On January 9, 1942, the West Virginia State Board of
Education “adopted a resolution…ordering that the salute to the flag become ‘a
regular part of the program of activities in the public schools,’ that all
teachers and pupils ‘shall be required to participate in the salute honoring
the Nation represented by the Flag; provided, however, that refusal to salute
the Flag be regarded as an Act of insubordination, and shall be dealt with
accordingly.’” [1] What
was ultimately required after some modification was “the ‘stiff-arm’ salute,
the saluter to keep the right hand raised with palm turned up while the
following” was “repeated: ‘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.’” (The words “under God” were not added to the Pledge
of Allegiance until 1954. [2])
Certain Jehovah’s Witnesses “citizens of the United States
and of West Virginia, brought suit in the United States District Court for
themselves and others similarly situated asking its injunction to restrain
enforcement of these laws and regulations against Jehovah’s Witnesses….Their
religious beliefs” included, then as now, “a literal version of Exodus, Chapter
20, verses 4 and 5, which says: ‘Thou shalt not make unto thee any graven
image, or any likeness of anything that is in heaven above, or that is in the
earth beneath, or that is in the water under the earth; thou shalt not bow down
thyself to them nor serve them.’ They” considered “that the flag is an ‘image’
within this command. For this reason they” refused “to salute it. Children of
this faith” had “been expelled from school and” were “threatened with exclusion
for no other cause. Officials” threatened “to send them to reformatories
maintained for criminally inclined juveniles. Parents of such children” had “been
prosecuted and” were “threatened with prosecutions for causing delinquency.”
Confronted with these facts, the United States Supreme Court
discerned that it was “dealing with a compulsion of students to declare a
belief.” The “compulsory flag salute and pledge, it said, required “affirmation
of a belief and an attitude of mind.” To sustain such a requirement, the Court
said, would have required it “to say that a Bill of Rights which guards the
individual’s right to speak his own mind, left it open to public authorities to
compel him to utter what is not in his mind.”
It was clear, then, that the requirement of the West
Virginia State Board of Education to salute the flag and recite the Pledge of
Allegiance could not constitutionally be enforced against the objecting Jehovah’s
Witnesses. As the Court put it,
“If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein. If there are any
circumstances which permit an exception, they do not now occur to us.”
All these years later, the lesson still hasn’t sunk in.
On Tuesday [3],
the Supreme Court will hear oral arguments in the case of National Institute of Family and Life Advocates v. Harris, which
presents the following scenario:
The California Reproductive Freedom, Accountability, Comprehensive
Care, and Transparency Act “requires that licensed pregnancy-related clinics disseminate
a notice stating the existence of publicly-funded family-planning services, including
contraception and abortion.” [4]
The National Institute of Family and Life Advocates, and others, object to
having to advertise abortion services, which they conscientiously object to.
Now since it is a “fixed star in our constitutional
constellation,” that “no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein,” one might expect
that their case is pretty solid. Unfortunately, two courts, the federal
district court and the Ninth Circuit Court of Appeals, have disagreed.
The reasoning of the Ninth Circuit is that every licensed
pregnancy-related clinic is required to give the notice, not just those that
are opposed to abortion, and so the requirement should stand. It is as if the
Supreme Court had said that West Virginia’s flag saluting requirement had no
constitutional defect because everyone, not just Jehovah’s Witnesses, were
required to comply with it. Of course, under that reasoning, every regulation
of general application would be immune from any sort of constitutional
scrutiny.
No one should be compelled to engage in speech that he or
she disagrees with. The Supreme Court should strike down the California law in
question.
