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Home > Journals > Michigan Law Review > MLR > Volume 42 > Issue 2 (1943)

 

Abstract

The state of West Virginia enacted an amendment to its statutes in 1941 requiring all schools to conduct courses in history and civics for the purpose of fostering "the ideals, principles and spirit of Americanism," and pursuant thereto the Board of Education adopted a resolution ordering that the flag salute and declaration of allegiance should be a regular part of the program of activities in the public schools. Expulsion from school was provided for nonconformity- and until compliance the child was considered unlawfully absent from school and the parents were liable to fine and imprisonment for causing child delinquency. Appellees were members of Jehovah's Witnesses, and brought suit to secure an injunction restraining the West Virginia Board of Education from enforcing the above regulation against them on the ground that it was contrary to their religious principles, and hence a violation of freedom of religion and speech and due process and equal protection of the laws guaranteed by the Constitution. Held, the injunction should be granted. That national unity may be fostered "by persuasion" is not questioned; but to hold that conformity may be achieved by compulsion strikes at the heart of our form of government. Our government exists "by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent." The Court stated that the purpose of the Bill of Rights was to withdraw religious rights from the usual scope of legislative enactments and to remove them from the vicissitudes of political controversy. Such rights are susceptible of legislative restriction only to prevent grave and immediate danger to interests which the state may lawfully protect-and mere silence during a flag salute ceremony is not such a danger. West Virginia State Board of Education v. Barnette, (U.S. 1943) 63 s. Ct. 1178.

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