as important which seem utterly foolish and lacking in reason to others equally wise and religious; and for the courts to attempt to distinguish between religious beliefs or practices on the ground that they are reasonable or unreasonable would be for them to embark upon a hopeless undertaking and one which would inevitably result in the end of religious liberty.
There is not a religious persecution in history that was not justified in the eyes of those engaging in it on the ground that it was reasonable and right and that the persons whose practices were suppressed were guilty of stubborn folly hurtful to the general welfare…

That last bit echoes Justice Stone’s dissent in Gobitis. Justice Robert H. Jackson, who will write the Majority Opinion in Barnette, explores the theme from a different angle, but just as clearly.

Nine Justices, One Hundred and Eighty Degrees

The State appealed the case up the ladder (hence the reversal in the order of the names) and the Supreme Court was given an opportunity to try again. This time, they ruled 6 – 3 in favor of the Jehovah’s Witnesses. The majority focused less on religious freedom for Jehovah’s Witnesses and more on freedom of speech (or lack thereof) in general. It’s not just that children of certain faiths should be free to respectfully abstain from public recitations of mandatory patriotism, they argued – it was bigger than that. There are certain core liberties which should be protected for everyone, regardless of the specific belief system or point of view involved:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

It was important to the decision that the children’s abstention didn’t interfere with the rights of those around them to go right ahead and say it and wasn’t disruptive in and of itself:

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so.
Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual…

The non-disruptive element matters in this context because “disruption of the learning environment” is often sufficient to allow authorities to restrict behaviors in a school setting which would typically be protected in the larger adult world. (A generation later, the non-disruptive impact of black armbands worn to protest the Vietnam War will be central to the Court’s protection free speech for high school students in Tinker v. Des Moines, 1969.)

In essence, the Court supported the concept of encouraging patriotism and national unity; it rejected the suggestion by the State that the best way to do this was mandatory rituals – especially when they violated the conscience of those involved.

Aftermath

Barnette was a turning point for jurisprudence involving the freedoms enshrined in the Bill of Rights. Initially, the first ten Amendments were added to the new Constitution as limits on what the federal government could do or demand of individuals. While state constitutions might offer similar protections for speech, religion, etc., there was no national standard for such things until the first half of the 20th century, when the Court began utilizing the 14th Amendment (ratified just after the Civil War, in 1868) to apply the protections and ideals of the Bill of Rights to the relationship between citizens and state or local government as well.

Even then, the Court often drew a broad distinction between protecting belief and allowing religiously-driven behavior which violated state or local law. This “belief-action doctrine” was most clearly expressed in Reynolds v. United States (1878), a case involving the 19th century’s most vilified religious group, the Church of Jesus Christ of Latter Day Saints –more popularly known as the Mormons.

At issue was the practice of polygamy, and whether or not one’s sincerely held religious convictions could override man’s prohibitions against a practice steeped in history, practiced peacefully among consenting adults, and harming no one. This being the U.S., the answer was inevitable: of course not, because eewwwww!

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices…
Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

The basic principle still holds – there are laws and expectations ever citizen must heed, regardless of belief system or personal creed. After Barnette, though, sincerely held religious convictions gained substantial ground in terms of what they could or couldn’t be used to justify, both in the world of public education and beyond. Also magnified was the idea that fundamental freedoms like those guaranteed in the Bill of Rights shouldn’t have to wait on legislatures or the next election to find protection – an approach which will be applied to full effect by the Warren Court of the 1950s and 1960s.

The Court’s reversal in Barnette didn’t eliminate suspicion or violence towards Jehovah’s Witnesses, but it did at least remove the illusion of federal sanction for such actions, which dropped in both number and severity. America had other things to worry about, and over time the Witnesses started making some effort to be less aggressive and alienating whenever possible to do so without compromising their beliefs.

And in case you’re wondering, they still don’t say pledge their allegiance to anyone’s flag. Nor do they have to.

The Jehovah’s Witnesses Flag Cases (Part One)

March 12, 2020June 4, 2023 ~ Blue Cereal

Several years ago, my wife and I moved to northern Indiana from Oklahoma and I started a job at a new school. Day One, first hour, I was about 30 seconds into introducing our opening activity when I was interrupted by announcements via school intercom. “Please stand for the Pledge of Allegiance…”

I wasn’t expecting it, but I figured the routine was pretty much the same everywhere. Hand on heart, I faced the tiny flag hanging in my room and began reciting right along with the tiny anonymous voice on the speaker – “I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA—”

I wasn’t three words in when I realized that while most of my students had stood, half were barely mumbling the Pledge while the rest weren’t saying out aloud at all. You know that thing in church where you mouth the words to the hymns you don’t know? It was like that, only I’m sure they knew it – this just wasn’t a thing they did. Not with any enthusiasm, anyway. Except for the NEW GUY, apparently.

At that point, of course, there were only two options. Stop – or at least dial it WAY back – on my first day in a new school in front of a new class and baptize my opening day in awkwardness and stifled embarrassment, or… OWN IT. So baby, I OWNED IT.

“AND TO THE REPUBLIC FOR WHICH IT STANDS – ONE NATION, UNDER GOD, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL.”

And then I went on with my lesson as if this were the most normal thing in the world. The next day, I did the exact same thing – loud and confident, as if I were the most patriotic individual in the state. Never once did anyone question my enthusiasm or belittle my volume. Never once did I think I could risk dialing it back a bit, lest I cast retroactive doubt and awkwardness over everything I’d done since.

I’m not suggesting this was in any way rational. But people rarely are.

“Have To” History: Supreme Court Cases

I recently finished “Have To” History: Landmark Supreme Court Cases, of which I’m quite proud. I’ve started putting together information and drafts for a second volume, which may or may not be titled something like “Have To” History: A Wall of Separation (Public School Edition).

I’m still working out the title. And the format. And the content. But for whatever reason, I do love me some Supreme Court cases – even the written opinions. Below and in my next post, I’m sharing rough drafts of two of the earliest cases likely to be included. They reached the Supreme Court only three years apart, and both involve little children not saying the Pledge of Allegiance because they believed it violated the Word of God to do so. Both cases were pursued as “freedom of religion” issues, but both were resolved on “free speech” grounds more than anything “wall of separation”-ish.

Oh, and the second case completely reversed everything the Court said in the first. So that was wacky, jurisprudentially-speaking.

Here’s Part One…

One Nation, Quite Divisible, With Liberty and Justice for Those Who Cooperate

Arguably no religious group faced more persecution and hostility in the 20th century United States than the Jehovah’s Witnesses. They proselytized aggressively in the streets and went door-to-door offering copies of The Watchtower and wanting to talk about the “end times.” They were not a group known for political engagement. They didn’t usually vote, most rejected Social Security numbers as a “mark of the beast,” and leadership discouraged serving on juries or other forms of civic participation. Believers were expected to work for a living, obey the law, and “render unto Caesar” – as long as it did not explicitly conflict with the Word of God.

Despite all this, the Jehovah’s Witnesses have arguably done more than any other religious group to promote freedom of religion and freedom of speech in the U.S. To date, they’ve been involved in something like two dozen U.S. Supreme Court cases, almost all of them concerned with First Amendment protections. The vast majority occurred in the 1930s and 1940s.

In the waning years of the Great Depression, as Europe stumbled towards war, patriotism in the United States became mandatory in all but name. Many states passed laws requiring all public school students to salute the American Flag and say the Pledge of Allegiance each day, apparently assuming that nothing promotes heartfelt commitment like mandatory obeisance. If you’ve seen pictures from the era, you may notice that the standard salute looked different than it does today. Typically, it involved the right arm extended forward and upwards at a slight degree towards the flag as participants chanted in unison their devotion to the collective.

In Nazi Germany, a very similar salute was required of all good citizens, although in the faterland, nationalism was personified in their new Chancellor, Adolph Hitler, rather than a mere flag. Jehovah’s Witnesses in Germany refused to salute, citing the Second Commandment – “Thou shalt have no other gods before me” – as well as several other Old Testament passages suggesting that the Lord Their God was not a fan of split allegiances. Joseph F. Rutherford, who succeeded Witnesses founder and leader Charles Taze after his death in 1916, suggested American Jehovah’s Witnesses avoid what they saw as similar oaths back home.

German Jehovah’s Witnesses would soon be sent to their deaths in various Nazi concentration camps, while their American counterparts were merely mocked, harassed, accused, and periodically assaulted. The official eruption of World War II in 1939 only increased these tensions, despite the U.S. managing to avoid direct involvement for the first few years. Meanwhile, some Jehovah’s Witnesses schoolchildren who took their beliefs a bit too seriously for the comfort of the masses became the focal point for what had heretofore been scattered and inconsistent suspicion and hostility.

Minersville School District v. Gobitis (1940)

Lillian Gobitas (the name was later misspelled in court records), age 12, and her brother Billy, age 10, refused to participate in the Pledge of Allegiance. They believed the Bible forbid such direct promises of obedience to anything or anyone other than the Lord God, and were expelled from school as a result. Their case eventually reached the Supreme Court, which determined in an 8 – 1 vote that the school had the right to require the Pledge as part of promoting good citizenship. It wasn’t a violation of Constitutional rights because the requirement didn’t target their religion intentionally.

From the Majority Opinion by Justice Felix Frankfurter:

The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization… The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution…
The wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment. Even were we convinced of the folly of such a measure, such belief would be no proof of its unconstitutionality… But the courtroom is not the arena for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracies among a people so diversified in racial origins and religious allegiances.

Justice Harlan Stone wrote one of the most famous dissenting opinions in Court history in response. Several of his points would be revisited when a new majority overturned Minersville a mere three years later. Behold the power of a well-penned dissent:

The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech, and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions…
History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities…
The Constitution may well elicit expressions of loyalty to it and to the government which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion. And while such expressions of loyalty, when voluntarily given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents’ religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion.

The Red, White, Black & Blue

While there were vocal critics of the Gobitis decision, especially in the press, many Americans took it as federal validation of whatever they wished to do to Jehovah’s Witnesses in their area. Violence against believers surged dramatically, often times with local law enforcement standing by but refusing to interfere – no doubt out of some degree of personal prejudice, but now with the perceived sanction of the nation’s highest court.

We like to imagine the Supreme Court as remaining safely beyond the pale of popular opinion or social forces, but they are at times quite human and may even read the news from time to time. The makeup of the Court evolves as well, and shortly after the Gobitis decision, it changed rather dramatically. Chief Justice Charles E. Hughes retired, as did Justice McReynolds. Justice Stone, author of the sole dissent in Gobitis, was promoted to Chief Justice, and Justices Robert Jackson and Wiley Rutledge joined the Court.

Jones v. City of Opelika was a case first considered by the Court in 1941 and once again involved Jehovah’s Witnesses. The issue was whether or not the State can charge “licensing fees” on religious books and pamphlets. The Court initially determined that they could. Justices Hugo Black, William Douglas, and Francis Murphy – all of whom had voted with the majority in Gobitis – added a dissent in which they repudiated their previous decision:

The opinion of the Court {in Jones v. Opelika} sanctions a device which, in our opinion, suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis (1940) took against the same religious minority, and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided.
Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities, however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.

Jones was reconsidered the following session, and in 1942 the Court reversed itself on this Neo-Stamp Act. Combined with the comments of Black, Douglas, and Murphy, it was clear that the winds of jurisprudential change were blowing – and briskly.

As it turned out, those little Jehovah’s Witnesses kids still refused to have other gods before the Big One. It was a mere three years before almost the exact same “Heil ‘Merica!” case came before the High Court once again. The second time, the results would be a tiny bit different.