West Virginia State Board of Education v. Barnette

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a landmark decision by the United States Supreme Court holding that the First Amendment protects students from being compelled to salute the American flag or say the Pledge of Allegiance in public schools.[1][2]

West Virginia State Board of Education v. Barnette
Argued March 11, 1943
Decided June 14, 1943
Full case nameWest Virginia State Board of Education, et al. v. Walter Barnette, et al.
Citations319 U.S. 624 (more)
63 S. Ct. 1178; 87 L. Ed. 1628; 1943 U.S. LEXIS 490; 147 A.L.R. 674
Case history
PriorInjunction granted, 47 F. Supp. 251 (S.D. W. Va. 1942)
The Free Speech Clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the Pledge of Allegiance. United States District Court for the Southern District of West Virginia affirmed.
Court membership
Chief Justice
Harlan F. Stone
Associate Justices
Owen Roberts · Hugo Black
Stanley F. Reed · Felix Frankfurter
William O. Douglas · Frank Murphy
Robert H. Jackson · Wiley B. Rutledge
Case opinions
MajorityJackson, joined by Stone, Black, Douglas, Murphy, Rutledge
ConcurrenceBlack, Douglas
DissentRoberts, Reed
Laws applied
U.S. Const. amends. I, XIV; W. Va. Code § 1734 (1941)
This case overturned a previous ruling or rulings
Minersville School District v. Gobitis (1940)

Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis, in which the Supreme Court ruled that such laws were valid because they had been passed by elected legislators.[3] The Barnette ruling was a significant victory for Jehovah's Witnesses, whose religion forbade them from saluting or pledging to symbols, including those of political institutions.[4] The ruling is also influential for its focus on freedom of speech principles rather than freedom of religion.[5]



In the 1930s, the president of the Watch Tower Bible and Tract Society of Pennsylvania, Joseph Franklin Rutherford, began objecting to state laws requiring school students to salute the flag as a means of instilling patriotism, and in 1936 he declared that baptized Jehovah's Witnesses who saluted the flag were breaking their covenant with God and were committing idolatry, per a passage in the Book of Exodus.[6]

In several reported incidents during this period, children of Jehovah's Witnesses had been expelled from schools for refusing to salute the American flag or recite the Pledge of Allegiance.[7] One such expulsion resulted in the Supreme Court case Minersville School District v. Gobitis in 1940, in which the High Court sided with school districts and advised dissenting parents to try to change procedures via standard political processes.[3]

In 1942, the West Virginia Board of Education passed a regulation requiring schoolchildren to salute the American flag; recitation of the Pledge of Allegiance was also required.[8] Failure to comply was considered "insubordination" and dealt with by expulsion from school; the expelled student would then be considered a delinquent, and their parents could be fined up to $50 (about $1000 in 2020 dollars) and jailed up to thirty days.[9]

Marie and Gathie Barnett (whose surname was spelled incorrectly in the court documents) were Jehovah's Witnesses attending Slip Hill Grade School near Charleston, and were instructed by their father not to salute the flag or recite the pledge. They were expelled for their refusal. Their parents continued to send the girls to school each day, only for the school to send them back home.[10]

The Barnett family filed suit in the District Court for the Southern District of West Virginia, alleging that the regulation violated the Equal Protection clause of the Fourteenth Amendment, and the freedoms of speech and religion under the First Amendment. The District Court enjoined enforcement against students who refused to participate in the daily pledge. Due to the case's constitutional implications, the West Virginia School Board appealed directly to the United States Supreme Court.[1][11]



At the Supreme Court, the School Board argued that the matter was specific to West Virginia law and that the Barnetts had raised no substantial federal question. The Board's argument relied upon the Gobitis precedent.[1] The Barnetts' attorney, Hayden Covington, referenced the frequent persecution of Jehovah's Witnesses via statutes like that in West Virginia, and argued that the Gobitis precedent should be overturned because it enabled states to pass discriminatory laws.[12]

The American Bar Association and the American Civil Liberties Union filed amicus curiae briefs arguing that Gobitis was bad law and should be overruled.[12]

Decision of the court

Students pledging to the American flag with the Bellamy salute, 1941

The court, in a 6–3 decision delivered by Justice Robert H. Jackson, held that it was unconstitutional for public schools to compel students to salute the flag. It thus overruled its decision in Minersville School District v. Gobitis just three years earlier, finding that the flag salute was "a form of utterance" and "a primitive but effective means of communicating ideas", and therefore was speech for which the First Amendment applied. The court held that any "compulsory unification of opinion" was antithetical to free speech values. In Jackson's words: "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."[1]

Jackson's opinion intricately refuted the arguments that had been made in the Gobitis precedent. First, Jackson rejected the previous court's holding that the American flag was a national symbol worthy of veneration for that reason alone, stating that symbols are merely the prelude to speech, and that "a person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Second, Jackson rejected the holding that flag-saluting ceremonies were an appropriate way to build "cohesive sentiment" for national unity, warning that "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."[1]

On the Gobitis holding that those who disagreed with a school board's regulation should try to change it through standard political processes, Jackson argued that the conflict at issue was between government authority and the individual, and that the Founding Fathers intended the Bill of Rights to protect minority rights from the whims of a majority. Jackson wrote: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."[1]

Justices Hugo Black and William O. Douglas wrote a concurring opinion in which they expanded upon the futility of pledges and oaths as means to build patriotism. "Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions."[1]

Dissenting opinion


The Justice who had written the Gobitis ruling in 1940 Felix Frankfurter strongly disagreed with how that precedent was being overturned in the Barnette ruling. In his dissenting opinion, Frankfurter reinforced his holding in Gobitis that those who disagree with a law should attempt to change it through the political process, rather than break that law due to religious conscience. "Otherwise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws." Thus, Frankfurter believed that the Barnette majority overstepped its authority in striking down the West Virginia law, which had been passed by elected legislators.[1]

Frankfurter's dissent was written from the perspective of his own Jewish roots, showing sympathy for other persecuted religious minorities but taking an impartial legal and unconstitutional view of the dispute, and exercising judicial restraint. Fellow Justices Owen Roberts and Frank Murphy advised Frankfurter to tone down the personal dimensions of his dissent, but he refused.[13]



The Supreme Court's ruling Barnette is considered a crucial precedent on the freedoms established by the Bill of Rights and the risk of governments restricting them via discriminatory laws.[10][14] It is considered to be a formative precedent on not just freedom of religion;[15][16] but also on the matter of compelled speech, as governments attempt to coerce citizens into taking oaths when they would not do so under their own free will, particularly for religious reasons.[17][18]

In a 2006 commemorative event cosponsored by the Justice Robert H. Jackson Center and the Supreme Court Historical Society, Supreme Court law clerks who had been present at the Barnette ruling appeared on a panel with Marie and Gathie Barnett. Gathie noted that just as she and her sister had been in 1942 her son had later been sent to the principal's office for not saluting the flag.[10]

See also



  1. ^ a b c d e f g h West Virginia Board of Education v. Barnette, 319 U.S. 624 (S. Ct., 1943).
  2. ^ "West Virginia State Board of Education v. Barnette | Constitution Center". National Constitution Center – constitutioncenter.org. Retrieved December 10, 2023.
  3. ^ a b Minersville School District v. Gobitis, 310 U.S. 586 (S. Ct., 1940).
  4. ^ Barringer Gordon, Sarah (January 27, 2011). "How Jehovah's Witnesses Became Unlikely Champions of Religious Freedom". HistoryNet. Retrieved February 27, 2024.
  5. ^ Johnson, John W. (2001). Historic U.S. Court Cases: An Encyclopedia. Taylor & Francis. p. 953. ISBN 978-0-415-93756-6.
  6. ^ Exodus 20, 4-5: "You shall not make for yourself an image in the form of anything in heaven above or on the earth beneath or in the waters below. You shall not bow down to them or worship them; for I, the Lord your God, am a jealous God, punishing the children for the sin of the parents to the third and fourth generation of those who hate me, but showing love to a thousand generations of those who love me and keep my commandments."
  7. ^ Hanstein, Woody (January 16, 2013). "From the Bulldog's Desk: A lesson on patriotism from a 9-year-old boy". The Daily Bulldog.
  8. ^ Peters, Shawn (2000). Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution. University Press of Kansas. p. 245. ISBN 978-0-7006-1182-9.
  9. ^ "4 U.S. Code § 4 - Pledge of allegiance to the flag; manner of delivery". LII / Legal Information Institute. Retrieved November 18, 2020.
  10. ^ a b c "Recollections of West Virginia State Board of Education v. Barnette". St. John's Law Review. 81 (4): 770–771. Fall 2007.
  11. ^ Hudson, David (December 28, 2009). "Woman in Barnette reflects on the famous flag-salute case". First Amendment Center.
  12. ^ a b Manwaring (1953). "Render Unto Caesar". The Scientific Monthly. 76 (1): 54. Bibcode:1953SciMo..76...54H.[full citation needed]
  13. ^ Danzig, Richard (February 1984). "Justice Frankfurter's Opinions in the Flag Salute Cases: Blending Logic and Psychologic in Constitutional Decisionmaking". Stanford Law Review. 36 (3): 675–723. doi:10.2307/1228720. JSTOR 1228720.
  14. ^ Goldberg, Erica (Spring 2019). ""Good Orthodoxy" and the Legacy of Barnette". FIU Law Review. 13 (4): 639–666. doi:10.25148/lawrev.13.4.6 – via HeinOnline.
  15. ^ Pear, R.H. (April 1949). "The U.S. Supreme Court and Religious Freedom". Modern Law Review. 12 (2): 167–182. doi:10.1111/j.1468-2230.1949.tb00118.x – via HeinOnline.
  16. ^ Wood, Jr., James E. (Winter 1989). "Religious Pluralism and Religious Freedom". Journal of Church and State. 31 (1): 7–14. doi:10.1093/jcs/31.1.7 – via HeinOnline.
  17. ^ Lakier, Genevieve (Spring 2019). "Not Such a Fixed Star after All: West Virginia State Board of Education v. Barnette, and the Changing Meaning of the First Amendment Right Not to Speak". FIU Law Review. 13 (4): 741–764. doi:10.25148/lawrev.13.4.10 – via HeinOnline.
  18. ^ Tsesis, Alexander (Spring 2022). "Compelled Speech and Proportionality". Indiana Law Journal. 97 (3): 811–840 – via HeinOnline.

Further reading