A People's History of the Supreme Court

by Peter Irons

  Footnote Four handed engraved invitations to lawyers for groups like the NAACP and American Civil Liberties Union, assuring them of admission to the Court’s docket. But the people who knocked most loudly and insistently on the Court’s massive doors, insisting that the justices listen to Scripture, were Jehovah’s Witnesses. Their door-to-door proselytizing and street-corner preaching offended many and prompted scores of laws designed to muzzle their apocalyptic message, which predicted a bloody war of Armageddon between the forces of Christ and Satan that only a remnant of believers would survive to enter heaven. Catholics felt insulted by the Witnesses’ attacks on the Pope, and Southern Baptists resented the appropriation of their fire-and-brimstone fulminations. Lawmakers in communities with Catholic or Baptist majorities eagerly passed ordinances directed at the Witnesses, often without debate or legal advice. Some laws imposed licensing fees on “solicitors,” while others restricted leafleting, canvassing, and literature sales. Between 1938 and 1955, usually assisted by ACLU lawyers, the Witnesses took forty-five cases to the Supreme Court and won thirty-six; not even the NAACP—victorious in twenty-nine of thirty-two cases during these years—matched this record. And in most cases, the Witnesses added Footnote Four to their Scripture lessons for the Court.

  The Witnesses began their winning streak with victorics over officials in Georgia, New Jersey, and Connecticut. In Lovell City of Griffin, the Court ruled in 1938 that towns could not require permits to distribute pamphlets; the justices agreed without dissent that streets and parks were open to all for expressing their views. The Court struck down “antilittering” laws enforced only against Witnesses in Schneider v. Town of Irvington, decided in 1939. And in Cantwell v. Connecticut, the Court in 1940 “incorporated” the “free exercise of religion” clause of the First Amendment into the Fourteenth. In this case, Newton Cantwell and his two sons had been arrested for playing a recording and distributing pamphlets attacking the Pope in a heavily Catholic area of New Haven, Connecticut. The Cantwells requested donations from those who took their pamphlets, but did not insist on payment. Responding to complaints by outraged Catholics, police arrested the Witnesses for violating a state law barring the solicitation of money “for any cause” without a “certificate of approval” from the Public Welfare Council, whose, secretary was required to determine whether “the cause is a religious one” or a “bona fide object of charity.” Giving a public official the power to decide which causes are “religious” violates the First Amendment, the Court ruled unanimously in striking down the Connecticut law.

  The victory streak ended in 1940 with a resounding eight-to-one loss in a case that pitted two young Witnesses against a heavily Catholic town in Pennsylvania’s anthracite coal region. The five thousand residents of Minersville came from Lithuania, the Ukraine, Poland, Russia, Greece, Italy, Germany, and Wales. The town’s eight Catholic churches held services in eight different languages, but the parishioners shared a common reverence for the American flag. And the town’s school superintendent from 1915 to 1942, Charles Roudabush, was a strict disciplinarian who tolerated no challenge to his authority. Students in Minersville’s public schools had saluted the flag and recited the Pledge of Allegiance each morning since World War I. None had ever objected or refused to participate until one day in October 1935.

  The flag-salute controversy actually began in Germany, where Nazi officials banned the Witnesses in 1933 on Hitler’s orders, for refusing to join the raisedpalm salute to Nazi flags in schools and at public events. Ultimately, more than ten thousand German Witnesses were imprisoned in concentration camps. In response to this persecution, the leader of American Witnesses, Joseph Rutherford, denounced compulsory flag-salute laws. Witnesses “do not ‘Heil Hitler’ nor any other creature,” he told his followers. In a radio speech, Rutherford praised Carleton Nicholls, a third-grade student in Massachusetts who was arrested after refusing to salute the flag in his classroom. Carleton made a “wise choice” and other Witnesses “who act wisely will do the same thing,” Rutherford advised his listeners.

  Among the Witnesses who listened intently to Rutheford’s speech were Walter Gobitas and his family in Minersville. Walter’s parents had come from Lithuania, and he attended St. Francis Lithuanian Catholic Church and the Minersville schools, where he saluted the flag every day. He took over his mother’s grocery store and did well until the Depression hit Minersville like a rockfall in the coal shafts. Walter and his family became Witnesses in 1931, but their new religion did not cause any problems until Joseph Rutherford urged Witnesses to stop saluting the American flag. The two oldest Gobitas children, Lillian and William, were in seventh and fifth grades in October 1935.

  Lillian later described what happened after she listened to Rutherford’s radio speech: “I loved school, and I was actually kind of popular. I was class president in the seventh grade, and I had good grades. And I felt that, Oh, if I stop saluting the flag, I will blow all this! And I did. This wasn’t something my parents forced on us. They were very firm about that, that what you do is your decision, and you should understand what you’re doing. And I did a lot of reading and checking in the Bible and I really took my own stand. I went first to my teacher, so I couldn’t chicken out of it. She listened to my explanation and surprisingly, she just hugged me and said she thought it was very nice, to have courage like that. But the students were awful. I really should have explained to the whole class but I was fearful. I didn’t know whether it was right to stand up or sit down. So I sat down and the whole room was aghast. After that, when I’d come to school they would throw a hail of pebbles and yell things like, Here comes Jehovah!”

  Superintendent Roudabush threw a fit when he learned that. Lillian and William refused to salute the flag and recite the Pledge of Allegiance. After an angry confrontation with Walter Gobitas, who refused to pledge that his children would end their defiance, Roudabush marched to the Minersville school board, which promptly adopted a resolution requiring all students “to salute the flag of our Country as a part of the daily exercices” and providing that refusal to participate “shall be regarded as an act of insubordination and shall be dealt with accordingly.” Roudabush immediately told the board he was expelling Lillian and William from school “for this act of insubordination.” Walter Gobitas left the meeting with a parting shot at the board members: “I’m going to take you to court for this!”

  Walter Gobitas was a man of his word. His suit against the Minersville school board, brought as “next friend” of his children, first came before federal judge Albert Maris in Philadelphia. Placed on the bench by President Roosevelt, Maris was a Quaker and sympathized with members of another religious minority. The board’s lawyers argued that the flag-salute requirement was a “secular regulation” of the curriculum, adopted for the “reasonable” purpose of “inculcating patriotism” in the classroom. The board had simply exercised its “police powers” to protect the “health, safety, welfare, and morals” of Minersville students. After listening to Lillian and William explain their religious beliefs and objections to the flag-salute ceremony, Judge Maris ruled that it was “clear from the evidence that the refusal of these two earnest Christian children to salute the flag cannot even remotely prejudice or imperil the safety, health, morals, property or personal rights of their fellows.”

  A federal appellate panel upheld Maris in an opinion that bristled with scorn for compulsory flag-salute laws, which had spread across the country since the Minersville school board expelled the Gobitas children. “Eighteen big states have seen fit to exert their power over a small number of little children,” wrote Judge William S. Clark for the panel in December 1939. The compulsory salute “happens to be abhorrent to the particular love of God of the little girl and boy now seeking our protection.”

  After two judicial defeats, the Minersville board first decided against an appeal to the Supreme Court. But promises of financial support from the American Legion and other “patriotic” groups
overcame the board’s initial reluctance. Asking the Court to hear the case did not guarantee a ruling; five times in recent years the justices had declined to review flag-salute cases decided by lower courts. All those cases, however, had upheld state or local laws. Declining to hear an appeal from judge Clark’s opinion, on the other hand, would leave his decision in place and strike down the Minersville regulation. Along with this factor, it seems likely that the justices looked at the looming war clouds over Europe in deciding to hear a case that raised issues of patriotism and loyalty.

  Joseph W. Henderson, the Philadelphia lawyer hired by the Minersville board, repeated the arguments he had made without success in the lower courts when he appeared before the Supreme Court on April 25, 1940. (A clerk misspelled “Gobitas” as “Gobitis” on the Court papers and the case went into the lawbooks as Minersville School Board v. Gohitis.) The core of Henderson’s argument was that the flag-salute ceremony “is not a religious rite” and was intended simply to inculcate “loyalty to the state and national government.” Two lawyers divided the time alloted to Walter Gobitas and his children. George K. Gardner, a Harvard law professor, presented the position of the American Civil Liberties Union, stressing the primacy of the First Amendment over the “police powers” of state and local governments. Joseph Rutherford, who practiced law before he took over leading the Witnesses, restated the theological objections of his followers to flag-salute laws. The Gobitas family traveled to Washington to witness the arguments. Lillian recalled Rutherford’s words: “He did it a lot from a Biblical standpoint, like with Shadrach, Meshach, and Abednego, when they took a stand and wouldn’t bow down to the image of Nebuchadnezzar. And of course he discussed legal things too. It was extremely arresting. You could really hear a pin drop! The justices listened attentively.”

  The justices actually paid little attention to Rutherford’s argument. When they met in their conference room to debate and decide the Gobitis case, the first to speak was Chief Justice Charles Evans Hughes, who assured his colleagues that the case had “nothing to do with religion” and involved only “a question of state power” to foster patriotism in the classroom. The only other justice to speak at length was Felix Frankfurter, an immigrant who had polished his English skills in high school by reciting Abraham Lincoln’s wartime appeals to patriotism and national unity. Impressed by Frankfurter’s “moving statement at conference on the role of the public school in installing love of country” in the children of immigrants, Hughes asked him to write the Court’s opinion. Because none of the justices had objected at the conference, Hughes assumed that Frankfurter would write for a unanimous Court.

  Frankfurter’s opinion began with a bow to the “grave responsibility” the Court faced in balancing “the conflicting claims of liberty and authority.” The Gobitis case, he noted, forced the Court “to reconcile two rights in order to prevent either from destroying the other.” America’s historic role as a haven for religious dissenters required that “every possible leeway should be given to the claims off religious faith.” Despite these disclaimers. Frankfurter rejected claims that First Amendment rights deserved special protection against abridgement by legislative bodies. Religious belief, he wrote, “does not relieve the citizen from the discharge of political responsibilities.” Frankfurter venerated the flag as a symbol that fostered “the binding tie of cohesive sentiment” among the citizenry. “We live by symbols,” he quoted from his judicial mentor, Oliver Wendell Holmes, adding that the flag “is the symbol of our national unity, transcending all internal differences” over religion or politics. “National unity is the basis of national security,” Frankfurter added, sounding like a recruiting poster in linking the flag-salute ceremony to growing concerns that war clouds might reach American shores.

  Exempting Lillian and William Gobitas from the salute, Frankfurter warned, “might cast doubts in the minds of the other children” in Minersville and weaken their American loyalty. Claims that “exceptional immunity must be given to dissidents” like the Gobitas children would hinder schools in “competing with the parent’s authority” in the contest for the “child’s mind,” he wrote. In Frankfurter’s school, teachers could force “dissident” children to express beliefs contrary to those implanted by the parent.” Those who objected could find another classroom, as Lillian and William did in a makeshift “Kingdom School” thirty miles from their home, set up in a farmhouse for young Witnesses expelled from public schools. After Frankfurter’s ruling, they never returned to public school.

  Frankfurter’s opinion displayed the “judicial restraint” he counseled in responding to laws that might seem “harsh” or “foolish” to judges. Even if his colleagues were convinced of “the folly of such a measure” as the flag-salute regulation, Frankfurter urged deference to the judgments of elected officials. Striking down the Minersville rule “would in effect make us the school board for the country,” he wrote. “But the courtroom is not the arena for debating issues of educational policy.” Perhaps unaware that Witnesses do not vote, Frankfurter concluded with a civics lecture to Walter Gobitas. “Where all the effective means of inducing political changes are left free from interference,” he wrote, “education in the abandonment of foolish legislation is itself a training in liberty.” Frankfurter advised Gobitas to speak out at school board meetings and stay out of courtrooms. “To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena,” he pontificated, “serves to vindicate the self-confidence of a free people.” Frankfurter had obviously not attended many small-town meetings and witnessed the treatment of dissidents like Walter Gobitas.

  Justice Harlan Fiske Stone was raised in the small town of Chesterfield, New Hampshire, and taught in a high school before he began law school. He had instructed students like Lillian Gobitas and knew that pressures toward conformity were hard to resist at her age. Like her, Stone had been expelled from school, not for remaining silent but for an angry outburst at teachers. Perhaps with these memories in mind, he surprised and angered Frankfurter by circulating a pointed dissent in Gobitis. Frankfurter’s suggestion that Witnesses employ “the remedial channels of the democratic process” to protect their children from expulsion struck Stone as “no less than the surrender of the constitutional protection of the liberty of small minorities to the popular will.”

  Stone cited his own Footnote Four in Caroline Products to remind Frankfurter that the Court had “previously pointed to the importance of a searching judicial inquiry into the legislative judgment in situations where prejudice against discrete and insular minorities may tend to curtail the operation of those political processes ordinarily to be relied on to protect minorities.” He would open courtroom doors to “politically helpless minorities” who found “little toleration or concern” from hostile lawmakers and officials. Frankfurter pleaded with Stone to withdraw his dissent, arguing in a private letter that the Court should not hold “too tight a rein” on state and local officials as the nation saddled up for battle. Patriotic observances like the flag-salute ceremony were “surely not irrelevant” to wartime preparations, Frankfurter wrote. But Stone would not carry the flag for the Court. He rode alone in dissent, unwilling to join the roundup of stragglers and strays into the “national unity” corral.

  Lillian Gobitas recalled the morning of June 3, 1940, when the Court handed down its decision: “We were in the kitchen with the radio on and it was time for the news, and they said, In Washington today, the Supreme Court decided the flag case, It was against, us, eight to one. Talk about a cold feeling! We absolutely did not expect that. That just set off a wave of persecution. It was like open season on Jehovah’s Witnesses.”

  Supreme Court rulings are often criticized, and some are disobeyed, but few have ever provoked as violent a reaction as the Gobitis decision. Frankfurter’s opinion unleashed a wave of attacks on Witnesses acro
ss the country. Within two weeks of the Court’s decision, two federal officials later wrote, “hundreds of attacks upon the Witnesses were reported to the Department of Justice.” The justice Department officials listed several of the most violent incidents. “At Kennebunk, Maine, the Kingdom Hall was burned. At Rockville, Maryland, the police assisted a mob in dispersing a Bible meeting. At Litchfield, Illinois, practically the entire town mobbed a company of some sixty Witnesses who were canvassing it, and it was necessary to call on the state troopers to protect members of the sect.” The federal officials reported that the “chief of police and deputy sheriff had forced a group of Witnesses to drink large doses of castor oil and had paraded the victims through the streets of Richwood, West Virginia, tied together with police department rope.” Equally horrifying, a Nebraska Witness was kidnapped, beaten, and castrated by vigilantes. The officials traced these terrorist acts directly to the Supreme Court’s decision in the Gobitiscase. “In the two years the decision,” they wrote, “the files of the Department of Justice reflect an uninterrupted record of violence and persecution of the Witnesses. Almost without exception, the and the flag salute can be found as the percussion cap that sets off these acts.”

  Eighteen months after Frankfurter’s opinion, much deadlier explosions rocked the American naval base in Hawaii on the quiet Sunday morning out December 7, 1941. The “sneak attack” of Japanese planes on Pearl Harbor sent more than two thousand Americans to watery graves, and shock waves through the American people. As the nation entered a second world war, newly mobilized soldiers and sailors joined schoolchildren in saluting the flag, while jittery residents of the West Coast feared another Pearl Harbor and viewed their Japanese neighbors with suspicion. Anyone who refused to salute the flag, voiced sympathy for the Axis cause, or looked like the Japanese enemy became the target of newly enacted laws designed to protect “national security” from the disloyal and disobedient.