Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Albert B. Maris, Judge.
Before BIGGS and CLARK, Circuit Judges, and KALODNER, District Judge.
Eighteen big states*fn1 have seen fit to exert their power over a small number of little children*fn2 ("and forbid them not"). The method of exercise has sometimes been by their representatives in solemn conclave assembled and sometimes, as here, by an administrative agency (School Board). The matter of exercise is in that field where, above all, or so we had supposed, power must yield to principle. In other words, the area of action is within the aura of conscience.
The appellant School Board is entrusted by statute of Pennsylvania with the delicate, but surely not difficult, task of instructing the public school children under its control in "civics, including loyalty to the State and National Government". 24 Purdon's Pa. Stat. Ann., § 1551. To that end, as we assume it believed, the following regulation was promulgated on November 6, 1935:
"That the Superintendent of the Minersville Public Schools be required to demand that all teachers and pupils of said schools be required to salute the flag of our country as a part of the daily exercises. That refusal to salute the flag shall be regarded as an act of insubordination and shall be dealt with accordingly." Record, p. 6.
The appellees, a little girl of 13 and a little boy of 12, refused to salute the flag of "their country" on the appropriate occasion. They stood in respectful silence while the other children submitted to the "requirement" and they were "dealt with accordingly" by being expelled.
The reason for their refusal raises the constitutional issue of this appeal. They and their parents are members of a group (we avoid for the present more definite characterization) known as Russellites, or more colloquially, Earnest Bible Students,*fn3 or Jehovah's Witnesses. The defendant School Board admits that this group "sincerely and honestly believe that the act of saluting a flag contravenes the law of God" in that it constitutes a bowing down to a graven image.
The so-called flag salute statute (or regulation) first appeared in Kansas in 1907. The idea, without benefit of sanctions, seems to have originated with an employee of the magazine, The Youth's Companion. It was first put in practice at the National Public School celebration on October 21, 1892, The Youth's Companion Flag Pledge pamphlet. As with its related predecessor the teacher's oath (Nevada, 1866), the voluntary character of the ceremonial act soon disappeared into law and litigation, Oaths of Loyalty for Teachers pamphlet of the American Federation of Teachers, Chicago, Illinois. There is some current indication of a reversal in the trend of public opinion at least. Those who attended the training camps of World War No. 1 will remember our staff of life, the manuals of Colonel Moss. That distinguished officer, now retired, has also written extensively on the American flag. In his latest book, we find him taking a secular position remarkably like that of the plaintiff-appellees. He says:
"Another form that false patriotism frequently takes is so-called 'Flag-worship' - blind and excessive adulation of the Flag as an emblem or image, - superpunctiliousness and meticulosity in displaying and saluting the Flag - without intelligent and sincere understanding and appreciation of the ideals and institutions it symbolizes. This, of course, is but a form of idolatry - a sort of 'glorified idolatry', so to speak. When patriotism assumes this form it is nonsensical and makes the 'patriot' ridiculous." Chap. 14, Patriotism of the Flag, Moss, The Flag of the United States, Its History and Symbolism, pp. 85-86.
So also, Mr. Laurens M. Hamilton, a direct descendant of Alexander Hamilton, president of the New York Chapter of the Sons of the American Revolution (an organization never criticized for its lack of patriotism), told the Daughters of the American Revolution at the forty-second annual meeting of their Washington Heights Chapter:
"Laws cannot take the place of feeling. We must beware of legislation such as that forcing people to salute the flag. We cannot make people salute, we cannot force them to or command them to. What we can do is to make them want to salute it." The New York World Telegram, April 14, 1939.
This change in social sentiment appears to have reached the consciousness of at least one legislator. In Massachusetts this year Mr. Curtis introduced an amendment to the original act which expressly permits the excusing from the flag salute of pupils whose "parent or guardian has scruples, which he regards as religious, against such salute." Senate No. 449, March, 1939 (Mass.).In New Jersey, on the other hand, the opposite was true. The original act was "strengthened" to make a crime of influencing a "pupil * * * against the salute to the flag * * * by instruction printed or otherwise." P.L.N.J. 1939, c. 65, sec. 1, N.J.S.A. 2:130-5.
These little children ("suffer them") are asking us to afford them the protection of the First Amendment (Bill of Rights*fn4) to the Constitution and to permit them the "free exercise" of their "religion." That supplication raises, as we see it, two questions. First, do they bring themselves within the meaning of the word "religion" as used in the Constitution; and second, is there any limitation on the adjective "free" in the constitutional phrase "free exercise"?
Appellant suggests that religion is an objective rather than a subjective matter. He goes on to argue that no one could conceivably appraise non-flag saluting in theological terms. In other words, he applies some sort of average reasonable man standard. We agree that the test is not without subjective limitations. The individual cannot claim any and all beliefs religious. Maybe he should be able to, but the fact is that the Constitution uses a certain word of art and does not employ the wider term "belief". A perfect illustration of this distinction is found in the cases of certain conscientious objectors under the Selective Draft Act of 1917, as amended, 40 Stat. 76, 534, 885, 955 (50 U.S.C.A. p. 165). As is known, most of those who objected to service in war offered religious scruples as an excuse. There were, however, a certain number whose claim for exemption was based solely on disbelief in war as an instrument of human policy. Their claims were disallowed and all of them were sentenced to long terms. See Case, Conscientious Objections, 4 Ency. of Social Sciences p. 210; Second Report of the Provost Marshal General to the Secretary of War on the Operation of the Selective Service System, pp. 58-59; Third Assistant Secretary of War, Statement as to Treatment of Conscientious Objectors in the Army, September 28, 1918; Secretary of War, Statement as to Treatment of Conscientious Objectors in the Army, June 18, 1919.
As in most phases of the subject, there is not complete agreement on even a definition of relion, Hopkins, The History of Religions; Houf, What Religion Is and Does; Menzies, History of Religion, Rev. Ed.; Dewey, A Common Faith. Some interesting cases might (and may) arise under the broader conception, as for instance anything within the comprehensive term sacred, see Crawley, who gives the study of religion the wide scope of a comparative hierology. The Tree of Life, p. 209. Our courts have promulgated what has been referred to as a "minimum definition." Compare the language of a distinguished writer on the subject with that of Mr. Justice Field speaking for the Supreme Court of the United States.
The religious philosopher says:
"Religion is squaring human life with superhuman life. * * * What is common to all religions is belief in a superhuman power and an adjustment of human activities to the requirements of that power, such adjustment as may enable the individual believer to exist more happily". Hopkins, The History of Religions, p. 2.*fn5
The legal philosopher says:
"The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will." Davis v. Beason, 133 U.S. 333, 342, 10 S. Ct. 299, 300, 33 L. Ed. 637.
By the same token the definition excludes any theory of sensible choice. If the requirement is present, the doctrinal views of the average man or the average official are wholly irrelevant. Professor Zollman speaks as follows:
"'Were the administration of the great variety of religious charities with which our country so happily abounds, to depend upon the opinion of the judges, who from time to time succeed each other in the administration of justice, upon the question whether the doctrines intended to be upheld and inculcated by such charities, were consonant to the doctrines of the Bible; we should be entirely at sea, without helm or compass, in this land of unlimited religious toleration.' The law therefore does not presume 'to settle differences of creeds and confessions, or to say that any point of doctrine is too absurd to be believed'". Religious Liberty in the Law, Part 2, 17 Michigan Law ...