Your Sunday Brunch Special: Religious Freedom and the Supreme Court.

Some of you may know that I’ve been writing a book on the social, political, and textual history of Joseph Smith’s revelation on polygamy, now found as Doctrine and Covenants, section 132. It’s been a fun project and I’ve come to see the revelation (as every good biographer must about his or her subject) as more or less the center of the universe, and maybe the Mormon universe at least. Something that may not make a dent in the book has nevertheless occupied my attention for a while, and that is a certain court case: Minersville School District v. Gobitas.

The background works like this, and forgive me for some tangentialism. It’s a learned behavior I guess.

On September 1, 1939, Nazi Germany invaded Poland. For Europe this was a deadly shock and one that brought the question of engulfing war into the forefront of European minds. For Americans, the situation was very different. The threat of war was certainly real for them but the question of their participation in it, was not. The United States was distinctly in favor of watching with interest but without taking sides. An Ocean of water and to some degree, culture, separated them from the protagonists in Europe.

Between the world wars, the Supreme Court had been a frequent front page news source. Mostly because of decisions that affected important aspects of public life, like the economy or labor unions or business or even the New York Stock Exchange. And often those affects resulted more from guessing what the court might do rather than one decision or another. With the coming of the second great war, the court had the limelight again but now the questions were centered in civil liberties in this sense: what rights do individuals possess in opposing government?

Billy Gobitas explains his reasons.

During WWI, when anti-war speech had been repressed, and following that in the Bolshevik Scare, a number of men who later became justices on the court had fought against the repression of speech and systems of belief within constitutional boundaries. Mormons experienced some of the complexities of repression in the Roberts and Smoot elections at the turn of the century. By WWII, the court was populated in large part by Franklin Roosevelt appointees labeled as “liberals.” The term held a somewhat different meaning then however. Justice Felix Frankfurter was very conservative in terms of activism. His fellow appointees could be quite different. But generally none of them liked the idea of interfering with the political process. The justices favored civil liberties, but they didn’t necessarily see themselves as civil rights guarantors. Moreover, even though the Civil War had seemed to smash the pointy end of state rights in revoking the right to secede and revoking the idea that humans could be property, the 1787 attitudes over the states as effectively nations within a nation were still strong in jurisprudence. And that was one of the shocks generated by Brown v. Board in 1954.

The brains of the court. Felix was a Jew and an open war hawk. His uncle had nearly been murdered in Austria by Nazis. One wonders why he thought this about the case. The explanation is not simple.

The court’s 1939-40 term carried with it a case that showed how conflicted things could get with the first amendment. The case began in a small Pennsylvania town called Minersville(!). Walter Gobitas and his family lived in the town and ran a local grocery store. His son William, a fifth grader in the local school, one day refused to recite the Pledge of Allegiance or perform the simultaneous salute to the United States flag. The salute at the time consisted of extending the right arm at roughly 45 degrees above the horizontal, with the palm vertical. It looked very like the German salute to Hitler (except there the palm was in line with the arm).[1] His year older sister Lillian did the same thing the following day (Lillian just recently passed away at age 90).

Watchtown Bible society headquarters in Brooklyn. It’s an impressive complex as you come over the bridge from Manhattan.

Walter Gobitas and his family were Jehovah’s Witnesses in a largely Catholic town. The children were following a practice recently advocated by some Witnesses, who in conscience felt that the pledge took them into the territory of idol worship. After the children kept up their refusal to participate in the pledge, the school board passed a resolution that made the pledge-salute a legal practice. Similar rules or laws existed in most other states after WWI. Though no penalty was fixed for violating the law, the school expelled the children and the local parish instituted a boycott of the Gobitas store.

Walter Gobitas with help from the Witness’s national legal council, appealed the decision to a federal district court in Philadelphia. Judge Albert Maris found the requirement for saluting the flag was unconstitutional, a violation of the Free Exercise Clause (religious freedom clause if you will) in the first amendment. The school board appealed to the 3rd Circuit which affirmed the lower court. The attorney for the school board filed a writ with the Supreme Court, and the court granted a hearing. The Witnesses’ motivation was a religious one. Their labelling the salute idolatry was a criticism of nationalism. It was an act of blasphemy, placing the state on a par with God (as an historical aside, recall that there was no “under God” phrase in the pledge at the time).

The Supremes overturned the lower court, 8 to 1. Frankfurter wrote the majority opinion. His reasoning was that the interface between secular purpose and religious freedom was weighted by that purpose. If the purpose involved favoring or disfavoring religious beliefs it must meet a test of “national cohesion.” The Pennsylvania law, met that test as it built sentimental ties to the nation.

Harlan Fiske Stone. Became Chief Justice in 1941.

The single dissenting opinion came from a remaining Republican appointee on the court, Harlan Stone (later, Stone would become Chief Justice, which is a pretty fun drama itself–but tangential). Stone wrote that the Free Exercise Clause was part of the fundamental bulwark of civil liberty and that the constitution should be read as guaranteeing freedom of mind and spirit within reasonable expression. The Gobitas children had made such reasonable expressions.

The court’s ruling had ugly consequences with mobs attacking Witness meeting places, beating Witnesses and at least on one occasion, applying tar and feathers. One man was castrated. Whole communities of Witnesses were forced across state lines. The ACLU reported that at least 1,500 hundred Witnesses were beaten. “They’re traitors, the Supreme Court says so,” said one sheriff. Three of Roosevelt’s justices later reversed their stance (1942). But that, like a newspaper retraction, was too little, too quiet.

I don’t know how the Utah papers treated this case, but I’d be interested in it if you readers happen to find something. By this time, Church rhetoric was solidly patriotic (though not uniformly so). I wonder what, if anything, Church voices had to say. What do you say?

[1] The similarity between the two salutes was what generated the protest. George Rutherford, a national figure in the Witness movement, had given a speech in 1935 denouncing the Nazi salute. “All people who have faith in God should hail Jehovah and Christ Jesus, not Hitler, or any other creature.” After Rutherford’s speech, several Witness children applied his reasoning to the pledge salute. It became a building grassroots thing. Rutherford later gave a radio address praising the dissenters which the Gobitas children heard. They decided as a matter of conscience to engage in a silent protest in school. They wouldn’t say the pledge and they wouldn’t raise their hands in the Nazi-like salute. Lillian was class president. She had to resign. When she came to school, boys in the yard shouted “here comes Jehovah” and threw rocks at her. By the time the case made it to SCOTUS, it had acquired a political component. The Witnesses were pacifists. They were against WWI and they spoke against going to war against Germany. France fell to the Nazis while the case was being deliberated. Rutherford was a respected judge, and he argued the case himself before the court, situating it as a religious freedom case. The Justices saw it effectively as national security.


  1. The Pledge of Allegiance is exactly as creepy as this story makes it sound. Everyone who thinks it’s all that needs to look up a picture of a whole classroom of American kids making the Bellamy salute while reciting it.

  2. Brian L Rostron says:

    Wasn’t 1943’s West Virginia v. Barnette by far the more important and long-lasting decision?

  3. Brian, yeah, that was the reversal.

  4. Fascinating. I see lots of coverage in the Utah newspapers (using “Utah” as a stand-in for “Mormon”), but it all seems to be wire service stories of events — no local editorializing. If I ever see anything in the Mormon materials I work with, you can be sure I’ll send it to you.

  5. Thanks Ardis.

  6. Of course it’s the tangents that make these posts so delectable. I, for one, can’t help but imagine the role ethnicity and sub cultures played in Minersville at that time, with the Witnesses being an outsider’s faith, the Catholics being only locally dominant, and the interplay between Catholic southern Germans and Polish immigrant families. So many stories to be told.

  7. Great post, Bill. Thanks for doing this.

  8. I really appreciated this piece. I can’t imagine that anyone reading this would support the Supreme Court decision against the Gorbitas children, and it’s hard to think of my liberty-loving country being the place where Japanese-Americans would be unconstitutionally interred or Jehovah’s Witnesses physically assaulted. (But obviously I’m aware of much greater injustices than these). Yet to some extent, I sympathize with the perceived need that the nation be united in some fundamental ways. Without a sense of shared values and loyalties, it’s hard to see how a nation could survive. Unlike Jewelfox, I see value in the Pledge of Allegiance.

  9. I used to meditate at Bodhi Monastery in New Jersey at their Buddha hall sometimes and noticed, when I was looking at its giant Buddha statue, onetime, in its minute details, that it contained a relief of a swastika on it, I forget whereabouts.

    Anyway, hmmm … here’s mine:

    A Hindu Jain asks for cookies with universally recognized Jain symbols on them: “non-rotated” swastikas above “Ahimsa” hand-outlines, the customer explaining that their four arms each represent respective states of beings: (iv.) flora & fauna (iii.) demons (ii.) mankind (i.) gods–and are the origial swastikas and NOT ones incorrectly tilted 45 degrees, teetering on one of their corners, as was the mis-appropriated from so many “primordial” religions by the Nazi party so relatively recently (1920 A.D.)

    Family running custom bakery is Jewish with many members murdered by the Nazis in the Holocaust and cannot bring themselves to even consider accommodating this custom request, politely referring the customer elsewhere. Customer goes from bake shop to bake shop but can find no takers, so Jay Sekulow’s American Center for Law and Justice decides takes up the case on family’s behalf.

  10. Sept. 16 NYT:

    >>>>>… … …

    >>>>>“The point isn’t that we could get a cake elsewhere,” Mr. Mullins said. “Of course we could get a cake somewhere else. This was about us being turned away from and denied service at a business because of who we are and who we love.”

    >>>>>Mr. Phillips, who calls his bakery Masterpiece Cakeshop, said he chose the name with care. It was partly to emphasize the creativity that informs his craft, he said.

    >>>>>“It says ‘masterpiece,’” he said, “which hopefully indicates painting and art.”

    >>>>>The name is also a nod to Jesus Christ, Mr. Phillips said. “It’s not just the art,” he said. “It’s not just the cakes. It’s not just the baking. It’s my faith.”

    >>>>>The case has taken a financial toll, Mr. Phillips said. A judge ordered him to create custom wedding cakes for same-sex marriages if he did so for opposite-sex ones. He instead stopped making custom wedding cakes entirely.

    >>>>>“The civil rights commission says you have to violate your faith,” he said. “Use your talents and make cakes for religious events you don’t agree with. The only way I can avoid disobeying the ruling of the court is to not make wedding cakes, period.”<<<<<

  11. I’d be surprised if J. Reuben Clark didn’t have an opinion about it that agreed with Stone, though most opponents of the Gobitas decision didn’t base their objections on the similarity to the Hitler salute.

  12. That’s a good point about Clark, John. He was pretty outspoken about his opinion on conscientious objectors in the military, and this could easily be framed as an extension of the same principle. I wonder if his Quaker heritage had something to do with it.

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