It is useful and appropriate, on the occasion of the Thanksgiving holiday, to be grateful for what one has. Working at FIRE, I am constantly aware of the great freedoms we enjoy as American citizens. So it was with particular interest that I read a notice sent by John Barrett, Professor of Law at St. John’s University School of Law and Elizabeth S. Lenna Fellow at the Robert H. Jackson Center, regarding the publication of a compelling roundtable discussion with Gathie Barnett Edmonds and Marie Barnett Snodgrass.
Gathie and Marie are better known to students of constitutional jurisprudence as the “Barnette” sisters—due to court error, an extra “e” was mistakenly added to the end of their surname during litigation—whose First Amendment challenge to compulsory student participation in the practice of saluting the flag and reciting the Pledge of Allegiance in public schools resulted in the landmark Supreme Court decision West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). As any lover of liberty knows, Justice Robert Jackson’s majority opinion in Barnette is doubtless one of the most eloquent articulations of American liberty ever written.
In ruling that Gathie and Marie, whose faith forbade them from participating in the Pledge, could not be compelled to speak against their will under the First Amendment, Justice Jackson wrote:
Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority… But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. 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.
Jackson’s compelling elucidation of the First Amendment’s core principle—that government must not interfere with the freedom of citizens to think and speak as they will—serves our nation to this day. Indeed, as FIRE noted in announcing the creation of the Justice Robert H. Jackson Fellowships, Justice Jackson’s “extraordinary commitment to liberty, independent thought and constitutional principle serves as a sterling example to FIRE and all who value freedom and the courage required to sustain it.” FIRE is proud to quote Justice Jackson’s opinion in Barnette at length in many of our correspondences with those who would deprive students and faculty of the “right to differ.”
Therefore it is extremely moving, sixty-four years later, to read Gathie and Marie’s recollections of the case that bears their name, albeit with a superfluous vowel. As the participants in the roundtable discussion make clear, Barnette was by no means an easy, obvious, or popular decision at the time. As our nation turned its attention to the war quickly gripping the world, nationalist sentiment ran high; thus the thought of defending the rights of citizens not to salute the flag and pledge allegiance to the United States struck many Americans as anathema. Indeed, as Shawn Francis Peters, a historian and professor at the University of Wisconsin–Madison School of Education, makes clear during the discussion, violent mobs had attacked communities of Jehovah’s Witnesses after the Court’s ruling in Minersville School District v. Gobitis, 310 U.S. 586 (1940), and Jehovah’s Witnesses across the country suffered persecution, both violent and otherwise, for their adherence to their faith.
In this climate, then, it took real bravery for Gathie and Marie—young schoolchildren—and their parents to stand up for their First Amendment rights, and real courage for Justice Jackson and the Supreme Court to recognize the moral and legal imperative set forth so boldly by our Constitution. Here are Gathie and Marie, reflecting on Barnette’s impact through the years:
Moderator: As the victors, how do you sisters think of this case? How do you think about being the Barnette sisters? The Court misspelled your name, but it is your case, and it is your principle that was vindicated. What does that mean to each of you in the lives you have lived since then?
Edmonds: Well, I’m glad that it meant freedom for everyone, for their beliefs and that we could stand up for them and be proud of them and I’m glad that it was in our favor. And it helped out through the years for our children, when they had to face the same issue in school all the time. I’m just glad that everybody got, you know, helped by it.
Snodgrass: About the same thing. I am especially happy that it helped the kids after us, who came after us. Even, like she said, down to this day. It’s still giving them a freedom to go to school without harassment and everything. And it, I guess, it really means more to us today than it did sixty some years ago. Of course we think more about it today than we did then.
As we give thanks this year, we as Americans owe it to Gathie, Marie, and all those who stand up in the name of liberty to express our gratitude for the freedoms that we enjoy, and to recommit ourselves to their steadfast defense, come what may.