INTRODUCTION: JEHOVAH'S WITNESSES AND RELIGIOUS LIBERTY
Few Americans are aware of the valuable contribution Jehovah's Witnesses have made to our nation's laws. A mention of them brings to mind the picture of persistent, sometime annoying, teams of door-to-door preachers whose aggressive proselytizing campaigns have made them a symbol of the troublesome irritants of daily life. Legal scholars, however, have long acknowledged Jehovah's Witnesses as champions in the constitutional battle to protect religious liberty.(1) A 1942 examination of the sect's contributions to protection for the free exercise of religion contended:
Seldom if ever, in the past has one individual or group been able to shape the course, over a period of time, of any phase of our vast body of constitutional law. But it can happen, and has happened here. The group is the Jehovah's Witnesses.(2)
During the 1940s, legally significant Jehovah's Witnesses litigation arose in almost every state. Justice Harlan Fiske Stone noted the importance of this legislation. "I think the Jehovah's Witnesses ought to have an endowment in view of the aid they give in solving legal problems of civil liberty," he quipped in a letter.(3)
Scholars have seldom noted that the legal influence of Jehovah's Witnesses was not limited to constitutional law; the sect's efforts also led to the expansion of legal protection for free exercise of religion in other areas of law. Four cases that arose in West Virginia are particularly worth examining because they significantly expanded legal protection for religious liberty, each in a different area of law. In the first case, an early example of "new judicial federalism," the Hancock County Circuit Court used the West Virginia Constitution to increase protection for the free exercise of religion beyond the safeguards provided by the U.S. Constitution. The second instance, the infamous Richwood castor oil case, expanded the protection of religious liberty through judicial interpretation of the Civil Right Act. The third action concerned the firing of seven glassworkers in Clarksburg; it brought about an unprecedented use of administrative law to protect the free exercise of religion. The final case, a 1943 landmark U.S. Supreme Court decision that expanded the constitutional safeguards for free exercise of religion and freedom of speech, was also a bellwether case that reflected the U.S. Supreme Court's move toward more expansive protection of First Amendment rights.
The Jehovah's Witnesses' aggressive, unconventional style of evangelism resulted in many confrontations in communities across the United States. Sociologist M. James Penton reported, "Between 1933 and 1951 there were 18,866 arrests of American Witnesses and about 1500 cases of mob violence against them."(4) To cope with these problems, the sect established its own legal department and sustained a determined campaign of litigation to assert the right to freely exercise its beliefs.(5) By 1950, Jehovah's Witnesses had won 150 suits in state supreme courts and more than thirty precedent-setting decisions in the U.S. Supreme Court.(6) These cases contributed significantly to broadening the protection of the free speech and religious liberties guaranteed by the First and Fourteenth Amendments and by various provisions of state constitutions.
Animosity toward the Jehovah's Witnesses resulted, in large part, from the militant methods they employed in promulgating their beliefs. The sect began its aggressive campaign of door-to-door proselytizing in the late 1920s. Convinced that any concessions to the convenience of the public were an affront to Jehovah, the Witnesses accepted none of the constraints usually imposed by time, place, or propriety. A contemporary observer frankly summarized a widely held perception of members of the sect:
Witnesses assume an exceedingly aggressive, intolerant, and even boorish attitude toward a prospective convert, apparently assuming that, since he is himself the repository of all religious wisdom, the other must be a dolt if he does not immediately see the light.(7)
Throughout the 1930s, the dogmatic, uncompromising message of the Witnesses was matched by an escalation of the contentious manner in which it was spread.(8) At times hundreds of Jehovah's Witnesses would descend on a small town going from door to door insisting aggressively that their message be heard.(9) They also began parading down main streets and picketing in front of Catholic churches on Sunday morning with signs that proclaimed such things as, "Religion is a Snare and a Racket."(10)
The sect was also scorned because of its contemptuous attitude toward secular authority and the widely held perception that Witnesses were unpatriotic. Their extensive disassociation of themselves from the government was particularly manifested in their refusal to salute the flag. Witnesses maintained that to salute would be to ascribe salvation to the government represented by the flag. They contended, therefore, that the flag salute was forbidden by the scriptural command against making and bowing down to graven images.(11) A seminal study of the nature of patriotism argues that Jehovah's Witnesses are among those people of faith "who take their religion most seriously and cannot, therefore, be patriotic."(12) This imputed lack of patriotism was the catalyst for most of the attacks on Witnesses, violence that escalated in 1939 and 1940.(13) These attacks coincided with the outbreak of World War II and a U.S. Supreme Court decision that held public schools could expel students who refused to salute the flag.(14) War-fever and heightened patriotism intensified hostility toward the Witnesses. Many people suspected them of being "fifth columnists" who sympathized with Nazi Germany and of undermining the potential American war effort.(15) In the early 1940s, state and local officials enacted new policies--or used existing laws--to regulate or suppress the sect's proselytizing activities.(16) During this period, hundreds of actions against Jehovah's Witnesses occurred in rural and small town America;(17) a number took place in West Virginia.(18) Most of these confrontations revolved around the refusal of Jehovah's Witnesses' to participate in flag salute ceremonies. A 1941 incident in Hancock County contained the standard elements of a typical conflict involving the Jehovah's Witnesses. The legal action taken to resolve it, however, was unusual.
USING THE STATE CONSTITUTION TO SAFEGUARD RELIGIOUS PRACTICE
High school senior Joseph Clementino resolutely petitioned the Hancock County Board of Education to allow him to graduate with his class--the Weir High School class of 1941. Over the previous two months, he and at least twenty-five other Jehovah's Witnesses students in West Virginia's northernmost county had been expelled from school because they refused to salute the flag. The board was unimpressed by Clementino's sincerity or tenacity, and it turned a deaf ear to the teenager's request to be readmitted along with his nine-year-old brother, Albert.(19) Clementino did not graduate with his class, but that was not the only cost of his adherance to religious convictions. The following year, his father and four other fathers of expelled children were indicted for violating the state's draconian truancy law.(20)
Throughout America, children of Jehovah's Witnesses were being expelled from schools because they refused to take part in flag-salute ceremonies. Three years earlier, in 1938, Jehovah's Witnesses families in Pennsylvania requested a federal court to issue an injunction prohibiting the Minersville School District from expelling children who refused to salute the flag. They claimed that the expulsions violated the U.S. Constitution's First Amendment provision protecting the free exercise of religion. After the Jehovah's Witnesses won in the Federal District Court and at the U.S. Court of Appeals, the school district asked for a review by the U.S. Supreme Court. In Minersville School District v. Gobitis, the Court ruled that schools did not violate the Free Exercise Clause of the First Amendment when they expelled students who refused to salute the flag.(21) Eighteen months after the Gobitis ruling, the West Virginia State Board of Education adopted a resolution that required students to salute the flag and provided that refusal to salute the Flag [sic] be regarded as an act of insubordination, and refusal shall be dealt with accordingly."(22)
In Hancock County, after students were expelled for refusing to salute the flag, the county's prosecuting attorney punished them further by obtaining misdemeanor truancy indictments against five fathers of expelled children.(23) Circuit Judge J. Harold Brennan consolidated the indictments into one case,(24) which could have easily been an open-and-shut matter. The Gobitis decision, after all, held that such expulsions did not violate the Constitution; moreover, the State Board of Education made student participation in flag-salute ceremonies a requirement for attending school. Finally, the previous year, the West Virginia legislature responded to students' refusal to salute the flag by amending the school law. The new provisions required that students who were expelled for not complying with school regulations must comply with those requirements before readmission and that they were unlawfully absent until the requirements were met.(25) A strict application of the letter of the law would require a sure and speedy conviction.
Judge Brennan, however, was clearly uneasy with the question posed by this case and explained "that he could not take upon himself `the right to hold a religious view unreasonable.'"(26) He enunciated a broad understanding of what constitutes religious liberty:
The moment that any court takes to itself the right to hold a religious view unreasonable, that moment the American courts begin to deny the right of religious...