RECOLLECTIONS OF WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE*

St. John's Law Review, Fall 2007 by Peterson, Gregory L, Prettyman, E Barrett Jr, Peters, Shawn Francis, Boskey, Bennett, Edmonds, Gathie Barnett, Snodgrass, Marie Barnett, Barrett, John Q

SHAWN FRANCIS PETERS[dagger]

Good morning. I have to be honest: I love events like this. They give us an opportunity to look at the judicial system in general and great cases, in particular, from new and interesting and varied perspectives.

I think we often look at judicial opinions as these fully formed, perfect entities that magically appear from the Supreme Court. And while I agree that they are the products of great learning, they are also the products of social, political, cultural and even idiosyncratic personal forces as well. It is one of the things that will happen today: We will be looking at those forces as they shaped West Virginia v. Barnette. My job is to provide a little bit of background on what happened before 1943 and the Barnette flag salute case. To that end, the first thing I would like to talk about is the Jehovah's Witnesses and the Supreme Court.

Between 1938 and 1946, the Supreme Court handed down twenty-three opinions dealing with the Jehovah's Witnesses, an enormous number of cases for such a short period of time. I think of that when I go to my local coffee shop and I use a little punch card every time I refill my coffee. I have thought that the Witnesses-if there had been a sort of "frequent litigant" program in those days-would have filled up their cards quite frequently. And it is worth noting too that the cases that reached the Supreme Court were only the top of the litigation pyramid. It is important to look at lower levels as well, lower federal as well as state courts. And in fact, during that same period, the Witnesses were involved in hundreds of cases in these lower courts. They involved some really profound issues: speech, religion, freedom of assembly, freedom of conscience, and the context of military service. These were vitally important, not only for the Witnesses themselves but, more broadly, for all Americans.

[dagger] University of Wisconsin-Madison School of Education and author of JUDGING JEHOVAH'S WITNESSES: RELIGIOUS PERSECUTION AND THE DAWN OF THE RIGHTS REVOLUTION (University Press of Kansas 2000).

It is important to realize that, today, we think of the courts as being concerned with civil liberties and civil rights. You can pick up the paper frequently and read about the courts rendering judgments in these matters. But that was not always the case in the nineteenth century and well into the twentieth century. The Supreme Court was concerned primarily with economic regulation and not civil rights and civil liberties. That is a phenomenon of the twentieth century. The Witness cases are important because they made the Court think about those things in a sustained way for the first time. In the 1960s there was something that has been referred to as the "rights revolution," and one of the things I argued in my book, and I still believe very fundamentally, is that the Witness cases sort of set the stage for that upheaval in the 1960s. By going to the Supreme Court over and over again, they made the Justices wake up to the Bill of Rights in a way that they had not previously done. My favorite quote relating to this is from Justice Stone. He wrote to a colleague, "I think [that] the Jehovah's Witnesses ought to have an endowment in [light] of the aid .. . they give [us] in solving the legal problems of civil liberties."7 They did not get their endowment. I think that was a joking suggestion, but it highlights the fact that the members of the Court themselves realized that they were undergoing a transforming experience in the 1930s and 1940s because of the Jehovah's Witnesses.