West Virginia

West Virginia v. Barrnete

3/26/11

By Bryan Bentley

Even in the Pantheon of American religions, Jehova’s witnesses have long been an oddity. During the early 20th century, because Jehovas’ Witnesses (JW) could not say the pledge of allegiance for theological reasons, JWs became second class citizens. After the Gobbits decision in 1940, wherein the Court uphold localities had the right to enforce these provisions JWs were met with scorn, antipathy and in some cases violence’s. In 1943 the Court heard a similar case involving an ordinance passed in West Virginia. The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency.

Writing for the majority, Justice Jackson overturned the Gobbits decision on First amendment grounds incorporated into the states through the 14th amendment. While neither the majority nor minority of the Court dissented on the state’s right to "require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country,” they disagreed on the means by which this valid goal could be achieved. The Court utilized an earlier holding by Chief Justice Hughs as a means of asserting symbolic acts like loyalty pledges are in effect speech. Thus, the Court was left with a question as to whether the constitution permitted local states and districts to forcibly compel speech, for what everyone agreed was a legitimate goal.

In articulating his decision, Justices Jackson drew a paralleled West Virginia’s efforts to the current totalitarianism of Nazi Germany and Soviet Russia, and the similarities of how “Compulsory unification of opinion achieves only the unanimity of the...