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.