State v. Lundquist

• Citation: 262 Md. 534,278 A.2d 263
• Decision Date: 14 June 1971
• Docket Number: No. 340,340
• Parties: STATE of Maryland et al. v. August Luther LUNDQUIST etc.
• Court: Court of Appeals of Maryland

Page 534

262 Md. 534

278 A.2d 263

STATE of Maryland et al. v. August Luther LUNDQUIST etc.

No. 340.

Court of Appeals of Maryland.

June 14, 1971.

[278 A.2d 264] Francis X. Pugh, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellants.

James J. Hanks, Jr. and George Cochran Doub, Baltimore, for appellee.

Argued Feb. 8, 1971 before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

Reargued March 3, 1971 before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

More than a quarter of a century has passed since June 14-Flag Day-1943, when the Supreme Court ruled in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, that a state may not compel unwilling school children to salute and pledge allegiance to the flag of the United States. On September 18, 1970 the Circuit Court for Anne Arundel County (Evans, J.) issued a declaratory decree invalidating the key provisions of the recently enacted 'Flag Salute' statute, Chapter 737, Laws of Maryland 1970, ¹ as violative of the First The oath of loyalty is no recent phenomenon in Western civilization. Described as a potent social bond in classical Greek and Roman society, and mentioned as a pledge of fealty to the king in feudal times, it had become deeply embedded in the common law of England long before its importation to America. See, Maitland, The Constitutional History of England, 364-66 (1931) and other authorities noted by Chief Justice Vanderbilt in Imbrie v. Marsh, 3 N.J. 578, 71 A.2d 352, 18 A.L.R.2d 241 (1950), aff'g, 5 N.J.Super. 239, 68 A.2d 761 (1949). Oaths to uphold the United States Constitution are required of all our executive, legislative and judicial officeholders on both the state and national levels by Art. II, § 1 and Art. VI of that document itself, and oaths requiring claims of loyalty or disclaimers of subversive intent by teachers, civil servants and a multitude of citizens have been the subject of endless judicial review. In determining the validity of oaths, courts have inquired into the narrowness with which they are drawn, the specific governmental interest they are designed to protect and their effect on free speech as well as due process rights. See generally Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184 19 L.Ed.2d 228 (1967) and Annot. thereto contained in 19 L.Ed.2d 1333 (1968); Note, Loyalty Oaths, 77 Yale L.J. 739 (1968); Annot. Imbrie v. Marsh, supra, contained in 18 A.L.R.2d 268 (1951) and extensive later case service to date. Thus, as recently as February 1971 the United States Supreme Court upheld an oath of loyalty to the Constitution required by the rules for admission to the New York Bar as sufficiently narrow in scope, directly related to the important governmental interest of regulating the legal profession and not employed in such a manner as to penalize political beliefs. Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161-164, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971).

Amendment (applicable to the states through the Fourteenth Amendment) of the Federal Constitution which provides: 'Congress shall make no law * * * [278 A.2d 265] abridging the freedom of speech.' Basing his decision squarely on the holding in Barnette, Judge Evans enjoined the appellants, the State of Maryland and the Anne Arundel County Board of Education, from enforcing the quotidian schoolroom requirement that all students and teachers, except those who object for 'religious reasons,' must stand, salute the flag and recite in unison the pledge of allegiance. He also prohibited enforcement of the disciplinary provision of Ch. 737 which directed that any person 'who may commit an act of disrespect, either by word or action, shall be considered to be in violation of the intent of this act.' Agreeing with the trial judge that Barnette fully controls the case before us we shall affirm the decree.

As a peculiar sub-species of loyalty oaths, the pledge of allegiance to the flag was not conceived until 1892, but then only as a voluntary and recommended patriotic exercise for the quadricentennial celebration of Columbus The plaintiffs who have challenged the new statute in their own behalf and in behalf of others similarly situated are August Luther Lundquist and his son Eric. The father teaches social sciences at Brooklyn Park High School and his fiteen year old son attends Andover High School. Both schools are located in the Baltimore metropolitan area just within the boundaries of Anne Arundel County. At the hearing before Judge Evans only Mr. Lundquist appeared as a witness. His testimony consisted of a statement read into the record (see appendix) and cross-examination. He claimed that he would refuse to engage in a mandatory flag salute ceremony, not for religious reasons but because he could not 'in good conscience' force patriotism upon his classes. He voluntarily if not eagerly instructed his world history classes in patriotic and democratic ideals and he had no objection to teaching courses, such as civics, which made instruction in democracy a required part of the curriculum. Mr. Lundquist also objected strongly to being forced to salute the flag because he believed such a requirement eliminated his right to freely express his own loyalty to the United States. He indicated, without objection, that his son shared these views and would similarly refuse to engage in the flag salute.

                Day.  New York was the first state to make the pledge of allegiance an obligatory requirement of education law in 1898, one day after the Spanish-American War began.  Although other states quickly followed suit by enacting similar or identical statutes, it was not until World War I that Maryland made the pledge of allegiance a required schoolroom exercise.  Ch. 75, Laws of 1918.  See, Weig and Appleman, The History of the United States Flag, passim (1961).  These statutes were to become the target of considerable litigation, but over the strident religious objections of the Jehovah's Witnesses during the 1930's the mandatory salute was [278 A.2d 266] upheld in a series of case in state and federal courts, all culminating in Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940).  2  Only three years later the Supreme Court abruptly reversed this holding in West Virginia State Board of Education  
                v. Barnette, supra.  The Maryland pledge of allegiance statute, most recently codified as § 77 of Art. 77, (Code 1957, 1969 Repl.Vol.), remained unchanged until it was repealed and re-enacted by Ch. 737 of the Laws of 1970
                

Judge Evans determined that under the Uniform Declaratory Judgment Act, Art. 31A. § 16, (Code 1957, 1971 Repl.Vol.) both the teacher's and the student's First Amendment rights were affected by the statute and they possessed requisite standing to challenge Ch. 737. The Attorney General has not questioned this ruling on appeal. Although the new act has no explicit provision outlining the consequences for refusing to salute the flag, it is quite clear that such recalcitrant students and teachers The Attorney General claims that Barnette was decided on religious grounds, and since Ch. 737 provides for a religious exemption, the constitutionality of this act is not controlled by Barnette. Rejecting this contention, Judge Evans' very thoughtful memorandum opinion rested on the assumption that Barnette was decided primarily on freedom of speech grounds and was therefore completely controlling. To support this conclusion he relied on Justice Harlan's statement for the Court in Street v. New York, 394 U.S. 576, 593, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572 (1969):

can be disciplined under other sections of the public education laws, specifically §§ 75 and 114, Art. 77 (Code 1957, 1969 Repl.Vol.). Finally, if there should be any doubt about the immediacy of the threat to the appellants, aside from the obvious chilling effect on their First Amendment rights, see Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), the Attorney General has admitted in the answer to the Lundquists' amended complaint that a program of enforcement is in preparation and awaits only the outcome of this case. See Grimm v. Co. Com'rs of Wash. Co., 252 Md. 626, 632-633, 250 A.2d 866 (1969); compare Hitchcock v. Kloman, 196 Md. 351, 355-356, 76 A.2d 582 (1950); cf. Bruce v. Director, Dept. of Chesapeake Bay Affairs, Md., 276 A.2d 200 (1971).

'* * * (i)n West Virginia State Board of Educ. v. Barnette * * * this court held that to require unwilling school-children to salute the flag would violate rights of free expression assured by the Fourteenth Amendment.' (Emphasis added.)

The Attorney General claims that this is gratuitous dictum and offers the following explanation, as we understand it from his brief and his oral argument, to demonstrate why Barnette does not control this case:

He first asserts it has been traditionally understood On the basis of this analysis the Attorney General would have us conclude that even if Chief Justice Stone and Justice Rutledge actively favored the purported free speech rationale of the majority opinion by Justice Jackson, the six other members of the Court (three dissenting-three concurring) viewed the decisional issue as freedom of religion. To resolve the questions raised by this suggested interpolation of the Court's vote and the result of its action in Barnette we must examine not only

that Barnette was decided on religious grounds, having been cited as a freedom of religion precedent in Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y.1969) and Lewis v. Allen, 5 Misc.2d 68, 159 N.Y.S.2d 807, aff'd, 11 A.D.2d 447, 207 N.Y.S.2d 862 (1960), though he may well have added Prince v. Massachusetts, 321 U.S. 158, 165-166, 64 S.Ct. 438, 88 L.Ed. 645 (1944). Moreover, Barnette affirmed an injunction granted at the instance of religious plaint...