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This year, the Court ruled that Jehovah's Witnesses are not obliged to salute the U.S. flag. This ruling reversed a previous decision that was taken three years before, in Minersville School District v. Gobitis (1940), when the courts ruled that all students must participate in the morning flag salute ritual. Both court cases involved the tension between free exercise of religious practices and the state need to build a common identity and feelings of patriotism in the context of war against Nazism. In the 1940 case, Judge Frankfurter rejected the free exercise claim and made it compulsory to salute the flag, arguing that civic obligations outweighed religious convictions, and that national unity was the basis of national security.
This was somewhat ironic, because during the Nazi regime, Jehovah's Witnesses in Germany refused to support Hitler's military campaign and his massacre of millions of innocent civilians. As a result of declining to collaborate with the Nazi’s campaign of extermination, thousands of Jehovah's Witnesses (among them children) were sent to detention centres and concentration camps. One of them was Marcel Sutter, a young man executed by the Nazis in 1943 for following his conscience rather than assisting Nazism. Before he was killed, he sent a letter to his friend Simone, a 12-year-old girl Jehovah's Witness girl who was in a detention camps and would later write an autobiographical account of her experience (Arnold Liebster 2000).
Also in 1943, in the USA, the West Virginia State Board expelled students that were Jehovah's Witnesses for their conscientious refusal to salute the flag, even though they stood respectfully during the ceremony. In West Virginia State Board of Education v. Barnette, Justice Jackson challenged the 1940 ruling and exempted the Jehovah's Witnesses from saluting the flag. His main argument, using the conditions of Holmes' danger test, was that the Witnesses' refusal to salute the flag harmed no one, did not violate anyone else's rights and posed no danger to public order. Jackson also claimed that democracy is more than majority’s tolerance of other beliefs; it also requires that minorities are granted full freedom to practice their beliefs without fear of persecution. In his verdict, Jackson argued that national unity should be pursued by persuasion, because seeking uniformity though coercion only leads to disastrous results. This verdict is a passionate call for pluralism and against authoritarianism. The following extract of Justice Jackson’s opinion on this case leaves no doubts on his belief that authority should be controlled by public opinion, and not vice-versa:
Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving soul. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. 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.
Before this ruling, children of this faith were threatened with expulsion or expelled from school and sent to reformatories for juvenile delinquents, while their parents were prosecuted for instigating delinquency.
A few years after West Virginia State Board of Education v. Barnette, at the end of the Second World War, the International Military Tribunal at Nuremberg determined in 1946 that "individuals have international duties which transcend the national obligations of obedience imposed by the individual state." Since then, international law recognizes citizens’ rights to freedom of thought and belief and their right to peaceful, conscientious objection.
During the remainder of the 20th century, children of Jehovah’s Witnesses continued to endure difficult situations in school when asked to salute the flag of participate in patriotic parades in different countries of the world.
For instance, I remember that when I was attending secondary school in Argentina in the 1970s, one of my former classmates, a very bright and nice boy called Guillermo Durigón, refused to salute the flag or sing the national anthem. He maintained that his religious beliefs as a Jehovah's Witness prevented him from honouring these symbols, and that his moral obligation to the law of God came before any observance of a law enacted by a temporal government (which was not even an elected government but a military dictatorship). However, school authorities did not agree and he was expelled from school. In the late seventies, the Inter American Commission of Human Rights of the Organization of American States reported that over 300 schoolchildren were expelled from school only for being members of the Jehovah's Witnesses. Moreover, between 1971 and 1987, about four thousand Jehovah's Witnesses were jailed in Argentina, and many of them suffered physical and psychological torture (Rodríguez 2006).
In 1985, in the southern state of Kerala, India, children faithful to the Jehovah’s Witnesses also were expelled from school for refusing to sing the national anthem, even though they stood respectfully when it was sung by other students and by teachers. In 1986, the Supreme Court of India revoked the decision of the Kerala High Court, and stated that the expulsion from school violated the children’s fundamental rights to freedom of religion and to freedom of speech and expression (which include the ‘right to silence’) guaranteed to every citizen by the Indian Constitution (Punjabi 2003). The judgment of the Indian Supreme Court concluded with this message: “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.”
In 1993, the Supreme Court of the Philippines ruled that the decision to expel Jehovah's Witness students from school for their refusal to salute the flag represented a violation of the right to freedom of religion, which is guaranteed by the constitution of the Philippines. In Ebalinag v. the director of the school district Sebo, the court noted that such actions did not disturb the peace of their neighbors and that Jehovah's Witnesses are a recognized religion in the Phillipines.
In 1996, in Valsamis v Greece, the European Court of Human Rights examined the case of Victoria Valsamis, a Jehovah's Witnesses student who was suspended from school for refusing to participate in a National Day parade, which commemorates the outbreak of war between Greece and Fascist Italy. The mother of the student argued that the parade promoted patriotism and militarism, whereas the Greek government argued that it provided a reinforcement of democratic and human rights ideals. The European Court of Human Rights accepted the argument of the Greek government, although it also noted that the applicants did not have an effective remedy before a national authority. Two years later, in 1998, Jehovah's Witnesses in Greece were no longer suspended from school for refusing to participate in ceremonies or activities that would have violated their conscience.
These court decisions show that, since the historic ruling of West Virginia State Board of Education v. Barnette in 1943, the rights of Jehovah's Witnesses students in educational institutions have improved slowly but steadily. These rights had been gradually recognized by national legislation and protected by international court.
Arnold Liebster, Simone (2000). Facing the Lion: Memoirs of a Young Girl in Nazi Europe. New Orleans: Grammaton Press.
European Court of Human Rights (1996). Valsamis v. Greece. http://www.worldlii.org/eu/cases/ECHR/1996/72.html
Inter American Commission of Human Rights (1978). Caso 2137: Argentina Testigos De Jehová. Organization of American States. http://www.cidh.org/annualrep/78sp/Argentina2137.htm
Jehovah's Witness Office of Public Information (2003). Jehovah's Witnesses and the State. http://www.jwmedia.org/region/global/english/backgrounders/e_state.htm
Legal Information Institute, Cornell University (2002). West Virginia State Board of Education v. Barnette. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0319_0624_ZO.html
Punjabi, Riyaz (2003). Secularism in India: The Lost or the Lasting Muse. Dialogue. October - December, Volume 5 No. 2
Rodríguez, Santiago (2006). Testigos de Jehová, Testigos del Horror. Página 12, May 11, p. 8.
Prepared by DS
Citation: Schugurensky, Daniel (2006). 1943: Jehovah's Witnesses not obliged to salute flag (West Virginia Board of Education vs. Barnette). In Daniel Schugurensky (Ed.), History of Education: Selected Moments of the 20th Century [online]. Available: http://fcis.oise.utoronto.ca/~daniel_schugurensky/assignment1/1943barnette.html (date accessed).
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