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Episode 16 of the Constitutional podcast: ‘The First Amendment’


(Michelle Thompson for The Washington Post)

In the summer of 1942, two law professors at the University of Pennsylvania penned a prescient article in the Bill of Rights Review. It opened this way:

“Seldom, if ever, in the past, has one individual or group been able to shape the course, over a period of time, of any phase of our vast body of constitutional law. But it can happen, and it has happened here. The group is Jehovah’s Witnesses.”

When professors John Mulder and Marvin Comisky wrote this piece, Jehovah’s Witness, a persecuted but also assertive religious minority in America at the time, had already brought several First Amendment cases before the Supreme Court. But some of its greatest victories were still ahead—victories like the decision in West Virginia State Board of Education v. Barnette, in which the court ruled in the group’s favor that compelling students to say the Pledge of Allegiance and salute the flag violated their rights to free speech and free exercise of religion.

By the end of World War II, Jehovah’s Witnesses would argue nearly two dozen First Amendment cases at the Supreme Court. Their body of litigation would pressure the court to better define, and elevate, the role of personal liberty protections in American law.

As Sarah Baringer Gordon, a law professor at the University of Pennsylvania, puts it: Jehovah’s Witnesses “brought into existence a new constitutional world.”

In the penultimate episode of the Constitutional podcast, we examine the fascinating story of how this marginalized group was able to so powerfully transform First Amendment law. Gordon is a special guest on the episode alongside Julie Silverbrook, executive director of the Constitutional Sources Project.

Listen to the episode here.

Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple PodcastsStitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham

Transcript of “Episode 16: The First Amendment”

LILLIAN CUNNINGHAM: It’s Palm Sunday, 1938. A week before Easter.

In New Haven, Connecticut, in early April, the trees were still bare. Spring was coming slowly. But Armageddon, according to Newton Cantwell, was coming fast.

Cantwell and his two sons, Jesse and Russell, were ringing doorbells across the small city. When a resident answered, they would explain how they were Jehovah’s Witnesses, that they believed the end of days was near, and then they would say: Could I play you a record about my faith?

They’d pull out a portable phonograph, wind it up and put on a recording of Judge Rutherford, the leader of Jehovah’s Witnesses.

If the person was interested, Cantwell and his sons would ask for a donation and then they’d reach into their bags for books and pamphlets.

But not too many people were interested that day. The Cantwells were walking down Cassius Street in New Haven–a street one-block long, by the train tracks, where almost all the residents were Catholic.

They weren’t having much luck at the homes, so one of the sons–Jesse Cantwell–stopped two men on the sidewalk and asked them if he could play a record. They said sure, and Jesse held out the phonograph, wound it up and put on a recording called “Enemies.”

It was another lecture by Judge Rutherford, this time about how the Roman Catholic Church was evil.

The two men on the sidewalk, who were Catholic, threatened to hit Jesse Cantwell for playing it. He stopped the record immediately and walked away. But then the cops still showed up and arrest him, his brother and his father for soliciting money without a license and for a breach of the peace.

Their case landed at the Supreme Court. And the justices had to decide whether the First Amendment protected their right to proselytize like that. Today it might seem obvious that the court would rule in their favor. But back then, it definitely wasn’t. The right to free speech and free exercise of religion used to be weak.

It was their case–and a slew of other cases then brought by Jehovah’s Witnesses–that would completely transform First Amendment rights in America.

I’m Lillian Cunningham with The Washington Post, and this is Constitutional.

[THEME MUSIC]

The blessings of liberty are twin. They are, at once, the ability to withhold your private life from the public sphere (we talked about this in our previous episode, on privacy) and, on the flip side, the ability to express your private life in the public sphere. This is what’s captured and protected by the First Amendment.

The First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Many people today would say these words of the First Amendment sit at the very heart of the American experiment. They represent freedom of individual belief and expression; freedom from conformity.

But actually, the First Amendment has not always been central to American identity or to constitutional law.

So why has it come to occupy the almost sacred place it does today? Well, it turns out that’s largely because of an incredible series of cases involving Jehovah’s Witnesses that flooded the Supreme Court during World War II.

Jehovah’s Witnesses–who are also known as Bible Students, or members of the Watch Tower Society–were (and still are) a very small religious group in America. There were only about 40,000 of them in the 1930s and ’40s.

They believe that the second coming of Jesus is just around the corner. They also believe that Jehovah, God, is the only who should be exalted–not the false power of organized religions or the false power of secular governments.

They were a pretty extreme, unpopular, persecuted, minority group.

But between 1938 and 1946, this group argued 23 cases for their rights before the Supreme Court. Their relentless litigation forced the court to define–and ultimately to strengthen–the role of the First Amendment in the United States. This ushered in a new era of personal liberty protections for all Americans.

SARAH BARINGER GORDON: Jehovah’s Witnesses actually are more famous today among constitutional lawyers and scholars than in the broader society, because those people who study constitutional change think of the Witnesses as true heroes, having brought into existence a new constitutional world.

CUNNINGHAM: This is Sarah Baringer Gordon, or Sally Gordon. She’s a professor of constitutional law and history at the University of Pennsylvania’s Law School. And she’s an expert on religious liberty.

And here’s Julie Silverbrook, executive director of the Constitutional Sources Project.

JULIE SILVERBROOK: This idea that the First Amendment is so core to who we are comes out of the language of these opinions. I mean I go and talk to people about the Constitution all over the country, and they all say: “The First Amendment is the crown jewel of the Bill of Rights. I mean it’s first for a reason.” And I don’t mean to burst their bubble, but it was actually third when the Bill of Rights was originally proposed–so it wasn’t first for a specific reason, but it has become first in the hearts and minds, I think, of most Americans. Free speech, religious liberty, freedom of the press, the right to assemble–these are all core parts of what it means to be an American. And having those things protected robustly is what it means to be in America. And so all of that, that modern understanding, is coming out of the case law from this period.

CUNNINGHAM: Here’s what happened.

Fast forward about 150 years from the Constitutional Convention and drive just 90 miles northwest from Philadelphia’s Independence Hall. You’re now in the town of Minersville, Pennsylvania, in the year 1935.

It was a coal-mining town, hit hard by the Great Depression.

One of the few men who lived there but didn’t work in the mines–or wasn’t laid off by the mines–was Walter Gobitas. His parents were Lithuanian immigrants, and he was described as a cheery man, fairly short, with a boyish face. He ran a small shop on Sunbury Street called the Economy Grocery. And he had six children. The oldest were Lillian, 12, and William, 10.

They were all Jehovah’s Witnesses.

Around this time, Franklin Roosevelt had recently become president, and he was expanding the U.S. government’s powers in an effort to lift the nation out of the Depression. Across the Atlantic, the government of Nazi Germany was gaining strength and it had started persecuting religious minorities, including Jehovah’s Witnesses.

Back in the small coal-covered town of Minersville, Walter Gobitas and his family listened regularly in the evenings to lectures and radio programs by Jehovah’s Witness leader Judge Rutherford.

The Jehovah’s Witness teachings underscored, time and again, that God was the only true authority.

GORDON: They argued that every level of government did not deserve any allegiance from the Witnesses. So one of the things Judge Rutherford did in one of his weekly radio shows was tell his followers not to heil Hitler or anyone else, in 1935. And a father and son in Lynn, Massachusetts, took this to mean that they should not salute the flag. This was based in their sense of the Second Commandment: not to worship graven images. This was an idol–the flag–to them. The salute was the equivalent of worshipping a false god.

CUNNINGHAM: The Gobitas family heard about this boy in Massachusetts, and they heard Rutherford praising the courage of Witnesses like him who demonstrated their faith. And so Lillian and William talked with their parents about whether to take a similar stand.

GORDON: Both children struggled with the decision as they recalled in their memoirs later. They both really liked school and they didn’t want to be outcasts. But both of them felt in the end that they needed to resist.

CUNNINGHAM: One day, William came home from school–he was in fifth grade at the time–and he told his family that he had, just that morning, refused to salute the flag.

[ARCHIVAL RECORDING OF LILLIAN GOBITAS]

This is a clip from Lillian describing the event years later, in 2010.

After Lillian heard that her brother had stopped saluting the flag in school, she got up the courage to do the very same thing the next day. She was in seventh grade.

[ARCHIVAL RECORDING OF LILLIAN GOBITAS]

For two weeks, the children were mocked and picked on by other students. They had stones thrown at them.

[ARCHIVAL RECORDING OF LILLIAN GOBITAS]

They continued going to school, and they continued that whole time not to say the pledge of allegiance or raise their right arm in salute.

SILVERBROOK: And it’s interesting, it was really not until the early 1890s that you saw flag rituals become more formalized, and some of that had to do with marking the 400 anniversary of Christopher Columbus discovering the Americas–and then, following the Spanish American War and World War One, this idea of wanting to encourage patriotism and also concern about others–so people coming from outside the American tradition–you know, folks who are socialists and communists. So seeing the flag salute as a way of encouraging cohesion away from these others that were coming in. This is also a time of mass immigration from other countries. And so that’s part of why we start to see the flag salutes.

CUNNINGHAM: The Gobitas children weren’t violating an official law, or even an official school policy. But it’s something that had become a ritual. And two weeks after Lillian and William stopped participating in it, news got around to the superintendent and he had the two young children expelled.

The family took the Minersville School District to the lower court. They argued that their children had a right to stay in school even if they didn’t salute the flag, given their religious beliefs.

As William put it in a letter that he wrote to the school: “ I love my country, and I love God more.”

A few years later, in 1938, the Gobitas children won their case. But the school district appealed the decision, and so the case went to the Third Circuit Court of Appeals.

Again, the children won.

So finally, the Minersville School District brought the suit all the way to the Supreme Court, in 1940. And when that happened, Judge Rutherford himself stepped in.

Now, if you want an image in your head of Judge Rutherford, just picture a pretty severe-looking man with a combover–and with these dark, thick eyebrows that are always arched, so it always looks like he’s mad at you.

GORDON: One of the things that Rutherford brought to the leadership of the Witnesses was first a dedication to law. He wanted the Witnesses to use litigation, to use the tools of government against itself.

CUNNINGHAM: So Rutherford stood before the long bench of nine Supreme Court Justices in Washington, DC–on April 25, 1940–and he delivered a fiery oral argument on behalf of young Lillian and William Gobitas. His defense rested on their right to free speech and free exercise of religion under the First Amendment to the Constitution.

But let’s back up a moment. Why hadn’t there been a ton of influential First Amendment cases already?

SILVERBROOK: The Supreme Court hears less than 12 First Amendment cases in the period between 1791, when the Bill of Rights is ratified, and 1889. And a big piece of that is because, at the time, the Supreme Court–and actually really the country–didn’t view the Bill of Rights as applicable to the states.

CUNNINGHAM: For about the first 100 years of the nation’s history, Congress couldn’t make any federal laws that silenced citizens’ rights to freedom of speech or freedom of religion. But states could basically make whatever laws they wanted. And that meant that the Supreme Court didn’t have much occasion to hear First Amendment cases.

That slowly started to change after we got the 14th Amendment, in the late 1800s. That amendment had a clause that finally said: State laws (in addition to federal laws) can’t abridge the rights of U.S. citizens. So from then on, the Supreme Court could start hearing cases about whether state laws violated an individual’s rights, like the right to free speech.

SILVERBROOK: And then there’s this process that lawyers call, and historians call, “selective incorporation,” which is the Supreme Court is sort of selectively applying the Bill of Rights to the states.

CUNNINGHAM: It takes a while for this to happen, though. It’s not until a case in 1925, called Gitlow v. New York, that the Supreme Court finally gets around to evaluating the First Amendment within the context of state law. But in that case, the court actually ended up ruling in favor of New York anyway.

So it really takes until 1940 before the Supreme Court decides a landmark case declaring that–not only does the First Amendment apply on the state level, but–the state in question had in fact violated the individual’s right to the free exercise of religion.

And this brings us back to Jehovah’s Witnesses, because…

1940 was when the Supreme Court heard the Gobitas children’s case. It was also when the Supreme Court heard another Jehovah’s Witness case: Cantwell v. Connecticut. That was the case from the very beginning of this episode. The one where Newton Cantwell and his two sons, Jesse and Russell, were arrested in New Haven for playing religious records in public and proselytizing about their faith.

Their case went to the Supreme Court only a few weeks before the flag-saluting case involving little Lillian and William Gobitas. The two Jehovah’s Witness cases happened back to back.

The Cantwell case was argued by Hayden Covington. Covington was the new general counsel for the Watch Tower Society. He was a Jehovah’s Witness himself and, like Rutherford, he was definitely a firebrand. He had grown up on a farm in East Texas and had made a name for himself arguing Witness cases at the local level. But now the Cantwell’s First Amendment case was the first time he argued before the Supreme Court.

GORDON: I would have loved to hear that lawyer Hayden Covington, because apparently he talked like a machine gun. He just jumped up and down and lectured the court, looking daggers at Justice Murphy who was Catholic. It just must have been incredible.

When he confronted the Supreme Court, both Judge Rutherford and Hayden Covington used to talk down to the justices. They would say things like: “You know you don’t understand. We’re trying to educate you in the truth, which is God’s law, and nothing you say can be held any higher than God’s law.” So they really were deeply, deeply confrontational. They also had support from a number of religious liberals across the country and within the ACLU. The ACLU gave legal sophistication–if I could put it that way–to some of the more raw arguments made by the Witnesses themselves, including Rutherford and Covington.

CUNNINGHAM: So the Supreme Court heard Covington’s oral argument in the Cantwell proselytizing case in March of 1940. Then in April, it heard oral argument from Judge Rutherford in the Gobitas school children case. It then released its decision for the Cantwell case in May. And it released its decision for the Gobitas children’s case in June.

One, two, three, four.

The Cantwell decision came out first and–Covington did it! He won the first major First Amendment victory at the Supreme Court for Jehovah’s Witnesses.

GORDON: And this opinion was widely heralded actually by religious liberals. It was thought that this would be a protection for religious diversity, even though the Jehovah’s Witnesses themselves were not religiously tolerant. So it was a question of tolerating the intolerant–and was quite a leap for the constitutional law of religion.

CUNNINGHAM: Next up: the Gobitas decision.

GORDON: There were several reasons to think that this case might well be decided in favor of the school children. One was that the school children were pretty appealing plaintiffs. They were cute and they were not dangerous.

CUNNINGHAM: Plus: The Gobitas children had won each of their cases up until the Supreme Court. And the Supreme Court had just handed a big First Amendment victory to their fellow Jehovah’s Witnesses. So it’s June 3rd, 1940, the family is back in Minersville.

And the Court announces–

Wait. What?

The Gobitas family was stunned. Jehovah’s Witnesses were stunned. Court watchers were stunned.

The Supreme Court justices decided to rule 8-1 against the school children. In a blow to the First Amendment, they said that compelling these children to say the pledge of allegiance and salute the flag was constitutional.

SILVERBROOK: So it’s all the more interesting actually to me that the person who writes the decision in Gobitis is Felix Frankfurter, who immigrated to United States from Austria. And at the time he’s writing this opinion, the Nazis have annexed Austria. This is in World War II. And instead of seeing maybe these flags salutes as similar to saluting the Nazis, he’s very whipped up about patriotism–about really seeing the United States as a critical player in stopping the spread of Nazism and fascism globally. And that really impacts his decisions.

GORDON: The majority decision written by Felix Frankfurter was really aimed at both assimilating children–he argued strongly that Lillian and William were not well served by their parents, that the public schools were the best place to breed good citizens, to bring them up so that they would participate in the life of the country–and the pledge was the best way to secure that kind of citizenship, because it unified everyone around the symbol of the flag.

SILVERBROOK: And the court says that the state’s interest–and I’m going to quote a little bit from the opinion–says that the state’s interest in national cohesion was “inferior to none in the hierarchy of legal values” and that national unity was “the basis of national security.” So for them, national cohesion and patriotism–the balance is in favor of that over First Amendment right of religious conscience.

CUNNINGHAM: The only justice who dissents, the only who thinks that First Amendment rights should take precedence here, is Justice Harlan Fiske Stone.

He wrote that: “It does more than suppress freedom of speech and more than prohibit the free exercise of religion.” He says, “For by this law the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.”

And he ends his dissent with the thought that: “The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved.”

GORDON: And I have to say, Frankfurter was very surprised that there was a dissent. Stone only released it very late in the process of putting the opinion together. And Stone read aloud his dissent in open court, which was unusual. Clearly Stone was worried about what would happen after this opinion was handed down.

CUNNINGHAM: And for good reason. As soon as the court announced its decision to rule against the Gobitas children, it was as if the court had actually endorsed the snuffing out of religion freedom. A wave of persecution fell over Jehovah’s Witnesses across the country.

Lillian Gobitas recalled it vividly decades and decades later. By then she was an old woman, with bright-white curls.

[ARCHIVAL CLIP FROM LILLIAN GOBITAS: “One night my father got a telephone threat…There will be a mob coming to trash your store and we don’t know what will happen to you and your children. This was open season on Jehovah’s Witnesses.”]

In the months following the flag-salute decision, churches around Minersville led boycotts of Walter Gobitas’s grocery store. William was beaten. Lillian was taunted and ostracized. But that was hardly the worst of it. The ACLU reported that more than a thousand Jehovah’s Witnesses had been violently attacked across the country, in more than 200 separate incidents.

GORDON: Witnesses were beat up. One man was castrated. Their offices were subject to arson and burglary. I mean it really was terrible what happened to the Witnesses in reaction to this opinion, because it made them look like a danger to the country. Everyone was so worried about what was going on in Europe and what it would mean for the United States. They both wanted to stay out of the war and they were very afraid of what was happening, and they were deeply concerned that they would not be prepared for war if their country was divided in the ways that Witnesses wanted to divide it.

CUNNINGHAM: The violence continued. In Pennsylvania, Witnesses were attacked with axes. In Wyoming, they were tarred and feathered. In Maine, their building was burned. In West Virginia, they were forced to drink oil by the police.

The ACLU, in 1941, published that “Nothing parallel to this extensive mob violence has taken place in the United States since the days of the Ku Klux Klan in the 1920s.”

SILVERBROOK: And this is where you start to see elite opinion really change, because the idea that we would be physically harming people as a result of this opinion was really jarring, especially for the legal academy and for the press. And so the legal academy starts to become very critical of Frankfurter’s opinion in Gobitis and the press starts to do the same thing. And while we can’t know for certain, it certainly looks like that pressure is helping some of the justices who were in the majority in Gobitis start to rethink the wisdom of that decision.

CUNNINGHAM: Meanwhile, in spite of this persecution–or rather because of this persecution–Jehovah’s Witnesses bring more cases to the Supreme Court about their First Amendment rights.

GORDON: Leaders of the Witnesses were deeply interested in keeping the legal system actively engaged with them. This was another form of witness–to hurl themselves against the state by getting arrested in the first place, by resisting prosecution, refusing to pay fines, appealing as high as they could go. These were things that were viewed as heroic by the Witnesses. They witness to their faith by doing them.

CUNNINGHAM: Hayden Covington became the main lawyer on many of these cases before the Supreme Court–cases that weren’t just about religion or free speech, but also about other aspects of the First Amendment that affected Jehovah’s Witnesses, like freedom of assembly, freedom of the press.

In 1942 Covington argued–and lost–two influential cases, Chaplinksy v. New Hampshire and Jones v. Opelika.

In the Chaplinsky case, a Jehovah’s Witness was arrested for things he said to a policeman.

SILVERBROOK: You know he’s selling books out in public and a police officer stops him and he calls the police officer “a goddamn racketeer.”And the court comes up with this doctrine called the “fighting words” doctrine–so if you say something that is immediately designed to cause someone to come to fisticuffs that that would be unprotected area of speech. And that’s significant because in this period what the court is doing is it is establishing the parameters of what speech is protected and what speech isn’t protected.

CUNNINGHAM: And so even though Jehovah’s Witnesses lost this case, they did succeed in forcing the court to continue thinking about these questions.

SILVERBROOK: A lot of us have the Jehovah’s Witnesses to thank for how robust and also how clear First Amendment doctrine is.

CUNNINGHAM: In the Jones case, the questions were different but similarly pushed the court forward.

SILVERBROOK: It’s called Jones v. Opelika. And that’s a case about an ordinance imposing licensing requirements and taxes on people selling books in public streets. And here the Jehovah’s Witnesses again lose. But something really interesting happens, which is that the court has, one, a new Chief Justice. Harlan Fiske Stone is now the chief justice and chief justices tend to be able to exert a little bit more influence over the court. Now as you know he was the lone dissenter in the Gobitis case, and he dissents again in this case.

CUNNINGHAM: In his dissent, Stone wrote that First Amendment should have a “preferred position” in the hierarchy of the Constitution. Meaning: The First Amendment should take precedence over all the other rights.

SILVERBROOK: That dissent includes Justices Black, Douglas and Murphy–all of whom were in the majority in Gobitis. And in the dissent, they acknowledge that they believe that Gobitis was wrongly decided. They argue that the court had improperly abdicated its responsibility to protect the views of religious minorities, however unpopular–and as we know the Witnesses were very unpopular–and unorthodox their views may be. So this is a really interesting moment. In the background is this sense that, while patriotism is really important, compulsory patriotism does start to look more like fascism and Nazism. And that would be antithetical to American values.

CUNNINGHAM: So this is just two years after the flag-salute decision. America has officially entered World War II. Hitler has been sending Jehovah’s Witnesses alongside Jews and others religious minorities to concentration camps. And now here are three additional justices suggesting that they regret their previous decision, which curtailed First Amendment liberties.

SILVERBROOK: So if you’re Felix Frankfurter, you’re really nervous about your Gobitis opinion. And in fact he saw the writing on the wall and started writing his defense of his Gobitis opinion in sort of pieces, including on scraps of paper.

CUNNINGHAM: Plus, by 1943, two new justices have joined the Supreme Court–Robert Jackson and Wiley Rutledge.

SILVERBROOK: And this offers hope to both the Witnesses and their lawyers, as well as I assume to the justices who would like to now overturn Gobitis, that this is something that’s possible.

CUNNINGHAM: Hayden Covington sets off. He goes searching for the perfect test case. The perfect case that will herald the biggest First Amendment victory for Jehovah’s Witnesses that he can imagine. A case that forces the court to reverse its decision on the pledge of allegiance and the flag salute.

This quest brought him to Slip Hill Grade School, in the middle of West Virginia.

SILVERBROOK: So he goes to West Virginia because West Virginia’s regulation on the flag salute actually incorporated several paragraphs of Justice Frankfurter’s Gobitis opinion verbatim. So he’s not leaving anything to chance. The belief is this will force the court to directly confront it and decide: Is this going to continue to be viable or not?

CUNNINGHAM: Covington found two young sisters–Marie and Gathie Barnett, eight and nine years old. Just like the Gobitas children, they were Jehovah’s Witnesses who had been expelled for refusing to participate in the flag salute. And also like the Gobitas children, they were cute. The two little sisters almost looked like twins. They had big smiles, dimples and hair that was pulled back with barrettes and bows. Covington just knew he had the right case. He also knew that if he challenged the law in a particular way with their case, he could get it fast tracked to the Supreme Court.

SILVERBROOK: So he picks this case because he knows it can get to the court quickly and he picks this case because he knows that there’s language in the regulation that is going to cause the court to squarely confront what it wrote in Gobitis. So this is smart lawyering, and this is a very successful model for use in impact litigation even today–in terms of picking the right forum, picking the right state regulation, picking sympathetic plaintiffs. They were picking schoolchildren.

CUNNINGHAM: Covington was one of the very first lawyers in America to develop this tactic of finding and setting up perfect test cases, intentionally designed to press the Supreme Court into a decision. The method has since come to be known as “impact litigation.”

So, as he hoped, the case West Virginia State Board of Education vs. Barnette arrived at the Supreme Court. Covington delivered his oral arguments in that marble hall on March 11, 1943.

And then everyone waited. Three months later, the decision came down.

GORDON: When it came time to hand out responsibility for the opinion, Chief Justice Stone assigned it to Justice Jackson.

CUNNINGHAM: One of the two new justices–

GORDON: And Jackson’s resulting opinion is absolutely beautifully written. It’s quotable. It talks about if we seek nothing but unanimity, we wind up with the unanimity of the graveyard. And that there is no occasion for government to force anyone to violate their conscience in such a way, and so on. It’s really a beautiful opinion. It honestly is not written as an opinion about religious freedom, though, which is how the Witnesses wanted it to be written. It’s much more written as intellectual freedom and freedom of speech and expression. So it’s both one of the great cases of the 20th century and a case that sort elides the arguments of the litigants and leans much more toward freedom of speech in a classic ACLU kind of way.

SILVERBROOK: So he views this as a speech case–this is a compelled speech case–in addition to a religious conscience case. And he writes what I think is probably one of the most beautiful passages in a Supreme Court opinion.

CUNNINGHAM: That passage goes: “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.”

SILVERBROOK: That’s a quote that’s framed in a lot of lawyers offices. This is where the modern First Amendment is born, and how we understand the First Amendment today all comes out of cases from this period. They establish the parameters of First Amendment doctrine. So the conversations that we’re having today directly pull on the language of these decisions.

And I’m going to just read one other quote because I think you might see how this might be applicable to something that recently happened in the United States. It says: “to believe 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.”

So we read that and I’m thinking about what’s happening with Colin Kaepernick and the NFL and whether or not you’re going to stand or kneel during the national anthem. So there’s echoes of those themes in these cases.

CUNNINGHAM: Justice Jackson’s opinion was the majority opinion.

The Supreme Court ruled 6-3, in favor of the Barnett sisters and the Jehovah’s Witnesses. They declared that compelling anyone to salute the flag was a violation of an American citizen’s First Amendment rights.

Justices Black and Douglas–two of the longer-serving justices who changed their minds after Gobitis–wrote a concurring opinion, agreeing with Jackson and supporting the decision. They wrote: “Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws.”

The Supreme Court released its decision, and these famous First Amendment opinions, on June 14, 1943.

It was Flag Day.

GORDON: Barnette was the beginning of the end of the persecution of Jehovah’s Witnesses.

CUNNINGHAM: Just as the court’s decision in Gobitis had signaled that patriotism should be paramount in America, the court’s new decision in Barnette signaled that individual liberties–and the First Amendment–should be the new hallmark. As Justice Stone had predicted, the First Amendment now held a “preferred position” in the country and in the U.S. Constitution.

GORDON: So one of the things to take away from an experience like this is that in times of momentous social change and great challenge to the national sense of self, the Supreme Court changed its mind, actively changed its mind. Constitutional law changed. And the Supreme Court changed and began to really understand itself as protecting religious life and religious diversity at far greater levels than they ever had before.

CUNNINGHAM: Judge Rutherford died in 1942, so he didn’t see the Barnette decision. But Hayden Covington continued to bring several more Jehovah’s Witness cases before the Supreme Court over the following decade. He won many of them, and became one of the most important figures in America to further expand and cement the contours of the First Amendment.

Covington also, two decades later, would become the lawyer defending boxer Muhammad Ali during the Vietnam War, when Ali refused to register for the draft on religious grounds. Covington died in 1978.

SILVERBROOK: The flag salute cases, and really the full suite of Jehovah’s Witness cases, mark the pivot into the rights revolution of the 20th century–the post-World War II rights revolution. It leads us right into the civil rights movement. The civil rights movement uses a lot of similar strategies to what the Jehovah’s Witnesses were using. They’re using impact litigation to move the national needle, because both Jehovah’s Witnesses and African-Americans were not able to move the needle through the popularly elected branches of government. And when that happens, there is a tendency to see the courts as the avenue for seeking redress of your issues.

CUNNINGHAM: The techniques of impact litigation that Covington developed–like actively searching out perfect test cases with the right plaintiffs, at the right time, in the right state, so that you can force a change you want in the law–that became a prime method that other groups have used to bring about changes they’ve wanted.

SILVERBROOK: So you can’t understand the civil rights movement, and you can’t understand the modern movement for equality for LGBTQ people, unless you understand the movement of the Jehovah’s Witnesses in the World War II era.

Impact litigation isn’t just a creature of the political left, it’s also something that’s increasingly used by the political right. A group like the Alliance Defending Freedom uses impact litigation on issues related to religious liberty, abortion, free speech, etc. So impact litigation is something that’s being used by people of all political and jurisprudential stripes.

CUNNINGHAM: That’s part of what has continued to add complexity to constitutional law as the 21st century unfurls before us. So many groups, large and small, across this diverse country, have found tools to amplify their voices, to protect the expression of their identity, and to shape–and reshape–law.

As a result, some of the core American liberties, particularly equality and free speech, are frequently and intensely colliding into each other.

GORDON: In dissent, Felix Frankfurter in the Barnett case argued that once we allowed religious believers to dictate to us which secular laws were validly imposed on them or not that we would unlock Pandora’s Box. And it did in fact happen that way. We seem to have no real stable understanding about where religion begins and ends, how to protect it adequately, and even how to understand ourselves as enforcing separation of church and state in ways that are both sympathetic to religious life and don’t embroil the government too deeply in telling religious group how to conduct their own faiths. We’re in a in a moment where politics and constitutional arguments are lining up so precisely that it’s just about as dramatic as it was during the 1930s and 40s. It really is. It’s an anxious and portentous time.

CUNNINGHAM: If the Jehovah’s Witness cases leave us with lessons, though, they’re not just lessons about the First Amendment. They’re also lessons about how victories sometimes emerge out of losses. How the passage of time often changes the way America prioritizes, and interprets, its own core values. And lessons about how even a small, marginalized group can garner the power to shift the court, and shift the country.

SILVERBROOK: This single group of people was able to really change the modern conception of the First Amendment. And if you’re sitting at home listening to this podcast today and you feel disempowered, just say: A group of people, called the Jehovah’s Witnesses, that group of people completely revolutionize the First Amendment in the United States. So, you know, don’t feel powerless. A lot of times it’s actually the politically disempowered groups that end up getting organized that revolutionize our conceptions of freedom and equality in this country.

Note: The variation in spellings of Gobitas/Gobitis and Barnett/Barnette are intentional. The families surnames were Gobitas and Barnett, but in both cases the court spelled their names incorrectly on the official documents–leading the cases to be written as Minersville School District v. Gobitis and West Viriginia State Board of Education v. Barnette.

https://www.washingtonpost.com/news/on-leadership/wp/2018/01/29/episode-16-of-the-constitutional-podcast-the-first-amendment/

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