Colin Kaepernick and the Constitution

Colin Kaepernick's alleged show of a lack of respect for the American flag by refusing to stand during the National Anthem recalls other moments in U.S. history when such refusals generated controversy and even incited violence. His action was done as a protest against a country that he claims oppresses people of color. To be sure, other athletes besides the San Francisco 49ers quarterback, for similar reasons, have either sat out the patriotic ritual, or defied it. Although millions of Americans view the flag with almost mystical reverence, the various ways that people have protested the flag's unique position have produced several famous decisions by the U.S. Supreme Court. In Texas v. Johnson, for example, the Court narrowly upheld the public burning of the American flag while protesters chanted "America, the red, white, and blue, we spit on you." The First Amendment's protection of free speech, Justice William Brennan wrote for the majority, protected expressive conduct, even conduct that desecrated the most venerated object in our Nation's history.

There is one moment in U.S. history, however, that captures the ugliest, most intolerant, and most violent public response to the refusal to show respect for the American flag, and it carries a lesson for today. I am thinking of the infamous 1940 decision by the U.S. Supreme Court in Minersville School District v. Gobitis which upheld Pennsylvania law requiring school children to stand and salute the flag as part of their daily school exercise. The Gobitis children, members of the Jehovah's Witnesses, had refused to stand and pledge allegiance to the flag on the grounds that showing such respect for the flag is forbidden by the Scriptural prohibition against worshipping false gods and graven images. The response to their action was cruel. They were subjected to taunting and physical attacks from classmates, a local Catholic church boycotted the family store, and the school district expelled them, claiming they had been "indoctrinated," that their conduct was "demoralizing," and that their conduct would lead to widespread disregard of the flag and American values. The Gobitis parents sued to allow their children to attend school. Two courts rules in their favor.

The case was litigated up to the U.S. Supreme Court. There, in an opinion by Justice Felix Frankfurter, the Court by an 8-1 vote upheld the mandatory flag salute and the children's expulsion. Justice Frankfurter's opinion found that the law did not infringe on any constitutional liberty of the individual. It was a "secular regulation," he said, enacted to encourage patriotism among school children and "national cohesion." The recitation of a pledge advanced the cause of patriotism and was designed "to promote in the minds of children an attachment to the institutions of their country." The need for everyone to stand and salute the flag, he wrote, outweighed the claims of individual religious liberty of Jehovah's Witnesses. The lone dissenter, Justice Harlan Fiske Stone, said the mandatory flag salute trampled the guarantee to individuals of "the freedom from compulsion as to what he shall think and what he shall say."

The Gobitis decision generated widespread publicity and an immediate, and ugly, response from the public. Over 1,500 Jehovah's Witnesses were physically attacked in more than 300 communities nationwide. They were called un-American. According to a southern Sheriff, "The Supreme Court says you're traitors. Ain't you heard." Police in Litchfield, Illinois jailed all of the town's sixty Witnesses for sedition. Street attacks were common. Jehovah's Witnesses distributing tracts on a street corner were approached by a gang of toughs carrying an American flag. When they refused the command to salute the flag, they were brutally beaten and their literature destroyed The violence went beyond street fights. An angry mob sacked and burned a Jehovah's Witness "Kingdom Hall" in Kennebunk, Maine; Witnesses were tarred and feathered in Parco, Wyoming; a mob of veterans forcibly deported Witnesses from Jackson, Mississippi, to Texas; and in Nebraska a Witness was abducted from his home and castrated.

Three years after Gobitis, the Supreme Court decided to revisit the decision. The Court had changed. Harlan Fiske Stone was now its Chief Justice, and two new members joined the Court, including Robert Jackson, the former Attorney General. In West Virginia State Board of Education v. Barnette, the Court overruled the Gobitis decision. Justice Jackson wrote for the Court that in the United States people have a First Amendment right to refrain from saluting the flag. There is no duty, he wrote, because the state lacks the power to make the salute a legal requirement. In one of the most iconic passages in the Supreme Court's tributes to freedom of speech and belief, Justice Jackson wrote:
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. 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 of our Constitution to reserve from all official control.

Kaepernick's protest has elicited various responses. President Obama has supported his action, arguing that his response has raised legitimate issues. Others have vilified him. Donald Trump has demanded that Kaepernick leave the country if he doesn't like it here. The Santa Clara police union has threatened to boycott 49er football games. But there has been no violence yet, or threats. That is not a small thing to celebrate given the current virulent atmosphere. But the Gobitis case still lurks in the shadows of cruelty and hatred by a super-patriotic mob and stands as a reminder of what intolerance looks like, and what it can lead to.