# State v. Lundquist

> Court of Appeals of Maryland · June 14, 1971 · 262 Md. 534

URL: https://www.frixlaw.com/law-library/cases/9648560

## Case

- **Full name:** STATE OF MARYLAND Et Al. v. LUNDQUIST Etc.
- **Court:** Court of Appeals of Maryland
- **Decided:** June 14, 1971
- **Citations:** 262 Md. 534; 278 A.2d 263; 1971 Md. LEXIS 951
- **Precedential status:** Published
- **Opinion:** Dissent by Barnes
- **Judges:** Digges, Smith, Barnes
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648560

## Opinion text

Barnes, J.,
dissenting:
I dissent because in my opinion the decision of the Supreme Court of the United States in West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 63 S. Ct. 1178 , 87 L. Ed. 1628 (1943) does not require us to hold *559 Chapter 737 of the Laws of Maryland of 1970 (the Act) unconstitutional and the Act is valid and constitutional.
The principal point of difference between the majority and me is in regard to the holding in Barnette . The majority has persuaded itself that the holding was based upon the “freedom of speech” provision in the First Amendment of the Constitution of the United States, as applied by prior decisions of the Supreme Court to the States allegedly through the “due process” clause of Section 1 of the Fourteenth Amendment to the Federal Constitution, and for that reason, Barnette is controlling in the present case. On the other hand, I am quite convinced that the holding in Barnette was that the West Virginia statute requiring school children to pledge allegiance to the flag of the United States of America was unconstitutional because it violated the “freedom of religion” clause of the First Amendment. This difference of opinion is of vital importance in the present case because Chapter 737 expressly excludes compliance by any pupil or teacher who for religious reasons does not wish to repeat the words of the pledge of allegiance. It is apparent, therefore, that if the holding in Barnette is limited to the “freedom of religion” clause, Chapter 737 meets this constitutional objection and we are not required under the Supremacy Clause of the Federal Constitution or under Art. 2 of the Declaration of Rights of the Maryland Constitution to hold that Chapter 737 is unconstitutional because of the holding in that case. If, however, Barnette’s holding is that the West Virginia statute violated the “freedom of speech” clause of the First Amendment, then the Lundquists—appellees and plaintiffs below— may successfully contend that their rights of free speech are violated, they having expressly stated that they do not decline to comply with the compulsory direction to give the pledge of allegiance for any religious reason.
The majority opinion is interesting and even beguiling, but overlooks, in my opinion, the basic difference between a holding, on the one hand, and a dictum, on the other. As *560 I understand this difference, it is that a holding is that proposition of law required for the decision in the case; and if more than one principle of law may be applicable to the decision of the case, the narrowest principle necessary for the decision will be the holding. If other broader or more general principles of law are mentioned by the deciding court, its language in regard to the broader or more general principles of law is dicta. It is important to keep in mind this basic doctrine for the application of the all-important principle of stare decisis in our system of jurisprudence and to adhere to it strictly in view of the substantial (and to my mind largely unwarranted) extension of federal judicial power over the states and their courts by majorities of the Supreme Court of the United States during the last forty years purportedly through Section 1 of the Fourteenth Amendment. State appellate judges have the duty to sustain otherwise valid legislation of the Legislatures of their respective states unless such legislation conflicts with provisions of the Federal Constitution which have been held by the Supreme Court of the United States to be applicable. The duty of the state appellate judges under the Supremacy Clause of the Federal Constitution and in Maryland also under Art. 2 of the Declaration of Rights in the Maryland Constitution stops at this point and their duty to sustain the Constitution and Laws of their respective states begins. In short, there is no obligation upon this Court to anticipate what a majority of the Supreme Court will decide in the future in regard to the extension of federal judicial power allegedly through the Fourteenth Amendment (a most difficult if not impossible task in itself) ; its duty, as I see it, is to ascertain the holdings of the Supreme Court in this sensitive area, follow them as it must, but to await the decisions of the Supreme Court so far as any extension of those holdings is concerned.
It is entirely clear to me that the holding in Barnette is based—and must necessarily be based—upon the “freedom of religion” clause in the First Amendment. *561 This guarantee is obviously more narrow than the “freedom of speech” clause of the First Amendment in that many citizens in the Republic neither have nor profess any religion, but all use speech or its equivalent. The plaintiffs in Barnette filed the action to vindicate their religious freedom. Freedom of speech was clearly secondary and, even if presented as a possible ground for relief, is not the holding in the opinion of the “majority” opinion of the Supreme Court in Barnette . When one considers that Barnette overruled Minersville School District v. Gobitis, 310 U. S. 586 , 60 S. Ct. 1010 , 84 L. Ed. 1375 (1940) (only decided by the Supreme Court three years and eleven days before, after new appointments to th,e Supreme Court and a change of mind by two justices who participated and concurred in the majority opinion in Gobitis), which was clearly decided upon a rejection of any violation of the “freedom of religion” clause of the First Amendment as well as the dissenting opinion of Mr. Justice Frankfurter in Barnette , it becomes even clearer that this clause and not the freedom of speech clause was the basis of the holding in Barnette .
The plaintiffs in Gobitis and in Barnette were Jehovah’s Witnesses. Their principal attack in both cases upon the pledge of allegiance and flag salute statutes in the respective cases was based on the “freedom of religion” clause. The “freedom of speech” clause was naturally added in both cases as a possible ground for unconstitutionality, but the more narrow “freedom of religion” ground, if thought to be violated, would necessarily be the more narrow principle and the necessary holding in that situation.
The “majority” opinion of Mr. Justice Jackson in Barnette shows that the Jehovah’s Witnesses who filed the complaint in that case relied upon both the “freedom of religion” and the “freedom of speech clauses” ( 319 U. S. at 630 , 63 S. Ct. at 1181 , 87 L. Ed. at 1633 ). This “majority” opinion only spoke for three Justices, i.e., Mr. Justice Jackson, Stone, C. J. and Rutledge, J. It is clear *562 from the Jackson opinion that an attempt was being made to put the decision on the “free speech” clause, although this is not directly stated, but rather obliquely attempted in Mr, Justice Jackson’s statement:
“Nor does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.”
(Emphasis supplied.)
( 319 U. S. at 634-35 , 63 S. Ct. at 1183 , 87 L. Ed. at 1635-36 .)
These weasel words are admittedly clever but hardly cricket. At best, they only represented the opinion of the three justices mentioned. Mr. Justice Roberts and Mr. Justice Reed adhered to their views as expressed in Gobitis which, as we have seen, turned on the “freedom of religion” clause. Mr. Justice Frankfurter dissented and his masterful (and to my mind unanswerable) opinion clearly shows that the “freedom of religion” clause was the decisive constitutional principle involved.
To make up the majority for affirmance, at least two of the three concurring justices must be added to the Jackson three. Fortunately, Mr. Justice Murphy wrote a separate opinion and Black and Douglas, JJ. also wrote a concurring opinion.
A reading of the concurring opinion of Mr. Justice Murphy shows conclusively, to my mind, that, although he recognized that both freedom of religion and freedom of speech were raised by the appellees, the determining clause was that of freedom of religion. Indeed, he stated:
“A reluctance to interfere with considered state action, the fact that the end sought is a de *563 sirable one, the emotion aroused by the flag as a symbol for which we have fought and are now fighting again,—all of these are understandable. But there is before us the right of freedom to believe, freedom to worship one’s Maker according to the dictates of one’s conscience, a right which the Constitution specifically shelters. Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.”
( 319 U. S. at 645 , 63 S. Ct. at 1188 , 87 L. Ed. at 1641 .)
He later stated:
“Official compulsion to affirm what is contrary to one’s religious beliefs is the antithesis of freedom of worship which, it is well to recall, was achieved in this country only after what Jefferson characterized as the ‘severest contests in which I have ever been engaged.’ ”
( 319 U. S. at 646 , 63 S. Ct. at 1189 , 87 L. Ed. at 1641 .)
A review of the concurring opinion of Black and Douglas, JJ.—the two justices who had joined in the majority opinion of Mr. Justice Frankfurter in Gobitis , but who changed their minds during the ensuing three-yeár period —makes clear beyond peradventure, as I see it, that the ground upon which they voted to hold the West Virginia statute unconstitutional in Barnette was based on the “freedom of religion” clause.
In the first place, they do not concur wholly in the Jackson opinion. They stated:
“We are substantially in agreement with the opinion just read, but since we originally joined with the Court in the Gobitis case, it is appropriate that we make a brief statement of reasons for our change of view.
*564 “Reluctance to make the Federal Constitution a rigid bar against state regulation of conduct thought inimical to the public welfare was the controlling influence which moved us to consent to the Gobitis decision. Long reflection convinced us that although the principle is sound, its application in the particular case was wrong. Jones v. Opelika, 316 U. S. 584, 623 , 62 S. Ct. 1231, 1251 , 86 L. Ed. 1961 , 141 A.L.R. 514 . [Another Jehovah’s Witness case in which Black and Douglas, JJ. dissented expressly on the ‘freedom of religion’ ground indicating that they now considered Gobitis wrongly decided and that they now believe that the government operating under the Bill of Rights ‘has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox these may be,’ and that the Jones and Gobitis cases ‘put the right freely to exercise religion in a subordinate position.’] We believe that the statute before us fails to accord full scope to the freedom of religion secured to the appellees by the First and Fourteenth Amendments.”
(Emphasis supplied.)
( 319 U. S. at 643 , 63 S. Ct. at 1187-1188 , 87 L. Ed. at 1640 .)
The remaining portion of this concurring opinion deals with the limits of the right to the free exercise of religion and ends with the following statement:
“Neither our domestic tranquillity in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremo *565 nial, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution’s plan and purpose.”
(Emphasis supplied.)
( 319 U. S. at 644 , 63 S. Ct. at 1188 , 87 L. Ed. at 1641 .)
In summary, even if it might be thought that the “freedom of speech” clause could be a holding in Barnette (which, in my opinion, it cannot be for the reasons already stated), it is clear that, at best, such a supposed “holding” was only obliquely put by Mr. Justice Jackson for three justices and that all of the remaining justices, two of whom were necessary for the composition of a majority of the Supreme Court, and necessary for affirmance in Barnette , held to the theory that the decision was controlled by the “freedom of religion” clause of the First (and Fourteenth) Amendment.
The high-flown and sometimes fanciful rhetoric of Mr. Justice Jackson in Barnette , relied on by the majority, thus clearly appears, as I see it, to be rather cloudy dicta at best on behalf of a minority of the Supreme Court and, however thin one slices it, it is still dicta. The holding in Barnette is consequently limited to the “freedom of religion” clause and does not require us to hold Chapter 737 unconstitutional.
The majority takes comfort in a dictum of Mr. Justice Harlan in Street v. New York, 394 U. S. 576, 593 , 89 S. Ct. 1354, 1366 , 22 L.Ed.2d 572 (1969)—a flag burning case, in which, curiously enough, Mr. Chief Justice Warren and White and Fortas, JJ. dissented—that Barnette “held that to salute the flag would violate the free expression assured by the Fourteenth Amendment” and then quoted the rhetoric from the Jackson opinion to which I have already referred.
As indicated—and as the Attorney General properly *566 argued—this is purely dicta on any theory and really adds nothing to the nature of the holding in Barnette. Dicta plus dicta still equals dicta.
Nor does the Supreme Court’s decision in Taylor v. Mississippi, 319 U. S. 583 , 63 S. Ct. 1200 , 87 L. Ed. 1600 (1943)—decided the same day as Barnette—in my opinion support the majority opinion in regard to the holding in Barnette . Rather, it supports the position I think is the correct one. Taylor was also a Jehovah’s Witness case involving a prosecution under a Mississippi statute making it a crime to state or publish material calculated to encourage violence, sabotage or disloyalty to the governments of the United States or of Mississippi. A Jehovah’s Witness was indicted for distributing literature designed and calculated “to create an attitude of stubborn refusal to salute, honor and respect the flag and government of the United States.” The Supreme Court, in reversing the conviction, in an opinion by Roberts, J., relied on Barnette and stated:
“The statute here in question seeks to punish as a criminal one who teaches resistance to governmental compulsion to salute. If the Fourteenth Amendment bans, enforcement of the school regulation, a fortiori it prohibits the imposition of punishment for urging and advising that, on religious grounds, citizens refrain from saluting the flag. If the state cannot constrain one to violate his conscientious religious conviction by saluting the national emblem, then certainly it cannot punish him for imparting his views on the subject to his fellows and exhorting them to accept those [i.e. religious] views.”
(Emphasis supplied.)
(319 U. S. at 589, 63 S. Ct. at 1203-04, 87 L. Ed. at 1606.)
This looks to me like Mr. Justice Roberts and, indeed, the entire Supreme Court—since there were no dissent *567 ing or concurring opinions in Taylor—was of the opinion that Barnette had, indeed, been decided on the “freedom of religion” clause.
In regard to the concurring opinion of my brother Smith, I will make a few observations. First of all, his first impression or “hope” was indeed the correct one. As already pointed out, the resonant rhetoric of Mr. Justice Jackson (a) could not be the holding in Barnette and (b) in any event, at best only represented the opinion on the “freedom of speech” point of three—not of the necessary five—justices. The first impression is often the sound one.
Secondly, I am happy that Judge Smith set out in footnote 1 the statement from the dissenting opinion of Mr. Justice Frankfurter in Barnette showing the extraordinary departure by the Supreme Court in Barnette from the doctrine of stare decisis. This departure from a well-established and recently confirmed constitutional doctrine is, in my opinion, close to judicial irresponsibility and is an added reason why we should not extend the holding in that case.
Thirdly, I cannot share Judge Smith’s optimism that he “takes comfort from the fact that although some of those fears [of Judge Smith from possible attempts to extend the holding in Barnette] seem to have crossed the mind of Mr. Justice Frankfurter [apparently as expressed by him in the opinion for the Supreme Court in Gobitis and in his dissenting opinion in Barnette], after a lapse of nearly 30 years many of them have not yet come about.” Not only has national unity been gravely impaired to an unprecedented extent during the 30-year period, but desecration, abuse and contempt for the flag and, indeed, for American institutions and ideals have substantially increased. We see a recent attempt to destroy the Nation’s Capitol. The last report of the Selective Service officers indicated that at the time of the report more than 2,000,000 young men—otherwise qualified for the military service of their country—have refused *568 such service on grounds of supposed “coneientious scruples” not resulting from any religious belief or teaching. This extraordinary lack of patriotism on the part of this many of the Republic’s younger citizens and the other matters mentioned, in my opinion, present a situation today far worse than any visualized by Mr. Justice Frankfurter in 1940 or 1943. Indeed, a case might well be made for a finding of a “clear and present danger” to the Nation resulting from the lack of proper patriotic training in the public schools of this state and the public schools of other states. This issue is, however, not before us; and I will not elaborate upon it.
Another excellent reason for not extending the holding in Barnette is that, in my opinion, the provisions of the First Amendment and of selected portions of the remaining amendments through the Eighth are not properly part of the “due process” clause of the Fourteenth Amendment and were never intended so to be. I have expressed my opinion in this regard and some of my reasons for that opinion in various prior dissenting and concurring opinions. See State v. Fowler, 259 Md. 95, 142 , 267 A. 2d 228, 253 (1970); Brukiewa v. Police Commissioner of Baltimore City, 257 Md. 36, 78 , 263 A. 2d 210, 231 (1970); Miller v. State, 251 Md. 362, 383 , 247 A. 2d 530, 541 (1968); State v. Giles, 245 Md. 342, 660-69 , 227 A. 2d 745 , 229 A. 2d 97 -102 (1967); Truitt v. Board of Public Works, 243 Md. 375, 411 , 221 A. 2d 370, 392 (1966); State v. Barger, 242 Md. 616, 628, 639-644 , 220 A. 2d 304, 311, 317-319 (1966); Montgomery County Council v. Garrott, 243 Md. 634, 650, 653 , 222 A. 2d 164, 172, 176 (1966); and, Hughes v. Maryland Committee for Fair Representation, 241 Md. 471, 491-513 , 217 A. 2d 273, 285-298 (1966).
It will not be necessary to repeat those reasons or to develop other reasons here. The hope I have expressed that the Supreme Court, itself, will proceed to correct this grave error, failing which the Congress, pursuant to its powers under Article III of, and paragraph 5 of the *569 Fourteenth Amendment to, the Federal Constitution, will correct it, continues to be unfulfilled.
In view of my position that the lower court should be reversed and the injunction vacated, it is appropriate that I give my opinion briefly in regard to the other points, raised and argued, that Chapter 737 is unconstitutional. It was not necessary for the majority of the Court to reach or decide these points because of its opinion that Barnette controlled.
The contention was made that the portion of Chapter 737 prohibiting acts of disrespect was unconstitutionally vague. The lower court was of the opinion that this contention was correct relying upon language from a concurring opinion of Mr. Justice Rutledge in U.S. v. C.I.O., 335 U. S. 106 , 141, 68 S. Ct. 1349 , 1366, 92 L. Ed. 1849, 1871 (1948) and Baggett v. Bullet, 377 U. S. 360, 378 , 84 S. Ct. 1316, 1326 , 12 L.Ed.2d 377, 385 (1964). In my opinion, the lower court was in error in sustaining this contention. The statutes in question in U.S. v. C.I.O., supra (Federal Corrupt Practices Act) and in Baggett, supra (a state loyalty oath by teachers) were quite different in terms from the challenged provision of Chapter 737.
As properly construed the “act of disrespect” mentioned in Chapter 737 must occur to the flag when the pledge of allegiance is given. Disrespect at other times would be covered by other provisions of the Maryland Code. See, for example, Maryland Code (1971 Repl. Yol.), Art. 27, § 81 et seq. The “act of disrespect” contemplates an affirmative act of disrespect to the flag, that is, something more than standing silent. See Bolling v. Superior Court for Clallam County, 16 Wash. 2d 373 , 133 P. 2d 803, 809 (1943). A reasonable person can understand what conduct Chapter 737 forbids and this is all that is required. See United States v. National Dairy Products, 372 U. S. 29, 32 , 83 S. Ct. 594, 597-98 , 9 L.Ed.2d 561 (1963); Richards Furniture Corp. v. Board of County *570 Commissioners of Anne Arundel County, 233 Md. 249, 264 , 196 A. 2d 621, 629 (1964) and cases therein cited.
Counsel for the appellees abandoned at the argument contentions in regard to an alleged establishment of religion and denial of equal protection of the laws.
No point was raised by the appellees that Chapter 737 was unreasonable, arbitrary or capricious and thus a denial of due process as not being reasonably related to the evil the General Assembly sought to cure by the legislation. Arguments of this type would, in my opinion, go only to the wisdom of the enactment of the statute and with this we are not concerned. See Gino’s of Maryland v. City of Baltimore, 250 Md. 621, 636-37 , 244 A. 2d 218, 226-227 (1968) and cases therein cited. It may well be that a better or wiser type of statute to accomplish the legislative purpose could have been devised and several come to mind. As I have indicated, however, these are legislative questions and are not for determination by the courts.
I would reverse.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648560. Public record. Not legal advice.