Lillian Gobitas Klose
By Minersville School District v. Gobitis was one of the darker days in Supreme Court history. The Court upheld a mandatory flag salute statute that caused Gobitas to be expelled when she refused to comply. The opinion was authored by Felix Frankfurter, who on the Court was sort of the liberal equivalent of Scalia. At times, he seemed to revel in the fact that his opinions would produce bad consequences, even if they contradicted his principles and even if there was pertinent constitutional language that would seem to permit a favorable application. And in this case, the bad consequences were immediate and severe: Jehovah’s Witnesses were subjected to a wave of not only school expulsions but violence. Fortunately, the Supreme Court quickly corrected its error, with several justices (although not Frankfurter) changing their votes. This produced one of the most famous passages in the United States Reports, from Justice Jackson’s majority opinion:
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.
Of course, where many contemporary universities are concerned, this needs to be amended with “one exception occurs to us: when unorthodox opinions upset the development office.”