West Virginia State Bd. of Educ. v. Barnette

Following is the case brief for West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)

Case Summary of West Virginia State Bd. of Educ. v. Barnette:

  • The West Virginia Board of Education made saluting the flag and reciting the pledge of allegiance compulsory for all public school students.  Violation of that rule could result in prosecution of a non-complying student’s parents.
  • Children in a family of Jehovah’s Witnesses refused to salute the flag and recite the pledge.  The children’s parents faced criminal prosecution.
  • The District Court enjoined enforcement of the regulation requiring the flag salute.
  • The U.S. Supreme Court affirmed the District Court, holding that the First Amendment protects a student’s choice not to salute the flag if it is contrary to the student’s religious beliefs.

West Virginia State Bd. of Educ. v. Barnette Case Brief

Statement of the Facts:

In 1942, the West Virginia Board of Education adopted a resolution, ordering that all students in West Virginia public schools salute the flag and recite the pledge of allegiance at school.  Failure to conform to the resolution meant expulsion from school for the student, and possible prosecution for the student’s parents for encouraging the student to not go to school.

West Virginians brought suit in federal District Court to enjoin enforcement of the resolution against Jehovah’s Witnesses, who believe that they cannot put any “image,” like the American flag, over God.  Some children of the Jehovah’s Witness faith had already been expelled and their parents threatened with prosecution for refusal to engage in the salute and pledge.

Procedural History:

  • A three-judge panel of the District Court enjoined enforcement of the resolution.
  • The Board of Education appealed.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Can a State compel public school students to salute the flag and recite the pledge of allegiance even when the salute and recitation runs against a student’s religious beliefs?  No.


The decision of the District Court for the Southern District of West Virginia is affirmed.

Rule of Law or Legal Principle Applied:

The State violates the First and Fourteenth Amendments if it forces public school children to salute the flag and pledge allegiance when such salute and pledge violates a child’s religious beliefs.


To begin, the freedom to not participate in the flag salute does not infringe on any other person’s right to participate.  To the extent that the Court’s decision in Minersville School District v. Gobitis, 310 U.S. 586 (1940) gave States the authority to compel participation in the flag salute, that case is overruled.

Further, compulsory expressions of patriotism do not achieve national unity.  “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.”  We should trust that patriotism will flourish even if expressions of patriotism are voluntary and spontaneous, instead of compulsory.  Compelling the flag salute is unconstitutional because it invades the sphere of intellect and spirit that is essential to the purpose of the First Amendment.

Concurring and Dissenting Opinions:

Concurring Opinion (Black & Douglas):

It is time to acknowledge that our views in the Gobitis decision were incorrect.  Religious belief does not take away an individual’s responsibility to follow laws, but refusing to participate in a required test of loyalty does not present a grave danger to the nation.  “Love of country must spring from willing hearts and free minds[.]”

Concurring Opinion (Murphy):

While honoring the flag and what it stands for is desirable, the Constitution protects the right of religious freedom and freedom of thought.

Dissenting Opinion (Frankfurter):

As a Jewish person, no one would benefit more than me and my people from affirming what the District Court did here.  If my personal attitude was relevant here, I would wholeheartedly agree with the majority.  However, we are judges, and must make decisions based upon the law.  The Court’s precedent is clear that the State should have the power to compel students to salute the flag.  Here, recourse for the West Virginia citizens in this case is through the legislative function, not the courts.


West Virginia State Bd. of Educ. v. Barnette is important because it remains one of the most expansive interpretations of the First Amendment and its relationship to religious freedom.  The case is also rather compelling because it was decided during WWII, when patriotic loyalty would be at a premium.  Also, Justice Frankfurter’s dissent is powerful in that amidst the atrocities being committed against Jews during WWII, he was determined to look past his own religious beliefs to find that judges should not overstep their authority, despite strong personal reasons for doing so.

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