It’s not often that a U.S. Supreme Court opinion overrules court precedent that is only a few years old.

One such opinion, written in 1943 by Justice Robert Jackson, and the precedent it overruled, written in 1940 by Justice Felix Frankfurter, are the topic of a discussion led by this columnist at noon Wednesday, May 11, at the Fenton History Center, 67 Washington St., Jamestown.

The discussion, free and open to the public, will last about an hour and is part the center’s monthly brown-bag lunch series on local history. Those attending are welcome to bring their own lunch.

The 1940 opinion is Minersville School District v. Gobitis.

The 1943 opinion is West Virginia State Board of Education v. Barnette.

Both actions involved public schools requiring that pupils say the pledge of allegiance.

Both actions involved Jehovah’s Witness children who didn’t want to say the pledge.

Both actions involved First Amendment challenges.

In Gobitis, the court rejected the challenge, 8 to 1. Seven justices joined Frankfurter. Only Justice Harlan Stone dissented.

By 1943, however, three new justices, including Jackson, had joined the court. In Barnette, they – plus Stone, who by then was chief justice, plus two who had joined the Gobitis opinion but switched sides – agreed with the challengers and overruled Gobitis, 6 to 3.

In short, Gobitis holds that requiring pupils to say the pledge doesn’t violate the First Amendment, while Barnette holds that it does.

¯ Addressing the First Amendment’s religion clauses, Gobitis holds the “religious liberty (that) the Constitution protects has never … relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”

Gobitis then holds that even if requiring pupils to say the pledge amounts to what is now called compelled speech, “the question remains whether school children, like the Gobitis children, must be excused from conduct required of all the other children in the promotion of national cohesion. We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security.”

Please think that statement through, and imagine where we’d be if government – for national cohesion’s sake – could make us say what we don’t believe.

Having seen no First Amendment violation and having so elevated national cohesion, Gobitis defers to legislatures on how best to achieve national cohesion: “The wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment.”

Then please think through this statement and imagine where it could lead: “What the school authorities are really asserting is the right to awaken in the child’s mind considerations as to the significance of the flag contrary to those implanted by the parent.”

¯ By contrast, Barnette considers only the First Amendment’s free-speech clause and, unlike Gobitis, sees a First Amendment violation in compelled speech: “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”

As for national cohesion, which Barnette calls “national unity”: “National unity as an end (that) officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.”

To put it in current First Amendment terms, Barnette doesn’t doubt the government interest in promoting national unity. However, requiring pupils to say the pledge isn’t sufficiently tailored to that interest. Thus, requiring pupils to say the pledge violates the First Amendment.

Justices Hugh Black and William Douglas, who had signed on to Gobitis, switched sides in Barnette. Their concurring opinion relies not on the First Amendment’s free-speech clause but on the freedom of religion that the First Amendment protects.

Jackson, Black, and Douglas got this one right.

Dr. Randy Elf joins the Fenton History Center in welcoming the community at noon Wednesday, May 11.

COPYRIGHT ç 2022 BY RANDY ELF