319 U.S. 624, 638 (1943)
Following the Supreme Court's 1940 decision in Minersville School District v. Gobitis, the West Virginia legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and the Constitutions of the United States and West Virginia for the purpose of teaching, fostering, and perpetuating the ideals, principles, and spirit of Americanism.1
The State Board of Education was directed to prescribe the courses of study covering these subjects for public schools.2 Private, parochial, and denominational schools were required to prescribe similar courses.3
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, with all teachers and pupils required to participate.4 The resolution specified the stiff-arm salute with the right hand raised and palm turned up while repeating the pledge: "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."5
Refusal to salute was defined as an act of insubordination to be dealt with by expulsion.6 Readmission was denied by statute until compliance.7 The expelled child was treated as unlawfully absent.8 Parents or guardians faced prosecution with fines not exceeding $50 and jail terms not exceeding thirty days.9
The appellees are citizens of the United States and West Virginia who are Jehovah's Witnesses, an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government.10 Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which prohibits making or bowing down to any graven image or likeness.11 They consider the flag an image within this command, leading them to refuse to salute it on religious grounds.12
Children of the appellees who were pupils in the public schools were expelled for their refusal to salute the flag and take the pledge of allegiance.13 Their parents were prosecuted for causing delinquency.14 Officials threatened to send the children to reformatories maintained for criminally inclined juveniles.15
The appellees brought suit in the United States District Court for themselves and others similarly situated to enjoin enforcement of the laws and regulations against them.16 The Board of Education moved to dismiss the complaint setting forth these facts.17 The complaint alleged that the law and regulations denied religious freedom and freedom of speech and were invalid under the due process and equal protection clauses of the Fourteenth Amendment.18 The cause was submitted on the pleadings to a District Court of three judges, which restrained enforcement as to the plaintiffs and those of that class.19 The Board of Education brought the case to the Supreme Court by direct appeal.20
Whether the West Virginia State Board of Education resolution requiring public school students to salute the flag and recite the pledge of allegiance violates the First and Fourteenth Amendments when applied to Jehovah's Witnesses who refuse on religious grounds?21
The First Amendment, made applicable to the States by the Fourteenth Amendment, prohibits any official from compelling individuals to salute the flag or recite the pledge when doing so would force affirmation of beliefs contrary to their religious convictions.22 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.23
Yes. The resolution compels students to participate in a ceremony that constitutes both compelled speech and an infringement on the free exercise of religion.24 The Jehovah's Witnesses children were expelled solely because their religious convictions, rooted in a literal reading of the Second Commandment, prohibited the salute and pledge.25 This action invades the sphere of intellect and spirit that the First Amendment reserves from official control.26 The District Court properly enjoined enforcement.27
The resolution violates the First and Fourteenth Amendments when applied to Jehovah's Witnesses who refuse on religious grounds.28
Related opinions on this issue
Joined by Justice Douglas
We are of the opinion that the compulsory flag salute is an unconstitutional invasion of the freedom of religion.29 The statute requires the appellees to participate in a ceremony aimed at inculcating respect for the flag and for this country.30 The Jehovah's Witnesses, without any desire to show disrespect for either the flag or the country, interpret the Bible as commanding, at the risk of God's displeasure, that they not go through the form of a pledge of allegiance to any flag.31
The devoutness of their belief is evidenced by their willingness to suffer persecution and punishment, rather than make the pledge.32
Joined by Justice Roberts
The constitutional protection of religious freedom terminated at the boundary of the schoolhouse gate.33 The state may require that all children attend school and that they salute the flag as part of their educational training.34 The flag salute is not a religious ceremony but a patriotic exercise.35
The state has the right to promote national unity through such educational measures.36 I cannot bring my mind to believe that the "liberty" secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.37
Justice Reed agrees with Justice Frankfurter that the state has a legitimate interest in fostering patriotism and national unity through educational measures in the public schools.38 He maintains that the requirement of a flag salute does not violate the Constitution.39 The state may require that all children attend school and that they salute the flag as part of their educational training to promote good citizenship.40
This position rests on the view that the state's authority to shape school programs for national cohesion outweighs the religious objections raised in this case.41
Whether the flag salute and pledge constitute a form of utterance or compelled speech protected by the First Amendment?42
The flag salute and pledge are a form of utterance and symbolism that communicate ideas and require affirmation of belief.43 Compelling such expression is subject to First Amendment scrutiny. The amendment guards the individual's right to speak his own mind and leaves no opening for public authorities to compel him to utter what is not in his mind.
Yes. Symbolism is a primitive but effective way of communicating ideas.44 The use of an emblem or flag to symbolize a system or idea serves as a short cut from mind to mind.45 The compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind, whether the pupil foregoes contrary convictions or merely simulates assent.46
The State employs the flag as a symbol of adherence to government as presently organized and requires the individual to communicate by word and sign his acceptance of the political ideas it bespeaks.47 Objection to this form of coerced communication is therefore protected by the free speech guaranties of the Constitution.48
The flag salute and pledge constitute a form of utterance or compelled speech protected by the First Amendment.49
Related opinions on this issue
The right of freedom of thought and of religion as guaranteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all, except insofar as essential operations of government may require it for the preservation of an orderly society.50 Official compulsion to affirm what is contrary to one's religious beliefs is the antithesis of freedom of worship.51 I am unable to agree that the benefits that may accrue to society from the compulsory flag salute are sufficiently definite and tangible to justify the invasion of freedom and privacy that is entailed or to compensate for a restraint on the freedom of the individual to be vocal or silent according to his conscience or personal inclination.52
Whether a state's interest in promoting national unity through school programs permits compulsory participation in the flag salute and pledge ceremony?53
Although national unity is a legitimate end that officials may foster by persuasion and example, compulsion is not a permissible means for its achievement under the Constitution.54 The First Amendment was designed to avoid the ends of coercive elimination of dissent by avoiding these beginnings.55 Compulsory unification of opinion achieves only the unanimity of the graveyard.56
No. National unity as an end which officials may foster by persuasion and example is not in question.57 The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.58 Struggles to coerce uniformity of sentiment in support of some end thought essential have been waged by many good as well as by evil men.59 As governmental pressure toward unity becomes greater, strife becomes more bitter as to whose unity it shall be.60
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy and to place them beyond the reach of majorities and officials.61 To sustain the compulsory flag salute would require holding 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.62
A state's interest in promoting national unity through school programs does not permit compulsory participation in the flag salute and pledge ceremony.63
Whether the Supreme Court's prior decision in Minersville School District v. Gobitis should be reconsidered in light of the claims presented by Jehovah's Witnesses families?64
A prior decision that assumed the existence of state power to impose the flag salute discipline upon school children without examining whether such power exists under the Constitution must be reconsidered when the question presented is whether a ceremony touching matters of opinion and political attitude may be imposed upon the individual by official authority.65
Yes. The Gobitis decision assumed, as did the argument in that case and in this, that power exists in the State to impose the flag salute discipline upon school children in general.66 The Court only examined and rejected a claim based on religious beliefs of immunity from an unquestioned general rule.67 The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution.68
We examine rather than assume existence of this power and, against this broader definition of issues in this case, reexamine specific grounds assigned for the Gobitis decision.69
The Supreme Court's prior decision in Minersville School District v. Gobitis is overruled.