Where Loyalty Lies (by J. Cade Harris)

Joshua Cade Harris

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

During World War I, many states instituted mandatory flag pledges as a way to inculcate children with a sense of American unity and patriotism. But by the late 1930’s, close to two thousand pupils all across America had been expelled for their refusal to recite the Pledge of Allegiance, with a large number of the expelled being Jehovah’s Witnesses. Their refusal was a religious one. As Jehovah’s Witnesses, they were required to obey God’s law, explicitly stated in the Book of Exodus, which reads: “Thou shalt have no other gods before me. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: Thou shalt not bow down thyself to them, nor serve them” (Exodus 20: 3-5). Siblings Lillian and William Gobitis of Minersville, Pennsylvania were two of the expelled students and their family decided to challenge the law. In Minersville School District v. Gobitis (1940), the Supreme Court upheld the policy of the school district. Writing for the majority, Justice Frankfurter determined that the mandatory pledge passed the secular regulation rule (firmly established in Reynolds v. United States), which allows federal officials to interfere with religious conduct deemed to be socially undesirable.

In the wake of Gobitis, West Virginia passed a law requiring all teachers and students to salute the flag. If a student refused, there were penalties for both the student (expulsion) and the student’s parents (a $50 fine and up to 30 days imprisonment). Again, it was Jehovah’s Witnesses who challenged the policy. First making an attempt at accommodation, the Barnette family developed a variation of the pledge, offering to recite in its place: “I have pledged my unqualified allegiance and devotion to Jehovah, the Almighty God, and to His Kingdom, for which Jesus commands all Christians to pray. I respect the flag of the United States and acknowledge it as a symbol of freedom and justice to all. I pledge allegiance and obedience to all the laws of the United States that are consistent with God’s law, as set forth in the Bible.” Their offer was rejected and, three years after Gobitis, the challenge to compulsory flag pledges by Jehovah’s Witnesses returned to the Supreme Court. In West Virginia State Board of Education v. Barnette (1943), the Court overruled Gobitis, ignoring the secular regulation rule and framing the issue as a free speech violation (i.e., the law requiring students to recite the pledge coerced them to declare a belief).

Gobitis and Barnette demonstrate the two competing concepts coined by the late Robert Cover, what he referred to as the jurisgenerative and jurispathic principles of law. Cover proposed that the state should be seen as one among many contestants for generating norms. Therefore, the state and Jehovah’s Witnesses are jurisgenerative. And they are not alone. Each and every “community of interpretation” creates its own law, a nomos, which results in what Cover called “the problem of too much law.” But while the state and all other interpretive communities are generating meaning, it is only the state that has the power to displace and exterminate competing norms. Hence, courts are jurispathic.

We can read the aforementioned cases, especially Gobitis, as the court removing a competing nomos in order to make the state the primary commitment of its citizens. The Jehovah’s Witnesses in these cases are informing the government that their loyalties lie elsewhere, not with the state but with God. Cover would side with the Barnette decision, as he did with the Court’s decision in the Yoder. Keeping with this logic, he felt the Court erred with the Bob Jones University decision, even though he personally was opposed to segregation and spent most of his career as a civil rights activist. But in taking that position to defend a group whose values he did share, he reminds us of our greatest challenge: to not side with the state in its removal of competing communities simply because we do not like those communities.

J. Cade Harris is a doctoral student in Religious Studies at the University of California, Santa Barbara.

  • Kile Jones

    Great post Joshua! I enjoy how you weave law and history together so fluently in this post. I wonder though, how would you expect the Supreme Court not to be “jurispathic?” While I disagree wholeheartedly with the pledge of allegiance, I wonder what possibilities are available to the Courts in handling different jurisgenerative contestants. Do you think that the “neutrality principle,” the “Lemon Test,” and generally applicable laws limit the Court from simply removing competing communities?

  • Drew Baker

    Thanks for this post, Joshua. While I concur with Cover that “the state should be seen as one among many contestants for generating norms” I disagree with the claim that “it is only the state that has the power to displace and exterminate competing norms.” In other words, I agree that the term jurisgenerative is accurate, but I think political situations are much more complicated than the notion jurispathic encompasses. It ignores the fact that other competing contestants hold a great deal of power (say, for example, mainline Protestant Christians or international corporations), and it also ignores the fact that there are alliances and overlapping interrelations between these groups (there is no such thing as a pure or isolated community). After the Cold War, the Pledge was as much about an affirmation of theism as it was about affirming national allegiance. Of course, the nation-state has a significant amount of power, but it does not hold a monopoly on power as such. Therefore, while I may share your skepticism about state power and the ways it can be used (even inadvertently) to eliminate competing rules, I also think that scholars (and people more generally) can expose the gaps and fissures between the powerful communities in order to break the alliances that are used to eliminate competition. Sometimes, it might be useful to strategically rely upon state power to critique other dominant discourses, as well as vice versa. By exposing these alliances as contingent and up for debate, the situations of power can be changed. Finally, there are even competing discourses about the norms of the nation-state. For instance, one could read your final paragraph as proposing another “nomos” for the nation, a role the affirms and protects competing discourses rather than annihilating them, a “jurisympathetic,” a sort of Rawlsian nation-state. Ultimately, while I am not sure I like that vision of the nation-state anymore than a purely jurispathic state, that is not the point. The point is (perhaps a radicalization of your point above) that no law, even the law of the land, is given, beyond questioning, eternal or sacrosanct.

  • Katrina

    Thanks for the post Josh. As usual, I found your thoughts interesting. I agree that the Gobitis decision was important, as students should not be coerced to recite pledge of allegiance, and appreciate you bringing forth this issue. I, also, found your final comment thought provoking. Generally speaking, I agree that we must not “side with the state in its removal of competing communities simply because we do not like those communities.” Yet, I am curious as to what you think about the Bob Jones University decision. Religious freedom does not constitute racial discrimination, and if it did there would be very real (very negative) consequences for the larger community. Thus, while I think courts must be careful in not ruling against groups simply because they don’t like them, I think it is completely acceptable and even necessary for a court to consider why certain types of behavior (racial discrimination) revoke certain privileges (tax exemptions). I would love to hear your thoughts and rational on the Bob Jones University decision.

  • Bryan

    That was a great post Josh! Like others I find the last comment striking. I think there is a lot of truth to our greatest challenge being “to not side with the state in its removal of competing communities simply because we do not like those communities.” This whole concept of people becoming a law unto themselves (i.e. creating their own law) can get very problematic. This echos the Reynolds and Smith cases. However, there is some point where the state has to do what it believes best to preserve peace and good order (thus when the state trumps competing norms). But I believe that statement is too simplistic. I am curious Josh as to how you believe the court should manage those instances where the state should trump those competing norms. How do they decide a valid time to “trump” a competing norm? As open minded as I like to try and be, are there not times where we should support the state trumping a certain norm because we don’t like a community? I know that sounds shocking, but could there possibly be some communities that could pose a threat to the state in substantial ways? Sorry for the long response, but I guess in short, how would you navigate this dilemma?

  • Mahmoud Harmoush

    Thank you Josh, it nice to see how complicated the issue when it comes to religion. (It becomes between Haven and Earth). Even though, the historical circumstances (cold war) that introduced additional words to the pledge of allegiance is not applicable any more, I don’t think it will be removed, unless the court give clear unequivocal decision of its unconstitutionality. I agree that the state should not establish the norm of the society, but at the same time who should claim to do that alone. It is the dynamics of different communities will influence social norms.