70 Years Ago, Jehovah's Witness Case Set Precedent To Overturn Prop 8

In 1935 Billy Gobitis and his sister, both Jehovah's Witnesses, refused to pledge allegiance to the flag in school because to do so would violate the second commandment forbidding idol worship.  Despite explaining the reason for his refusal in writing, the school board stood its ground.

"The Gobitis family was physically attacked and their family grocery store was boycotted. This caused great financial strain as the family faced the cost of sending the two children to private school. Their father sued on behalf of the children, saying the district’s policy violated his children’s religious freedom." [from The Bill of Rights Institute]

By 1940 the school pledge was before the Supreme Court which ruled in Minersville School District v. Gobitis   8-1 in favor of the school district.   

From the History Net:

The Court rejected the Witnesses' claim, holding that the secular interests of the school district in fostering patriotism were paramount. In the majority opinion, written during the same month that France fell to the Nazis, Felix Frankfurter wrote: "National unity is the basis of national security." The plaintiffs, said Frankfurter, were free to "fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies."

As the US was being drawn into World War II, refusing to pledge was seen by many as traitorous and individual Jehovah's witnesses were beaten and their houses of worship were attacked in various parts of the country.  The ACLU (which argued the next case before the Supreme Court) estimated that 1500 people were assaulted in 335 separate incidents. (Also from the History Net link.) Words like assault tend mask the fact that people's heads were smashed, blood spurted, and people were terrorized.  This happened in Kennebunk, Maine (the home of Tom's of Maine) as well as Baltimore and Illinois, among other places.

Ironically,  the History Net points out:

. . . in Nazi Germany, no group was too small to escape the eye of new chancellor Adolf Hitler, who banned the Witnesses after they refused to show their fealty to him with the mandatory "Heil Hitler" raised-arm salute. (Many Witnesses would later perish in his death camps. [emphasis added]

But a mere three years later - in 1943 - the Supreme Court, in West Virginia State Board of Education v. Barnette, reversed itself on the same issue.  Jehovah's Witness school children again refused to pledge allegiance to the flag and sued when they were expelled.  From the ACLU website:

"The Board of Education on January 9, 1942, adopted a resolution... ordering that the salute to the flag become 'a regular part of the program of activities in the public schools,' that all teachers and pupils 'shall be required to participate in the salute honoring the Nation represented by the Flag...
Failure to conform is 'insubordination' dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile the expelled child is 'unlawfully absent' and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days.

Appellees... brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses... The Board of Education moved to dismiss the complaint [which alleged] that the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the 'due process' and 'equal protection' clauses of the Fourteenth Amendment to the Federal Constitution. The cause was submitted on the pleadings to a District Court of three judges. It restrained enforcement as to the plaintiffs and those of that class." 

The Board of Education appealed to the U.S. Supreme Court which affirmed the judgment of the District Court for the Southern District of West Virginia.

This time round, the Court had the history of violent of attacks on Jehovah's Witnesses following the 1940 decision plus the US was now involved in World War II. 

The Court's decision this time was a complete reversal.  From Oyez:

In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f 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."

 And the relationship to Prop. 8?

A key argument for keeping Prop. 8 was that the majority of voters of California had cast ballots in favor of the banning gay marriage.  This was the will of the majority.

From Joel P. Engardio in USA Today:

When Justice [Robert] Jackson [in 1943] got the chance to reverse the 1940 ruling, he tackled the ballot box notion head-on. He wrote that the "very purpose" of the Bill of Rights was to protect some issues from the volatility of politics and "place them beyond the reach of majorities."

"One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly," Jackson said, "may not be submitted to vote." [emphasis added]

 Engardio goes on to show the link to Prop. 8.

"Fundamental rights," Jackson wrote in 1943 and Judge Walker quoted in 2010, "depend on the outcome of no elections."

Note:  While  reading for this I learned that President Eisenhower,  who signed the law adding 'under God" to the Pledge of Allegiance in 1954, grew up in a Jehovah's Witness household, though he later became a Presbyterian.  Jehovah's Witnesses oppose war and their members do not participate in war.  Eisenhower not only joined the military, he became the Supreme Allied Commander of the Allied Expeditionary Force (SHAEF),  until the end of the war in Europe in May1945. [Wikipedia]