In 1940, in Minersville School District v Gobitis, the Supreme Court upheld a public school district’s policy requiring students to salute the flag and recite the pledge of allegiance. The Court did so over the objections of Jehovah’s Witnesses who argued that saluting the flag was tantamount to worshiping “graven images” which the Bible forbids and thus a violation of their free exercise of religion of the First Amendment. Following that Supreme Court decision, the West Virginia State Board of Education directed all teachers and students to salute the flag as part of daily school activities. Failure to comply could lead to students being expelled. Like the Gobitis family, the Barnettes were Jehovah’s Witnesses who believed that flag saluting was a violation of their First Amendment’s free exercise of religion. The Barnettes sought and won an injunction in a U. S. District Court against enforcement of the Board’s directive, and the Board then appealed to the Supreme Court.

By a 6-3 vote, the Supreme Court overruled its prior decision in the Gobitis case. The Court ruled that the West Virginia Board’s policy was an unconstitutional violation of the First Amendment’s guarantee of freedom of speech, rather than its guarantee of free exercise of religion. In what is regarded as one of the truly great, passionate opinions in Supreme Court history, Justice Robert Jackson wrote for the majority: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials… Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. … 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.”

After the Japanese Empire’s attack on Pearl Harbor on December 7, 1941, there was a fear among some Americans that the West Coast might be invaded. Adding to that fear was the fact that there were thousands of Japanese Americans living on the nation’s West Coast, and some Americans feared that they might become spies for the Japanese Empire. Acting on the advice and recommendation of military advisors, President Franklin D. Roosevelt issued Executive Order 9066 directing the forced internment of all persons of Japanese descent living on the West Coast in relocation centers located in the interior of the country. Fred Korematsu, an American born citizen of Japanese descent refused to leave his home in California, was arrested, and was convicted in District Court of violation of the exclusion order.

By a 6-P vote, the Supreme Court ruled that the President’s action was a constitutional exercise of government power during a time of “emergency and peril” for the nation. Writing for the majority, Justice Hugo Black explained that the internments had “a definite and close relationship to the prevention of espionage and sabotage.” He went on to explain that the government needed to act quickly in wake of the attack on Pearl Harbor. Black wrote: “There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.”

One of the dissenting justices wrote that he dissented “from this legalization of racism” and went on to assert that racial discrimination “is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.”

Following a New Jersey law, the Board of Education of Ewing Township adopted a plan to reimburse parents, including those whose children attended private and parochial schools (most of which in the area were Catholic), for the costs of bus transportation to and from school. Arch Everson, a local resident and taxpayer, filed a suit challenging this policy for including students attending parochial schools as a violation of the no establishment of religion clause of the First Amendment. A lower New Jersey court struck down the program, but a higher New Jersey court reversed that judgment, and Everson then appealed to the Supreme Court.

By a 5-4 vote, the Supreme Court held that New Jersey’s reimbursement to parents of parochial and private school students for the costs of busing their children to school was constitutional because the assistance went to the child, not the church. This became known as the “child benefit theory.” The majority reasoned that as long as the child or his parents were the beneficiaries, and not the church itself, the reimbursement was constitutional. Writing for the majority, Justice Hugo Black made clear that the First Amendment’s no establishment of religion clause now applied to the actions of state governments through the due process of law clause of the Fourteenth Amendment and the doctrine of incorporation. Black continued by writing: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State. …The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”