It seems like periodically there occurs some incident that generates a wave of patriotic fervor. The latest is the decision by Colin Kaepernick, a football player for the San Francisco 49ers, who decided to not stand for the national anthem as a protest against the way that people of color are treated in this country. His protest has caught on with athletes around the country at all levels choosing to kneel instead of stand.
Naturally, this act has caused many to hyperventilate about lack of patriotism. Jeffrey Toobin writes that Kaepernick’s protest is perfectly in line with a 1943 Supreme Court decision when it said that the expulsion of two Jehovah’s Witnesses from schools for refusing to salute the flag and not saying the Pledge of Allegiance was unjustified. This was a reversal from an 8-1 decision in a similar case just three years earlier.
In 1943, at the height of the Second World War, the court heard a challenge by a Jehovah’s Witness family to the expulsion of their daughters, Marie and Gathie Barnette, from a school in West Virginia. The sisters had been punished for refusing to salute the flag and repeat the Pledge of Allegiance, something state law required of students. (As Jehovah’s Witnesses, the parents did not believe in making such salutes and oaths.) Precedent was not on the Barnettes’ side. In 1940, the Court had heard a very similar case involving Lillian Gobitis, age twelve, and her brother William, age ten, whose parents were also Jehovah’s Witnesses and who were expelled from the public schools of the town of Minersville, Pennsylvania, for refusing to salute the national flag
What followed, three years later, was one of the great reversals in Supreme Court history. The Court had gained two new Justices since the Gobitis case—Frank Murphy and Robert Jackson. More important, even amid the patriotic displays associated with the mobilization for war, the degradations of Nazi Germany had impressed themselves upon the American conscience. The result of the case flipped the result to a six-to-three victory for the family, and Jackson’s opinion in West Virginia State Board of Education v. Barnette stands as perhaps the greatest defense of freedom of expression ever formulated by a Supreme Court Justice—and, not incidentally, a useful message for the N.F.L.
You can read the opinion by justice Jackson here. Jackson was later the prosecutor during the Nuremberg trials following World War II.
Although I do not of course agree with the religious beliefs of the Jehovah’s Witnesses, you have to give them credit. Their steadfast refusal to be forced by the government to do something that violated their rights has led to several landmark cases that have expanded First Amendment rights for all of us.