I’m reading The Nine, by Jeffrey Toobin (of CNN fame). The subtitle is “Inside the Secret World of the Supreme Court,” and it is living up to expectations. Toobin does a great job of taking you inside the Court, artfully weaving historical decisions into present cases and currently sitting Justices. Regarding religion and patriotism, I found his comments on the WWII era Jehovah’s Witness cases particularly relevant to some of today’s discussions. He notes that the first case regarding the flag salute and pledge of allegiance, from 1940, found the Supreme Court siding with schools and their insistence that students participate. But then, within 3 years, the Supreme Court, perhaps in recognition of “what could happen in a society where loyalty is coerced and nonconformism punished” (i.e., seeing what was happening in Europe with the Nazis), switched sides. In 1943, the Witnesses won an almost identical case (West Virginia Board of Education v. Barnette). Toobin provides us with a quote from what he calls one of the most eloquent Supreme Court opinions. Justice Robert H. Jackson, in writing the majority opinion: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds…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. If there are any circumstances which permit an exception, they do not now occur to us.” It certainly makes one think.
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