The Tide Turns

In Jones v. Opelika, the very decision that was such a blow to the public ministry of Jehovah’s Witnesses, three of the justices stated that not only did they disagree with the Court majority on the case at hand but they also felt that they had helped to lay the foundation for it in the Gobitis case. “Since we joined in the opinion in the Gobitis case,” they added, “we think this is an appropriate occasion to state that we now believe that it was also wrongly decided.” Jehovah’s Witnesses took that as a cue to present the issues anew to the Court.

A Motion for Rehearing was filed in the case of Jones v. Opelika. In that motion, strong legal arguments were presented. It also firmly declared: “This Court should reckon with the paramount fact, that it is judicially dealing with servants of Almighty God.” Biblical precedents showing the implications of this were reviewed. Attention was directed to the advice given by the law teacher Gamaliel to the first-century Jewish supreme court, namely: “Do not meddle with these men, but let them alone; . . . otherwise, you may perhaps be found fighters actually against God.”—Acts 5:34-39.

At last, on May 3, 1943, in the landmark case Murdock v. Commonwealth of Pennsylvania,a the Supreme Court reversed its earlier decision in Jones v. Opelika. It declared that any license tax as a precondition to exercising one’s freedom of religion by distribution of religious literature is unconstitutional. This case reopened the doors of the United States to Jehovah’s Witnesses and has been appealed to as authority in hundreds of cases since then. May 3, 1943, was truly a memorable day for Jehovah’s Witnesses as regards litigation before the Supreme Court of the United States. On that one day, in 12 out of 13 cases (all of which were consolidated for hearing and opinion into four decisions), the Court ruled in their favor.b

About a month later—on June 14, the nation’s annual Flag Day—the Supreme Court again reversed itself, this time as to its decision in the Gobitis case, doing so in the case styled West Virginia State Board of Education v. Barnette.c It ruled 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.” Much of the reasoning set out in that decision was thereafter adopted in Canada by the Ontario Court of Appeal in Donald v. Hamilton Board of Education, which decision the Canadian Supreme Court refused to overrule.

Consistent with its decision in the Barnette case, and on the same day, in Taylor v. State of Mississippi,d the Supreme Court of the United States held that Jehovah’s Witnesses could not validly be charged with sedition for explaining their reasons for refraining from saluting the flag and for teaching that all nations are on the losing side because they are in opposition to God’s Kingdom. These decisions also set the scene for subsequent favorable rulings in other courts in cases involving Witness parents whose children had refused to salute the flag in school, as well as in issues involving employment and child custody. The tide had definitely turned.e

[Box on page 687]

Setting the Stage for a Reversal

When the American Supreme Court ruled, in 1940, in “Minersville School District v. Gobitis,” that schoolchildren could be required to salute the flag, eight of the nine justices concurred. Only Justice Stone dissented. But two years later, when registering their dissent in the case of “Jones v. Opelika,” three more justices (Black, Douglas, and Murphy) took the occasion to state that they believed that the “Gobitis” case had been wrongly decided because it had put religious freedom in a subordinate position. That meant that four of the nine justices were in favor of reversing the decision in the “Gobitis” case. Two of the other five justices who had downplayed religious freedom retired. Two new ones (Rutledge and Jackson) were on the bench when the next flag-salute case was presented to the Supreme Court. In 1943, in “West Virginia State Board of Education v. Barnette,” both of them voted in favor of religious freedom instead of compulsory flag saluting. Thus, by a vote of 6 to 3, the Court reversed the position it had taken in five earlier cases (“Gobitis,” “Leoles,” “Hering,” “Gabrielli,” and “Johnson”) that had been appealed to this Court.

Interestingly, Justice Frankfurter, in his dissent on the “Barnette” case, said: “As has been true in the past, the Court will from time to time reverse its position. But I believe that never before these Jehovah’s Witnesses cases (except for minor deviations subsequently retraced) has this Court overruled decisions so as to restrict the powers of democratic government.”

[Box on page 688]

“An Age-Old Form of Missionary Evangelism”

In 1943, in the case of “Murdock v. Pennsylvania,” the Supreme Court of the United States said, among other things:

“The hand distribution of religious tracts is an age-old form of missionary evangelism—as old as the history of printing presses. It has been a potent force in various religious movements down through the years. This form of evangelism is utilized today on a large scale by various religious sects whose colporteurs carry the Gospel to thousands upon thousands of homes and seek through personal visitations to win adherents to their faith. It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press.”