75th anniversary of the Barnette Decision

The 14th of June is known as “Flag Day”, a holiday for government offices in honor of the American flag.  More people celebrate it because it is my birthday.  Yes, happy birthday to me.

But this year, it’s also the 75th anniversary of a US Supreme Court (abbreviated SCOTUS from here on out) decision, one that people should know about because it gives some insight into things like kneeling during an anthem–not from some blowhard with a blog or a guy waving a Confederate flag, but as a decision of the US Supreme Court, a bunch of guys (no women at the time) who knew their roles as arbiters of the law.

Also important–be aware that June 14, 1943, was in the middle of World War Two with millions of American men and women mobilized to fight worldwide, from Africa to Europe to Asia and all across the Pacific Ocean, fighting the Japanese who had launched a sneak attack on the US and against Nazi Germany (the Nazis come the closest of any group in history to meeting the criteria for a ‘just war‘ by the way).

Before it reached the SCOTUS, it was a case in West Virginia.  Actually, it all came about from another SCOTUS decision in 1940 saying it was okay to mandate saluting the flag as long as that was done through legislative action and such.  When war broke out, West Virginia passed a law mandating just that–of course, the salute of the flag looked an awful lot like the Nazi salute which WAS noticed by some groups like the Boy Scouts–whoda thunk it,  People in 1942 objecting to Americans using a Nazi salute?

The thing was–certain religious groups refuse to recognize flags or statues, etc, because those then are turned in to idols and the act of pledging allegiance takes away from their oath to God.  In this case, it was Jehovah’s Witnesses who were affected, specifically the Barnette family.  Mr. Barnette told his kids not to stand or salute the flag or recite the Pledge of Allegiance (which, by the way, didn’t have ‘under God’ in it–even as we were fighting Nazis…).   Because they didn’t stand, they were expelled.

Barnette sent the kids back so they could get an education day after day, and day after day, they were expelled/removed from school.  Obviously, this became a court fight.

The Court of Appeals sided with the Barnettes, noting the conflict between the previous SCOTUS decision (which didn’t reference religion at all) and the 1st Amendment’s guarantee of freedom of religion.  The school and state didn’t like the Court of Appeals’ decision and decided they wanted SCOTUS to look at it–did the previous SCOTUS decision (Gobitis, if you want to look it up) hold sway?

**Interruption: That SCOTUS decision saying it was wrong to not salute the flag, done in 1940, wound up leading to the persecution of minorities and groups like Jehovah’s Witnesses.  Some of it included physical violence and some of it was just verbal attacks and insinuations that they didn’t love their country, shouldn’t impose their beliefs on others, etc.  If you want to draw parallels between this and the NFL/kneeling, I won’t stop you.**

In the spring of 1943, the SCOTUS listened to arguments, read the briefs, and reached its decision in May, what wound up being a 6-3 decision–>that’s important because the more votes in favor of a decision, the less likely future sessions of SCOTUS are to rejecting or revising the decision…I’m not sure (and didn’t look) there’s even ever been a 9-0 decision reversed down the road.  

SCOTUS held onto the decision, releasing it intentionally on Flag Day, 1943, to underscore their decision.  They sided with the Jehovah’s Witnesses–that standing for a pledge or anthem can not be mandated.  And remember, not only did they choose to make the decision public/official on Flag Day, they rendered this decision in the middle of American involvement in World War Two, the point you would expect a court to rule in favor of things like patriotism, right?

OH, WAIT!!  Maybe the SCOTUS did rule in favor of patriotism.  Among the comments in the majority opinion:

  • flags are primitive means of communicating an idea
  • symbols only have the meaning an individual attaches to it–one man’s inspiration may cause another’s jest or scorn
  • “coercive dismissal of dissent eventually, inevitably leads to the extermination of dissenters”–as seen across the ocean in Nazi-occupied Europe (the italics are my emphasis)

The strongest part of the opinion is clear and concise, written by Robert Jackson (who is more famous for being the chief prosecutor of the Nuremburg War Trials than he is as a SCOTUS Justice):

“The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”  (the italics and bold are mine)

So are the kneeling football players truly doing anything wrong?  Are they really being unpatriotic? –we’ll ignore the whole anthem=servicemen pap for what it is.

What you really have are other issues people are afraid to discuss and instead,  it all gets poured into “the anthem”.

  • Police-minority relations
  • Backlash against the ‘unpatriotic’ Obama administration or ‘treasonous’ Clinton campaign
  • Fear of societal change
  • Anger that change isn’t overnight and naive shock that some people don’t want fast change to society
  • should sports be political
  • should athletes ‘be seen, not heard’ or are they role-models who should speak out

There are more–and the divides are complicated.  It isn’t black vs. white, poor vs. rich, urban vs. rural.  There are subtleties:

  • Football players MUST respect the anthem, but it’s ok to be doing concessions while it plays.
  • Ever notice the improper display of the American flag at many sporting events–did you know it should never be displayed horizontally?  That no part of it should touch the ground?  
  • What about the cameramen?  Shouldn’t they be respecting the anthem?
  • What about the fans watching at home?–or does anthem = go get more chips?
  • Why isn’t this an issue with MLB or the NBA?

All good questions, all worth debate.

But what is not debatable:

In the middle of World War Two, as the US prepared to march across the Pacific, began the gear-up for 1944’s Overlord invasion, the U.S. Supreme Court said it was okay, it was American, to have the freedom to not stand for a pledge or the anthem.  That remains the law of the land.










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