Evening star. [volume] (Washington, D.C.) 1854-1972, 1939-11-11
Appeal Is Planned
To Supreme Court
In Flag Salute Case
Right Of Students to
Refuse Upheld by
Federal Court
By the Associated Press.

BY the Associated Press.
PHILADELPHIA, Nov. 1.-THE
right of school children to refuse to
salute the flag if that violates their
religious beliefs-a right upheld yes
terday in unanimous decision by
the Third United States Circuit
Court of Appeals here-appeared to-
day to be headed again toward
Supreme Court review.
Legalists wondered whether the
Supreme Court would reconsider its
refusal to pass on the subject on the
ground that no Substantial" Fed
eral question is involved.
The court took this position to-
ward appeals from decisions by the
highest courts of New Jersey,
Massachusetts, and Georgia con-
trary to the United States Appellate
Court opinion of yesterday. This
stand, in effect, upheld flag salutes,
but the Circuit Court declares that
the Supreme Court changed its mind
when 1t assumed jurisdiction in the
Mayor Frank Hague free speech"
case.
School Counsel to Appeal.
In any event, counsel for the
Pennsylvania town school board af-
fected by yesterdays decision an
nounced that he would appeal to the
Supreme Court.
The Circuit Court opinion, writ
ten by Judge William Clark, affirmed
a District Court ruling that the
Minersville, Pa, School Board had
no right to expel two child members
of religious sect Jehovahs Wit
nesses) which forbids the flag salute.
Judge John Biggs, jr., and Judge
Harry E. Kalodner concurred.
The children, Lillian Gobitis, IS.
and her brother. William, IA, were
expelled four years ago and have
had to attend private school. They
believe, the court said, that to salute
the flag is to bow down to craven
image"
In 27-page opinion exploring
the whole field of religious intol-
erance. Judge Clark wrote that the
sect to which the children belong
docs not appear to practice the
tolerance that it now asks -"
Cases Compared.
Nevertheless, he said, "the con-
scientious scruples of all men should
be treated with great delicacy and
tenderness.
Reverence is manifestly some
thing deeper than law"
Author of the original opinion
upholding the Civil Liberties Union
and the c. I. o. in their fight against
Mayor Hague, Judge Clark COM
pared that case with the flag salute
issue and asserted that religious
freedom is even greater" than
freedom of speech.
In the Hague case the c. I. o.
and affiliates commended that the
Mayor of Jersey City had inter-
fered with their constitutional right
to hold public meetings. Judge
Clark, then a Federal District Court
jurist in Newark, N. j., decided
against Mayor Hague and was up
held by the Circuit and Supreme
Courts.
Judge Clark also compared re-
fusal to salute the flag with refusal
to be vaccinated.
Children are faced with the al
tentative of conforming to their par
ents' view of religion or foregoing
the privilege of education" he wrote.
THAT is true in the medical
cases. There again, however, we
are saved by the logic of the clear
and present danger test.
Doubtful Efficacy.
Little children with smallpox are
as infectious as their elders"
The jurist observed that compul-
sorry flag saluting "is designed to
better secure the state by inculcat-
ing in its youthful citizens love of
country that will incline their hearts
and minds to its more willing de-
Tense.
THAT particular compulsion hap
pens to be abhorrent to the partic-
ular love of God of the little girl
and boy now seeking our protection.
=" Compulsion rather than pro-
lection should be sparingly exer-
cised.
"The salute, therefore, unlike the
exercises of the police power, is of
at least doubtful efficacy as applied
to the appellees."
Declaring that the necessity for
any choice between conscience and
country is tragic" Judge Clark re-
called how William Penn, founder
Of Pennsylvania, "came to the new
country because his refusal to SUBJ
ordinate religious scruples to edu-
cational coercion led to his expul-
sion from oxford University"
'pnnniloee' kAnn orvo.