West Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943)

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U.S. Supreme Court

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)

West Virginia State Board of Education v. Barnette

No. 591

Argued March 11, 1943

Decided June 14, 1943

319 U.S. 624


1. State action against which the Fourteenth Amendment protects includes action by a state board of education. P. 319 U. S. 637.

2. The action of a State in making it compulsory for children in the public schools to salute the flag and pledge allegiance -- by extending the right arm, palm upward, and declaring, "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all" -- violates the First and Fourteenth Amendments. P. 319 U. S. 642.

So held as applied to children who were expelled for refusal to comply, and whose absence thereby became "unlawful," subjecting them and their parents or guardians to punishment.

3. That those who refused compliance did so on religious grounds does not control the decision of this question, and it is unnecessary to inquire into the sincerity of their views. P. 319 U. S. 634.

4. Under the Federal Constitution, compulsion as here employed is not a permissible means of achieving "national unity." P. 319 U. S. 640.

Page 319 U. S. 625

5. Minersville School Dist. v. Gobitis, 310 U. S. 586, overruled; Hamilton v. Regents, 293 U. S. 245, distinguished. Pp. 319 U. S. 642, 319 U. S. 632.

47 F.Supp. 251, affirmed.

APPEAL from a decree of a District Court of three judges enjoining the enforcement of a regulation of the West Virginia State Board of Education requiring children in the public schools to salute the American flag.

Primary Holding

Students may not be required to salute the American flag or recite the Pledge of Allegiance at public schools if it is contrary to their religious beliefs.


In 1942, the West Virginia Board of Education required public schools to include salutes to the flag by teachers and students as a mandatory part of school activities. The Board provided a detailed definition of what the salute should look like: keeping the right hand raised with upturned palm in a stiff-arm salute while the individual recited the pledge of allegiance. Students who refused to obey this requirement were subject to expulsion as part of school rules against insubordination and would not be readmitted until they complied. As a result, the children and their families could be charged with a crime based on the child's unlawful absence from school, which could expose parents to jail time.

The children in a family of Jehovah's Witnesses refused to perform the salute and were sent home from school each day for non-compliance. This was based on their core spiritual belief that the laws of God rise above any laws of a secular government. Like other children who refused to salute the flag, however, they were threatened with reform schools used for criminally active children, and their parents faced prosecutions for causing juvenile delinquency.

Procedural History

US District Court for the Southern District of West Virginia - 47 F. Supp. 251 (S.D. W. Va. 1942)

Injunction granted. The Board's rule may not be enforced against the Jehovah's Witnesses because it unconstitutionally interferes with their freedom to exercise their religious beliefs under the First Amendment.



  • Robert Houghwout Jackson (Author)
  • Harlan Fiske Stone
  • Hugo Lafayette Black
  • William Orville Douglas
  • Frank Murphy
  • John Rutledge

Jackson found that the First Amendment cannot countenance efforts to enforce a unanimity of opinion on any topic, and national symbols like the flag should not receive a level of deference that trumps constitutional protections. He argued that curtailing or eliminating dissent was not only an improper but also an ineffective way of producing true unity, using historical examples. Jackson rejected an earlier opinion by Justice Felix Frankfurter that objectors like Jehovah's Witnesses should use the legislative rather than the judicial process to assert their rights. He found that some minority groups would not be able to access their protections under the Bill of Rights without resorting to the courts.


  • Hugo Lafayette Black (Author)
  • William Orville Douglas

Black and Douglas wrote to repudiate their earlier opinions in First Amendment decisions and voice an especially enthusiastic support for its protections.


  • Frank Murphy (Author)


  • Felix Frankfurter (Author)

Concerned about exceeding the scope of the judicial role, Frankfurter was skeptical that religious beliefs freed citizens from the obligation to obey rules. In a controversial passage, he argued that his Jewish heritage made him particularly sensitive to the importance of constitutional protections, so his views should be taken seriously. (This was mostly a response to critics of his earlier decision on the Free Exercise Clause, which allowed states to restrict the rights of individuals to exercise their religious beliefs.) He pointed out that the Court is essentially acquiring a legislative function when it strikes down a law with which it disagrees, and the absence of a check on its power to do so means that it should be careful when overriding the democratic process.


  • Owen Josephus Roberts (Author)
  • Stanley Forman Reed

Roberts and Reed did not write opinions to explain why they dissented.

Case Commentary

If there is no imminent danger caused by the free expression of religious beliefs, the Constitution supports diversity and does not allow the state to coerce citizens into patriotic gestures. Issues like these are deeply personal and cannot be brought into forced conformity. This decision remains one of the most expansive visions of First Amendment protections in the Court's jurisprudence, and it preceded several other cases that created religious exemptions for members of various sects.

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