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Eight to One, Then Six to Three: The Flag Salute Cases

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Eight to One, Then Six to Three: The Flag Salute Cases

Use the justices' votes to see how the Supreme Court changed its reading of the First Amendment.

Two cases, three years apart

Read the passage and study the graph. Then answer the questions.

Must a Student Salute the Flag?

1The First Amendment begins, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." At first these words limited only the national government. After the Fourteenth Amendment of 1868 barred states from taking away liberty without due process of law, the Supreme Court began applying the Bill of Rights to the states. In 1925 it said freedom of speech was protected from state governments too.

2Courts decide what the Constitution means only when real people bring a case. The Court's power to judge whether a law or government action fits the Constitution is called judicial review. The majority's opinion becomes a precedent that lower courts follow. A justice who disagrees may write a dissent explaining why.

3By the 1930s, many public schools began each day with students saluting the flag and reciting the Pledge of Allegiance. Jehovah's Witnesses believed that saluting a flag broke a biblical command against bowing down to images. In 1935 a school district in Minersville, Pennsylvania, expelled two Witness children who refused to salute.

4In Minersville School District v. Gobitis (1940), the Court sided with the school district. Justice Felix Frankfurter wrote that national unity is the basis of national security and that elected school boards, not judges, should decide how to teach loyalty. Justice Harlan Fiske Stone dissented: he argued that the state may not force children to declare a belief they do not hold. In the months after the ruling, Witnesses in many towns faced threats and mob attacks, and more Witness children were expelled.

5In 1942 the West Virginia Board of Education ordered every public school student to salute the flag. Students who refused could be expelled, and their parents could be prosecuted. Witness families went to court. On June 14, 1943, Flag Day, in the middle of World War II, the Court decided West Virginia State Board of Education v. Barnette and overruled Gobitis. Justice Robert Jackson wrote that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." Schools could still teach about the flag and the nation, but they could not force students to salute. Frankfurter dissented.

Justices' Votes in the Flag Cases0123456781940: school1940: students1943: school1943: studentsYear and sideJustices
1.
Which action in the passage is an example of judicial review?
Question 1 options
2.
The First Amendment begins "Congress shall make no law." Use paragraph 1. Why could it limit a state school board in 1943?
Question 2 options
3.

Use the graph. Write each number. In 1943, justices sided with the school board, which was fewer than in 1940.

4.
Sort each argument from the passage. Does it support the school board's rule, or the students who refused?

How each justice voted

Use the table, the graph and the passage.

Justices' Votes in Gobitis (1940) and Barnette (1943)
Justice1940 vote1943 vote
Charles Evans HughesSchool boardRetired
James McReynoldsSchool boardRetired
Harlan Fiske StoneStudentsStudents
Hugo BlackSchool boardStudents
William O. DouglasSchool boardStudents
Frank MurphySchool boardStudents
Felix FrankfurterSchool boardSchool board
Owen RobertsSchool boardSchool board
Stanley ReedSchool boardSchool board
Robert JacksonNot yet on CourtStudents
Wiley RutledgeNot yet on CourtStudents
5.
Use the table. Circle each justice who voted on different sides in the two cases.

6.
Which statement best explains why the result changed from 1940 to 1943?
Question 6 options
7.
Stone was the lone dissenter in 1940, but his view won in 1943. What does this suggest about dissents?
Question 7 options
8.
Suppose that in 1950 a town required every resident to salute the flag before speaking at a town meeting, and a resident refused. Based on Barnette, how would a court most likely rule?
Question 8 options
9.
Barnette was decided on Flag Day in the middle of World War II. Why might a historian find this timing important?
Question 9 options
10.
Which opinion gives the better reading of the First Amendment: Frankfurter's in 1940 or Jackson's in 1943? Make a claim, use at least two pieces of evidence from the passage, the graph or the table, and explain your reasoning.