Advancing a Free Society

Title IX or Bust

Tuesday, February 7, 2012

Think back to the year 1943. For this country, embroiled as it was in World War II, the question of the day was whether, and if so how, to ensure that all students express their loyalty to the United States. To answer that challenge, the state of West Virginia’s Department of Education required all students in public schools to salute the flag of the United States of America. Covered by this order were the children of Jehovah’s Witnesses, for whom the flag salute was a form of religious idolatry.

Enter the First Amendment’s guarantee of the freedom of speech, which when applied to the case of West Virginia here—and, by extension, all the other states—provoked this response from Justice Robert Jackson in West Virginia Board of Education v. Barnette:

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.

The key assumption behind the justice’s opinion was that West Virginia did not get any additional power over its young students simply because they were attending public schools. It therefore looked at the case as if the regulation had been imposed on all individuals regardless of what they did, and found that it came up short.  It did so because parents taking children out of school has always been regarded as a false option, under what is now called the doctrine of unconstitutional conditions.

The proposition is this: The government cannot use its power to operate publicly funded facilities to force the beliefs and convictions of the majority upon a minority of the population. The Jehovah’s Witnesses were taxpayers after all. But even if the Jehovah’s Witnesses were relieved of their tax obligations, there is good reason to hold fast to the position that protects the rights of religious minorities. Quite simply, it is easy enough to accommodate these children by allowing them to respectfully pass on the flag salute.

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(photo credit: Center for American Progress)