This Court affirmed a declaratory judgment that a recently enacted statute violated the First Amendment, and upheld an injunction restraining the State from enforcing the statute
How later courts described this case
- This Court affirmed a declaratory judgment that a recently enacted statute violated the First Amendment, and upheld an injunction restraining the State from enforcing the statute
Written by the judges who cited it.
The opinion
Smith, J.,
concurring:
Most reluctantly, I concur. I say reluctantly because I see the possibility of very real problems from extensions of this holding, problems which in my opinion could seriously disrupt the school system.
I had hoped that it could be shown that West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943), was decided upon the basis of freedom of religion and not freedom of speech. In that situation I envisioned an opinion in this case stating that the comments in Bar *557 nette relative to freedom of speech were dicta; that although the Supreme Court’s pronouncements upon Federal constitutional questions are binding upon us, its dicta, of course, are not binding; that it is well-nigh impossible in any given situation to know precisely how the Supreme Court will rule in a constitutional matter upon which it has not previously passed; 1 that in the absence of binding authority all one can do is use one’s own best judgment, consulting, of course, similar cases, if any; and that with Barnette only as dicta on the freedom of speech issue, my best judgment was the statute was constitutional.
I find upon careful analysis of Barnette that the issue *558 presented to the District Court of the United States for the Southern District of West Virginia and, therefore, to the Supreme Court, was whether “the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the ‘due process’ and ‘equal protection’ clauses of the Fourteenth Amendment to the Federal Constitution.” Judge Digges might well in his opinion have quoted the next to the last paragraph of the Supreme Court’s opinion in that case in which Mr. Justi'ce Jackson said for the Court:
“We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Id. at 642 .
This was after, as Judge Digges has said, a careful analysis of the bases upon which the opinion to the contrary in Minersville School District v. Gobitis, 310 U. S. 586 (1940), rested.
Since I conclude that the Supreme Court decided Barnette on the issue of freedom of speech as protected by the First Amendment to the Constitution of the United States, it follows as night follows day that that opinion is controlling here. No useful purpose would be served by a recitation of some of the fears that cross my mind concerning possible attempts to extend this holding. I can only take comfort from the fact that although some of those fears seem to have crossed the mind of Mr. Justice Frankfurter, after a lapse of nearly 30 years many of them have not yet come about.
. If one had any doubt on this point he would need see only the comment of Mr. Justice Frankfurter in his dissent in Barnette, supra, relative to an area in which the Supreme Court had previously spoken. He said:
“I am fortified in my view of this case by the history of the flag salute controversy in this Court. Five times has the precise question now before us been adjudicated. Four times the Court unanimously found that the requirement of such a school exercise was not beyond the powers of the states. Indeed in the first three cases to come before the Court the constitutional claim now sustained_ was deemed so clearly unmeritorious that this Court dismissed the appeals for want of a substantial federal question. Leoles v. Landers, 302 U. S. 656 ; Hering v. State Board of Education, 303 U. S. 624 ; Gabrielli v. Knickerbocker, 306 U. S. 621 . In the fourth case the judgment of the district court upholding the state law was summarily affirmed on the authority of the earlier cases. Johnson v. Deerfield, 306 U. S. 621 . The fifth case, Minersville District v. Gobitis, 310 U. S. 586 , was brought here because the decision of the Circuit Court of Appeals for the Third Circuit ran counter to our rulings. They were reaffirmed after full consideration, with one Justice dissenting.
“What may be even more significant than this uniform recognition of state authority is the fact that every Justice—thirteen in all—who has hitherto participated in judging this matter has at one or more times found no constitutional infirmity in what is now condemned. Only the two Justices sitting for the first time on this matter have not heretofore found this legislation inoffensive to the ‘liberty’ guaranteed by the Constitution. And among the Justices who sustained this measure were outstanding judicial leaders in the zealous enforcement of constitutional safeguards of civil liberties—men like Chief Justice Hughes, Mr. Justice Brandéis, and Mr. Justice Cardozo, to mention only those no longer on the Court.” Id. at 664-65 .