In light of the ongoing controversy concerning appropriate behavior during the playing of the National Anthem, it may be worthwhile to look at a bit of the history and legal status of this issue. Of special note is a 6-3 Supreme Court decision, handed down in 1943, at a time when hundreds of thousands of Americans were fighting a brutal war with Nazi Germany, affirming the unconstitutionality of prescribing public behavior at the opening of the school day. The case was West Virginia State Board of Education v. Barnette. School children, who were Jehovah's Witnesses, refused to salute the flag, claiming it was against their religion to do so. Consequently, they were expelled or threatened with expulsion. The majority supreme court decision, upholding a lower court decision that this Board action was unconstitutional, was written by Chief Justice Robert Jackson (who later took a leave of absence from the Supreme Court to act as Chief Counsel for the United States in the Nuremberg Trials). Justice Jackson made it quite clear that this decision was based on much broader grounds than religious freedom, speaking rather to the core of the Constitution's original intent. Quoting from his written decision:
"But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
The current President has tried to turn a silent protest against racial discrimination and police brutality into a question of national honor and patriotism. Of course, this is richly ironic coming from someone who fairly recently tried to gain political advantage by publicly belittling the sacrifices of a Vietnam POW and a Gold Star family. However, when the Vice President this past weekend made a public point of leaving a game because players protested during the anthem or when school officials in Tennessee and Louisiana threatened to penalize student athletes for quiet pre-game displays it is clear to me that this misguided opinion has spread and that many people in authority in the country have a severely limited view of what the constitution stands for and of how love of country can be demonstrated. Let me finish simply with another sentence from Chief Justice Jackson's 1943 opinion.
"To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds."
Peter Andrews, Charleston