The Courage of Their Convictions

Peter H. Irons

• Publisher: Simon & Schuster
• Year: 2016
• ISBN:
  9781501155130
• Topic: Law
• Subtopic: Courts
• Index: Law

The Courage of their Convictions cites sixteen landmark civil liberties cases and the individuals who challenged laws that they felt impinged upon their personal freedom and who took their battles to the nation's highest court of law. "Thank goodness for the sixteen brave men and women who fought official intolerance all the way to the US Supreme Court. And thanks to the Peter Irons for presenting their moving personal reasons, in their own words, for questioning authority. Like Anthony Lewis's Gideon's Trumpet, this book presents constitutional law with a human face. It will be a classic." —Norman Dorsen, President, American Civil Liberties Union New York University Law School"A fascinating account of how complex, multi-faceted conduct by individual citizens is forced into narrow, legal categories for decision by our judicial system." —Thomas I. Emerson, Yale Law School

1

Lillian Gobitis v. Minersville School District

Walter Gobitis sued the Minersville, Pennsylvania school board after his children, Lillian and William, were expelled in 1935 for refusing on religious grounds to salute the flag. Courtesy of Lillian Gobitas Klose

I.

“We Live by Symbols”

Only one item appeared on the agenda of the Minersville, Pennsylvania school board at its meeting on November 6, 1935. Superintendent Charles E. Roudabush reported that three students had refused to join the daily ceremony of saluting the American flag that had been customary in Minersville schools since Roudabush arrived in 1914. The superintendent, who prided himself on firm discipline, was particularly annoyed at Walter Gobitis, whose children Lillian and William had first objected to the flag salute. Roudabush and Gobitis had argued about the issue over the past month, but heated debates had failed to resolve their dispute.

Walter Gobitis and his family belonged to Jehovah’s Witnesses, a religious group whose energetic door-to-door preaching and hostility to Roman Catholicism combined to make Witnesses unpopular in towns such as Minersville, where close to 90 percent of the residents were Catholic. Gobitis was a Minersville native who was raised in the Catholic faith, and who took part in the flag-salute ceremony as a schoolboy. He and his family became Witnesses in 1931, when Lillian was eight and William was six, and the children saluted the flag every day until early October, 1935. (Although the family name was properly spelled “Gobitas,” a court clerk’s mistake perpetuated the spelling that the Supreme Court adopted and that persists to this day.)

The clash in Minersville, a town of ten thousand in the hilly anthracite coal region north of Philadelphia, was rooted in conflicting visions of patriotism and contrasting ideas of religious freedom. Flag-salute ceremonies in public schools began during wartime: The New York legislature passed the first mandatory salute law in 1898, the day after the United States declared war on Spain. Only five states enacted flag-salute laws before World War I, but a national campaign began in 1919 as a project of the American Legion, founded that year by veterans to foster “one hundred per cent Americanism.” During the next decade, the Legion campaign was joined by the Veterans of Foreign Wars, the Daughters of the American Revolution, and the Ku Klux Klan, the lattermost of which sought respectability in the 1920s through involvement in “patriotic” activities. By 1935, eighteen states had enacted flag-salute statutes, and hundreds of local school boards in other states had voted to compel all students to participate in the ceremony.

The Gobitis children were not the first objectors to the flag-salute ceremonies that began the school day in thousands of American communities. As early as 1918, when patriotic fervor and anti-German hostility swept the country during World War I, a handful of Mennonite children, members of a pacifist and largely German church, faced expulsion for refusal to salute the flag. Over the next fifteen years, the American Civil Liberties Union recorded a scattering of flag-salute cases around the country, but none had raised any constitutional challenge to compulsory participation in the ceremonies.

Beginning in 1935, Jehovah’s Witnesses became the first religious group to promote a campaign of refusal to join classroom ceremonies, and to press their challenges in court on a constitutional basis. Ironically, in view of later claims that “unpatriotic” Witnesses were aiding Nazi propagandists, the sect’s objections to compulsory flag-salute ceremonies began in Nazi Germany, which banned the Witnesses in 1933 on Hitler’s orders. German Witnesses defied Nazi edicts to join the “raised-palm” Fascist salute in schools and at all public events, and ultimately more than ten thousand were imprisoned in concentration camps. In response to this persecution, the leader of American Witnesses, Joseph F. Rutherford, denounced compulsory flag-salute laws at the sect’s national convention in 1935. Witnesses “do not ‘Heil Hitler’ nor any other creature,” Rutherford told his followers.

Shortly after Rutherford’s speech, his admonition was heeded by Carleton Nicholls, a third-grade student in Lynn, Massachusetts. Earlier that year, the Bay State had enacted a mandatory flag salute law which required students to face the flag with a “raised-palm” salute, identical to the Nazi version. After Carleton’s refusal to continue saluting, his father was arrested when he accompanied Carleton to school and they both refused to stand during the ceremony. This arrest prompted Rutherford, a lawyer whose followers called him “Judge,” to praise Carleton in a national radio address for making a “wise choice” and to proclaim that other Witnesses “who act wisely will do the same thing.”

Walter Gobitis and his family—along with every Witness who could—listened to Rutherford’s speech on their radios, and within a few days Lillian and William, then in the seventh and fifth grades respectively, decided to emulate Carleton Nicholls. Their defiance upset Superintendent Roudabush, who knew he could not lawfully punish them. Neither the state legislature nor the local school board had made the salute mandatory or provided any penalties for refusal to participate. After his appeals to Walter Gobitis failed, Roudabush secured an opinion from the State Department of Public Instruction that the school board could enact a regulation to compel participation in the salute and to expel students who refused.

When the board met in November 1935, its members sat impatiently as Walter Gobitis and the mother of Edmund Wasliewski, a sixth-grader who had joined the objectors, explained the Witness position on the flag salute. “We are not desecrating the American flag,” Gobitis said. “We show no disrespect for the flag, but we cannot salute it. The Bible tells us this, and we must obey.” Gobitis pointed the board members to chapter 20 of Exodus, which warned believers not to “bow down” to any “graven image” which portrayed false gods. The flags of nations were images of Satan, who ruled the secular governments of the world, Gobitis told his unsympathetic listeners.

On the motion of Dr. Thomas J. McGurl, an Irish Catholic physician and influential Minersville resident, the board unanimously adopted a resolution requiring all students “to salute the flag of our Country as a part of the daily exercises” and providing that refusal to participate “shall be regarded as an act of insubordination and shall be dealt with accordingly.” Roudabush immediately declared that “I hereby expel from the Minersville schools Lillian Gobitis, William Gobitis and Edmund Wasliewski for this act of insubordination, to wit, failure to salute the flag in our school exercises.” Walter Gobitis left the meeting with a parting shot to Roudabush and the board: “I’m going to take you to court for this!”

Eighteen months passed before Gobitis made good his promise to sue the school board. During this time, Lillian and William attended a makeshift Witness school located thirty miles from Minersville. With the joint participation of Witness lawyers from the sect’s Brooklyn headquarters, and the American Civil Liberties Union, Gobitis filed suit in the federal district court in Philadelphia on May 3, 1937. His complaint, brought as “next friend” of Lillian and William, argued that school-board members had acted “under color of state law” to deprive the children of rights to freedom of religion and speech guaranteed by the U.S. Constitution. The Due Process clause of the Fourteenth Amendment, stated the complaint, barred states and local governments from abridging any of the First Amendment rights that Congress could not deny to citizens.

As a group, federal judges in the 1930s were largely conservative, both in politics and in their approach to constitutional challenges to the actions of state and local officials. The political uproar over President Roosevelt’s “court-packing” proposal, which reflected Roosevelt’s frustration at the iron grip his Republican predecessors had fastened on the Supreme Court and the lower federal bench, through lifetime appointments of conservative judges, reached its peak shortly after Walter Gobitis filed his suit. Fortunately for Gobitis, his case was assigned to Judge Albert B. Maris, one of Roosevelt’s first judicial appointments in Pennsylvania. Although Maris was a Quaker, from a small religious group noted for pacifism and tolerance, he had served with distinction in World War I.

The lawyers who defended the Minersville school board promptly urged Judge Maris to dismiss the suit, arguing that the flag-salute ceremony had no religious content and was simply a “secular regulation” of the curriculum, adopted for the “reasonable” purpose of “inculcating patriotism” in the students. The board had simply exercised its “police powers” to protect the “health, safety, welfare, and morals” of Minersville students, powers that courts traditionally protected against federal invasion. The board’s lawyers argued that the U.S. Constitution did not restrict the powers of state and local officials, and they also pointed Judge Maris to several state court decisions which rejected flag-salute challenges, including the Massachusetts Supreme Court opinion dismissing the case brought by Carleton Nicholls.

After hearing the board’s arguments, Judge Maris refused to dismiss the Gobitis suit and set the case for trial in February 1938. The judge’s written opinion found the rights at issue not in the First Amendment, but in the Pennsylvania constitution, which protected “rights of conscience” against state and local abridgment. These rights were superior to the “police powers” claimed by the school board, and were included in the right to “liberty” protected by the Fourteenth Amendment. “In applying this principle,” Judge Maris concluded, “the individual concerned must be the judge of the validity of his own religious beliefs.”

When Judge Maris called the case to trial, Lillian and William Gobitis explained their religious beliefs and objections to the flag-salute ceremony in clear and convincing words. Superintendent Roudabush followed them to the witness stand, displaying his contempt for the children’s stand. Asked by Judge Maris if he felt the children “sincerely held” their religious beliefs, Roudabush disagreed: “I feel that they were indoctrinated.” The example of even a few objectors, he claimed, would be “demoralizing” and would spread “a disregard for our flag and country” among Minersville students, including “foreigners of every variety” who needed practice in patriotism to become good Americans.

In his final opinion, issued in June 1938, Judge Maris found it “clear from the evidence that the refusal of these two earnest Christian children to salute the flag cannot even remotely prejudice or imperil the safety, health, morals, property or personal rights of their fellows.” He compared the “sincerity of conviction and devotion to principle” that Lillian and William Gobitis displayed with “that which brought our pioneer ancestors across the sea to seek liberty of conscience in a new land.” Judge Maris ordered the Minersville school board to readmit the Gobitis children and to excuse them from participation in the flag-salute ceremony.

Lillian and William never returned to the Minersville schools. Judge Maris stayed his order, pending the board’s appeal of his decision to the U.S. Court of Appeals in Philadelphia. Another eighteen months passed before the three-judge panel issued its decision, expressed in a unanimous opinion written by Judge William S. Clark. Although Clark was a Republican, first appointed to the federal district bench in 1925, President Roosevelt elevated him to the appellate court in 1938, rewarding Clark’s judicial support of union organizers who faced local repression of their rights of speech and assembly. Victorious in the “Constitutional Revolution” that ended with Supreme Court approval in 1937 of New Deal laws to protect labor organizing, Roosevelt by 1938 had begun to reshape the entire federal judiciary, and he had appointed all three judges who decided the Gobitis case.

Judge Clark’s opinion bristled with scorn for compulsory flag-salute laws. “Eighteen big states have seen fit to exert their power over a small number of little children,” he began. The compulsory salute “happens to be abhorrent to the particular love of God of the little girl and boy now seeking our protection.” After listing more than a hundred opinions upholding the “police powers” of the states, Judge Clark found them too light in balancing the judicial scale against the claims of religious dissenters.

After two judicial defeats, the Minersville school board first decided against a final appeal to the U.S. Supreme Court. But promises of financial support from “patriotic” groups overcame the board’s initial reluctance. Asking the Supreme Court to hear the case did not guarantee a ruling; five times in recent years the justices had declined to review flag-salute cases decided by lower courts. All those cases, however, had upheld the state or local laws. Declining to hear an appeal from Judge Clark’s opinion, on the other hand, would leave his decision in place. Along with this factor, it seems likely that the Supreme Court looked at the looming war clouds over Europe in deciding to hear a case that raised issues of patriotism and loyalty.

Joseph W. Henderson, the Philadelphia lawyer hired by the Minersville school board, repeated the arguments he had made without success in two lower courts when he appeared before the Supreme Court on April 25, 1940. The core of Henderson’s argument was that the flag-salute ceremony “is not a religious rite” and was intended simply to inculcate “loyalty to the State and National Government.” Two lawyers divided the time allotted to Walter Gobitis and his children. George K. Gardner, a professor at Harvard Law School, presented the position of the American Civil Liberties Union, stressing the primacy of the First Amendment in conflicts with state and local officials. Joseph Rutherford, who practiced law before he began leading the Witnesses, restated the theological objections of his followers to flag-salute laws.

When the nine justices met around their mahogany conference table to debate and decide the Gobitis case, the first to speak was Chief Justice Charles Evans Hughes, a former Secretary of State and Republican presidential candidate in 1916. Hughes assured his colleagues that the case had “nothing to do with religion” and involved only “a question of state power” to foster patriotism in the classroom. The only other justice to speak at length at the conference was Felix Frankfurter, who had arrived in New York City at the age of twelve, an Austrian Jew who spoke no English. Two years later, Frankfurter graduated from high school, his command of English polished by reciting Abraham Lincoln’s wartime appeals to patriotism and national unity.

Impressed by Frankfurter’s “moving statement at conference on the role of the public school in instilling love of country” in the children of immigrants, Chief Justice Hughes asked him to write the Court’s opinion in the Gobitis case. Because none of the justices had objected at the conference, Hughes assumed that Frankfurter would write for a unanimous court.

Frankfurter’s opinion began with a bow to the “grave responsibility” the Court faced in balancing “the conflicting claims of liberty and authority.” The Gobitis case, he noted, forced the Court “to reconcile two rights in order to prevent either from destroying the other.” America’s historic role as a haven for religious dissenters required that “every possible leeway should be given to the claims of religious faith.”

Despite these disclaimers, Frankfurter rejected claims that First Amendment rights deserved special protection against abridgment by legislative bodies. Religious belief, he wrote, “does not relieve the citizen from the discharge of political responsibilities.” Frankfurter venerated the flag as a symbol that fostered “the binding tie of cohesive sentiment” among the citizens. “We live by symbols,” he quoted from his judicial hero, Justice Oliver Wendell Holmes. Frankfurter also tied the flag-salute ceremony to growing concerns about defense preparedness: “National unity is the basis of national security.” He ended his civics lesson with a warning that exempting Lillian and William Gobitis from the salute “might cast doubts in the minds of the other children” and weaken their American loyalty.

Frankfurter expected his opinion to gain unanimous support, and he was upset when Justice Harlan Fiske Stone circulated a dissenting opinion among his fellows. Stone took direct aim at Frankfurter’s claim that “national security” interests could outweigh First Amendment rights. The flag-salute regulation forced the Gobitis children to deny “what they sincerely believe to be the higher commandments of God” and “violates their deepest religious convictions,” Stone wrote. He noted that most laws which restricted personal liberties were aimed at “politically helpless minorities” such as Jehovah’s Witnesses, who were treated with “little toleration” by those who resented their aggressive preaching.

Justice Frankfurter pleaded with Stone to withdraw his dissenting opinion in a private letter which expressed the “judicial restraint” position that Frankfurter had begun shaping. The Supreme Court should not “exercise our judicial power unduly” and thereby hold “too tight a rein” on state and local officials, he argued. Frankfurter bluntly raised the fears of global war that his published opinion skirted. Patriotic observances in preparing for wartime were “surely not irrelevant” in resolving the flag-salute debate, he told Stone. This exchange of letters expressed a basic conflict over judicial power which continues to divide members of the Supreme Court. Frankfurter would defer to “the organs of popular government” while Stone believed “the Constitution tips the balance” in favor of religion.

Frankfurter prevailed by an 8—1 vote in this battle of contending judicial philosophies, and the Supreme Court announced its decision in favor of the Minersville school board on June 3, 1940.

Supreme Court decisions often are criticized, and some are disobeyed, but few have ever provoked as violent a public reaction as the Gobitis opinion. Frankfurter’s words unleashed a wave of attacks on Witnesses across the country. Within two weeks of the Court’s decision, two federal officials later wrote, “hundreds of attacks upon the Witnesses were reported to the Department of Justice.”

The Justice Department officials listed several of the most violent incidents. “At Kennebunk, Maine, the Kingdom Hall was burned. At Rockville, Maryland, the police assisted a mob in dispersing a Bible meeting. At Litchfield, Illinois, practically the entire town mobbed a company of some sixty Witnesses who were canvassing it, and it was necessary to call o...