Woman in Barnette reflects on famous flag-salute case

Monday, December 28, 2009

One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see “SCT interview” keyword below).

Most First Amendment enthusiasts probably don’t know the name Marie Snodgrass. The name may not ring a bell even for many die-hard free-speech advocates. But Marie Snodgrass — the former Marie Barnett — helped to change legal history along with her older sister, Gathie, when they were in elementary school in West Virginia in the 1940s.

Marie and her sister were the “Barnettes” (a court clerk misspelled the family’s surname) in the landmark U.S. Supreme Court decision West Virginia Board of Education v. Barnette (1943), in which the Court struck down a West Virginia law that required public school students to stand, salute the American flag and recite the Pledge of Allegiance. The famous decision established that public school students had First Amendment rights and that the First Amendment often prohibits the government from compelling people to engage in certain speech.

 

Marie and Gathie attended Slip Hill Grade School near Charleston. They were reared as Jehovah’s Witnesses by their father, Walter, who worked for E.I. du Pont, the chemical company. He was not a preacher, but a devout Witness who believed fervently in his faith. Walter Barnett listened to Jehovah’s Witness leader Joseph Rutherford, who warned against saluting the flag as tantamount to worshipping graven images in contravention of biblical commands in the book of Exodus.

 

“When this happened I was eight years old and my sister Gathie was nine, almost 10,” Marie recalled in a recent telephone interview with the First Amendment Center Online. “We lived in a rural area and some people didn’t understand what we were doing.”

 

Some may not have understood but they noticed what the sisters were — or were not — doing. They weren’t showing the proper patriotism — or so some thought.

 

Although their teacher saw that Marie and Gathie refused to salute the flag and recite the pledge, Marie said, the teacher was not the problem.

 

“Our teacher was very understanding,” Marie recalled. “However, the principal was sterner. He wanted to know why we wouldn’t do what the other kids were doing. He was a little less kind.”

 

The principal sent the sisters home after the state board of education had adopted a policy that required saluting the flag. Failure to salute, the policy said, was an act of insubordination that could lead to expulsion from school and even fines and jail for the students’ parents. In fact the Barnett girls were expelled.

 

Walter Barnett and a couple of other Witnesses sued in federal court, contending that their children’s First Amendment rights were violated by this compulsory flag salute. At the time they seemed to face an insurmountable legal obstacle — the Supreme Court’s decision in Minersville School District v. Gobitis (1940), in which the high court had ruled 8-1 to uphold a similar Pennsylvania flag-salute law. Only Justice Harlan Fiske Stone had dissented.

 

Writing for the majority in Gobitis, Justice Felix Frankfurter said that “the ultimate foundation of a free society is the binding tie of cohesive sentiment.” He said the American flag represented a key part of that “cohesive sentiment.” He also said federal judges should not substitute their judgment over that of local educators when it came to instilling patriotism in youth.

 

During the patriotic, some would even say jingoistic, time of World War II, many believed that the Jehovah’s Witnesses were unpatriotic. After Gobitis, many Witnesses faced job losses, beatings and other horrific abuses. Three Supreme Court justices — William O. Douglas, Hugo Black and Frank Murphy — who had voted to uphold the Pennsylvania flag-salute law took the unusual step of announcing in their special dissenting opinion in another Jehovah’s Witness decision outside the school context (Jones v. Opelika) that Gobitis was wrongly decided. They wanted another case to try to undo the damage of Gobitis.

 

Because of Gobitis, West Virginia school officials thought they were on solid ground in expelling the Barnett kids. However, when Walter Barnett’s lawsuit came before a three-judge federal panel, the judges ruled in favor of the children in Barnette v. West Virginia State Board of Education in October 1942. Writing for the majority, Judge John Parker said the panel did not feel obligated to follow Gobitis:

 

“Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. … The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority.”

 

So the Barnett children prevailed. “We were relieved that we won and could go back to school,” Marie Snodgrass said. “It was difficult on us because we had missed half a year and we had to repeat that year. But, we were happy.”

 

But the school board did not take the defeat lying down. It appealed to the U.S. Supreme Court, confident that the Court would reaffirm its ruling in Gobitis. Instead, the Supreme Court issued one of its most remarkable reversals in history by a 6-3 vote. Chief Justice Harlan Fiske Stone — he had been elevated from associate justice in the meantime — assigned the opinion to Justice Robert Jackson, who penned one of the most memorable opinions in First Amendment history.

 

In a celebrated passage that has become First Amendment lore, Jackson wrote:

 

 

“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.”

In another oft-quoted passage, Jackson emphasized the importance of school officials’ protecting students’ First Amendment rights:

 

 

“That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

The Court released its decision on June 14, 1943 — Flag Day. It was a momentous victory for Marie and Gathie Snodgrass, their family, Jehovah’s Witnesses and public school students across the country. It established that schools must allow students to opt out of saluting the flag and reciting the pledge.

 

“When you are eight or so, you don’t understand the full significance of the decision,” Snodgrass said. “But we were glad we lived in a country that protected our religious freedom. In some other countries, they still don’t recognize Witnesses as a religion and (Witnesses) have a lot of problems.”

 

Marie Snodgrass graduated from high school, entered the workforce, married and had a family. Through the years she would often go to school to explain to teachers why her children would not be reciting the pledge.

 

“As they got older, they were able to explain it themselves,” she said. “We never had a problem over the years.”

 

Snodgrass worked for Union-Carbide as a secretary, retiring in 1996 after 20 years. She still lives in Charleston. Gathie is also still living.

 

Reflecting upon the famous decision, Snodgrass said that “it has given us a sense of importance, not from a personal standpoint but from a sense of just how important the case was and what it stood for. … Our main thing was teaching our children our faith and teaching them the right way.”

 

She added: “We’re proud of the fact that we stood up for our rights.”

 

All Americans should be glad that Marie Barnett Snodgrass and her family stood up for their religious beliefs. Their doing so led to greater protection for all our First Amendment freedoms.

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