The Pledge_ A History of the Pledge of Allegiance - Jeffrey Owen Jones [60]
The Witnesses, however, kept up their legal battles and were particularly heartened by the public support of the justices who had previously voted against their arguments.
The perfect situation surfaced in West Virginia in January 1942, when the State Board of Education passed a statewide requirement for participation in the Pledge ceremony. The wording of the requirement was directed specifically at the Jehovah’s Witnesses and included language that was a direct paraphrasing of the Frankfurter decision in the Gobitis case. The state board’s resolution stated, for example, that “national unity is the basis of national security” and “conscientious scruples have not in the course of the long struggle for religious toleration relieved the individual from obedience to the general law. . . .”
The law struck a particular chord of dissent in West Virginia because there was an unusually large number of Jehovah’s Witnesses living in the state. The original founder of the sect that became the Jehovah’s Witnesses, Charles Taze Russell, had lived in Pittsburgh and the first following that he attracted spread geographically into southwestern Pennsylvania and West Virginia.
The law passed in West Virginia said, in part, that “conscientious scruples have not in the course of the long struggle for religious toleration relieved the individual from obedience to the general law not aimed at the promotion or restriction of religious beliefs. . . .” It went on to emphasize the importance of promoting “national unity” as part of the goal of teaching citizenship among schoolchildren and, specifically, that “refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.”
Once the West Virginia resolution was passed, local public school districts started expelling Witnesses’ children who continued to refuse to salute the flag. Among those expelled were seven children from three Witness families in Charleston. The Barnette family had few financial resources due to Walter Barnette’s uneven employment as a pipe fitter. But with the support of the Witnesses’s lawyers and the ACLU, it would be the Barnette name that ultimately became associated with the next Pledge case to reach the Supreme Court. The original suit filed in the district court in West Virginia was actually a class action suit filed on behalf of all the students expelled within the state. Later it would become focused primarily on the Barnette situation.
It took from early 1942, when the Barnette children were expelled, until early 1943, for the case to reach the U.S. Supreme Court.
The state lost in the lower courts. The decision of the lower court to uphold the right of the Witnesses’ children to refuse to recite the pledge followed the interpretation of the Fourteenth Amendment that the Witnesses’s lawyers and the ACLU lawyers had hoped for. The district court decision said in part: “The salute to the flag is an expression of the homage of the soul. To force it upon one who has conscientious scruples against giving it, is petty tyranny unworthy of the spirit of this Republic and forbidden, we think, by the fundamental law.”
Having lost the case on this judicial level, it was the State of West Virginia that applied to the Supreme Court for their case to be heard. Thus, the case is known as West Virginia State Board of Education v. Barnette.
By the time oral arguments started, on March 11, 1943, most court observers and scholars believed that the Court would overturn Gobitis. Since four justices had already proclaimed publicly that they believed the Gobitis decision was wrong, only one other justice was needed to render a decision to overrule. Justice Harlan Stone had already expressed his opinion about the issue in his original dissenting opinion in Gobitis and Justices Black, Douglas, and Murphy had publicly stated that they had