A fascinating story of the Pledge, patriotism, and 'Under God.'
The Complicated History of the Pledge of Allegiance | Episode 3
By Hemant Mehta
July 29, 2019

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This season is all about the complicated history of the Pledge of Allegiance and the legal controversies it spawned.

Episode 3 is now available online, complete with an audio version at:
[friendlyatheist.patheos.com]
And a transcript is below.

A list of citations and other notes can be found here. Also, Patreon donors who give $10/month get early access to the episodes.

In 2006, a woman named Gathie Edmonds told an audience that her son did not salute the flag or say the Pledge of Allegiance and that, one time, he was even sent to the principal’s office for his disobedience. When the principal stepped into the office, he said to the boy, your teacher obviously doesn’t remember the Supreme Court decision.

He was referring to the 1943 case of West Virginia State Board of Education vs. Barnette. And the reason Gathie’s anecdote got such a huge laugh from the crowd that day is because her full name is Gathie Barnett Edmonds.

It was her protest that helped overturn that unjust law that almost got her son in trouble.

…

In 1943, there were four Supreme Court justices on record as saying they would overturn the Gobitis decision that required kids to say the Pledge of Allegiance. But four is not a majority on the Court. There were other changes, though. Two of the old justices who ruled against the Gobitas family had been replaced. And through the shifting and shuffling that sometimes occurs on the court, the new Chief Justice was none other than Harlan Stone, the lone dissenter from the Gobitis case. So there were four justices who said they wanted to overturn the decision, one of whom had some power as Chief Justice, and two new justices whose positions we would soon discover. And there were three returning members who still believed they were right the first time around. The only question was what did those two new guys think?

One of those new justices was Wiley Rutledge, whom the New York Times described as a humanist. In the last episode, I mentioned a case in which the three justices admitted they made a mistake in the Gobitis decision. That case involved the Jehovah’s Witnesses having to pay licensing fees to distribute their materials. Before it got to the Supreme Court, that case went through the courtroom of Wiley Rutledge, and he had written in defense of the Witnesses before the Supreme Court overturned his decision. He actually wrote that it was unfair for Witnesses to have to choose between following their religious beliefs and receiving public education for their kids. Now it looked like the side of common sense had five people.

But wait, there’s more. The other new justice was Robert H. Jackson, who used to be the attorney general under President Franklin Roosevelt. Just before joining the Court, Jackson had written a book called The Struggle for Judicial Supremacy in which he included a footnote that singled out the Gobitis decision as a bad one because the Court usually stopped local authorities from suppressing unpopular ideas. It’s a lot like modern gerrymandering cases: At times when public opinion or the ballot box is not likely to fix a problem, the Court has a duty to right the wrong. Jackson implied that they failed to do that in Minersville when the board of education required kids to say the Pledge. So maybe the side of common sense had six people. An extra vote just in case of a defection!

The Barnette case was almost identical to the earlier one in terms of how they were argued — with one exception. While the Gobitis case was more about religion and the family’s ability to retain their faith despite what the school district wanted, the Barnette case was more about freedom of speech. The Witnesses now talked about the importance of their First Amendment rights. They addressed the idea of judicial restraint that Felix Frankfurter loved so much, saying that the Supreme Court had a responsibility to overturn unjust laws. You don’t restrain yourself when there’s an obvious problem right in front of you, Felix. To do nothing would be, to put it mildly, treasonous.

You know who didn’t like that argument? Frankfurter. He railed against the Axis and made the infamous now-conservative argument about how it’s not the Court’s responsibility to write new laws or overturn local laws, but rather to interpret the Constitution. In modern terms, he wanted to call balls and strikes — but the Witnesses were saying the whole game was rigged and the only people who could do something about it were the umpires.

Frankfurter’s rants did not work this time around. On June 14, 1943, which not coincidentally also happened to be Flag Day, the Court voted 6-3 overturning the earlier decision. Chief Justice Stone finally got his way. The three justices who acknowledged their earlier mistake finally got to make things right. And both of the new guys voted with them, too. One of them, Justice Robert H. Jackson, wrote the majority’s decision in Barnette and he pointed out how forced patriotism wasn’t patriotism at all. His opinion has been cited by several legal scholars as one of the most important in all of First Amendment law. I want you to just imagine Frankfurter’s face reading this decision. Here’s Jackson:

“It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings… To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions.”

That is what we now call a mic drop. A historical mistake had finally been resolved.

If you want to get a little more technical, and trust me, you do, the Gobitis decision written by Frankfurter rested on four main arguments, each of which Jackson completely dismantled in his Barnette decision.

First, Frankfurter said the flag was a national symbol. Jackson called symbols a primitive, albeit effective, mode of communication. He said, “A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”

Second, Frankfurter said the Pledge was an appropriate way to unite people. Jackson questioned whose unity mattered here. He even cited Romans trying to stamp out Christianity as a method of Pagan unity as an example of how unity alone may not be good justification for anything. He added, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” Yikes. In other words, you were never going to get everyone to agree on an opinion, certainly one as controversial as the Pledge, until we were all dead.

Third, Frankfurter said expelling kids who don’t salute the flag was a permissible way to foster unity. But Jackson was having none of it. He did not think it was okay to make kids choose between religion and education. He famously wrote, “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.”

Finally, Frankfurter said punishing kids who didn’t want to say the Pledge was a local issue. School districts could decide their own punishments, and it wasn’t the Supreme Court’s job to micromanage them. Jackson said it was absolutely their job to step in because this was about preserving civil rights. And this may be the most cited passage from his ruling. It’s the one passage you almost want to commit to memory because of how frequently it comes up in other decisions:

“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.”

You can see why that passage is so memorable. Jackson was saying the government doesn’t get to decide what the right ideas are when it comes to things like politics or religion… and they definitely can’t make you say you agree with those ideas. Sounds totally sensible. One magazine, The Christian Century, even recommended that passage “become part of the American scriptures, to be memorized and taken to heart by every patriot.”

A little side note here: Some legal scholars have actually criticized the interpretation of that passage that I just shared with you. They actually mock Robert Jackson for what he wrote there because, while it sounds great, it’s kind of contradictory. When he said no official can prescribe what shall be orthodox… well, isn’t that exactly what he’s doing? He’s a government official telling us the right way to think about a particular issue. It’s like a sign on the wall that says No Signs Allowed. Aren’t… you… doing… the same thing? A law professor named Steven Douglas Smith summed it up like this: “There shall be no official orthodoxy except this one.” And also, what about laws passed by Congress? I mean, aren’t those, by definition, the government’s idea of what’s right on matters of opinion? And what about saying we’re for capitalism, and for democracy, and all those other things politicians say all the time?

It’s a minor squabble, perhaps, but it’s a good point.

Frankfurter, by the way, wrote the dissent. And his dissent boiled down to how he was a Jew and he knew what persecution looked like, but his job was not to get drawn up in emotion but rather judge whether something was constitutional, and how dare his colleagues legislate from the bench based on their feelings?! Ironic, considering that the Gobitis decision hinged in part on his ability to generate emotions in his colleagues.

He also pointed out that every Supreme Court justice who had taken part in a Pledge case up to this point — including the Gobitis case and earlier ones that the Court chose not to hear because they felt they were decided correctly to begin with — had ruled just like him… except for now-Chief Justice Stone. Frankfurter wrote, “Only the two Justices sitting for the first time on this matter have not heretofore found this legislation inoffensive to the ‘liberty’ guaranteed by the Constitution. And among the Justices who sustained this measure were outstanding judicial leaders in the zealous enforcement of constitutional safeguards of civil liberties.” He was basically saying it was appalling for this new majority to treat him and all those former justices like they were opponents of civil rights when in fact they championed them. It’s like a politician today saying we shouldn’t call that guy a racist. He’s not a racist! He opposes racism! He just wants immigrants to come from… Norway.

Actually, his dissent sounds a lot like when Chief Justice John Roberts opposed the Obergefell ruling that legalized marriage equality throughout the country. Roberts admitted the equality argument had undeniable appeal but “this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” But this new Pledge majority in 1943, just as the marriage equality majority in 2015, was saying that the application of the law violated the Constitution, and it was their job to correct it.

The best part about Frankfurter’s dissent? It had no staying power. It was just a rant from a guy who lost. And unlike Justice Stone’s earlier dissent, which was influential for years to come, Frankfurter’s dissent has been all but forgotten. From now on, there was a clear difference between the way the U.S. celebrated patriotism — voluntarily — and the way the Germans did it — by force. We were the tolerant ones.

Constitutional scholar Robert Tsai summarized the reversal in a 2008 paper when he said, “The Court’s declaration of religious and intellectual freedoms in a time of war was every bit as forceful as its earlier call for domestic unity.“

After the Barnette ruling, dozens of Pledge cases that had languished in the courts were soon dropped or reversed. There was no rash of violence this time around. TIME magazine put it very succinctly with a headline reading, “Blot removed.” Perhaps the most unusual consequence of the ruling was that, by this point, it was completely expected. The reaction from the public wasn’t, Oh my god, they did a total 180 on a major First Amendment case! But rather, Yeah, we all saw this coming.

Just to put that in context, according to the professor and religious liberty expert Shawn Francis Peters, between 1938 and 1946 — just 8 years — the Supreme Court handed down 23 opinions involving the Jehovah’s Witnesses. That’s a staggering amount in just a short time. And there were hundreds of other cases at the lower courts. A lot of the battles involving civil rights and our liberties really originated with this religious minority fighting for their constitutional rights.

Look: The Witnesses do a lot of things wrong. They hold a lot of disturbing views. And I personally believe their religion does more harm than good — just look at their irrational beliefs against blood transfusions and the way they shun even family members who are no longer Witnesses — but these legal cases make up a lot of that good side. Chief Justice Harlan Stone even once joked to a friend that the Witnesses “ought to have an endowment in [light] of the aid… they give [us] in solving the legal problems of civil liberties.”

All that said, the Witnesses were not doing what they did solely because of a principled fight for civil rights. They had selfish motives, too. In fact, according to a 2014 book called God’s Kingdom Rules!, put out by the Watch Tower Bible and Tract Society which oversees the Witnesses, all these legal cases, which reinforced the civil rights we all have, were treated as a side benefit. The book said, “As God’s people, we are not social reformers… Above all, Jehovah’s Witnesses have pursued their legal rights in the courts in an effort to establish and advance...