Seventy-three years ago, the United States Supreme Court ruled that Americans could be forced to recite a loyalty oath to the nation.
In Minersville School District v. Gobitis, a majority led by Justice Frankfurter held that a school could compel Jehovah's Witness — who believed that they owed loyalty to God, and could not pledge it to another — to say the Pledge of Allegiance. Words, like any weapons, can be turned to good ends or bad ones, and Justice Frankfurter anticipated Bến Tre by suggesting that it was necessary to destroy religious liberty in order to save it:
But the manifold character of man's relations may bring his conception of religious duty into conflict with the secular interests of his fellow-men. When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good? To state the problem is to recall the truth that no single principle can answer all of life's complexities. The right to freedom of religious belief, however dissident and however obnoxious to the cherished beliefs of others-even of a majority-is itself the denial of an absolute. But to affirm that the freedom to follow conscience has itself no limits in the life of a society would deny that very plurality of principles which, as a matter of history, underlies protection of religious toleration.
To its credit, the Supreme Court took only three years to correct itself in West Virginia State Bd. of Educ. v. Barnette. There the Court upheld the right of students to refuse to recite the Pledge. Justice Jackson reviewed the sort of abuse that students and their families experienced:
Failure to conform is "insubordination," dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile, the expelled child is "unlawfully absent," and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and, if convicted, are subject to fine not exceeding $50 and Jail term not exceeding thirty days.
Jackson swiftly eviscerated Frankfurter's vapid "religious pluralism and the respect for the rights of others requires compliance" rhetoric:
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 State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.
As the present CHIEF JUSTICE said in dissent in the Gobitis case, the State may
"require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country."
310 U.S. at 310 U. S. 604. Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan.
The entire decision is a legal and rhetorical masterpiece, a high-water mark in the Court's recognition of the right to individual conscience over conformity. The most justifiably famous part is this:
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.
Perhaps you think that if the United States Supreme Court recognized a First Amendment right not to say the Pledge seventy years ago, and did so with some of the most stirring and fundamental language about freedom that the Court has ever uttered, the matter stands resolved. You would be wrong. Harassment of children over refusal to participate in the Pledge is routine.1
But the appetite for orthodoxy — the feeling that Americans who will note recite a loyalty oath are not to be valued or trusted, and perhaps should be compelled — is not limited to schools, and not limited to the thugs who once beat and abused Witnesses. Consider the state of affairs in Maryland, at the Frederick County Human Relations Commission, where the question of whether County boards should open with the Pledge sparked controversy. Annette Breiling, a Quaker, will not say the pledge; she says she owes her allegiance to the Almighty. She and other commissioners voted against requiring county meetings to open with the Pledge. Chris Huckenpoehler, a Marine, resigned when some members disagreed with him and did not vote to start meetings with the Pledge:
“I cannot with good conscience serve on a group with any members that deny or vote against an allowance to Pledge Allegiance to our American Flag,” he wrote in an email.
Now Huckenpoehler is free to exercise his freedom of association and decline to be on commissions with Quakers, or Jews, or gays, or Latinos, or anyone who holds any view he doesn't like, or anyone who won't utter any oath he demands. Some would say his service to our country entitles him to some respect; we're told he fought to preserve our freedom. But he has no right to force anyone else to say the Pledge. The news coverage is a little fuzzy on whether anyone is purporting to require individuals to say the Pledge, or simply requiring that it be on all county meeting agendas. It does, however, reveal the sort of rhetorical legerdemain Justice Frankfurter used in 1940 in telling Jehova's Witnesses that they must say the Pledge:
Delauter said he thinks Breiling is overlooking the fact that she’s able to follow her religious convictions because of the liberties that America offers.
Freedom of conscience is like the good couch in the living room; it's there to be had, not to be used.
Commissioner Kirby Delauter says he’s torn about whether to force the pledge onto boards and commissions.
“The military and patriotic side of me says yes, but the anti-dictator side says no,” Delauter said. “It’s a shame we’re even having this conversation, to be honest with you.”
When I hear the pledge at my son's Boy Scouts meeting or at my daughters' schools I have mixed emotions. I think about what what people have sacrificed for America and about what goals we have set for ourselves, even as we fall short of them. But I also think about how, despite the Pledge nominally celebrating liberty and justice for all, people have been denied liberty and justice for refusing to say it by people more devoted to conformity than liberty. I think about whether the Pledge is supposed to be to a nation and a government, or to ideals. The nation comes first before the ideals in the Pledge, I note. I think about the Red-scare-era addition of "under God" as a gesture of superiority over the Soviets, and about what a nun taught me about the meaning of "thou shalt not take the name of the Lord thy God in vain" thirty-five years ago.2 I wonder if I have a sufficiently developed or underdeveloped sense of irony to pledge unison and rote allegiance to liberty.
I also think about this: freedom speech, freedom of religion, and freedom of conscience are never completely safe. There will always be an appetite for orthodoxy and suppression, and people who care about freedom must cultivate a competing appetite for vigilance and for the fight to defend freedom. Some people would have us believe that the greatest threats to our freedom are armed and fanatical foreigners. I think that, as Pogo suggested, the greatest threat to our freedom will always be from our next-door neighbors.
Hat Tip To Walter Olson.
- If you think this is a Left-versus-Right issue, consider the scorn heaped upon a student who didn't want to recite a Mexican pledge in an American school. ▲
- I, a intractable sinner, am not suggesting that I should throw the first stone about taking the Lord's name in vain. ▲
Last 5 posts by Ken White
- Update on The Popehat Podcast - November 30th, 2016
- Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos - November 29th, 2016
- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016
- Lawsplainer: About Trump "Opening Up" Libel Laws - November 14th, 2016