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But in an odd chain of events, the Minersville school board, angered to fury and now financially backed by the American Legion as well as a now-defunct group called the Association of Patriotic Societies of Schuykill County, voted to apply to the U.S. Supreme Court to reconsider the case. And in early 1940 the Court agreed to hear it.

9. A VICTORY FOR JEHOVAH

The first oral arguments about the Pledge were presented to the U.S. Supreme Court on April 25, 1940. While the number of incidents of protest over the Pledge had grown over the previous several years and spread to many communities, the controversies were viewed as isolated local problems. Local, that is, until Minersville School District v. Gobitis reached the Supreme Court.

Now the American public had started to pay attention to the issues underlying the opposing views. In part, the American psyche was turning away from the consuming financial concerns of the Great Depression and was increasingly focused on troubling world events and the related role of nationalism—both within the United States and abroad. Newspapers followed the case with blow-by-blow descriptions. Editorials in newspapers, general magazines, as well as scholarly and special-interest publications started expressing opinions and strong support of one side of the issue or the other.

“Judge” Rutherford presented part of the oral arguments himself in front of the Supreme Court in defense of the Witnesses’ position. The Witnesses had picked up outside support beyond the help of the ACLU when the Bill of Rights Committee of the American Bar Association filed an amici curiae (friend of the court) brief in support of the Witnesses. “[T]he compulsion of a child to participate in a ceremony which he considers idolatrous worship cannot be brushed aside as raising no issue of religious liberty,” it said. As David Manwaring pointed out in his classic 1962 work, Render Unto Caesar: The Flag-Salute Controversy, the brief, thought to be written by Harvard professor Zechariah Chafee, Jr., was “a direct assault on the bases of [Justice Felix] Frankfurter’s Gobitis opinion. . . . Chafee also slapped at Frankfurter’s reliance on the political processes to correct abuses, noting the political helplessness of Jehovah’s Witnesses.” Wrote Chafee: “Such a small religious group is very unlikely to attain sufficient voting power to overthrow compulsory flag salute laws. It must obtain protection from the Bill of Rights, or nowhere.”

The Witnesses arguments repeated the basic positions that had been successful in the lower courts in Pennsylvania; namely, that they were allowed by the First Amendment to practice their religion. And they were protected under the Fourteenth Amendment from being singled out as a group by state or local laws for special adverse treatment. The Fourteenth Amendment, passed after the Civil War to protect the rights of newly freed slaves from discriminatory state and local laws, had become a powerful tool to protect minority groups by extending national rights to all localities. In many ways, the amendment was the straw that broke the back of the states’ rights camel and would become an especially powerful weapon in the civil rights dramas of the 1960s.

The Minersville school board lawyers argued that the Pledge did not violate religious freedom because it made no reference to a religious matter. “The act of saluting the national flag at daily school exercises can not be made a religious rite by the respondents’ mistaken interpretation of the Bible,” argued Minersville. There was nothing wrong in teaching children, even requiring them to learn, a little national loyalty. It was not just good for the country, it was a necessity:

Any breakdown in the esprit de corps or morale of this country may conceivably have a more devastating effect upon the nation than a catastrophe resulting from disease, breach of peace, or even an invasion of the realm.

The briefs were presented and the oral arguments made in late April 1940. And over the next month, the justices