Students at P.S. #73 reciting the 'Pledge of Allegiance' on Jun. 1, 1938, in New York, N.Y.
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By Olivia B. Waxman
June 14, 2018

When the United States marks the annual June 14 holiday of Flag Day, it’s officially a chance to recall the adoption of the stars and stripes as the country’s national banner. But this Thursday’s celebration also carries another, more complex layer of meaning.

Thursday marks exactly 75 years since the June 14, 1943, ruling in West Virginia State Board of Education v. Barnette, in which the U.S. Supreme Court ruled that expelling a student who doesn’t recite the Pledge of Allegiance — one of the best-known everyday celebrations of that same flag — violates the Constitution’s guarantee of freedom of speech and religion.

The anniversary of this decision is a reminder that debates about the proper way to respect the flag, and other national symbols, shows no signs of flagging.

Walter Barnett (whose name was misspelled by the courts) sued the West Virginia school board after the public Slip Hill Grade School near Charleston expelled his daughters Marie, 8, and Gathie, 9, after they refused to recite the pledge because it violated their family’s religious beliefs as Jehovah’s Witnesses who view the gesture as a form of idolatry. Around the same time, Jehovah’s Witnesses in Germany refused to salute Hitler, so the Nazis sent them to concentration camps. But the timing wasn’t just a coincidence: The more World War II raged in Europe, and especially after the U.S. entry following the attack on Pearl Harbor, the more importance was attached to such patriotic American rituals, and the less tolerance there was for those who did not participate in them wholeheartedly. The religious group had also come under fire for the way in which members promulgated their faith. TIME reported back then that adherents were viewed as “freakish.”

In a 6-3 decision, the Supreme Court ruled that the state couldn’t force students to pledge allegiance to the flag if it violated their religious beliefs. Concurring justices admitted it was “wrong” to have ruled 8-1 three years earlier in favor of a Pennsylvania school that expelled two Jehovah’s Witness school children by arguing that “national cohesion” was necessary for “national security” in Gobitis v. Minersville School District (1940).

Or as TIME put it more bluntly back then, “The U.S. Supreme Court reaffirmed its faith in the Bill of Rights—which, in 1940, it had come perilously close to outlawing.”

The decision highlighted a somewhat paradoxical but crucial facet of patriotism in a land that prizes liberty: per the Supreme Court’s decision in that case, the government’s forcing people to show their love of country in any particular way undermines the country they’re supposed to love.

“To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds,” Justice Robert H. Jackson wrote in his opinion announcing the Court’s decision. “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… Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

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However, the ruling didn’t stop states from trying to find loopholes — or put an end to the larger philosophical debate at hand.

“The states kept (and keep) trying to enact mandatory Pledge laws,” says Marc Leepson, author of Flag: An American Biography, “such as requiring students to opt out, get a note from parents, or requiring [the objecting] student to go in the corridor while the others were reciting. But all have been ruled unconstitutional.”

During the 1988 presidential campaign, George H.W. Bush villainized Massachusetts Governor Michael Dukakis for vetoing one of these laws, one that required teachers to lead students in the Pledge of Allegiance. Bush’s implication that Dukakis was unpatriotic — “What is it about the Pledge of Allegiance that upsets him so much?” Bush asked in stump speeches — was slammed by TIME back then for having “nothing to do with the duties of the President of the U.S.” (As to Bush saying it’s “very hard” to “imagine” the Founding Fathers objecting to such a bill, TIME wrote, “It is hard to imagine the Founding Fathers being concerned with the pledge at all, since it was written 116 years after they penned the Declaration of Independence.”)

Barnette has also been cited in free speech cases not related to the flag. Justice John G. Roberts brought up Barnette when he delivered the opinion in a 2013 decision ruling that it was unconstitutional for the government to make organizations declare their opposition to prostitution in order to receive federal funding for international family planning initiatives. “The government can decide to fund family planning or not, but you can’t make the counselor recite the government’s script,” says John Q. Barrett, a professor who teaches Constitutional Law at St. John’s University School of Law and is on the board of the Robert H. Jackson Center, in Jamestown, N.Y. And just recently, the Supreme Court cited Barnette in opinions supporting a Colorado baker’s right to refuse baking a cake for a same-sex wedding. “Thomas argued that the Colorado Court of Appeals was trying to compel the baker to speak by selling the cake to people who were going to celebrate a wedding that offended his religious beliefs and that that’s inconsistent with Barnette,” says Barrett.

Nevertheless, these days a different heated debate about mandatory displays of patriotism is likely to come to mind: the question of whether NFL players should be forced to stand during the national anthem.

Though Barnette doesn’t really speak directly to the NFL protest case — the NFL is not the government, and its rules apply to individuals as employees rather than as citizens — Barrett says that the Supreme Court’s ruling still has something to say about the matter. Forced displays of patriotism are “philosophically inconsistent with the freedom that the First Amendment stands for, according to the Barnette case,” he argues.

And that connection may one day be more than merely philosophical.

“There are arguments that people make that the NFL is not just a private actor, that the president has pushed the NFL to do this, or that the NFL is quasi-governmental or connected to the government because lots of cities and states have used public money to build the football stadiums. And those issues may well be litigated,” Barrett adds. “That may be next year’s Barnette litigation.”

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