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December 1, 1937

GOBITIS et al.

The opinion of the court was delivered by: MARIS

The plaintiffs, Walter Gobitis, and his two minor children, Lillian and William, have filed their bill in equity against the school district of the borough of Minersville, Schuylkill county, Pa., and against eight individuals, seven of them comprising the board of school directors of the school district, and one of them being the superintendent of schools of the district.

The bill avers that the minor plaintiffs, who reside in the borough of Minersville, attended the public schools conducted by the defendants prior to November 6, 1935. On that day the defendant school directors adopted a school regulation requiring all teachers and pupils of the schools to salute the American flag as a part of the daily exercises and providing that refusal to salute the flag should be regarded as an act of insubordination and should be dealt with accordingly. Plaintiffs, who are members of a body of Christians known as Jehovah's Witnesses, are conscientiously opposed upon religious grounds to saluting the flag, since they consider such action to be a direct violation of divine commandments laid down in the Bible. The minor plaintiffs, having been conscientiously unable, because of their religious beliefs and manner of worship, to salute the flag as required by the regulation of the defendant school directors, above referred to, they were on November 6, 1935, expelled, by the defendant superintendent of schools, from the public schools conducted by the defendants, and by reason thereof have since been unable to attend those schools.

 The bill further avers that plaintiff Walter Gobitis is financially unable to provide an education for the minor plaintiffs at a private school and that the refusal of the defendants to permit them to remain in the public schools has damaged him in excess of $3,000. Alleging that the defendants' regulation violates the Fourteenth Amendment to the Federal Constitution, in that it unreasonably restricts the freedom of religious belief and worship and the free exercise thereof of the plaintiffs, the bill seeks an injunction restraining the defendants from enforcing the regulation against the plaintiffs. The defendants have moved to dismiss the bill upon the grounds that a good cause of action is not set forth and that, even if it is, this court has no jurisdiction to entertain it.

 In disposing of defendants' motion, the facts set forth in the bill and the inferences properly to be drawn therefrom must be taken to be true. Considering them in this light we will first examine the cause of action averred by the bill. It is claimed on behalf of the minor plaintiffs that they have the right to attend the defendants' public schools; indeed that they are required by law to attend them unless they can secure equivalent education privately. This, however, Walter Gobitis avers he is financially unable to provide. They further contend that the enforcement of defendants' regulation conditions their right upon their participation in what is to them a religious ceremony to which they are conscientiously opposed, thus depriving them of their liberty of conscience without due process of law. They also say that, since they are required by law to attend defendants' public schools, being financially unable to secure an equivalent education privately, they are by reason of the regulation in question placed under legal compulsion to participate in an act of worship contrary to the dictates of their consciences.

 Under section 1414 of the School Code, as recently amended, July 1, 1937, (24 P.S.Pa. § 1421), the minor plaintiffs are required to attend a day school continuously throughout the entire term during which the public elementary schools in their district shall be in session, until they respectively reach 18 years of age. Section 1423 of the School Code (24 P.S.Pa. § 1430) provides that every parent of any child of school age who fails to comply with the provisions of the act regarding compulsory attendance is guilty of a misdemeanor. In the light of these statutory provisions and of section 1 of article 10 of the State Constitution which directs the General Assembly to "provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this Commonwealth above the age of six years may be educated," we conclude that the minor plaintiffs have a right to attend the public schools and indeed a duty to do so if they are unable to secure an equivalent education privately.

 Section 3 of article 1 of the Constitution of Pennsylvania provides that "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; * * * no human authority can, in any case whatever, control or interfere with the rights of conscience." This is but the expression of the full and free right which, as Mr. Justice Miller said in Watson v. Jones, 13 Wall. (80 U.S.) 679, 728, 20 L. Ed. 666, in this country is conceded to all "to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights."

 The right of conscience referred to in the Pennsylvania Constitution was defined by Chief Justice Gibson in Commonwealth v. Lesher, 17 Serg. & R. (Pa.) 155, to be "a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which, is not prejudicial to the public weal." In these words that eminent jurist clearly stated the principle which underlies the constitutional provisions of all the states and which is one of the fundamental bases upon which our nation was founded, namely, that individuals have the right not only to entertain any religious belief but also to do or refrain from doing any act on conscientious grounds, which does not prejudice the safety, morals, property or personal rights of the people.

 In applying this principle it is obvious that the individual concerned must be the judge of the validity of his own religious beliefs. Liberty of conscience means liberty for each individual to decide for himself what is to him religious. If an individual sincerely bases his acts or refusals to act on religious grounds they must be accepted as such and may only be interfered with if it becomes necessary to do so in connection with the exercise of the police power, that is, if it appears that the public safety, health or morals or property or personal rights will be prejudiced by them. To permit public officers to determine whether the views of individuals sincerely held and their acts sincerely undertaken on religious grounds are in fact based on convictions religious in character would be to sound the death knell of religious liberty. To such a pernicious and alien doctrine this court cannot subscribe.

 In the present case the bill avers that the refusal of the minor plaintiffs to salute the flag is based on conscientious religious grounds. It seems obvious that their refusal to salute the flag in school exercises could not in any way prejudice or imperil the public safety, health or morals or the property or personal rights of their fellow citizens. Certainly no such suggestion was made by the defendants at the argument. However, in the view we have taken, such prejudice or peril, if it exists, is a matter of defense. Consequently we must hold on this motion that the action of the minor plaintiffs in refusing for conscience sake to salute the flag, a ceremony which they deem an act of worship to be rendered to God alone, was within the rights of conscience guaranteed to them by the Pennsylvania Constitution. The conclusion is inescapable that the requirement of that ceremony as a condition of the exercising of their right or the performance of their duty to attend the public schools violated the Pennsylvania Constitution and infringed the liberty guaranteed them by the Fourteenth Amendment.

 We are aware that a number of courts have reached a contrary conclusion. Hering v. State Board of Education, 117 N.J.L. 455, 189 A. 629, affirmed 118 N.J.L. 566, 194 A. 177; Leoles v. Landers (Ga.Sup.) 192 S.E. 218; Nicholls v. Mayor and School Committee of Lynn (Mass.) 7 N.E.2d 577, 110 A.L.R. 377. In each of these cases it was held that the salute to the flag could have no religious significance. In so holding, however, it appears to us that the courts which decided these cases overlooked the fundamental principle of religious liberty to which we have referred; namely, that no man, even though he be a school director or a judge, is empowered to censor another's religious convictions or set bounds to the areas of human conduct in which those convictions should be permitted to control his actions, unless compelled to do so by an overriding public necessity which properly requires the exercise of the police power. Furthermore it appears that the courts in these cases largely relied on Hamilton v. Regents of University of California, 293 U.S. 245, 55 S. Ct. 197, 204, 79 L. Ed. 343, in which the Supreme Court held that a regulation of the University of California making military training compulsory for all students did not unduly infringe the liberty of students who were opposed to war and military training on religious grounds. That decision, however, was placed upon the ground that, although the right to entertain the beliefs, to adhere to the principles, and to teach the doctrines on which these students based their objections to military training, is included in the religious liberty of the individual, that liberty had not been infringed by the regulation in question, since the objecting students were not required by law to attend the university, and in any event the right of the state in the interest of public safety to require its citizens to prepare for its defense by force of arms was paramount to their right to religious liberty. In that case Mr. Justice Butler said:

 "There need be no attempt to enumerate or comprehensively to define what is included in the 'liberty' protected by the due process clause. Undoubtedly it does include the right to entertain the beliefs, to adhere to the principles, and to teach the doctrines on which these students base their objections to the order prescribing military training. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A.L.R. 1446; Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A.L.R. 468; Stromberg v. California, 283 U.S. 359, 368, 369, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484; Near v. Minnesota, 283 U.S. 697, 707, 51 S. Ct. 625, 75 L. Ed. 1357. The fact that they are able to pay their way in this University but not in any other institution in California is without significance upon any constitutional or other question here involved. California has not drafted or called them to attend the University. They are seeking education offered by the state and at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs and conscientious objections to war, preparation for war, and military education. Taken on the basis of the facts alleged in the petition, appellants' contentions amount to no more than an assertion that the due process clause of the Fourteenth Amendment as a safeguard of 'liberty' confers the right to be students in the State University free from obligation to take military training as one of the conditions of attendance.

 "Viewed in the light of our decisions, that proposition must at once be put aside as untenable.

 "Government, federal and state, each in its own sphere owes a duty to the people within its jurisdiction to preserve itself in adequate strength to maintain peace and order and to assure the just enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend government against all enemies. Selective Draft Law Cases, supra, 245 U.S. 366, at page 378, 38 S. Ct. 159, 62 ...

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