The Flag Salute Cases

The Jehovah’s Witnesses have brought numerous cases before the U.S. Supreme Court, including 20 between 1938 to 1943, of which they won 14. The "Pen Pals" activity in this lesson provides an alternate method to bring out the facts of the two flag salute cases and the two conflicting values positions through Sally, the Jehovah’s Witness, and her friend Mary’s father.

The study of the two cases, decided only three years apart, illustrates that in rare situations the Supreme Court has reversed itself. Although the case was argued on the basis of the "free exercise" of religion clause of the First Amendment, the Court declared the flag resolution to be an unconstitutional violation of free speech—the government could not "force citizens to confess by word or act" their faith in any particular view of "politics, nationalism, religion or other matter of opinion" and this right not to be subjected to such compulsion applies to religion and other sources.

Given hypothetical correspondence re: the two Supreme Court flag salute cases, students will be able to:

1. Identify the conflicting values expressed by Sally and Mary’s father.

2. Infer the facts, issues, decisions and reasoning in the two cases.

3. Discuss their own opinions about the two decisions.

Handout 5A, "Pen Pals Discuss the Flag Salute Cases"

1 class period

1. Distribute Handout 5A, "Pen Pals Discuss the Flag Salute Cases." Have two students take the parts of Sally and Mary, and read the letters for the class.

2. Discuss with the class the values of Sally and Mary’s father.

3. From the teacher Manual, use the case method to develop the facts, issues, decision, and reasoning of the two cases; point out that it was actually free speech that decided the latter case.

4. Have students offer their opinions about the two decisions.

Based on multiple intelligence theory.

Linguistic: Students should create a story about a group of people who refuse to salute the flag for religious reasons. They should discuss what happens to these people and how the Supreme Court should decide the case.

Students should pretend that they are a Jehovah's Witness and prepare a one-paragraph speech explaining why they should not be forced to salute the flag.

Logical/Mathematical: Students should list a series of alternative actions that could be taken by members of Jehovah's Witness to protest saluting the flag such as removing their children from public schools or holding protests. The class should then discuss the results of each action and whether they believe going to court is the best solution.

Kinesthetic: Students should create a scene in which members of Jehovah's Witness refuse to salute the flag while attending school. Students should demonstrate the actions taken by school officials and give Jehovah's Witness an opportunity to explain their reasons for not pledging.

Spatial: Divide the class into groups of five students each. Acquaint each group with the Project Legal method in the following way: Using either Minersville School District v. Gobitis or West Virginia v. Barnette, have students create a diagram of the facts, issues, arguments, values and decision of the case. Each member of the group should be responsible for one of these areas. The group then collectively prepares the diagram and uses lines, arrows and dots to demonstrate how the parts of the case are interrelated.

February 3, 1942

Dear Mary:

How have you been since you moved to New York City? I guess you know from the newspapers and radio that my other Jehovah’s Witness friends and I have been expelled from school. We can not obey the new resolution of the West Virginia Board of Education. The law requires all students to salute the flag and say the Pledge of Allegiance. Our religion says that the Bible forbids us to serve graven images such as the flag. I’m really scared! I could be sent to a reform school for delinquents and my parents could go to jail!

We did offer to say a different pledge. "I have pledged my unqualified allegiance...to Jehovah...I respect the flag of the United States and acknowledge it as a symbol of freedom and justice to all. I pledge allegiance and obedience to all the laws of the United States that are consistent with God’s law, as set forth in the Bible." The state would not allow us to use this substitute pledge.

Our lawyers say they will fight this all the way to the United States Supreme Court. Please write soon.

Your friend from West Virginia,

Sally

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February 23, 1942

Dear Sally:

I like my new school in New York City. I brought in an article from The New York Times about what’s been happening to you and the other Jehovah’s Witnesses in West Virginia. The article mentioned the 1940 Supreme Court decision of Minersville School District v. Gobitis. Our social studies teacher said that the Jehovah’s Witnesses lost . Justice Felix Frankfurter stated that "...the flag is the symbol of the nation’s power." He also said that religious beliefs should not excuse a person from responsibilities to society. My father agrees that to make exceptions for Jehovah’s Witnesses would weaken the flag salute.. He says that now that we are in World War II it is more important than ever that everyone shows their patriotism.

I hope things work out for you and your friends.

June 15, 1943

Dear Mary:

Yesterday, the United States Supreme Court ruled in my favor in the decision of West Virginia v. Barnette et al. Our family is part of the "et al." which is Latin for and others. A couple of the justices that ruled against the Gobitis family in 1940 had retired. Three others changed their decisions. Maybe all of the editorials criticizing the Gobitis decision influenced them. Or maybe they reconsidered because of all the beatings of Jehovah’s Witnesses after the Gobitis decision.

Justice Robert Jackson wrote the Court’s majority opinion. He said that no government authority should decide "what shall be orthodox in politics, nationalism, religion, or other matters of opinion..." He concluded that compelling the flag salute violates the First Amendment.

Please write soon.

Your friend,

Sally

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June 20, 1943

Dear Sally:

I’m so happy for you and your friends! I talked about the Barnette decision last night with my father. He still agrees with Justice Frankfurter who wrote the Gobitis decision against the Jehovah’s Witnesses. This time Justice Frankfurter wrote the minority decision for the Barnette case. He said that as judges we must put aside our religious beliefs. The only question for Justice Frankfurter was "whether legislators could in reason have enacted such a law." He goes on to say that the Jehovah’s Witnesses should have tried to change the law or go to a private school.

My father, of course, still agrees with Justice Frankfurter. He says that the Supreme Court did not make an exception for the Mormons to allow them to have several wives back in the 1870ís. Therefore, he doesn’t think that the Jehovah’s Witnesses should be an exception this time.