TRICT, ET AL. V. GOBITIS · 2017-12-11 · 586 october term, 1939. statement of the case. 3101u.s. minersville school district, board of education of minersville school dis-trict,

586 OCTOBER TERM, 1939.

Statement of the Case. 3101U.S.

MINERSVILLE SCHOOL DISTRICT, BOARD OFEDUCATION OF MINERSVILLE SCHOOL DIS-TRICT, ET AL. V. GOBITIS ET AL.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THETHIRD CIRCUIT.

No. 690. Argued April 25, 1940.-Decided June 3, 1940.

1. A state regulation requiring that pupils in the public schools, onpain of expulsion, participate in a daily ceremony of saluting thenational flag, whilst reciting in unison a pledge of allegiance to it-"and to the Republic for which it stands; one Nation indivisible,with liberty and justice for all"-held withiii the scope of legisla-tive power, and consistent with the. Fourteenth Amendment, aaapplied to children brought up in, and entertaining, a conscientiousreligious belief that such obeisance to the flag is forbidden by theBible and that the Bible, as the Word of God, is the supremeauthority. P. 591.

2. Religious c6nvictions do not relieve the individual from obedienceto an otherwise valid general law not aimed at the promotion or* restriction of religious beliefs. P. 594.

3. So far as the Federal Constitution is concerned, it is within theprovince of the legislatures and school authorities of- the severalStates to adopt appropriate means to evoke and foster a sentimentof national unity among the children in the public schools. P. 597.

4. This Court can not exercise censorship over the conviction of legis-latures that a. particular program or exercise will best promote in theminds of children who attend the common schools an attachment tothe institutions of their country, nor overrule the local judgmentagainst granting exemptions from observdnce of such a program.P. 598.

108 F. 2d 683, reversed.

CERTORARI, 309 U. S. 645, to review the affirmance of adecree (24 F. Supp. 271; opinion, 21 F. Supp. 581) whichperpetually enjoined the above-named 'School District,the members of its board of education, and its superin-tendent of public schools, from continuing to enforce anorder expelling from the public schools certain minors(suing in this case by their father as next friend) and from

MINERSVILLE DISTRICT v. GOBITIS. 587

586 Argument for Petitioners.

requiring them to salute the national flag as a conditionto their right to attend.

Mr. Joseph W. Henderson, with whom Messrs. John B.McGurl, Thomas F. Mount, and George M. Brodhead, Jr.were on the brief, for petitioners.

The resolution of the School Board requiring pupils tosalute the flag was lawfully adopted, and the expulsion-of the children was within its power and authority.

The expulsion of the children did not violate any rightunder the Constitution of the United States. Leoles v.Landers, 802 U. S. 656; Hering v. State Board of Educa-tion, 303 U. S. 624; Gabrielli v. Knickerbocker, 306 U. S.621; Johnson v. Deerfield, 306 U. S. 621; Johnson v. Deer-field, 307 U. S. 650; Leoles v. Landers, 184 Ga. 580; Heringv. State Board of Education, 118 N. J. L. 566; Gabrielli v.Knickerbocker, 12 Cal. 2d 85; Johnson v. Deerfield, 25 F.Supp. 918; People v. Sandstrom, 279 N. Y. 523; Nichollsv. Mayor, 7 N. E. 2d 577; Hamilton v. Regents, 293 U. S.245; Coale v. Pearson, 290 U. S. 597; Reynolds v. UnitedStates, 98 U. S. 145; Davisv. Beason, 133 U. S. 333; Jacob-son v. Massachusetts, 197 U. S. 11; Selective Draft LawCases, 245 U. S. 366; Shapiro v. Lyle, 30 F. 2d 971; UnitedStates v. Macintosh, 283 U. S. 605, 625.

The expulsion of the children did not violate any rightunder the Constitution of Pennsylvania. Commonwealthv. Lesher, 17 S. & R. (Pa.) 155, 160; Wilkes-Barre v. Gara-bed, 11 Pa. Super. 355, 366; Commonwealth v. Herr, 229Pa. 132, 141; Stevenson v. Hanyon, 7 Pa. Dist. Rep. 585;Pittsburgh v. Ruffner, 134 Pa. Super. 192, 198; Oaths ofAllegiance in Public Schools, 25 Pa. Dist. & County Rep. 8.

The refusal of the children to salute the national flag atschool exercises because they believed that to do so wouldviolate the written law of Almighty God as contained inthe Bible was not founded 6n a religious belief. Davis v.Beason, 133 U. S. 333, 342.


Argument for Respondents. 310 U. S.

The act of saluting the flag has no bearing, on what apupil may think of his Creator or what are his relations tohis Creator. Noris a pupil required to exhibit his religioussentiments in a particular "form of worship" when salutingthe flag, because the ceremony is not, by any stretch of theimagination, a "form of worship." Like the study of his-tory or civics or the doing of any other act which mightmake a pupil more patriotic as well as teach him or her"loyalty to the State and National Government," thesalute has no religious implications. Nicholls v. Mayor,7 N. E. 2d 577, 580; Leoles v. Landers, 184 Ga. 580, 587;Peoples v. Sandstrom, 279 N. Y. 523, 529.

The commandments of Jehovah, as set forth in the Bible,do not prohibit the saluting of a- national flag but on thecontrary approve of that practice.

The act of saluting the flag is only one of many ways inwhich a citizen may evidence his respect for the Govern-ment. Every citizen stands at attention, and the menremove their hats, when the national anthem is played;yet such action can not be called a religious ceremony.The same respect is shown the American flag when itpasses in a parade; yet that is not a religious rite.

Though members of Jehovah's Witnesses endeavor toextend religious implications to a ceremony purely patri-otic in design, they do not accord to others the religiousfreedom which they demand for themselves, claiming thatthere is no limit to which they may go when they thinkthey, are worshipping God. CantweIl v. Connecticut, 126Conn. 1; 310 U. S. 296.

The act of saluting the flag does not prevent a pupil, nomatter what his religious belief may be, from acknowledg-ing the spiritual sovereignty of Almighty God by renderingto God the things which are God's. Hardwick v. Board ofSchool Trustees, 54 Cal. App. 696, 712.

Messrs. Joseph F. Rutherford and George K. Gardnerargued the cause, and with the former Mr. Hayden Coving-ton was on the brief, for respondents.


586 Arguments for Respondents.

The rule compelling respondents to participate in theceremony of saluting the flag and the act of its SchoolBoard in expelling them because they refrained, violatetheir rights guaranteed by Art. I, § 3, of the Constitutionof Pennsylvania and the Fourteenth Amendment of theConstitution of the United States.

The vital question is: Shall the creature man be freeto exercise his conscientious belief in God and his obedience,to the law of Almighty God, the Creator, or shall thecreature man be compelled to obey the law or rule of theState, which law of the State, as the creature conscien-tiously believes, is in direct conflict with the law ofAlmighty God?

This Court has repeatedly held that the individual aloneis privileged to determine what he shall or shall not believe.The law. therefore, does not attempt to settle differencesof creeds and confessions, or to say that any point or doc-trine is too absurd to be believed. That rule was laid downmore than one hundred years ago by the Pennsylvaniacourts in Schriber v. Rapp, 5 Watts 351, 363.

As early as 1784 a like question was before the House ofDelegates of the State of Virginia. Mr. Jefferson pre-pared a Bill: "For establishing religious freedom." Afterdefining religious freedom and reciting "that to sufferthe civil magistrate to intrude his powers into the fieldof opinion, and to restrain the profession or propagationof principles on supposition of their ill tendency, is adangerous fallacy which at once destroys all religious lib-erty," it is declared "that it is time enough for the right-ful purposes of civil government for its officers to interferewhen principles break out into overt acts against peaceand good order." See Reynolds v. United States, 98 U. S.145, 162.

Will any court attempt to say thit respondents mis-takenly believe what is set forth in the twentieth chapterof Exodus in the Bible? The belief of respondents is notbased upon conjecture or a myth. Respondents' belief isbased strictly upon the Bible. The minor respondents

590 OCTOBER TERM,- 1939.

Argument for Respondents. 310 U. S.

from their infancy have been taught by their father torely upon the Bible.

The saluti ngof the flag of any earthly government by aperson who has covenanted to do the will of God is aform of religion and constitutes idolatry. -

The modern-day compulsory flag saluting as a daily exercise or ceremony in the public schools is clearly anexperiment. The nation has existed for more than a cen-tury without any such enforced rule. - To expel childrenfrom school and deny them the opportunity of an educa-tion because they refuse to violate their conscience, iswrong and is cruel and unusual punishment. "No.cruelexkperiment on any living creature shalf be permitted inany public school of this Commonwealth." 24 Purdon'sPa.,Stat. Ann. § 1554.

"The greatest dangers to liberty lurk in insidious en-croachment by men of zeal, well meaning, but withoutunderstanding." , Mr. Justice Brandeis, in Olmstead v.United States, 277 U. S. 479. See Associated Press v. Na-tional Labor Relations Board, 301 U. S. i03, 141.

The rule certainly abridges the privileges of the respbnd-ents and deprives them of liberty and property without

due process of law. Cf. Pierce v. Society of Sisters, 268U. S. 510, 534--535

Petitioners claim that the purpose of saluting the flagis: to "Instill in the children patriotism and love of coun-try." But why limit that compulsory rule to teachers andpupils of the public schools? Why not require that sameceremony in all the schools? Why not apply the samerule to all officials of the Nation and State, from -the Presi-dent and the members of Congress down to the very leastand humblest citizen? The general answer would be that"he enforcement of such a rule is ridiculous and nonsensical.Chap. 14, "Patriotism of the Flag," Moss,; The Flag of theUnited States, Its History and Symbolism, pp. 85-86.


586 Opinion of the Court.

By leave of Court, briefs of amici curiae were filed onbehalf of the Committee on the Bill of Rights, of theAmerican Bar Association, consisting of Messrs. DouglasArant, Zechariah Chafee, Jr., Grenwille Clark, Osmer C.Fitt, Lloyd K. Garrison, George I. Haight, Monte M. Le-mann, Ross L. Malone, Jr., Burton W. Musser, Joseph A.Padway, and Charles P. Taft; and by Messrs. George K.Gardner, Arthur Garfield Hays, Osmond K. Fraenkel, Wil-liam G. Fennell, Jerome M. Britchey, and Alexander H.Frey, on behalf of the American Civil Liberties Union,-urging affirmance.

MR. JUSTICE FRANKFURTER delivered the opinion ofthe Court.

A grave responsibility confronts this Court wheneverin course of litigation it must reconcile the conflictingclaims of liberty and authority. But when the libertyinvoked is liberty of conscience, and the authority isauthority to safeguard the nation's fellowship; judicialconscience is put to its severest test. Of such a natureis the present controversy.

Lillian Gobitis, aged twelve, and her brother William,aged ten, were expelled from the public schools of Miners-ville, Pennsylvania, for refusing to salute the nationalflag as part. of a daily school exercise. The local Boardof Education required both teachers and pupils to partici-pate fil this ceremony. The ceremony is a familiar one.The right hand is placed on the breast and the followingpledge recited in uiiison: ."I pledge allegiance to my flag,and to the Republic for which it stands; one nation in-divisible, with liberty and justice for all." While thewords are spoken, teachers and pupils extend their righthands in salute to the flag. The Gobitis family areaffiliated with "Jehovah's Witnesses," for whom the Bibleas the Word of God is the supreme authority. The chil-

592 OCTOBER TERM, 1939.,

Opinion of the Court. 310 U.S.

dren had been brought up conscientiously to believe thatsuch a gesture of respect for the flag was forbidden bycommand of Scripture.'

The Gobitis children were of an age for which Pennsyl-vania makes school attendance compulsory. Thus theywere denied a free education, and their parents had toput them into private schools. To be relieved of thefinancial burden thereby entailed, their father, on behalfof the children and in his own behalf, brought this suit.He sought to enjoin the authorities from continuing toexact participation in the flag-salute ceremony as a con-dition of his children's attendance at the Minersvilleschool. After trial of the issues, Judge Maris gave reliefin the District Court, 24 F. Supp. 271, on the basis of athoughtful opinion at a preliminary stage of the litigation,21 F. Supp. 581; his decree was affirmed by the CircuitCourt of Appeals, 108 F. 2d 683. Since this decision rancounter to several per curiam dispositions of this Court,2

we granted certiorari to give the matter full reconsidera-tion. 309 U. S. 645. By their able submissions, theCommittee on the Bill of Rights of the American BarAssociation and the American Civil Liberties Union, asfriends of the Court, have helped us to our conclusion.

We must decide whether the requirement of participa-.tion in such a ceremony, exacted from a child who refuses

2 Reliance is especially placed on the following verses from Chapter20 of Exodus:

"3. Thou shalt have no other gods before me."4. Thou shalt not make unto thee any graven image, or any

likeness of any thing that is in heaven above, or that is in the earthbeneath, or that is in the water under the earth:

"5. Thou shalt not bow down thyself to them, nor serve them:.'Leoles v. Landers,- 302 U. S. 656; Hering v. State Board of Edu-

cation, 303 U. S. 624; Gabrielli v. Knickerbocker, 306 U. S. 621;Johnson v. Deerfield, 306 U. S. 621; 307 U. S. 650. Compare NewYork v. Sandstrom, 279 N. Y. 523; 18 N. E. 2d 840; Nicholls v.Mayor and School Commfttee of Lynn, 7 N. E. 2d 577 (Mass.).



upon sinoere religious grounds, infringes without dueprocess of law the Eberty guaranteed by the FourteenthAmendment.

Centuries of strife over the erection of particulardogmas as exclusive or all-comprehending faiths led tothe inclusion of a guarantee for religious freedom in theBill of Rights. The First Amendment, and the Four-teenth through its absorption of the First, sought toguard against repetition of those bitter religious strugglesby prohibiting the establishment of a state religion and bysecuring to every sect the free exercise of its faith. Sopervasive is the acceptance of this precious right that itsscope is brought into question, as here, only when theconscience of individuals collides with the felt necessitiesof society.

Certainly the affirmative pursuit of one's convictionsabout the ultimate mystery of the universe and man'srelation to it is placed beyond the reach of law. Govern-ment may not interfere with organized or individualexpression of belief or disbelief. Propagation of belief-or even of disbelief-in the supernatural is protected,whether in church or chapel, mosque or synagogue, taber-nacle or meeting-house. Likewise the Constitution as-sures generous immunity to the individual from imposi-tion of penalties for offending, in the course of his ownreligious activities, the religious views of others, be theya minority or those who are dominant in government.Cantwell v. Connecticut, ante, p. 296.

But the manifold character of man's relations maybring his conception of religious duty into conflict withthe secular interests of his fellow-men. When does theconstitutional guarantee compel exemption from doingwhat society thinks necessary for the promotion of somegreat common end, or from a penalty for conduct whichappears dangerous to the general good? To state the

594 OCTOBER TERM,. 1939.

Opinion of the Court. 310 U. S.

problem is to recall the truth that no single principle cananswer all of life's complexities. The right ta freedomof religious belief, however dissident and however obnox-ious to the cherished beliefs of others--even of a ma-jority-is itself the denial of an absolute., But to affirmthat the freedom to follow conscience has itself "no limitsin the life of a society would deny that very plurality ofprinciples which, as a matter of history, underlies pro-tection of religious toleration. Compare Mr. JusticeHolmes in Hudson Water Co. v. McCarter, 209 U. S.349, 355. Our present task, then, as so often the casewith courts, is to reconcile two rights in order to preventeither from destroying the other. But, because in safe-guarding conscience we are dealing with interests sosubtle and so dear, every possible leeway should be givento the claims of religious faith.

In the judicial enforcement of religious freedom we areconcerned with a historic concept. See Mr. Justice Car-dozo in Hamilton v. Regents, 293 U. S. at 265. Thereligious liberty which the Constitution protects hasnever excluded legislation of general scope not directedagainst doctrinal loyalties of particular sects. Judicialnullification of legislation cannot be justified by attrib-uting to the framers of the Bill of Rights views for whichthere is no historic warrant. Conscientious scruples havenot; inthe course of the long struggle for religious tolera-tion, relieved the individual from obedience to a generallaw not aimed at the-promotion or restriction of religiousbeliefs.3 The mere possession of religious convictions

'Compare II Writings of Thomas Jefferson (Ford ed.) p. 102; 3Letters and Other Writings of James Madison, pp. 274, 307-308; 1Rhode Island Colonial Records, pp. 378-80; 2 Id. pp. 5-6; Wiener,Roger Williams' Contribution to Modem Thought., 28 Rhode IslandHistorical Society Collections, No. 1; Ernst, The Political Thoughtof Roger Williams, chap. VII;' W. K. Jordan, The Development ofReligious -Toleration in England, passim. See Commonwealth v.Herr, 229"Pa. 132; 7&A. 6,R •



which contradict the relevant concerns of a political so-ciety does not relieve the citizen from the discharge ofpolitical responsibilities. The necessity for this adjust-ment has again and again been recognized. In a numberof situations the exertion of political authority has beensustained, while basic 6onsiderations of religious freedomhave been left inviolate. Reynolds v. United States, 98U. S. 145; Davis v. Beason, 133 U. S. 333; Selective DraftLaw Cases, 245 U. S. 366; Hamilton v. Regents, 293 U. S.245. In all these cases the general laws in question, 'up-held in their application to those who refused obediencefrom religious conviction, were manifestations of specificpowers of government deemed by the legislature essen-tial to secure and maintain that orderly, tranquil, andfree society without which religious toleration itself isunattainable. Nor does the freedom of speech assuredby Due Process move in a more absolute circle of im-munity than that enjoyed by religious freedom. Evenif it were assumed that freedom of speech goes beyondthe historic concept of full opportunity to utter and todisseminate views, however heretical or offensive to domi-

nant opinion, and includes freedom from conveying whatmay be deemed an implied but rejected'affirmation, thequestion remains whether school children, like the Gobitischildren, must be excused from conduct required of allthe other children in the promotion of national cohesion.We are dealing with an interest inferior to none in thehierarchy of legal values. National unity is the basis ofnational security. To deny the legislature the right to

select appropriate means for its attainment presents, atotally different order of problem from that of the pro-priety of subordinating the possible ugliness of litteredstreets to the free expression of opinion through distribu-tion of handbills. Compare Schneider v. State, 308 U. S.147.

OCTOBER TERM, 1939.


Situations like -the present are phases of the pro-foundest problem confronting a democracy-the problemwhich Lincoln cast in memorable dilemma: "Must a gov-ernment of necessity be too strong for the liberties of itspeople, or too weak to maintain its own existence?" Nomere textual reading or logical talisman can solve thedilemma. And when the issue demands judicial determi-nation, it is not the personal notion of judges of what wiseadjustment requires which must prevail.

. Unlike the instances we have cited, the case before usis not concerned With an exertion of legislative power forthe promotion of some specific need or interest of secularsociety-the protection of the family, the promotion ofhealth, the common defense, the raising of public reve-nues"to defray the cost of government. But all thesespecific activities of government presuppose the existenceof an organized political society. The ultimate founda-tion of a free society is the binding tie of cohesive senti-ment. Such a sentiment is fostered by all those agenciesof the mind and spirit which may serve to gather up thetraditions of a people, transmit them from generation togeneration, and thereby create that continuity of atreasured common life which constitutes a civilization."We live by symbols." The flag is the symbol of ournational unity, transcending all internal differences, how-ever -large, within the framework of the Constitution.This Court has had occasion to say that ". . . the flag isthe symbol of the Nation's power, the emblem of freedomin its truest, best sense. . . . it signifies government rest-ing on the consent of the governed; liberty regulated bylaw; the protection of the weak against the strong; se-curity against the exercise of arbitrary power; and abso-lute safety for free institutions against foreign aggres-sion." Halter v. Nebraska, 205 U. S. 34, 43. And see



United States v. Gettysburg Electric Ry. Co., 160 U. S.6"68.4

The case before us must be viewed as though the legis-lature of Pennsylvania had itself formally directed theflag-salute for the children of Minersville; had made noexemption for children whose parents were possessed ofconscientious scruples like those of the Gobitis family;and had indicated its belief in the desirable ends to besecured by having its public school children share a com-mon experience at those periods of deyelopment whentheir minds are supposedly receptive to its assimilation,by an exercise appropriate in time and place and setting,and one designed to evoke in them appreciation of thenation's hopes and dreams, its sufferings and sacrifices.The precise issue, then, for us to decide is whether thelegislatures of the various states and the authorities ina thousand counties and school districts of this countryare barred from determining the appropriateness of var-ious means to evoke that unifying sentiment withoutwhich there can ultimately be no liberties, civil or reli-gious.' To stigmatize legislative judgment in providingfor this universal gesture of respect for the symbol of ournational life in the setting of the common school as alawless inroad on that freedom of conscience which theConstitution protects, would amount to no less than thepronouncement of pedagogical and psychological dogmain a field where courts possess no marked and certainly no

4 For the origin and history of the American flag, see 8 Journals ofthe Continental Congress, p. 464; 22 Id., pp. 338-40; Annals ofCongress, 15th Cong., 1st Sess., Vol. 1, pp. 566 et seq.; Id., Vol. 2, pp.1458 et seq.

'Compare Balfour, Introduction to Bagehot's English Constitu-tion, p. XXII; Santayana, Character and Opinion in the UnitedStates, pp. 110-11.

OCTOBER TERM, 1939.


controlling competence. The influences which help to-ward a common feeling for the common country are mani-fold. Some may seem harsh and others no doubt arefoolish. Surely, however, the end is legitimate. And theeffective means for its attainment are still so uncertainand so unauthenticated by science as to preclude us fromputting the widely prevalent belief in flag-saluting beyondthe pale of legislative power. It mocks reason and deniesour whole history to find in the allowance of a require-ment to salute our flag on fitting occasions the seeds ofsanction for obeisance to a leader.

The wisdom of training children in patriotic impulsesby those compulsions which necessarily pervade so muchof the educational process is not for our independent judg-ment. Even were we convinced of the folly of such ameasure, such belief would be no proof of its unconstitu-tionality. For ourselves, we might be tempted to say thatthe deepest patriotism is best engendered by giving un-fettered scope to the most crochety beliefs. Perhaps it isbest, even from the standpoint of those interests whichordinances like the-one under review seek to promote, togive to the least popular sect leave from conformities likethose here in issue. But the courtroom is not the arenafor debating. issues of educational policy. It is not ourprovince to choose among competing considerations in thesubtle process of securing effective loyalty to the tradi-tional ideals of democracy, while respecting at the sametime individual idiosyncracies among a people so diversi-fied in racial origins and religious allegiances. So to holdwould in effect make us the school board for the country.That authority has not been given to this Court, nor shouldwe assume it.

We are dealing here with the formative period in the de-velopment of citizenship. Great diversity of psychologi-cal and ethical opinion exists among us concerning thebest way to train children for their place in society. Be-

598

MINERSVILLE DISTRICT v. qOBITIS. 599


cause of these differences and because of reluctance to per-mit a single, iron-cast system of education to be imposedupon a nation compounded of so many strains, we haveheld that, even though public education is one of our mostcherished democratic institutions, the Bill of Rights barsa state from compelling all children to attend the publicschools. Pierce v. Society of Sisters, 268 U. S. 510. Butit is a very different thing for this Court to exercise censor-ship over the conviction of legislatures that a particularprogram or exercise will best promote in the minds ofchildren who attend the common schools an attachmentto the institutions of their country.

What the school authorities are really asserting is theright to awaken in the child's mind considerations as tothe significance of the flag contrary to those implanted bythe parent. In such an attempt the state is normally at adisadvantage in competing with the parent's authority, solong-and this is the vital aspect of religious toleration-asparents are unmolested in their right to counteract by theirown persuasiveness the wisdom and rightness of those loyal-ties which the state's educational system is seeking to pro-mote. Except where the transgression of constitutionalliberty is too plain for argument, personal freedom isbest maintained-so long as the remedial channels of thedemocratic process remain open and unobstructed 6 -whenit is ingrained in a people's habits and not enforced againstpopular policy by the coercion of adjudicated law. Thatthe flag-salute is an allowable portion of a school programfor those who do not invoke conscientious scruples is surelynot debatable. But for us to insist that, though the cere-mony may be required, exceptional immunity must be

'In cases like Fiske v. Kansas, 274 U. S. 380; De Jonge v. Oregon,299 U. S. 353; Lovell v. Griffin, 303 U. S. 444; Hague v. C. L 0., 307U. S. 496, and Schneider v. State, 308 U. S. 147, the Court was con-cerned with restrictions cutting off appropriate means through which,in a free society, the processes of popular rule may effectivelyfunction.



given to dissidents, is to m aintain that there is no basis fora.legislative judgment that such an exemption might intro-duce elements of difficulty into the school discipline, mightcast doubts in the minds of the other children which wouldthemselves weaken the effect of the exercise.

The preciousness of the family relation, the authorityand independence which give dignity to parenthood, in-deed the enjoyment of all freedom, presuppose the kindof ordered society which is summarized by our flag. Asociety which is dedicated to the preservation of theseultimate values of civilization may in self-protectionutilize the educational process for inculcating those al-most unconscious feelings which bind men together in acomprehending loyalty, whatever may be their lesserdifferences and difficulties. That is to say, the processmay be utilized so long as men's right to believe as theyplease, to win others to their way of belief, and their rightto assemble in their chosen places of worship for thedevotional ceremonies of their faith, are all fully re-spected.

Judicial review, itself a limitation on popular govern-ment, is a fundamental part of our constitutional scheme.But to the legislature no less than to courts is committedthe guardianship of deeply-cherished liberties. SeeAlissouri, K. & T. Ry. Co. v. May, 194 U. S. 267, 270.Where all the effective means of inducing politicalchanges are left free from interference, education in theabandonment of foolish legislation is itself a training inliberty. To fight out the wise use of legislative authorityin the forum of public opinion and before legislative as-semblies rather than to transfer such a contest to thejudicial arena, serves to vindicate the self-confidence of afree people.R Reversed.

It is to be noted that the Congress has not entered the field oflegislation here under consideration.


586 Sro,-E, J., dissenting.

MR. JusTCE MCREYNOLDS concurs in the result.

MR. JUSTICE STONE, dissenting:

I think the judgment below should be affirmed.Two youths, now fifteen and sixteen years of age, are

by the judgment of this Court held liable to expulsionfrom the public schools and to denial of all publicly sup-ported educational privileges because of their refusal toyield to the compulsion of a. law which commands theirparticipation in a school ceremony contrary to their re-ligious convictions. They and their father are citizensand have not .exhibited by any action or statement ofopinion, any disloyalty to the Government of the UnitedStates. They are ready and willing to obey all its lawswhich do not conflict with what they sincerely believeto be the higher commandments of God. It is not doubtedtiat these convictions are religious, that they are genuine,or that the refusal to yield to the compulsion of the lawis in good faith and with all sincerity. It would be adenial of their faith as well as the teachings of mostreligions to say that children of their age could not havereligious convictions.

The law which is thus sustained is unique in the his-tory of Anglo-American legislation. It does more thansuppress freedom of speech and more than prohibit thefree exercise of religion, which concededly are forbiddenby the First Amendment and are violations of the libertyguaranteed by the Fourteenth. For by this law the stateseeks to coerce these children to express a sentimentwhich, as they interpret it, they do not entertain, andwhich violates their deepest religious convictions. It isnot denied that such compulsion is a prohibited infringe-ment of personal liberty, freedom of speech and religion,guaranteed by the Bill of Rights, except in so far as itmay be justified and supported as a proper exercise ofthe state's power over public education. Since the state.


SmNE, J., dissenting. 310 U. S.

in competition with parents, may through teaching inthe public schools indoctrinate the minds of the young,it is said that in aid of its undertaking to inspire loyaltyand devotion to constituted authority and the flag which,symbolizes it, it may coerce the pupil to make affirma-tion contrary to his belief and in violation of his religiousfaith. And, finally, it is said that since the MinersvilleSchool Board and others are of the opinion that thecountry will be better served by conformity than by theobservance of religious liberty which -the Constitutionprescribes, the courts are not-free to pass judgment onthe Board's choice.

Concededly the constitutional guaranties of personalliberty are not always absolutes. Government has a rightto survive and powers conferred upon it are not neces-sarily set at naught by the express prohibitions of the Billof Rights. It may make war and raise armies. To thatend it may compel citizens to give military service, Selec-tive Draft Law Cases, 245 U. S. 366, and subject them tomilitary training despite their religious objections.Hamilton v. Regents, 293 U. S. 245. It may suppressreligious practices dangerous to morals, and presumablythose also which are inimical to public safety, health andgood order. Davis v. Beason, 133 -U. S. 333. But it is along step, and one which I am unable to take, to theposition that government may, as a supposed educationalmeasure and as a means of disciplining the young,-compel public affirmations which violate their religiousconscience.

The very fact that we have constitutional guarantiesof .civil liberties and the specificity of their commandwhere freedom of speech .and of religion are concernedrequire some accommodation of the powers-which gov-ernment normally . exercises, when no question of civilliberty is involved, to the constitutional demand thatthose liberties be protected against the action of govern-


586 STN , J., dissenting.

ment itself. The state concededly has power to requireand control the education of its citizens, but it cannot bya general law compelling attendance at public schoolspreclude attendance at a private school adequate in itsinstruction, where the parent seeks to secure for the childthe benefits of religious instruction not provided by thepublic school. Pierce v. Society of Sisters, 268 U. S.-510.And only recently we have held that the state's authorityto control its public streets by generally applicable regu-lations is not an absolute to which free speech must yield,and cannot be nmade, the medium of its suppression,Hague v. Committee for Industrial Organization, 307U. S. 496, 514, et seq., any more than can its authorityto penalize littering of the streets by a general law beused to suppress the distribution of handbills as a meansof communicating ideas to their recipients. Schneider v.State, 308 U. S. 147.

In these cases it was pointed out that where there arecompeting demands of the interests of government and.of liberty under the Constitution, and where the perform-ance of governmental functions is brought into conflictwith specific constitutional restrictions, there must, whenthat is possible, be reasonable accommodation betweenthem so as to preserve the essentials of both and thatit is the function of courts to deternire whether suchaccommodation is reasonably possible. In the cases justmentioned the Court was of opinion that there wereways enough to secure the legitimate state end withoutinfringing the asserted immunity, or that the inconven-ience caused by the inability to secure that end satisfac-torily through other means, did not outweigh freedomof speech or religion. So here, even if we believe thatsuch compulsions will contribute to national unity, thereare other ways to teach loyalty and patriotism which arethe sources of national unity, than by compelling thepupil to affirm that .which he does not believe and by


SToNE, J., dissenting. 310 U. f

commanding a form of affirmance which violates his re,ligious convictions. Without recourse to such compul-sion the state is free to compel attendance at school andrequire teaching by instruction and study of all in ourhistory and in the structure and organization of our gov-ernment, including the guaranties of civil liberty whichtend to inspire patriotism and love of country. I cannotsay that government here is deprived of any interest orfunction which it is entitled to maintain at the expenseof the protection of civil liberties by requiring it to resortto the alternatives which do not coerce an affirmation ofbelief.

The guaranties of civil liberty are but guaranties offreedom of the human mind and spirit and of reasonablefreedom and opportunity to express them. They pre-suppose the right of the individual to hold such opinionsas he will and to give them reasonably free expression,and his freedom, and that of the state as well, to teachand persuade others by the communication of ideas.The very essence of the liberty which they guaranty isthe freedom of the individual from compulsion as to whathe shall think and what he shall say, at least where thecompulsion is to bear false witness to his religion. Ifthese -guaranties are to have any meaning they must, Ithink, be deemed to withhold from the state any author-ity" to compel belief or the expression of it where thatexpression violates religious convictions, whatever maybe the legislative view of the desirability of such com-pulsion.

History teaches us that there have been but few in-fringements of personal liberty by the state which havenot been justified, as they are here, in the name ofrighteousness and the public good, and few which havenot been directed, as they are now, at politically helplessminorities. The framers were not unaware that underthe system which they created most governmental cur-

MINERSVILIE DISTRICT v. GOBITIS. 605

586 SroNz, J., dissenting.

tailments of personal liberty would have the support of alegislative judgment that the public interest would bebetter served by its curtailment than by its constitutionalprotection. I cannot conceive that in prescribing, aslimitations upon the powers of government, the freedomof the mind and spirit secured by the explicit guarantiesof freedom of speech and religion, they intended or rightlycould have left any latitude for a legislative judgmentthat the compulsory expression of belief which violatesreligious convictions would better serve the public inter-est than their protection. The Constitution may wellelicit expressions of loyalty to it and to the governmentwhich it created, but it does not command such expres-sions or otherwise give any indication that compulsoryexpressions of loyalty play any such part in our scheme ofgovernment as to override the constitutional protectionof freedom of speech and religion. And while such ex-pressions of loyalty, when voluntarily given, may promotenational unity, it is quite another matter to say that theircompulsory expression by children in violation of theirown and their parents' religious convictions can be re-garded as playing so important a part in our nationalunity as to leave school boards free to exact it despitethe constitutional guarantee of freedom of religion. Thevery terms of the Bill of Rights preclude, it seems to me,any reconciliation of such compulsions with the constitu-tional guaranties by a legislative declaration that they aremore'important to the public welfare than the Bill ofRights.

But even if this view be rejected and it is consideredthat there is some scope for the determination by legisla-tures whether the citizen shall be compelled to give publicexpression of such sentiments contrary to his religion, Iam not persuaded that we should refrain from passingupon the legislative judgment "as long as the remedial

OCTOBER TERM, 1939.

STONn, J., dissenting. 310 U. S.

channels of the democratic process remain open and unob-structed." This seems to me no less than the surrenderof the constitutional protection of the liberty of smallminorities to the popular will. We have previouslypointed to the importance of a searching judicial inquiryinto the legislative judgment in situations where preju-dice against discrete and insular minorities may tend tocurtail the operation of those political processes ordinarilyto be relied on to protect minorities. See United Statesv. Carolene, Products Co., 304 U. S. 144,152, note 4. Anduntil now we have not hesitated similarly to scrutinizelegislation restricting the civil liberty of racial and re-ligious minorities although no political process wasaffected. Meyer v. Nebraska, 262 U. S. 390; Pierce v.Society of Sisters, supra; Farrington v. Tokushige, 273U. S. 284. Here we have such a small minority entertain-ing in good faith a religious belief, which is such a de-parture from the usual course of human conduct, thatmost persons are disposed to. regard it with little tolera-tion or concern. In such circumstances careful scrutinyof legislative efforts to secure conformity of belief andopinion by a compulsory affirmation" of the desired belief,is especially needful if civil, rights are to receive anyprotection. Tested by this standard, I am not preparedto say thit the right'of this small and helpless minority,including children having a strong religious conviction,whether they understand its nature or not, to refrainfrom an expression obnoxious to their religion, is to beoverborne by the interest of the state in maintainingdiscipline in the schools.

The Constitution expresses more than the convictionof the people that democratic processes must be preservedat all costs. It is also an expression of faith and a com-mand that freedom of mind and spirit must be preserved,which government must obey, if it is to adhere to -thatjustice and moderation ,without which no free govern-


6SoNE, 3., dissenting.

ment can exist. For this reasofl it would seem that legis-lation which operates to repress the religious freedom ofsmall minorities, which is admittedly within the scopeof the protection of the Bill of Rights, must at least besubject to the same judicial scrutiny as legislation whichwe have recently held to infringe the constitutionalliberty of religious and racial minorities.

With such scrutiny I cannot say that the inconven-iences which may attend some sensible adjustment ofschool discipline in order that the religious convictions ofthese children may be spared, presents a problem somomentous or pressing as to outweigh the freedom fromcompulsory violation of religious faith which has beenthought worthy of constitutional protection.

Documents

TRICT, ET AL. V. GOBITIS · 2017-12-11 · 586 october term, 1939. statement of the case. 3101u.s. minersville school district, board of education of minersville school dis-trict,