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42 ¦ NOVEMBER 23, 2020 OPINION

What the U.S. Supreme Court Said Before
Colin Kaepernick

By A. Paul Spinella

When former San Francisco school in Minersville, Pennsylvania
49ers quarterback Colin for not saluting the flag. Expulsion
Kaepernick knelt during was apparently insufficient—the sib-
the National Anthem to protest lings were also stoned and shunned
racism, President Donald Trump de- by their neighbors for refusing to sa-
manded that the NFL “Get that son lute the flag. Their father filed suit in
of a bitch off the field right now!” In federal District Court.
President Trump’s vernacular: “He’s Philadelphia District Court Judge
fired!” To which Mr. Kaepernick’s Albert Meris found in favor of Lillian
mother responded: “I guess that and Billy, ruling that “Our country’s
makes me a proud bitch.” Colin Kaepernick’s safety surely does not depend upon
trademark image, the totalitarian idea of forcing all
While this was a pithy retort, the
best response has been provided by Credit: USPTO citizens into one common mold of

the United Sates Supreme Court in the case of West thinking and acting or requiring them to render a
Virginia State Board of Education v. Barnette. lip service of loyalty in a manner which conflicts
In what may be the court’s most eloquent and with their sincere religious convictions.” The case
admired statement of First Amendment principles, was promptly overturned by the United States
Barnette found in favor of two Jehovah’s Witnesses Supreme Court, in Minersville School District v.
school children who refused to salute the flag. To ful- Gobitis. Justice Felix Frankfurter led the major-
ly appreciate Barnette, it is important to understand ity in deciding in favor of the school district. The
the social climate in which it was decided. court’s decision triggered widespread criticism
During the World War Two-era, Nazi Germa- and inspired national debate over the meaning of
ny famously required citizens to salute the flag or “national unity” and, more specifically, the right
other symbols of national unity with a stiff-armed of the government to compel anyone to salute the
salute. Most people may not know that at the flag, and most of all, children.
same time in America, cities and states across the In 1942, and with the apparent blessing of
country enacted laws that made saluting the flag the Supreme Court, the West Virginia Board of
compulsory in public schools. Education imposed a requirement for a stiff-armed
Although many people complied with the laws, salute of the American flag. Failure to comply
there were dissenters who refused to participate in resulted in expulsion. Marie and Gathie Barnette,
the American stiff-armed palms-up salute required Jehovah’s witnesses attending grade school near
by most school districts (which were virtually identi- Charleston, West Virginia, brought suit in federal
cal to the Hitler salute). Among the dissenters were court. The statute was stricken down by the Dis-
Jehovah’s Witnesses who objected on the basis of trict Court and again by the Court of Appeals.
their religious prohibition against pledging loyalty to The stage was set for an appeal to the United
symbols of political institutions. States Supreme Court in West Virginia State
In 1935, Lillian Gobitis, then 13 years old, and Board of Education v. Barnette. In a stunning
her younger brother Billy, were thrown out of their decision, the court affirmed the decisions of the

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