The Flag Salute Cases

Federal Trials and Great Debates 

in United States History

Case Summary:

• In two cases before and during World War II, Jehovah’s Witnesses challenged laws requiring 

children to salute the flag and recite the pledge of allegiance in school.

• In the first case, the Witnesses won at trial but the Supreme Court ruled in favor of the school 

district.

• In the second case, the Supreme Court reversed its earlier decision, citing a fundamental liberty 

of conscience protected by the First and Fourteenth Amendments.

History of the Case:

School flag rituals began in 1892 in celebration of the 400th anniversary of Christopher Columbus’ 

expedition to the Americas, though relatively few states mandated salutes before World War I. Most of 

these rituals involved a raised-arm salute, usually with the palm upturned. The pledge of allegiance 

students recited was similar to that used today, though the phrase “under God” was added in 1954. In the 

aftermath of World War I, a number of influential groups pressed for more patriotism in schools and 

several more states adopted flag salute laws. Even in states where there was no such law, many schools 

and school districts required their students to participate.

Jehovah’s Witnesses subscribed to a strict interpretation of the bible that included the belief that 

saluting and pledging allegiance to the flag violated God’s command against worshipping graven images. 

In 1935, Lillian and William Gobitas, two young Witnesses in public schools in Minersville, PA, refused to 

salute the flag in class. Though this resistance was not initially prohibited by any school rules, the local 

school board adopted a regulation requiring the flag salute and the superintendent immediately expelled 

the children.

Walter Gobitas initially tried to educate his children privately, but when this became too expensive 

and inconvenient, he sued the local school board in federal court seeking an injunction (an order from the 

court commanding a party to stop doing something improper or unlawful). Judge Albert Maris, who was 

then a recent appointee to the federal bench, but became one of the longest-serving judges in U.S. 

history, presided over the trial without a jury (injunction suits are not decided by jury trial). He ruled in 

favor of the Gobitases on freedom of religion grounds. The court of appeals for the Third Circuit upheld 

Judge Maris’ decision.

In Minersville School District v. Gobitis1 (1940), however, the Supreme Court of the United States 

reversed, holding that schools had the power to require students to salute the flag and recite the pledge in 

the interests of preserving unity and patriotism. Justice Felix Frankfurter’s opinion in the case emphasized 

that unelected federal judges should generally defer to the decisions of democratic bodies like school 

boards. Justice Harlan Fiske Stone dissented, arguing that the courts had a duty to protect the 

fundamental rights of minority groups against potential abuses of the majority. Three other justices 

(William Douglas, Hugo Black, and Frank Murphy) had doubts about the Court’s decision but ultimately 

decided not to dissent.

Gobitis took place amid rising fears about America’s possible involvement in World War II. 

Rumors abounded that Germany had defeated France quickly because of a “fifth column” of traitors who 

had undermined France from within. Some “patriotic” organizations identified the Witnesses as a potential 

American fifth column and targeted then for violence and intimidation. Many critics of the Gobitis decision 

 1 Clerical errors resulted in the misspelling of the plaintiffs’ names in both cases.
blamed the Supreme Court for the wave of violence. In a 1942 opinion, Douglas announce that he, Black,

and Murphy believed that the case had been incorrectly decided. Though it is unclear whether the 

violence influenced this change, it fit the critique that laws mandating unity and patriotism risked 

oppressing minorities.

In 1942, West Virginia’s Board of Education adopted a flag salute regulation that quoted much of 

the Gobitis opinion verbatim. Hayden Covington, the lead lawyer for the Jehovah’s Witnesses’ Watch

Tower Bible and Tract Society saw this as an opportunity to directly challenge that decision. When 

Gaithie and Marie Barnett, two young Witnesses attending public school just outside of Charleston, West 

Virginia, were sent home from school repeatedly for refusing the salute, Covington helped the family file 

suit in federal court under a law that required a three-judge panel to decide constitutional challenges to 

certain state laws. Under this statute, the Supreme Court had to hear an immediate appeal from the 

losing side without the need for intermediate appeals.

Lower federal courts typically have to follow Supreme Court rulings. In the Barnett’s case, 

however, Judge John J. Parker, a prominent circuit judge who had once been unsuccessfully nominated 

to the Supreme Court, correctly predicted that the Supreme Court would overturn the Gobitis decision and 

wrote a unanimous opinion for the three judge panel striking down the school board’s regulation. The 

Board of Education then appealed to the Supreme Court.

When West Virginia Board of Education v. Barnette came to the Supreme Court in 1943, the 

Supreme Court had two new members and Stone had become Chief Justice. He assigned one of the new 

Justices, Robert Jackson, to write an opinion overturning Gobitis. Though Justice Jackson believed 

judges should defer to elected bodies, he felt that the flag salute requirement was unconstitutional 

because it compelled children to declare beliefs that they did not hold in violation of the First and 

Fourteenth Amendments. Justice Murphy wrote a concurring opinion that agreed with the result but 

emphasized the separate issue of religious liberty. Justice Frankfurter penned a dissenting opinion that 

claimed the court was being undemocratic by replacing the board’s political values with the justices’ own 

views. He also argued that it was dangerous for the Court to disregard recent precedents because of 

outside pressure.

Legal Issues:

The many opinions in the flag salute cases emphasized different legal principles:

• Justice Frankfurter’s opinions emphasized democracy, judicial restraint, and consistency.

• Justice Stone’s opinion emphasized the courts’ role as guardians of minority rights.

• Judge Parker’s opinion emphasized that the law must sometimes change or be flexible.

• Justice Murphy’s and Judge Maris’ opinions emphasized freedom of religion.

• Justice Jackson’s opinion emphasized that the government cannot compel people to think or 

speak against their consciences.

Questions for Discussion:

• How do judges decide between competing values like those above? 

• Judges usually follow previous decisions even if they disagree with them. Why? Why did the 

courts decide not to follow precedent in the flag salute cases?

• The flag salute cases took place against the backdrop of World War II. How might civil liberties 

change during wartime? 

• Several of the opinions in the flag salute cases referenced the war. How might the fight against 

fascism abroad have influenced the different opinions in the case?