"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."

Key Ruling: The Free Speech clause of the First Amendment prohibits public schools from compelling speech by forcing students to salute the American flag and say the Pledge of Allegiance.

Like the good Indiana Jones movies, this story begins with Nazis. In the 1930's, the Nazi German government began arresting Jehovah's Witnesses in the thousands because they refused to salute the Nazi flag and promptly put them on trains to concentration camps. Jehovah's Witnesses believe that obligations imposed by the laws of God are superior to any law enacted by government of man. This includes a literal translation of Exodus, Chapter 20, verses 4 and 5, which says: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them." Jehovah's Witnesses consider that a flag is an 'image' and thus refuse to salute.

The United States began mimicking the Nazi's and expelling children of Jehovah's Witnesses from school because of this belief. Government officials threatened to send these children to literal juvenile detention centers while prosecuting the parents for causing delinquency. In 1935, one such refusal lead to the Supreme Court case Minersville School District v. Gobitis (1940) where the Court held that schools COULD compel students to salute the flag and say the pledge. Even after the Gobitis decision, Jehovah's Witnesses continued to refuse to say the pledge.

West Virginia then added a requirement for all schools to teach a class on history, civics and the US Constitution. As part of this class, the Board of Education, citing the Gobitis decision, added a requirement for students to regularly salute the flag, and that refusal to salute the flag be treated as insubordination with appropriate punishment. Ironically, the popular salute at the time as the "Bellamy salute" which looks much like the Roman salute used by Nazi Germany and Fascist Italy. Marie and Gathie Barnette, Jehovah's Witnesses from Charleston, West Virginia refused to use the Nazi-style salute and were expelled for the refusal. The Barnette's then brought suit in federal court.

While the Court had an opportunity to strike down this requirement under the Free Exercise of Religion clause, they instead went broader and struck it down under Free Speech. This meant that compelled speech, in the form of salutes and pledges, were not just prohibited for the religious, but for ANYONE who wants to refuse to salute or pledge for ANY reason. The Court expressly overturned the Gobitis case, which was enacted at the onset of World War II (note my previous article on how the court often enacts stricter laws during wartime - this perhaps was the Supreme Court realizing it previously went too far). The Court reasoned that the very purpose of the Bill of Rights is to give one a right to free speech that was not subject to vote or by oversight or control by ANY government official.

In the modern era, there are perhaps no greater replica of 1930's German government policy than those who would force Critical Race Theory into schools. The Barnette case represents one of the best case precedents to fight against Critical Race Theory in schools. There are already lawsuits against schools which have attempted to force children to admit they are "privileged, discriminatory and oppressive" due to their skin color, gender, sexual orientation and religion. This is a spot on match for the compelled speech of the early 20th century - those that now kneel during the National Anthem hypocritically require that you pledge your identity as a racist, sexist, phobe and whatever other derogatory label they wish to impose. Barnette points out that this Marxist dictate is just as unconstitutional as those that would have compelled Jehovah's Witnesses to use a Nazi-style salute to the flag.