PART TWO
CHAPTER FOUR
The American secular order did not emerge overnight, and to some extent, even though the foundations were laid, it would come as a surprise to the Supreme Court itself. The problem for the members of the court was that as their jurisprudence was transforming in the 1930s other developments were occurring beneath their gaze. Groups that might not have been on the radar were becoming organized, ready to challenge the court once they saw an opening. At the forefront of the challengers was the ACLU, which had appeared before the court often, and its odd clients Joseph Rutherford and the Bible Students, who had appeared far less.
While the court refigured its constitutional concepts, the Bible Students were growing more militant, increasingly disruptive, and, as a result, still more persecuted. The reason had everything to do with their message, which had become, if possible, even more caustic during the 1930s. The Bible Students saw the Great Depression as an indication of the rightness, even righteousness, of their theological stance. They started to rail against what they called Christendom, the alliance between corporate giants, professional politicians, and clergymen who they thought worked in combination to control American society. The Depression was, in the Bible Students’ interpretation, a result of that unholy alliance, and American leaders’ professed anxiety about communism simply sought to disguise Christendom’s power. But it also offered a sign that the system was breaking down. “The day of God’s vengeance is at hand,” the Students declared to whomever would listen.1
The Bible Students’ straightforward message of divine judgment and theological renewal found fertile soil in the despair caused by economic suffering. But as they expanded their evangelistic activities, they were continually harassed by authorities who believed that their efforts violated the Christian Sabbath, disrupted good order, and incited others to violence through the obnoxiousness of their message. When communities demanded that something be done, the police stepped up their arrests.
In response to the crackdown Joseph Rutherford began to articulate his own legal strategy rather than simply relying on the ACLU. By 1929 he had already published what amounted to a legal brief in the Watchtower Society’s journal, The Golden Age. The brief mixed scriptural and constitutional justifications to defend the Students’ preaching activities, and it explained the general approach of the Watchtower Society on Sundays. Rutherford maintained that when the Bible Students went into a neighborhood to preach the word of God they were exercising their religion according to their conscience. Because their activities were rooted in a fundamentally religious set of commitments, Rutherford said, they had constitutional protection within a neutral state.2
The result was a standoff. State and municipal authorities asserted that they were simply upholding order when they shut down the Bible Students. They drew upon a full panoply of laws to support their efforts: those that prohibited preaching door-to-door on Sunday, those that required a permit to go door-to-door, and even those that compelled Sunday observance within a state or locality. But Rutherford thought that freedom of religion had been offered to every American as an absolute guarantee. The existing laws being used to persecute the Bible Students were therefore both illegitimate and unconstitutional. Rutherford wanted every Bible Student to know that he or she was obliged not just to spread the good news of Jehovah’s coming kingdom but also to defend their legal right to conduct evangelism without the constraint of law.
To that end, Rutherford gave precise instructions in written form. He told his followers that if troubled by police they should inform the officers that the Bible Students were within their rights. If they were arrested, they ought to get a lawyer, show him the memorandum of authorities that Rutherford had prepared, take the case to trial, and be sure to preserve all records to mount a successful appeal. If convicted, they were instructed to appeal to ever-higher courts in order to make their case. “In doing so,” Rutherford wrote, “you will be acting strictly according to the law of the land and in harmony with the Word of God.”3
In 1931, in keeping with this new legal orientation, the Bible Students changed their name to the Jehovah’s Witnesses.4
The Witnesses had an obviously thorny intellectual stance. In religious terms, they were narrow exclusivists. They believed that they alone spoke the truth of God’s Word and that all other organized religions were corrupt rackets functioning as vehicles of Satan. They used the Bible, in the words of one early Witness, “as an offensive weapon” to tear down other religious groups and to promote their own vision.5
But they paired their exclusivism with a political pluralism and a view of the Constitution as a living document. The American constitutional order, according to the Witnesses, was capacious and allowed for many political, religious, and economic beliefs. The right to advocate for your belief, whatever it was, was protected through the Constitution. And as the times changed, as technologies changed, and as society itself changed, the Witnesses thought, the Constitution grew in response to those changes. So if, for example, the Witnesses were arrested for using sound trucks to amplify their message in a public place, even though recording or amplification technology had not been invented at the republic’s founding, the Constitution could develop to encompass the new factors within the old terms, whether those terms were freedom of speech or freedom of religion.6
In the 1920s the Witnesses’ legal stance was ahead of constitutional law. They had a hard time making their case. But once the court announced its new orientation in the Carolene opinion, they saw a new angle into the law to accomplish their ends. Rutherford set up a legal department in Brooklyn headed by Olin Moyle, an attorney and dedicated Witness. The goal was to use the court’s new orientation to undo the remaining structures of Christendom and thereby make way for the Witnesses’ message.7
Moyle was a strategic operator. Looking for allies, he reached out to the ACLU to propose a formalized collaboration. The ACLU was open to the partnership. Although none of the ACLU leadership was on board with the Witnesses’ theological program—since the organization was composed mainly of post-Protestants and freethinking or agnostic Jews—it did support the Witnesses’ absolutism on civil liberties.
The two organizations immediately found a vehicle to test their alliance in fall 1935, when an eight-year-old Massachusetts boy named Carleton Nichols Jr. refused to salute the flag in his school. Flag salutes were an increasingly ubiquitous requirement across the nation. They went along with the pledge of allegiance and looked like a Nazi salute. The students raised an arm, palm downward, toward the U.S. flag that was often hung in the corner of a classroom. For young Nichols the flag was, in his words, “the devil’s emblem” and the salute was a form of deferential worship. School administrators expelled the boy for his refusal.8
Baldwin immediately wrote to Carlton Nichols Sr. “The American Civil Liberties Union is following with interest your son’s courageous stand against a law contrary to your religious convictions,” he said. “We offer you our support since we believe that the American right of freedom of conscience and religious belief is at stake.”9
It is a remarkable fact that Rutherford had not, at that point, officially forbade saluting the flag. But the entire direction of the Witnesses’ message intimated that it was problematic. Nichols Jr. was only applying to his own experience what he had learned about worldly governments and their satanic underpinnings. Pushed by the boy’s action, Rutherford soon outlawed flag saluting among all the Witnesses. When other children followed suit, scores in other states were disciplined and expelled from their schools.10
Moyle wrote to the ACLU, unaware that it was already in contact with the Nichols family: “I am wondering if your organization would be interested in cooperating in another test case on the subject?”11
The ACLU immediately began developing legal arguments to resist compulsory flag saluting in coordination with the Witnesses. But its lead attorney, Abraham Isserman, decided to make the case using the concept of free speech, not religion. His decision was practical. Grounding the case in religious freedom would have created problems since the concept was difficult both to define and to limit. Any coherent legal system would be unable to allow people willy-nilly to decide that a law did not comport with their religious sympathies. As Baldwin later said, “We had our troubles in defining the limits of religious freedom.” To avoid the issue Isserman portrayed the flag salute as a case of coerced speech.12
There were advantages to the posture other than simple clarity. Unlike a religious freedom claim, free speech had an established place in American jurisprudence. Isserman could use the court’s own rulings to make his case. “Compelling words or a gesture equivalent to words,” he wrote in his model brief for the cases, “is quite clear as an invasion of the right of free speech as is a prohibition against words or symbols.”13
The ACLU insisted that it was being careful, not that it was disavowing religious freedom. The organization wanted to raise religion without really debating it. Isserman sought other religious groups to participate in the test cases, and Baldwin urged that they get a Catholic lawyer to argue the cases. “The issue is of importance to Catholics as a matter of principle,” he explained. The idea was to ground their reasoning in the issue of speech but to gesture toward religious diversity through the litigants and their legal representatives.14
The ACLU worked the press in similar fashion. It issued a memo asking why it was necessary to compel little children to salute the flag. What public reason did it serve? Framing the issue in this way emphasized the public advantage of free debate on all issues of political import, which was the central issue in the court’s free-speech jurisprudence. The flag salute seemed to narrow public debate through an enforced conformity and violated freedom of thought and speech.15
But the religion issue kept coming up, and the ACLU soon broadened its approach. In a Long Island case involving a thirteen-year-old Witness who was expelled by the school, an ACLU lawyer named Arthur G. Hays questioned the hostile superintendent.
Hays asked him, “You believe in religious freedom?”
“I do when it does not conflict with the rights of the Government,” the man responded.
“The guarantee of religious freedom is the first amendment to the Constitution?” he asked.
“Correct,” the superintendent replied.
“Don’t you know that the first ten amendments to the Federal Constitution are limitations upon the power of the federal Government? Don’t you know that?”
“No.”
“Don’t you know the first amendment of the Constitution is that Congress shall have no power to pass laws that will abridge religious views?”
“When those laws were passed there weren’t all these different religions.”
“Isn’t that the way it is worded?” Hays asked.
“I refuse to answer,” the superintendent responded.
As a point of fact, the First Amendment was not worded as Hays claimed, and his interpretation, though certainly feasible, was only one possible interpretation.
Hays eventually got the superintendent to say that he did not know where such expansive declarations about religious freedom would stop. “There is nothing to prevent people from starting a religion to keep them from paying taxes,” the superintendent said. “We would have anarchy.”16
The Witnesses were delighted that the ACLU seemed finally to be coming around to a religious defense. “It is a nice, skillful piece of trial work,” Moyle wrote to Hays, “done in the interest of liberty, which you love so well.”17
But in another sense it raised the problem directly. Speech and religion were different. Speech was free to allow full public debate. Religion, as it had been conceptualized in the past, was a private right that allowed for a person to make sense of the world free of governmental interference. To graft a new jurisprudence of religious freedom onto the free-speech jurisprudence would require either a change in conceptualization or some attention to the limits of religious freedom in the American political order. The tensions went to the heart of American secularism. If religious freedom simply became a constitutionally protected mechanism of bringing religion into public life and of exempting people from otherwise applicable law, would that be a secular order? For the Witnesses the question was irrelevant. Their goal was not a secular order; it was to make way for the Kingdom of Jehovah. They did not much care for the larger questions in place, except as those questions prevented them from their work. But for the ACLU the question was unavoidable. That was why the organization had so gingerly raised the question of religious freedom in the first place.
That left the Witnesses to make their cases themselves, not entirely trusting others to articulate their view. They were finally able to explain their position in early 1938, when the Supreme Court agreed to hear a solicitation case involving a Witness, Alma Lovell, who had been arrested in Griffin, Georgia. According to the local ordinance, all distribution of printed matter required prior approval from the city manager. Lovell was distributing literature without permit. She thought that the act of obtaining permission would submit the truth of her religion for determination to a secular authority, which would have violated her freedom of the press and her freedom of religion.
As the case made its way through the courts, judges consistently rejected her position. Their main reason for doing so was a set of cases from the nineteenth century that had to do with Mormons. After the Civil War the federal government had banned polygamy, which the Mormons then practiced, in an attempt to eliminate what they considered an institutionalized immorality from the federal territory of Utah. In Reynolds v. United States (1878), the Church of Latter-day Saints challenged the polygamy ban by insisting that it violated the church members’ religious freedom. The court rejected their stance. Freedom of belief, the court said, was absolute. Freedom of action was not. Religious freedom could not be used to justify behavior that violated otherwise applicable laws, such as a prohibition of polygamy.18
The decision was the start of a long battle between Congress and the Mormons. Twelve years later, after Congress disenfranchised polygamists in Idaho territory, the Mormons asked the court to grant them back the franchise. The court refused, again citing the distinction between belief and action to strike down Mormon challenges to the law. Polygamists could believe what they wished, but they must bear the consequences of acting on it.19
The same year, after Congress stripped the Church of Latter-day Saints of its charter of incorporation and seized all of its property until it modified its church teachings about polygamy, the court again ruled against the church. This time it implicitly acknowledged that the regulation of actions could shade into the regulation of belief. Congress’s seizure of church property was a straightforward attempt to reconstruct Mormon doctrine. The court found the reconstruction to be legitimate. Because incorporation was given under the law of charities, which was an expression of “the spirit of Christianity,” Congress was within its rights to make sure that expressions of barbarism, such as polygamy, were rejected in law.20
For a long time, those three rulings were pretty much the sum total of jurisprudence on the religion clauses of the U.S. Constitution. They did not help the Witnesses.
In oral argument Olin Moyle sought to convince the court to move beyond its own decisions. The issue was broader than the Witnesses, he said, and had to do with the place of religion in society. The court’s prior rulings posed a dilemma for minority religions whose practices did not comport with the majority sentiment.
Moyle later wrote Rutherford explaining that he sought to convince the court’s sole Catholic justice, Pierce Butler, a seemingly difficult task given the Witnesses’ virulent anti-Catholicism. Butler asked no questions, Moyle told Rutherford, “but sat there with a sardonic grin on his face until near the close when I pointed out under the construction as made by the Georgia court that we could very easily be put in the same situation as Russia or Germany where the children were not permitted to be taught anything concerning the Bible or religion.” From that point on, Butler’s face changed, and he listened soberly. “I guess it dawned upon him,” Moyle continued, “that if the court followed the Georgia construction, things might happen in some places to the parochial schools of the holy church.”21
Moyle’s approach turned out to be successful. In the unanimous opinion written by Chief Justice Charles Evans Hughes, the court sided with the Witnesses. Freedom of speech and of the press are among the most fundamental of political rights, Hughes wrote. The city’s prohibition against the distribution of literature was sweeping and not carefully tailored so as to preserve these rights. Since the ordinance banned all literature at all times and places unless approved by the city manager, it tended toward officially approved speech and operated as a de facto method of censorship.22
The decision was a huge victory for the Witnesses, though it did not go as far as they had wanted. The court had no interest whatsoever in the religious freedom component. It decided the case entirely on the grounds of free speech, sidestepping the religious claims entirely. Those issues, though the opinion did not quite say so, were difficult to untangle and unnecessary to resolve the case.
But the ruling could still be used in defense of religious freedom as the Witnesses understood it. Moyle wrote to Rutherford, “The decision is so clear and far reaching that we should be able to wallop them all along that line.”23
The next month Moyle wrote to Rutherford to explain the approach. “The battle line,” he said, “has shifted both as to territory and nature. Connecticut is now the place.” Like Georgia, Connecticut had a law that required persons who were soliciting to get a license from the secretary of the county public welfare council. But the Witnesses’ activities were more widespread than in Georgia, and the authorities’ response was more severe. In Connecticut there had been over two hundred arrests of Witnesses in two months.24
The first step was to appeal all convictions in Connecticut. There were already 135 appeals pending in the state superior courts. The next step was to seek an injunction from a federal appellate court. Assuming they were turned down, the appeal could go up the line to the Supreme Court. He proposed to continue the collaboration with the ACLU to ensure that everyone had legal representation.25
The strategy worked well. Within the year an attractive appellate case emerged. Newton Cantwell and his two sons were arrested for soliciting without a permit. What made their case useful was that they were also charged with violating a statute that broadly defined breach of the peace to include the distribution of “inflammatory literature.” The Cantwells had been proselytizing in a neighborhood that was 90 percent Catholic. They approached two Catholic men and asked if they could play a record. When the men said they would listen, the Cantwells played “Enemies,” an excoriating denunciation of the Catholic church as a racket and an enemy of God. The men had at first wanted to beat up the Cantwells, but they collected themselves and instead had the Witnesses arrested. At trial one of the chief pieces of evidence against the Cantwells was the publications that they distributed. Many of the Witnesses’ aggressive statements were read into the record as evidence that the father and his sons were peddling inflammatory literature.26
The case offered a meaty and fully documented test that was perfect for the Supreme Court. By the time the case got to the court, the Witnesses were represented by their new counsel, Hayden C. Covington, who stood before the panel assuring the justices that they could no longer avoid the issue of religious freedom. Covington pressed the court on the way the Connecticut law infringed upon the Witnesses’ religious proclamations. Hughes cut him off.
“I suppose these Catholics had some right of religious freedom themselves, did they not? I suppose they have the right to be left alone and not to be attacked with these scurrilous denunciations of their most cherished faith. What do you say to that?”
“I say that we are right,” Covington responded.
“Is there no limit at all to what you can do when you think you are worshipping your God?” Hughes asked.
“There is no limit so far as this record is concerned.”27
After oral argument Hughes was inclined to vote against the Witnesses. The law applied equally to all charitable and philanthropic groups, he pointed out. He could not see how it discriminated against the Witnesses or violated their faith because it also applied to other religious groups. More broadly, the absolute nature of their position alarmed him. The principle seemed ripe for mischief. Although the Witnesses seemed sincere, Hughes noted in conference, “There are fake religious groups.” How would the state deal with that? How would it find a way to cabin religious exemptions once the principle was granted?28
No one really had an answer. But the other justices were inclined to side with the Witnesses anyhow. The reason went back to the Carolene decision, in which the court announced a “more searching judicial inquiry” into laws that discriminated against religious, national, and racial minorities. At the time, the court’s stated goal was simply the elimination of prejudice. But several members of the court began to move further toward an embrace of cultural pluralism as a guiding principle in American law.29
The majority of the court had been pulled in that direction by its prior reasoning about the purposes of free speech. Given the limitations of an individual’s perspective, the court had ruled, ensuring free speech enabled a full airing of political issues from many perspectives so that public policy would more likely be both wise and democratic. Because many members of the court came to the issue of religion through the issue of speech, they adopted a similar stance toward religion without recognizing the difficulties they were about to encounter.
In the case against the Cantwells the court was unanimous. The ruling was the first to apply the free-exercise clause of the First Amendment to the states. It struck down the Connecticut law in order to protect freedom of religion to the fullest possible extent. As Owen Roberts put it for the court, the deciding issue was the cultivation of pluralism as a normative ideal. “In the realm of religious faith,” he wrote, “and in that of political belief, sharp differences arise. In both fields the tenets of one may seem rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.” The point was to create a political system in which “many types of life, character, opinion and belief can develop unmolested and unobstructed.”30
The decision’s solicitousness toward religious freedom was an outgrowth of the court’s constitutional liberalism. It brought the cosmopolitan ideal into the legal realm. But it also raised the question of where these rights ended. The Witnesses cited an absolute right capable of no limitation. In Cantwell the court disagreed though it only minimally clarified how it contained the rights. The court did say that free exercise could be limited if it incited violence or breached the peace in a way that deprived others of their liberties. It was, again, thinking of religion as an extension of speech in ways that it had not fully understood.31
But the court soon confronted the dilemmas that its jurisprudence created, and the fissures buried beneath the Cantwell opinion began to open up. Part of the problem was that cultural pluralism had historically offered a strategy to displace or at least decenter Protestant Christian power. To embrace pluralism was to accept that a singular religious authority needed to recede in the face of multiple and often competing claims.
But when the Witnesses invoked religious freedom their argument functioned in another way. They rejected the authority of others and urged the court to do so as well, while also assuming a nearly unqualified religious authority for themselves. They expected the court both to respect their views and to clear any and all impediments to their attestations of conscience, however they understood them. Their position in effect made secular authority always open to negation by a religious appeal, and it used secular authority as a mechanism for religious advancement.
Some on the court were troubled by the implications of the Witnesses’ position. After Cantwell they sought to reaffirm the power and appropriateness of secular authority. The court was able to address the issue a few months after it decided Cantwell when it accepted a flag salute case that involved Lillian and William Gobitas, aged twelve and ten. Like other Witness children, they had refused to salute the flag after Rutherford had banned it. And like other Witness children they were expelled from school. Following the Witnesses’ strategy, they appealed to the district court, which ruled in their favor. The school board appealed to the 3rd Circuit Court of Appeals, which also ruled in the Witnesses’ favor. The school board appealed to the U.S. Supreme Court, where it had every expectation that it would lose given the ruling in Cantwell.
The Witnesses were confident. The Gobitas children were represented by Witness lawyers as well as by the ACLU. The two groups agreed to split the time in oral argument, the Witnesses emphasizing the religious freedom aspects of the case and the ACLU focusing on the free-speech aspects. It seemed like a solid strategy, as it had worked in the past.32
But the Witnesses’ case was in trouble from the beginning. Their brief, written by Rutherford, was nearly calculated to put off the justices. It was intemperate. It featured ubiquitous biblical references in the free-associative hermeneutics typical of apocalyptic sects. References to law were thin and often irrelevant. Rutherford continued that posture in oral argument. If the judges were to rule in the Witnesses’ favor, they had to look beyond Rutherford when evaluating the issues.33
In conference Hughes expressed his bewilderment. “I come up to this case like a skittish horse to a brass band,” he told the other justices. “I don’t want to be dogmatic about this, but I simply cannot believe that the state has not the power to inculcate this social objective.”34
Nearly all of the justices agreed. It seemed to be a relatively straightforward decision. So Hughes assigned the opinion to Felix Frankfurter, a junior member of the court whom Roosevelt had appointed to replace Benjamin Cardozo the year before. In many ways Frankfurter had seemed to be an ideal choice for the Witnesses. When Roosevelt’s nomination was announced, Moyle had written to Rutherford praising the decision. “With Frankfurter, an avowed advocate of civil liberties, now on the Supreme bench,” Moyle said, “we may get a chance for a hearing.”35
But as much as Frankfurter was in favor of civil liberties, he was also a secularist who distrusted the role of religion in public life. As a Jew, he tended to associate the projection of religion outside of private spaces with the marginalization, even suppression, of minorities. He was a thoroughgoing civic nationalist who extolled national identity over all ethnic and religious collectivities. These other collectivities, religious or otherwise, were, in his thinking, relegated to civil society or to private affairs. So although he had much in common with the Witnesses, their position on religious freedom ran against his sense that secular civic authority needed to retain primacy in the governance of national life.
As he put it in his 8–1 opinion for the court, the American experiment was designed against the backdrop of centuries-long religious strife. The guarantee of religious freedom in the U.S. Constitution sought to mitigate animosity. The court had acknowledged the importance of religious freedom in its Cantwell decision, which he had joined and which articulated the importance and expansiveness of existing protections for religious belief and expression. “But the manifold character of man’s relations may bring his conception of religious duty into conflict with the secular interests of his fellow men,” Frankfurter wrote. In the case of conflict between religious and secular authorities, certain exemptions could be granted, Frankfurter acknowledged. The right of dissident or even obnoxious religious belief was always guaranteed. “But to affirm that the freedom to follow conscience has itself no limits in the life of a society,” he continued, “would deny the very plurality of principles which, as a matter of history, underlies protection of religious toleration.”36
That, according to Frankfurter, was the mistake of the Witnesses. They were deeply committed to the separation of church and state but also recognized no limit to their right of conscience. An avowal of conscience trumped any and all rules of the state. The position made perfect sense to the Witnesses because they saw the state as evil, and they were waiting for the end of the world. They did not require any coherent theory of state power because they looked only to the coming Kingdom of Jehovah. But that was not a position available to the court. To Frankfurter, the right of conscience in a pluralized society was always relative and must be balanced against other factors in a way that preserved the secular authority of the state.
Still, that did not resolve the case. Having dispensed with the absolute claims of the Witnesses, Frankfurter was forced to ask whether they had a grievance in this instance. Their proposition that the flag salute was a gesture in support of the devil implied that all the children, not just the Witnesses, were being coerced. Frankfurter rejected the inference. He explained that American society had agencies tasked to support a common national sentiment. The school was at the forefront of those agencies. The flag was a symbol of collective national aspirations. The desire of school boards to inculcate national fellowship was surely legitimate, Frankfurter thought, even if their means were harsh or foolish.
That left him the option that the Witnesses could be excused from the exercise, but he refused to do that as well. His own positive vision of secularism was surely in play, but he grounded his opinion in judicial deference to legislative authority. There was a range of policy choices available to governments. There was a range of school options, from public to private, that were available to the Witnesses. No student was required to attend public schools. If the Witnesses absolutely could not salute the flag, they were free to educate their children in some other venue. Or school boards were able to change their minds. Or legislatures could modify their laws. All were options that went beyond the capacity of the court, Frankfurter held. Such variety was allowed in keeping with the plural nature of American society. If the Witnesses wanted to attend public school and school officials said they had to salute the flag, the court was not going to say otherwise.
Frankfurter’s opinion was long and comprehensive. The majority was overwhelming. It seemed a decisive ruling.
Harlan Stone, who wrote the Carolene opinion, expressed the only dissent, though even he disagreed with the Witnesses in their absolutist position on conscience. In explaining his departure from the majority of his brethren, he went out of his way to say that protections of personal liberty were not as absolute as the Witnesses thought. But, leaving that question aside, Stone held, the Witnesses had a legitimate constitutional grievance. The flag salute was a compulsion that unnecessarily denied the Witnesses their liberties and that undermined debate in a free society. “The state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain,” he wrote.37
The speech issue was the problem. The flag salute violated free expression and undermined the social and political function of free exchange. “The guaranties of civil liberty are but guaranties of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them,” Stone explained. “They presuppose the right of the individual to hold such opinions as he will and . . . to teach and persuade others by the communication of ideas.” But the flag salute violated the purpose of free speech and so could not be constitutionally legitimate.38
Stone’s dissent went a long way to reframing the debate entirely. He did not deny that legislatures could attempt to inculcate national cohesion, but he thought that they could do so only while upholding a system of protections that allowed for the freest circulations of ideas. In that way his dissenting opinion emphasized the doctrinal continuity of the case with the court’s earlier decisions about free speech.
Critics followed Stone’s lead. Christian Century the house magazine of Protestant liberalism, lamented the decision as “not a wise one,” but it speculated that the court had been driven to the position by the Witnesses’ absolutist statements. That was the court’s mistake. “[The Witnesses’] refusal to go through the ritual of the salute,” the magazine continued, “is not half so dangerous to this country as the equally conscientious and equally misguided zeal of the patriots who, mistaking one formula of loyalty for the thing itself, are more anxious to have a symbol of liberty saluted than to have liberty maintained.”39
Even some Supreme Court justices were persuaded after the fact. Stone had worked on his dissent to the last minute. None of the other judges had time to read it until after the decision was announced. Frank Murphy, who had replaced Pierce Butler earlier that year; William O. Douglas, who had replaced Louis Brandeis in 1939; and Hugo Black, who had replaced Willis Van Devanter in 1937, all immediately felt, upon reading Stone’s dissent, that they had decided the case wrongly. They soon met around the swimming pool in Murphy’s hotel and agreed that Frankfurter’s opinion needed to be overturned as soon as possible.40
Contemporary events fed into their reappraisal. The Gobitis decision coincided with a wave of violence against the Witnesses. In 1940 alone 335 groups were attacked in 44 states. After a summer of sometimes-bloody conflict, Douglas told Frankfurter that Hugo Black was reconsidering his position on the flag salute case.41
“Why, has he reread the Constitution during the summer?” Frankfurter responded, sarcastically.
“No,” Douglas replied, “but he has read the papers.”42
By January the Witnesses’ cause was strengthened when Roosevelt delivered his State of the Union. Toward the end of his speech he famously articulated the four freedoms that needed to be secured in both the United States and the world—freedom of speech, freedom of religion, freedom from want, and freedom from fear. Roosevelt promoted the four freedoms as compatible with American institutions and as in keeping with the constitutional modernism embraced by the court. “Since the beginning of our history,” he said, “we have been engaged in change—in a perpetual peaceful revolution—a revolution which goes on steadily, quietly adjusting itself to changing conditions—without the concentration camp or the quick-lime in the ditch.” His proposal was simply in keeping with the long-held practice of national self-regeneration and constitutional transformation.43
Soon the Witnesses were back in court, this time protesting a city ordinance in Opelika, Alabama, that required a tax be paid and a license procured in order to conduct a business, including selling books and pamphlets. The court ruled 5–4 that the tax was legitimate because it applied to all businesses in a nondiscriminatory fashion. Writing for the court, Associate Justice Stanley Reed went out of his way to support the free dissemination of ideas and to acknowledge that one must always be wary of attempts to suppress dissident opinions. But that was not what was occurring in Opelika, he held. “When proponents of religious or social theories use the ordinary commercial methods of sale of articles to raise propaganda funds,” he wrote, “it is a natural and proper exercise of the power of the state to charge reasonable fees for the privilege of canvassing.”44
Stone, in a dissent joined by Black, Douglas, and Murphy, excoriated the reasoning of the majority. The only purpose of the licenses was to suppress the distribution of literature that occurred outside the watchful gaze of city authorities, Stone alleged. Taxation for the dissemination of ideas could easily be made to suppress those ideas. Although it had not happened in the existing case, the city official could revoke the license at any point. Even if the city official did not revoke the license, the system of taxation itself, reproduced in town after town, had the potential to destroy freedom of the press for everyone but the independently wealthy. “It seems fairly obvious that, if the present taxes, laid in small communities upon peripatetic religious propagandists, are to be sustained,” Stone wrote, “a way has been found for the effective suppression of speech and press and religion despite constitutional guarantees.”45
Writing separately, Black, Murphy, and Douglas acknowledged their change of mind since they joined Frankfurter’s Gobitis opinion. They now detected the operations of older, more mainstream religious groups in these laws. Established groups were using the powers of the state to suppress a religious minority. Black, Murphy, and Douglas thought that court protection was necessary, especially for small, unorthodox, and unpopular groups like the Witnesses, which they had failed to appreciate when they joined the majority in Gobitis. Rather than protecting unorthodox expression, they now said, the majority of the court had in effect sustained the suppression of religious opinion behind a veneer of nondiscrimination and an attentiveness toward secular authority.46
The fissures were real and deep, though the justices did not fully understand them. Their disagreement turned on their divergent understandings of secular authority and its relationship to religious pluralism. For the majority, led by Frankfurter, secular authority existed independently of the religious position of individuals. But the minority had other priorities. It was not that they wanted to give religious groups veto power over otherwise applicable law, but they thought that religious ideas and expression needed special protection. The defense was not just for the group’s own sake but also in order to preserve the effective exchange of ideas necessary to a free society. They did not think that shielding small religious groups would endanger the secular rule of the state.
The disagreement would only grow more fraught. The next year the Witnesses were back in court again, protesting a similar fee for solicitation in Pennsylvania. But in the interim Roosevelt had appointed a new justice, Wiley Rutledge, to replace James Byrnes, who had previously voted against the Witnesses. The additional appointment created a new five-person majority. Writing for the court, William Douglas vacated the holding in the earlier Opelika case and allowed the Witnesses to solicit without fee.
Douglas’s reasoning was novel. He proposed that the fee was essentially a tax on the exercise of First Amendment rights. “The mere fact that the religious literature is ‘sold’ by itinerant preachers, rather than ‘donated’ does not transform evangelism into a commercial enterprise,” he wrote. “If it did, then the passing of the collection plate in church would make the church service a commercial project.” The Witnesses’ activities were religious, he ruled, regardless of the means of conducting their religion, and so they received strict constitutional protection.47
Reed, in a dissent joined by Frankfurter, Robert H. Jackson, and Owen Roberts, was scathing in his criticism. “It has never been thought before that freedom from taxation was a perquisite attaching to the privileges of the First Amendment,” he wrote. Newspapers could be taxed, which would seem to make the majority’s contention illogical on its face. And the tax itself was nondiscriminatory and nonexcessive. What the majority had ruled was that the religious ideas of the Witnesses had such a high position that governments were powerless to touch them or to raise funds from their activities. This was hardly secular.48
Frankfurter also wrote a dissent, joined by Jackson, elaborating on what he saw as the folly of the majority. The logic of the court’s opinion actually committed the state to support religion, Frankfurter thought. The Witnesses’ activities cost money by requiring cities to provide police, trash pickup, and more. The majority, in declaring that any supposedly religious activity was exempt from taxation, required that the state offer a subsidy for the dissemination of religious ideas. “Such a claim offends the most important of all aspects of religious freedom in this country,” Frankfurter concluded, “namely, that of the separation of church and state.”49
Jackson also wrote a dissent, joined by Frankfurter, that went still further in questioning the majority’s reasoning. In his view the First Amendment protected the broadest possible exercise of free speech, free assembly, and freedom of the press, not just for religious purposes but also to spread political, economic, or scientific views. But the majority had, in effect, narrowed the protection of nonreligious communication while gifting a sweeping and absolute protection for avowed religious groups. Jackson thought the holding would involve the court in impossible issues in the future, as it attempted to sort out what received protection and what did not. “This Court is forever adding new stories to the temples of constitutional law,” Jackson wrote, “and the temples have a way of collapsing when one story too many is added.”50
A month later the court handed down another opinion that again favored the Witnesses. This time it reversed the court’s flag salute decision from three years earlier. Jackson, writing for the 6–3 majority, ruled that the flag salute was a form of compelled speech that violated the First Amendment’s free-speech protection. He specifically did not find that the Witnesses’ freedom of religion was being violated. He noted that a decision by the court to exempt the Witnesses would not interfere with anyone else’s right and would not offer an official endorsement of religion in any way. That made the case easy, according to Jackson. “To sustain the compulsory flag salute,” Jackson said, “we are required to say 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.” Since that was obviously nonsensical, the flag salute could not be compelled.51
But Jackson was not content to leave it there. Although he wanted to preserve secular authority and although he was wary of absolutist statements of religious freedom, he distrusted the equally unbending secularity of Frankfurter. Jackson offered instead a negative secularism. By grounding the opinion in freedom of speech, he had effectively neutralized the problem of religious freedom. So for the rest of his opinion he turned his attention to a demonstration of how Frankfurter’s position, far from preserving public secularity, would actually endanger it.
As Jackson saw it, if public education was faithful to the idea of secular instruction it could not be an enemy of any class or creed or faction. To declare an orthodoxy and to require submission to it, as the flag salute seemed to do, would start a scramble between groups to control the system of education in order to preserve that faction’s own interest. Failing that, groups would seek to weaken the system of education so that it was ineffective in achieving public goals. Preserving secular education, by contrast, required a return to the balancing tests supported by an earlier generation of sociological jurisprudence. When approached in that way, it became clear that accommodating the Witnesses would strengthen the system of secular instruction by adopting a posture of political and religious neutrality. “We apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social system,” Jackson wrote. The only unity required was a shared commitment to protect the individuality of all.52
Frankfurter’s dissent was bitter and personal. He began the opinion with reference to his Jewishness. As he put it, he was “one who belongs to the most vilified and persecuted minority in history.” If anyone on the court was sensitive to the oppression of minorities, he declared, it was, given his experience as a Jew, him. And if it were up to him he might accommodate the Witnesses. But his personal perspective was not at issue. The real concern was who was supposed to make the accommodation. That power rested with the legislature, not with the courts.53
He could have ended his opinion there, justifying it entirely on the basis of deference to legislative prerogative. But his position was more expansive and was intimately tied to a wider political philosophy of secularism, not simply judicial deference. The problem was that the majority had misconceived the rights granted by the Constitution and in so doing had threatened the American political arrangement. The American Founders, in Frankfurter’s understanding, created a system in which there was neither orthodoxy nor heterodoxy before the state. Religious minorities and religious majorities were equal insofar as their religious belief was irrelevant to the state. Their belief was private. The majority misunderstood just this point. “The constitutional protection of religious freedom terminated disabilities, it did not create new privileges,” Frankfurter wrote. “It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.”54
Frankfurter’s understanding, though he did not say so, was shaped by the French model of secularism known as laïcité, a system that emerged during the 1880s as part of the Third Republic. The goal, as the historian Joan Wallach Scott has explained, was “the separation of church and state through the state’s protection of individuals from the claims of religion.” What that meant in the French case was that the state took no cognizance of religious belief in the sense that a person’s religion was relegated to the private sphere, the area of family. The state demanded undivided loyalty of citizens to the French nation as a whole. The secular school mediated between these two realms. It served as a transition between private and public, from the world of the family to that of the nation. A child entered school loyal to the household. But it left school committed to the French state. Insofar as freedom of religion required the performance of one’s belief, that kind of freedom, which threatened the undivided loyalty to the republic if left unchecked, was only for the private realm.55
Frankfurter articulated a similar idea but transposed into American history. It was this commitment, more than his deference to legislative authority, that made him reject the position of the Witnesses. As he put it in his dissent, “The validity of secular laws cannot be measured by their conformity to religious doctrines. It is only in a theocratic state that ecclesiastical doctrines measure legal right or wrong.” Frankfurter fretted that if religious freedom meant an automatic or nearly automatic exemption from applicable law, then the separation of church and state would be a farce, and instead all religious groups would receive power over and above the state.56
Frankfurter had already said a lot and, again, he might have left it there. But he offered one final word of warning. A person might want to support religion, he acknowledged, and a person might worry that failing to accommodate religious claims would jeopardize deep human commitments. But as Frankfurter saw it, the state really had no choice. It had to disregard some people’s religious ideas. “When dealing with religious scruples,” he wrote, “we are dealing with an almost numberless variety of doctrines and beliefs entertained with equal sincerity by the particular groups for which they satisfy man’s needs in his relation to the mysteries of the universe.” The sheer number and variety of claimants meant that the state could not recognize all of them and still have a functioning government. Someone would have to determine who was sincere and who was not, which groups received accommodation and which did not, and what was to be considered religion and what was not. That should be the legislature, not the courts, Frankfurter said, otherwise such determinations were all the courts would do given the number of issues and potential appellants involved.57
If Frankfurter had a crystal ball he could not have been more accurate. He ultimately grounded his stance in a practicality that the majority had not entertained. The right of religion was a morass that the court would soon find continually problematic.