The Nine [47]
7
WHAT SHALL BE ORTHODOX
It wasn’t just the Federalist Society leading the conservative offensive in the Supreme Court during the 1990s. The law professors and their students could come up with theories and write learned articles and op-ed pieces, but the movement needed the legal equivalent of foot soldiers, too—the lawyers who would actually bring and argue the cases before the Court. In law, as in politics, the best troops came from the most passionate and engaged part of the conservative coalition—evangelical Christians.
Evangelicals joined the fight at the Supreme Court because they, even more than academic critics on the right, were the most outraged by the state of America. While conservative scholars spun theories about the scope of the Commerce Clause, evangelical activists witnessed the actual impact of Supreme Court decisions. In front of abortion clinics. At school board meetings. At high school football games. And the activists were right: the Court had long lined up against their interests. For more than a generation, the justices had engaged in a more-or-less explicit initiative to secularize the Constitution.
When it came to religion in public life, the framers of the Constitution espoused two potentially contradictory ideas. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” For more than a century after the founding of the republic, the courts tolerated a great deal of religion in the public sphere—like prayer and Bible reading in schools, frequent invocations of God and evocations of the Ten Commandments in government buildings (and on currency). At the time, this kind of “free exercise” of religion did not amount to an “establishment” thereof. Indeed, the government was free to require some degree of piety, or patriotism, from its citizens.
This was especially true in the late 1930s, when public schools around the country insisted that students salute and pledge allegiance to the flag at the beginning of each school day. Many Jehovah’s Witnesses objected to the practice, believing that it violated the commandment “Thou shalt have no other gods before me.” As World War II grew closer, the Witnesses faced a vicious response. Students were expelled from school. Protests were held outside their homes. When they asked the Supreme Court for protection, in the 1940 case of Minersville School District v. Gobitis, they lost. The majority asserted that schools had the right to insist that students participate in rituals designed to “secur[e] effective loyalty to the traditional ideals of democracy.”
Within months of that decision, though, the Supreme Court, along with the rest of the nation, saw what could happen in a society where loyalty was coerced and nonconformism punished. The chilling example of fascism in Europe reminded Americans, including judges, of the importance of freedom of speech and worship. In this way, the example of Nazism shaped what the American Constitution would become. The transition was fast, too. Just three years after Gobitis, in 1943, the Witnesses brought a nearly identical challenge, and this time they won, in a case that may represent the Supreme Court’s quickest reversal of one of its own precedents.
Justice Robert H. Jackson’s opinion for the majority in West Virginia Board of Education v. Barnette, one of the most eloquent in the Court’s history, set down principles that would become lodestars of the American creed. “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 to free minds,” he wrote, before concluding with one of the most famous passages in the annals of the Court: “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