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The Stone Court (1941–46)

First Amendment

In what First Amendment decision did the U.S. Supreme Court overrule itself only three years later?

The U.S. Supreme Court overruled a 1940 decision in 1943 by striking down a flag-salute law that required public school children to salute the flag. In Minersville School District v. Gobitis (1940), the Court had ruled 8–1 in favor of a Pennsylvania flag-salute law. Justice Harlan Fiske Stone (he was not yet chief justice) was the lone dissenter. A mere three years later, the Court ruled 6–3 in West Virginia Board of Education v. Barnette that a similar West Virginia flag-salute law was unconstitutional.

The law required public school students to salute the flag. If students refused to salute the flag, school officials declared them insubordinate and could expel them. State law also imposed criminal penalties on parents whose children were declared insubordinate. Thus, if the students did not salute the flag, they could be expelled and their parents could be jailed.

A group of Jehovah’s Witnesses challenged the law on First Amendment grounds. They argued that the forced flag salute infringed on their free-exercise of religion and free-speech rights. The U.S. Supreme Court agreed, holding that the government could not coerce people into forced patriotism. In oft-quoted language, Justice Robert Jackson wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.



Children recite the Pledge of Allegiance. In West Virginia Board of Education v. Barnette (1943), the U.S. Supreme Court overruled its own ruling three years earlier in which it favored a Pennsylvania mandatory flag salute law. When a group of Jehovah’s Witnesses challenged the law on First Amendment grounds, the Court agreed, reasoning that the government could not coerce people into forced patriotism. Hulton Archive/Getty Images.
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