Minersville School Dist. v. Gobitis
Decision Date | 04 March 1940 |
Docket Number | No. 6862.,6862. |
Citation | 108 F.2d 683 |
Parties | MINERSVILLE SCHOOL DIST. et al. v. GOBITIS et al. |
Court | U.S. Court of Appeals — Third Circuit |
Joseph W. Henderson, of Philadelphia, Pa., John B. McGurl, of Minersville, Pa., and George M. Brodhead, Jr., of Philadelphia, Pa., for appellants.
Harry M. McCaughey, of Philadelphia, Pa., and O. R. Moyle, of Brooklyn, N. Y., for appellee.
Arthur Garfield Hays, Jerome M. Britchey, and William G. Fennell, all of New York City, for American Civil Liberties Union, amicus curiae.
Before BIGGS and CLARK, Circuit Judges, and KALODNER, District Judge.
Writ of Certiorari Granted March 4, 1940. See 60 S.Ct. 609, 84 L.Ed. ___.
Eighteen big states1 have seen fit to exert their power over a small number of little children2 ("and forbid them not"). The method of exercise has sometimes been by their representatives in solemn conclave assembled and sometimes, as here, by an administrative agency (School Board). The matter of exercise is in that field where, above all, or so we had supposed, power must yield to principle. In other words, the area of action is within the aura of conscience.
The appellant School Board is entrusted by statute of Pennsylvania with the delicate, but surely not difficult, task of instructing the public school children under its control in "civics, including loyalty to the State and National Government". 24 Purdon's Pa.Stat.Ann., § 1551. To that end, as we assume it believed, the following regulation was promulgated on November 6, 1935:
. Record, p. 6.
The appellees, a little girl of 13 and a little boy of 12, refused to salute the flag of "their country" on the appropriate occasion. They stood in respectful silence while the other children submitted to the "requirement" and they were "dealt with accordingly" by being expelled.
The reason for their refusal raises the constitutional issue of this appeal. They and their parents are members of a group (we avoid for the present more definite characterization) known as Russellites, or more colloquially, Earnest Bible Students,3 or Jehovah's Witnesses. The defendant School Board admits that this group "sincerely and honestly believe that the act of saluting a flag contravenes the law of God" in that it constitutes a bowing down to a graven image.
The so-called flag salute statute (or regulation) first appeared in Kansas in 1907. The idea, without benefit of sanctions, seems to have originated with an employee of the magazine, The Youth's Companion. It was first put in practice at the National Public School celebration on October 21, 1892, The Youth's Companion Flag Pledge pamphlet. As with its related predecessor the teacher's oath (Nevada, 1866), the voluntary character of the ceremonial act soon disappeared into law and litigation, Oaths of Loyalty for Teachers pamphlet of the American Federation of Teachers, Chicago, Illinois. There is some current indication of a reversal in the trend of public opinion at least. Those who attended the training camps of World War No. 1 will remember our staff of life, the manuals of Colonel Moss. That distinguished officer, now retired, has also written extensively on the American flag. In his latest book, we find him taking a secular position remarkably like that of the plaintiff-appellees. He says:
So also, Mr. Laurens M. Hamilton, a direct descendant of Alexander Hamilton, president of the New York Chapter of the Sons of the American Revolution (an organization never criticized for its lack of patriotism), told the Daughters of the American Revolution at the forty-second annual meeting of their Washington Heights Chapter:
. The New York World Telegram, April 14, 1939.
This change in social sentiment appears to have reached the consciousness of at least one legislator. In Massachusetts this year Mr. Curtis introduced an amendment to the original act which expressly permits the excusing from the flag salute of pupils whose "parent or guardian has scruples, which he regards as religious, against such salute". Senate No. 449, March, 1939 (Mass.). In New Jersey, on the other hand, the opposite was true. The original act was "strengthened" to make a crime of influencing a "pupil * * * against the salute to the flag * * * by instruction printed or otherwise". P.L.N.J.1939, c. 65, sec. 1, N.J.S.A. 2:130-5.
These little children ("suffer them") are asking us to afford them the protection of the First Amendment (Bill of Rights4) to the Constitution and to permit them the "free exercise" of their "religion". That supplication raises, as we see it, two questions. First, do they bring themselves within the meaning of the word "religion" as used in the Constitution; and second, is there any limitation on the adjective "free" in the constitutional phrase "free exercise"?
Appellant suggests that religion is an objective rather than a subjective matter. He goes on to argue that no one could conceivably appraise non-flag saluting in theological terms. In other words, he applies some sort of average reasonable man standard. We agree that the test is not without subjective limitations. The individual cannot claim any and all beliefs religious. Maybe he should be able to, but the fact is that the Constitution uses a certain word of art and does not employ the wider term "belief". A perfect illustration of this distinction is found in the cases of certain conscientious objectors under the Selective Draft Act of 1917, as amended, 40 Stat. 76, 534, 885, 955 (50 U.S. C.A. p. 165). As is known, most of those who objected to service in war offered religious scruples as an excuse. There were, however, a certain number whose claim for exemption was based solely on disbelief in war as an instrument of human policy. Their claims were disallowed and all of them were sentenced to long terms. See Case, Conscientious Objectors, 4 Ency. of Social Sciences p. 210; Second Report of the Provost Marshal General to the Secretary of War on the Operation of the Selective Service System, pp. 58-59; Third Assistant Secretary of War, Statement as to Treatment of Conscientious Objectors in the Army, September 28, 1918; Secretary of War, Statement as to Treatment of Conscientious Objectors in the Army, June 18, 1919.
As in most phases of the subject, there is not complete agreement on even a definition of religion, Hopkins, The History of Religions; Houf, What Religion Is and Does; Menzies, History of Religion, Rev. Ed.; Dewey, A Common Faith. Some interesting cases might (and may) arise under the broader conception, as for instance anything within the comprehensive term sacred, see Crawley, who gives the study of religion the wide scope of a comparative hierology. The Tree of Life, p. 209. Our courts have promulgated what has been referred to as a "minimum definition." Compare the language of a distinguished writer on the subject with that of Mr. Justice Field speaking for the Supreme Court of the United States.
The religious philosopher says:
. Hopkins, The History of Religions, p. 2.5
The legal philosopher says:
"The term `religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will". Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637.
By the same token the definition excludes any theory of sensible choice. If the requirement is present, the doctrinal views of the average man or the average official are wholly irrelevant. Professor Zollman speaks as follows:
. Religious Liberty in the Law, Part 2, 17 Michigan Law Review 456, 460-461. This last sentence is quoted from an early (1836) Pennsylvania case, Schriber v. Rapp, 5 Watts 351, 363, 30 Am.Dec. 327. See also, 3 Scott on Trusts, § 371.4.
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...the General Assembly, the same shall take effect from the date of its passage.'2 The Supreme Court thus reversed Minersville School Dist. v. Gobitis, 108 F.2d 683 (3d Cir. 1939), aff'g, 24 F.Supp. 271 (E.D.Pa.1938), opinion at 21 F.Supp. 581 (1937). Other flag salute cases were Gabrielli v.......
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