In his majority opinion, Judge Frankfurter invoked a purely collectivist argument:
"When does the constitutional guarantee [of freedom of speech and freedom of religion] compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good?"
"The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."
"...the question remains whether school children, like the Gobitis children, must be excused from conduct required of all the other children in the promotion of national cohesion. We are dealing with an interest inferior to none in the hierarchy of legal values""The ultimate foundation of a free society is the binding tie of cohesive sentiment."
"A society which is dedicated to the preservation of these ultimate values of civilization may, in self-protection, utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties"
Or in other words, the Supreme Goal of government is not protection of individual liberty but instead the promotion of something called 'national cohesion,' which itself is a dictate directly from the mythical Will of Society, also popularly known as the Government. All other legal principles are secondary in nature to the need for 'national cohesion,' and therefore the government is perfectly justified in violating any right or trampling any liberty in pursuit of this ambiguous term, this demand from 'Society.' Cohesion must precede a Free Nation. A Free Nation cannot exist without it, therefore we will strip away your freedoms, in order to achieve cohesion and give you freedom. You will be free do do whatever you wish, so long as your freedom does not stir any dissent by eroding cohesion, or interfere with the Government's definition of a "great common end" or a "political responsibility" or the "Will of Society." Don't worry about how those words are defined or who will define them or even whether those definitions are subject to change on a whim. The Government will get it right. The Government is always right. Long live Animal Farm!
If all of this sounds ridiculous to you, then there is good reason. It is ridiculous in every sense of the word. Trying to argue that to foster and protect freedom we must first destroy and limit freedom, makes about as much sense as proclaiming that the beatings will continue until moral improves. Thankfully however, at least one of the Justices saw through the silliness and laid the foundation for the future overturning of the decision in West Virginia State Board of Education v. Barnette. That man was Justice Harlan F. Stone, the lone dissenter. And while he of course doesn't take his own logical arguments as far as he should (if it is wrong to compel a child by threat or force to salute the flag, then why is it not also wrong to compel a child by threat or force to attend school in the first place, or compel an adult against his will to fight and lose his life for a conflict he opposes?), he is still certainly on the right track, and hits the nail on the head insofar as the case at hand goes.
I will reproduce the full dissent below.
The dissent reproduction was originally found here:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0310_0586_ZD.html
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STONE, J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
310 U.S. 586
Minersville School District v. Board of Education
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT
MR. JUSTICE STONE, dissenting:
I think the judgment below should be affirmed.
Two youths, now fifteen and sixteen years of age,
are by the judgment of this Court held liable to expulsion from the
public schools and to denial of all publicly supported educational
privileges because of their refusal to yield to the compulsion of a law
which commands their participation in a school ceremony contrary to
their religious convictions. They and their father are citizens, and
have not exhibited by any action or statement of opinion, any disloyalty
to the Government of the United States. They are ready and willing to
obey all its laws which do not conflict with what they sincerely believe
to be the higher commandments of God. It is not doubted that these
convictions are religious, that they are genuine, or that the refusal to
yield to the compulsion of the law is in good faith, and with all
sincerity. It would be a denial of their faith, as well as the
teachings of most religions, to say that children of their age could not
have religious convictions.
The law which is thus sustained is unique in the
history of Anglo-American legislation. It does more than suppress
freedom of speech, and more than prohibit the free exercise of religion,
which concededly are forbidden by the First Amendment
and are violations of the liberty guaranteed by the Fourteenth. For,
by this law, the state seeks to coerce these children to express a
sentiment which, as they interpret it, they do not entertain, and which
violates their deepest religious convictions. It is not denied that
such compulsion is a prohibited infringement of personal liberty,
freedom of speech and religion, guaranteed by the Bill of Rights, except
insofar as it may be justified and supported as a proper exercise of
the state's power over public education. Since the state, in competition with parents, may, through teaching in the public
schools, indoctrinate the minds of the young, it is said that, in aid of
its undertaking to inspire loyalty and devotion to constituted
authority and the flag which symbolizes it, it may coerce the pupil to
make affirmation contrary to his belief and in violation of his
religious faith. And, finally, it is said that, since the Minersville
School Board and others are of the opinion that the country will be
better served by conformity than by the observance of religious liberty
which the Constitution prescribes, the courts are not free to pass
judgment on the Board's choice.
Concededly the constitutional guaranties of personal
liberty are not always absolutes. Government has a right to survive
and powers conferred upon it are not necessarily set at naught by the
express prohibitions of the Bill of Rights. It may make war and raise
armies. To that end, it may compel citizens to give military service, Selective Draft Law Cases, 245 U.S. 366, and subject them to military training despite their religious objections. Hamilton v. Regents, 293 U.S. 245.
It may suppress religious practices dangerous to morals, and
presumably those also which are inimical to public safety, health and
good order. Davis v. Beason, 133 U.S. 333.
But it is a long step, and one which I am unable to take, to the
position that government may, as a supposed educational measure and as a
means of disciplining the young, compel public affirmations which
violate their religious conscience.
The very fact that we have constitutional guaranties
of civil liberties and the specificity of their command where freedom
of speech and of religion are concerned require some accommodation of
the powers which government normally exercises, when no question of
civil liberty is involved, to the constitutional demand that those
liberties be protected against the action of government
itself. The state concededly has power to require and control the
education of its citizens, but it cannot, by a general law compelling
attendance at public schools, preclude attendance at a private school
adequate in its instruction where the parent seeks to secure for the
child the benefits of religious instruction not provided by the public
school. Pierce v. Society of Sisters, 268 U.S. 510.
And only recently we have held that the state's authority to control
its public streets by generally applicable regulations is not an
absolute to which free speech must yield, and cannot be made the medium
of its suppression, Hague v. Committee for Industrial Organization, 307 U.S. 496, 514, et seq.,
any more than can its authority to penalize littering of the streets by
a general law be used to suppress the distribution of handbills as a
means of communicating ideas to their recipients. Schneider v. State, 308 U.S. 147.
In these cases, it was pointed out that, where there
are competing demands of the interests of government and of liberty
under the Constitution, and where the performance of governmental
functions is brought into conflict with specific constitutional
restrictions, there must, when that is possible, be reasonable
accommodation between them so as to preserve the essentials of both, and
that it is the function of courts to determine whether such
accommodation is reasonably possible. In the cases just mentioned, the
Court was of opinion that there were ways enough to secure the
legitimate state end without infringing the asserted immunity, or that
the inconvenience caused by the inability to secure that end
satisfactorily through other means, did not outweigh freedom of speech
or religion. So here, even if we believe that such compulsions will
contribute to national unity, there are other ways to teach loyalty and
patriotism, which are the sources of national unity, than by compelling
the pupil to affirm that which he does not believe, and by
commanding a form of affirmance which violates his religious
convictions. Without recourse to such compulsion, the state is free to
compel attendance at school and require teaching by instruction and
study of all in our history and in the structure and organization of our
government, including the guaranties of civil liberty which tend to
inspire patriotism and love of country. I cannot say that government
here is deprived of any interest or function which it is entitled to
maintain at the expense of the protection of civil liberties by
requiring it to resort to the alternatives which do not coerce an
affirmation of belief.
The guaranties of civil liberty are but guaranties
of freedom of the human mind and spirit and of reasonable freedom and
opportunity to express them. They presuppose the right of the
individual to hold such opinions as he will and to give them reasonably
free expression, and his freedom, and that of the state as well, to
teach and persuade others by the communication of ideas. The very
essence of the liberty which they guarantee is the freedom of the
individual from compulsion as to what he shall think and what he shall
say, at least where the compulsion is to bear false witness to his
religion. If these guaranties are to have any meaning, they must, I
think, be deemed to withhold from the state any authority to compel
belief or the expression of it where that expression violates religious
convictions, whatever may be the legislative view of the desirability of
such compulsion.
History teaches us that there have been but few
infringements of personal liberty by the state which have not been
justified, as they are here, in the name of righteousness and the public
good, and few which have not been directed, as they are now, at
politically helpless minorities. The framers were not unaware that,
under the system which they created, most governmental curtailments
of personal liberty would have the support of a legislative judgment
that the public interest would be better served by its curtailment than
by its constitutional protection. I cannot conceive that, in
prescribing, as limitations upon the powers of government, the freedom
of the mind and spirit secured by the explicit guaranties of freedom of
speech and religion, they intended or rightly could have left any
latitude for a legislative judgment that the compulsory expression of
belief which violates religious convictions would better serve the
public interest than their protection. The Constitution may well elicit
expressions of loyalty to it and to the government which it created,
but it does not command such expressions or otherwise give any
indication that compulsory expressions of loyalty play any such part in
our scheme of government as to override the constitutional protection of
freedom of speech and religion. And while such expressions of loyalty,
when voluntarily given, may promote national unity, it is quite another
matter to say that their compulsory expression by children in violation
of their own and their parents' religious convictions can be regarded
as playing so important a part in our national unity as to leave school
boards free to exact it despite the constitutional guarantee of freedom
of religion. The very terms of the Bill of Rights preclude, it seems to
me, any reconciliation of such compulsions with the constitutional
guaranties by a legislative declaration that they are more important to
the public welfare than the Bill of Rights.
But even if this view be rejected and it is
considered that there is some scope for the determination by
legislatures whether the citizen shall be compelled to give public
expression of such sentiments contrary to his religion, I am not
persuaded that we should refrain from passing upon the legislative
judgment "as long as the remedial
channels of the democratic process remain open and unobstructed." This
seems to me no less than the surrender of the constitutional protection
of the liberty of small minorities to the popular will. We have
previously pointed to the importance of a searching judicial inquiry
into the legislative judgment in situations where prejudice against
discrete and insular minorities may tend to curtail the operation of
those political processes ordinarily to be relied on to protect
minorities. See United States v. Carolene Products Co., 304 U.S. 144,
152, note 4. And, until now, we have not hesitated similarly to
scrutinize legislation restricting the civil liberty of racial and
religious minorities although no political process was affected. Meyer v. Nebraska, 262 U.S. 390; Pierce v. Society of Sisters, supra; Farrington v. Tokushige, 273 U.S. 284.
Here we have such a small minority entertaining in good faith a
religious belief, which is such a departure from the usual course of
human conduct, that most persons are disposed to regard it with little
toleration or concern. In such circumstances, careful scrutiny of
legislative efforts to secure conformity of belief and opinion by a
compulsory affirmation of the desired belief, is especially needful if
civil rights are to receive any protection. Tested by this standard, I
am not prepared to say that the right of this small and helpless
minority, including children having a strong religious conviction,
whether they understand its nature or not, to refrain from an expression
obnoxious to their religion, is to be overborne by the interest of the
state in maintaining discipline in the schools.
The Constitution expresses more than the conviction
of the people that democratic processes must be preserved at all costs.
It is also an expression of faith and a command that freedom of mind
and spirit must be preserved, which government must obey if it is to
adhere to that justice and moderation without which no free government
can exist. For this reason, it would
seem that legislation which operates to repress the religious freedom
of small minorities, which is admittedly within the scope of the
protection of the Bill of Rights, must at least be subject to the same
judicial scrutiny as legislation which we have recently held to infringe
the constitutional liberty of religious and racial minorities.
With such scrutiny I cannot say that the
inconveniences which may attend some sensible adjustment of school
discipline in order that the religious convictions of these children may
be spared presents a problem so momentous or pressing as to outweigh
the freedom from compulsory violation of religious faith which has been
thought worthy of constitutional protection.
