9 Monthly Bull. Int'l Jurid. Ass'n 1 (1940-1941)

handle is hein.journals/injasmb9 and id is 1 raw text is: 


INTERNATIONAL JURIDICAL ,.ASSOCIATION


                          MONTHLY BULLETIN
Vol. 9,  No. 1                                    JULY,  1940              .    asW             Price $2 a year


       The   Compulsory Flag Salute
            in  the  Supreme Court
   In Minersville School District v. Gobitis,' decided June
3, 1940, the Supreme  Court  upheld the validity of the
compulsory  flag salute in the public schools, over a re-
ligious objection founded on the Biblical Commandment
against idolatry. The Gobitis children had  declined to
salute, saying that they feared divine punishment if they
should render this gesture of obeisance and reverence to a
secular symbol. They  were  expelled from public school
under  a compulsory salute regulation passed by the local
Board  of Education  pursuant to a state statute author-
izing instruction in civics, including loyalty to the State
and  National Government.
   Together with their father (who complained of the cost
of sending them to private school) they sued in a federal
district court to enjoin the authorities from continuing to
exact participation in the flag-salute ceremony as a con-
dition of  the children's attendance at the Minersville
school. They  asserted that the regulation as applied to
them  violated the constitutional guarantee of freedom of
conscience. The trial court granted the relief prayed and
the Third Circuit Court of Appeals, in the face of several
opposing Supreme  Court per curiam decisions, affirmed.
   The Supreme  Court reversed, 8 to 1. Mr. Justice Frank-
furter, writing for seven members of the Court,2 declared
that the regulation was not a constitutionally forbidden
means  for fostering that binding tie of cohesive national
sentiment which  is the ultimate foundation of a free
society. The Court based its decision on an implied legis-
lative determination that the compulsory salute is a proper
method  of promoting this feeling of national unity, which
determination the Court was unwilling to declare beyond
the pale of legislative power, even in the face of a re-
ligious objection.
  The  reasoning of the majority opinion seems to run as
follows:
   (1) The  constitutional right to freedom of conscience
is a historic concept which does not forbid legislation of
general scope not directed against doctrinal loyalties of
particular sects. Thus the religious guarantee cannot be
invoked where, as here, the challenged legislation is not
directed against doctrinal loyalties of particular sects but
is a general measure  enacted in furtherance of an im-
portant public purpose, even though the legislation hap-
pens to work a special hardship on certain persons because
of their religious beliefs. This eliminates the religious aspect
of the case and leaves only the question whether the salute,
even when  required of unwilling children, is a reasonable
way to promote the interest in national unity-an interest
inferior to none in the hierarchy of legal values.
                 (Continued on Page 10)
  1. 84 L. ed. (Adv.) 993.
  2. Mr. Justice McReynolds concurred in the result and Mr.
Justice Stone dissented with opinion.


           Recent Items of Interest
                      CIVIL RIGHTS
Violence Against Jehovah's Witnesses
   In the wake of the Supreme Court's decision on June 3,
 1940 with respect to the validity of the compulsory flag
 salute for public school pupils,' has come a wave of mob
 violence directed against members of the Jehovah's Wit-
 nesses, a cult whose credo forbids obeisance to the flag as
 idolatrous. On June 15, the American  Civil Liberties
 Union announced  that it had requested the Civil Liberties
 Unit of the Department of Justice to investigate the back-
 ground of 42 cases in 21 states.2
 Several  incidents attracted wide public attention. In
 Maine, on June 8, 1940, two organizers of the cult were
 reported beaten by a crowd  of 1,000 at Sanford, when
 they refused to salute the flag. The next day at Kennebunk,
 an auto party approached the home of Edwin Bobb, local
 leader of the cult, where Bobb and five others, warned of
 impending attack, had barricaded themselves. Shotgun fire
 wounded two of the party outside. Bobb and his five com-
 panions were arrested. A mob  of  2500 was  organized,
 started for the jail but on being headed off by police,
 marched to the Bobb  home,  sacked and burned  it.3 On
 June 10, the six arrested members pleaded not guilty to
 charges of assault and were held in $10,000 bail each. At
 the arraignment, a mob pummelled  and jostled Clarence
 Grant, an elderly cult member present as a spectator, when
 he refused to salute the flag. That night a cavalcade of
 24 automobiles besieged Grant's home in Biddeford, and
 one man was wounded  by buckshot in the resulting fray.4
 The six Jehovah's Witnesses were finally held by Municipal
 Judge Harold H. Browne  for the October grand  jury in
 $5,000 bail each. On June 12, two Kennebunk   residents
 were arrested for arson in connection with the burning of
 Bobb's home.5 The state police captain blamed the dis-
 turbances on youngsters who had gone too far, much
 too far in their attacks.6
 On   June 3, 89 members of a Christian sect were in jail
in Waxahachie,  Texas, for distributing religious tracts.7
On  June 6, 20 Jehovah's Witnesses were run out of Cot-
tonwood,  Arizona, by  local vigilantes who seized and
burned leaflets.- On June 16, about 30 persons were run
out of Elsinore, California, while the police are alleged to
have sided with the attackers.9 On June 16, in Litchfield,
Illinois, a mob reportedly organized by  the American
Legion, attacked a group of Jehovah's Witnesses distribu-
ting literature, overturned or destroyed their cars, burned

  1. Minersville School District v. Gobitis, 84 L. ed. (Adv.)
993, discussed in this issue of the Bulletin, opposite column.
  2. A.C.L.U. press release, June 15, 1940.
  3. N. Y. Times, June 10.
  4. N. Y. Herald Tribune, June 11.
  5.  Id., June 13; Daily Worker, June 13.
  6. People's World, June 12.
  7. Id., June 3 and 7.
  8. Id., June 6.
  9. N. Y. Times, June 17; A.C.L.U. press release, June 29.


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