Minersville School District v. Gobitis 310 U.S. 586 (1940)
West Virginia Board of Education v. Barnett 319 U.S. 624 (1943)
The Supreme Court's encounter in the early 1940s with the issue of compulsory flag salute exercises in the public schools was one of the turning points in American constitutional
history. It presaged the civil libertarian activism that culminated in the WARREN COURT of the 1960s.
The flag salute ceremony developed in the latter half of the nineteenth century. In the original ceremony the participants faced the flag and pledged "allegiance to my flag and the republic for which it stands, one nation indivisible, with liberty and justice for all." While repeating the words "to my flag" the right hand was extended palm up toward the flag. Over the years the ceremony evolved slightly, with minor changes of wording and with the extended arm salute dropped in 1942 because of its similarity to the Nazi salute. At this point in its evolution, however, the salute had official standing; Congress had prescribed the form of words and substituted the right hand over the heart for the extended arm.
Beginning in 1898 with New York, some states began requiring the ceremony as part of the opening exercise of the school day. The early state flag salute laws did not make the ceremony compulsory for individual pupils, but many local school boards insisted on participation. Many patriotic and fraternal organizations backed the flag salute; opposition came from civil libertarians and some small religious groups. The principal opponents of the compulsory school flag salute were the Jehovah's Witnesses, a tightly knit evangelical sect whose religious beliefs commanded them not to salute the flag as a "graven image."
The Witnesses were blessed with legal talent. "Judge" Joseph Franklin Rutherford, who had become head of the sect, brought in Hayden Covington, who, as chief counsel for the Witnesses in the Gobitis litigation and in many other cases influenced the development of First Amendment doctrine.
The first flag salute case to reach the Supreme Court came out of Minersville, a small community in northwest Pennsylvania. Because of Rutherford's bitter opposition to required flag salute exercises, Lillian and William Gobitis stopped participating in the ceremony in their school and were expelled.
The argument for the Gobitis children was that requiring them to salute the flag, an act repugnant to them...