The Flag Salute Case

Abstract

Although religious freedom is a key feature of American democracy, from a constitutional point of view it has a relatively short and modern history. From the 1791 adoption of the First Amendment, with its two religion clauses, until World ? War II there were few cases testing the reach or meaning of those clauses. Not until 1947 would the Supreme Court hold that the religion clauses applied to the state as well as to the federal government. But during the war a number of cases involving the Jehovah's Witnesses reached the high court and these would set the stage for the future development of a jurisprudence which would put constitutional flesh on the bare bones of the First Amendment. Of these cases, none were more important _ than those testing the legitimacy of com pulsory flag salutes in public schools. Whether or not a state could compel school children to salute the American flag had been an issue in twenty states between 1935 and 1940 and had been the subject of major litigation in seven. Prior to the first flag salute case, Minersville School District v. Gobitis (1940), the United States Supreme Court had four times upheld state court decisions validating compulsory flag salute laws. Jehovah's Witnesses objected to the flag salute because of their literal reading of Exodus 20:4-5, equating the salute with bowing down to graven images. Justice Felix Frankfurter, a naturalized American citizen who always took ideals of citizenship and patriotism very seriously, had little sym