In the Matter of Religious Freedom of: Walter Barnette, Respondent, v. West Virginia State Board of Education, Appellant.






March 11, 1943, Argued

PRIOR HISTORY: Appeal from West Virginia Supreme Court. Injunction granted, 47 F. Supp. 251 (S.D. W. Va. 1942)






COUNSEL: For Appellant: Kramer R. Phillips, Walla Walla, WA



For Respondents: Griffith Lambert, Walla Walla, WA



Justices Paul J. De Barros and Mollie B. Price delivered the opinion of the Court in which Chief Justice Jim Hanson joins.





The West Virgina Board of Education adopted a resolution requiring students and teachers to salute the flag and recite the Pledge of Allegiance in school, regularly. A student’s failure to do so was seen as “insubordination” and resulted in expulsion.


Jehovah’s Witnesses are forbidden from honoring the flag in this way, as it contradicts their foremost allegiance to God and His rule, under Exodus, Chapter 20, verses 4 and 5.


The case went to the West Virginia Supreme Court, which ruled the West Virginia State School Board’s actions as unconstitutional.




I. The West Virginia State Board of Education’s decision is a violation of the Establishment Clause:


            The United States shines as a beacon of hope to people around the world because of our commitment to protecting civil liberties, chief among them freedom from religious persecution by the state. The First Amendment of the U.S. Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In this case, the State of West Virginia requires all students to salute the United States’ flag and to recite the pledge of allegiance, something that is heretical to Jehovah’s Witnesses’ religious beliefs. The West Virginia State Board of Education’s law forcing students to recite the pledge of allegiance “prohibit[s] the free exercise” of religion.

            According to their beliefs, Jehovah’s Witnesses are not permitted to recite or sing the pledge of allegiance or salute any national flag; forcing them to do so violates their religious rights.[1] In this case, Jehovah’s Witnesses are not asking to show anything less than silent respect while their other classmates recite the pledge of allegiance.  While they show respect for the nation, they ask only that the state grant them their right to practice their religion. The Respondent desires to keep the state from getting in the way of Jehovah’s Witnesses’ right to abstain from engaging in activities that are antithetical to their religious beliefs. This country must stay true to the First Amendment by keeping the state from infringing on Jehovah’s Witnesses’ right to practice their religion, when their religious practice of remaining silent during the pledge of allegiance and flag salute posses no direct threat to their classmates or the nation as a whole.

II. The causal link between National Security and National Unity is not demonstrated:


            The appellant seeks to argue that the Jehovah’s Witnesses position on refusing to salute the flag of the United States of America is a direct National Security risk and that the West Virginia’s law is a reasonable act toward national unity, “While little infringing on an individual’s rights”. (Kramer brief) Forcing Jehovah’s Witnesses or any American citizen to knowingly blaspheme their religion cannot and should not be viewed as a small infringement to their individual rights. As demonstrated, this is not a little infringement on an individual right, but an egregious abuse of religious freedom. Furthermore, this Court does not see the link alleged by the appellant between National Unity and National Security. National Unity is an important part of the American ideal and it is important to sustaining our way of life. However unity should not prevent or hinder diversity. There is a balance or harmony which must be struck in order to foster this necessary unity while preserving diversity and respecting our many individual rights and freedoms. The quest for unity cannot supersede one of our most important tenets, a building block for this great nation and a right granted to us by the First Amendment, our freedom of religion. Furthermore, this unity must be taught to our children with care and caution, and it must be presented rather than forced. Using the school systems to forcibly make students comply, when it goes against their religious beliefs cannot be condoned. School systems should teach courses in history, politics, and civics, all of which can increase national unity with positive and proactive measures. If children are taught about the history of the United States of America, if they are taught the cornerstones of what makes this nation so great, they will assuredly unify and celebrate under our beloved star-spangled banner.  The appellant’s claim that this is a National Security matter is borderline ludicrous. There is no traceable link, no feasible way, that one can argue that the Jehovah’s Witnesses refusal to say the Pledge of Allegiance is a National Security risk. When they choose not to recite our pledge, they in no way pose a security risk. In the eyes of this court, the appellant does not cite meaningful or even legitimate precedent for restricting civil liberties in times of war for National Security purposes. The Supreme Court decision, United States v. Korematsu 323 U.S. 214 1944, should not be used in any way to further restrict the civil liberties granted to all Americans.

III. Appellant’s proposal weakens national security and unity by hindering students’ right to be part of the institution of public schools, one of our nation’s most important institutions:

            Under the West Virginia law, students are not simply asked to join in the pledge of allegiance; they and their families are severely punished for their abstention. Students who do not recite the pledge of allegiance or salute the flag are expelled from school and “[p]arents or guardians, of the children are also subject to prosecution, and if convicted are subject to [a] fine not exceeding $50 and jail term not exceeding thirty days.”[2] Since children are required by law to attend school in West Virginia, hindering their right to an education because of their religious convictions violates not only their right to exercise their religion without state intervention, but also undermines the institution of public schools. Jehovah’s Witnesses are unable to both practice their religion and be a part of the system of public schools.       Forcing students to choose between freedom of religion and the ability to attend public school dilutes the saliency of our education system as an instrument for creating national stability and unity.

            In his January 13, 1941 Inaugural Address, West Virginia’s own Governor Matthew M. Neely emphasized the importance of having free and open public schools: 

            Our system of free education is indispensable to the maintenance of all the good             that we have accomplished in the past and all the best that we hope to achieve in the future. The assertion that “Education is the cheap defense of nations” is as true    now as it was when it was first made by the illustrious Edmund Burke. The great     Horace Mann spoke wisely when he said: “Education is our only political safety.            Outside of this ark all is deluge.”[3]

As Governor Neely reminds us, education is our strongest national defense in an age of uncertainty.  Open public schools are necessary in order to socialize young Americans in the ways of our country so that they will grow up to be useful members of society. Jehovah’s Witnesses and all other children are given important lessons in US history and the Constitution in school, and through this process they gain a sense of national pride. This pride is borne out of feeling welcome in their school and the lessons they learn in class. If part of our population cannot partake in the institution of public education because doing so means they must choose school over their religious freedoms, then our country will suffer from increased discontent and instability. The West Virginia State Board of Education’s decision effectively shuts out Jehovah’s Witnesses from being part of a vitally important means of socialization and nation-building.

            IV. Protecting Jehovah’s Witnesses’ right to religious freedom when their religious practices pose no threat to our country strengthens the principles upon which this nation was founded.

            On June 22, 1942, Congress approved Public Law No. 623 regarding flag etiquette. With regards to the pledge of allegiance, “civilians will always show full respect to the flag when the pledge is given by merely standing at attention, men removing their headdress.”[4] Jehovah’s Witnesses have made it clear to the Department of Justice that they only wish to remain silent during the pledge of allegiance; they do not intend to disrespect the flag or the country in any way.[5]

            The Appellant expressed the oral argument that permitting Jehovah’s Witnesses to abstain from reciting the pledge of allegiance and saluting the flag leads to more violence and national insecurity.  Increased violence against Jehovah’s Witnesses, however, occurred after the lower Court ruled in favor of the West Virginia State School Board.[6] Requiring students to pledge allegiance to the flag when it is contrary to their religious beliefs increases national instability rather than reduces it. The American Civil Liberties Union found that directly after Minersville School District v. Gobitis (1940) was decided, during the period between May and October, 1940, “there were 335 cases of mob violence [against Jehovah’s Witnesses] in 44 states involving 1,448 persons.”[7] The threat to national unity increased rather than decreased. As Respondent Lambert writes in his brief: “[C]oercion not only violates the grounds upon which the First Amendment was birthed, it threatens to inhibit national unity, through the dissention it causes.”[8]

            In his dissenting opinion in Minersville School District v. Gobitis 310 U.S. 586, (1940), Justice Stone weighed the Jehovah’s Witnesses’ right to religious freedom against the nation’s desire for unity. Contending that these two principles are often at odds with one another, Justice Stone wrote that he was “not prepared to say that the right of this small and helpless minority, including children having strong religious conviction, whether they understand its nature or not, to refrain from an expression obnoxious to their religion, is to be overborne by the interests of the state in maintaining discipline in the schools.”[9] A nation of people who all salute the flag and recite the pledge of allegiance looks like national unity, but a façade, however tempting it may appear, must not be an end unto itself.  Even during times of war, national unity is relative to individuals’ religious freedom granted in the Establishment Clause and protected by the Fourteenth Amendment.[10] Ruling in favor of the Respondent strengthens our nation because it fortifies our promise of religious freedom and civil liberties.  At a time of war, preserving our global image as a free and just nation does not weaken the country. By showing the world that we protect civil liberties at home, we bolster our national security.

            The West Virginia State Board of Education can instill national pride and respect in students without overruling students’ right to religious freedom. This decision does not override the West Virginia State legislature’s amendment on June 3, 1940, requiring “all schools to conduct courses of instruction in history, civics” and the U.S. Constitution.[11] This Court respects the importance of teaching students about U.S. history. Moreover, when students learn that the United States was founded as a haven for people seeking religious freedom, the lessons will be real because they will know that their religious beliefs also merit respect for, and protection by the state.


V. A decision in favor of the appellant would set a dangerous precedent:

The appellant’s position supports severe restrictions on individual rights and civil liberties during times of war. This Court will not follow along this line of hysteria and fear-mongering at the harm of American citizens and their individual rights. The cases cited by the appellant, legitimizing horrible infringements on civil liberties, should be looked at through a skeptical lens. The appellant cites, United States v. Korematsu 323 U.S. 214 and Hirabayashi v. United States 320 U.S. 81 as the backing for restricting individual rights during times of war. However, this Court will not strip away the religious freedom of American citizens. In order for the claim to be made and legitimized that any restriction of civil liberties is necessary for National Security and/or that it is a compelling state interest, the burden of proof lies with the State. Furthermore, it must be well documented in the eyes of the Court that any such restriction will directly help remedy the National Security interest. There must be a test of strict scrutiny which should be applied with great care and caution. In order for any infringement of civil liberties, or rights and privileges granted to the American people to be valid and legitimate, the known harms and national security threat must outweigh the harm caused by limiting or reducing civil liberties. This decision mandates that civil liberties and individual rights be stripped only in the most fervent and necessary times, in which National Security is clearly endangered. The posed threat must be real, concrete, and imminent. Also the policy action must be clearly defined; it should have a narrow scope, and must directly remedy the threat. When a civil liberty is limited it should be in the context of specific events and in no way should be vague or ambiguous. This decision should greatly reduce the terrible level of fear mongering and restriction of individual liberties which we have seen in the past.

As previously noted, The West Virginia Board of Education adopted a resolution requiring students and teachers to salute the flag and recite the Pledge of Allegiance in school, regularly. A student’s failure to do so was seen as “insubordination” and resulted in expulsion. This infringement on religious freedom is not acceptable because it does not pass the strict scrutiny test. This provision by the school board does not address any real, concrete, or imminent threat. These Jehovah’ witnesses pose no security threat. With no security threat, there is no backing or justification for the infringement of individual rights, most notably freedom of religion.

VI. Conclusion

The West Virginia State Board of Education policy requiring all students to participate in the flag ceremony is in violation of the First Amendment’s Establishment Clause and Jehovah’s Witnesses’ right to equal protection under the law, granted in the 14th Amendment.






Works Cited

"Constitution of West Virginia." West Virginia Legislature.


"Highlights of the Beliefs of Jehovah's Witnesses." Tower Watch Ministries.


"Inaugural Address of Governor Matthew M. Neely." West Virginia Division of Culture

            and History. 13 Jan. 1941. 19 Mar. 2008


Jefferson, Thomas. "Jefferson's Letter to the Danbury Baptists." The Library of


Lambert, Griff. Brief for Respondent (2008).

Minersville School District v. Gobitis, 310 U.S. 586 (1940).

Phillips, Kramer. Brief for Appellant (2008).

Punke, Harold H. "The Flag and the Courts in Free Public Education." The Journal of

            Religion 24, no. 2 (1944): 119-30.

Rotnem, Victor W., and F G. Folsom. "Recent Restrictions Upon Religious Liberty." The

            American Political Science Review 36, no. 6 (1942): 1053-68.

[1] Lambert, Griff. Brief for Respondent (2008),  “Highlights of the Beliefs of Jehovah’s Witnesses.” Tower Watch Ministries.

[2] Phillips, Kramer. Brief for Appallant (2008): 2.

[3] "Inaugural Address of Governor Matthew M. Neely." West Virginia Division of Culture and History. 13 Jan. 1941. 19 Mar. 2008 <>.

[4] Rotnem, Victor W., and F G. Folsom. "Recent Restrictions Upon Religious Liberty." The American Political Science Review 36, no. 6 (1942): 1063.

[5] Ibid: 1064.

[6] Punke, Harold H. "The Flag and the Courts in Free Public Education." The Journal of

Religion 24, no. 2 (1944): 123

[7] Ibid, from Liberty’s National Emergency (1941): 27-40.

[8] Lambert, Griff. Brief for Respondent (2008): 9.


[9] Justice Stone, quoted by Punke, Harold H. "The Flag and the Courts in Free Public Education." The Journal of Religion 24, no. 2 (1944): 121.

[10] Ibid: 126.

[11] Phillips, Kramer. Brief for Appellant (2008): 2.