What one of the Supreme Court’s most humiliating mistakes tells us about the debate over Colin Kaepernick’s national-anthem protest.
· The Atlantic
· September 1, 2016
· GARRETT EPPS
“We almost beat one guy to death to make him kiss the flag,” a patriot in Litchfield, Illinois, told a Chicago reporter in 1940.
When that vigilante beat a dissenter in the street—and when hundreds like him brutalized, terrorized, and even mutilated Jehovah’s Witnesses around the country —they were acting, they believed, with the imprimatur of the law, the Constitution, and the Supreme Court, which had ruled that the Witnesses’ religious objection to reciting the Pledge of Allegiance was invalid.
The Court and the nation learned a lesson from that episode. Lessons in tolerance, however, must be learned anew generation by generation. Not long ago, the public worked itself into an uproar when Olympic gymnast Gabby Douglas, respectfully standing for the anthem in Rio, simply did not place her hands the way some people thought she should. But that was mere prologue to the outcry over San Francisco 49ers quarterback Colin Kaepernick, who refused even to stand for the anthem before a game at Levi’s Stadium, and who, unlike Douglas, did so in protest.
“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” he said afterwards, citing recent incidents including white-supremacist protests and police shootings of African-American civilians. The patriotic denunciations of Kaepernick are available on virtually any website and inescapable on any talk-radio station. He has been vilified (and supported) by fellow athletes and by groups of veterans. The San Francisco police union weighed in. No matter what their position, people all over the nation seem deeply anxious about whether this one highly paid athlete will behave in the manner expected of him. And many will be watching Thursday night at the 49ers-Chargers game to see whether he has learned his lesson.
Flags and anthems and patriotic display can inspire love and heroism but they can also bring out the worst in people. Add war, social unease, sports, and race and the fists are likely to fly. This was the context of one of the Court’s most humiliating mistakes—one that led directly to violence in the streets, required the Court to eat its own words, and may teach us a lesson in tolerance today.
Let’s be clear what is at stake. Kaepernick has not expressed allegiance to or support for the nation’s enemies. He has not made any criticism or attack on America’s military. He has not refused to do his job as quarterback. He has not asked anyone to take down a flag, or sought to veto the playing of “The Star-Spangled Banner.” He has not asserted a right to discriminate against anyone who does want to stand and salute during the National Anthem.
Kaepernick has simply indicated that, for reasons he is willing to explain, he himself will not pay personal homage to our nation’s symbol. Others may think he shouldn’t feel that way, but he does, and he will not pretend to feel what he does not.
That issue—the compelled assertion of personal allegiance, a requirement by the state that individuals express feelings they did not hold—brought the flag before the Court in 1940, and, after the decision, led directly to blood in the streets of American towns like Litchfield.
Minersville School District v. Gobitis arose in 1935, when two Jehovah’s Witnesses, Billy and Lillian Gobitas, refused to engage in a required flag salute and pledge of allegiance at their Pennsylvania elementary school. For Witnesses, pledging allegiance to any human symbol is a violation of the Second Commandment: “You must not make for yourself a carved image or a form like anything that is in the heavens above or on the earth below or in the waters under the earth. You must not bow down to them nor be enticed to serve them … ” The local school board expelled them; local people boycotted the family store.
It would be too easy for the current controversy to swell into boycotts and blacklists.
Lower federal courts supported their right to refuse the pledge. The case, however, reached the Supreme Court in 1940, as German armies were grinding toward Paris. The justices rejected the children’s religious-freedom claim to an exemption from the flag-salute requirement. (Poignantly enough, the Court could not even be bothered to spell the children’s last name correctly.) In the majority opinion, Justice Felix Frankfurter wrote that “We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security.” The legislature must have the freedom to promote that unity by requiring children to pledge allegiance, he wrote, and religious objections were no defense.
As outlined in Shawn Francis Peters’s Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution, the court’s decision set off a wave of mob violence and persecution. (The quote from the Litchefield vigilante comes from the book.) Witness meeting houses were looted and burned. Citizens held public bonfires of Witness literature. Witnesses, tied together with ropes, were frog-marched out of towns in many states. Witnesses publicly soiled themselves after being force-fed castor oil. A Nebraska mob castrated a Witness. Law enforcement did little.“They’re traitors—the Supreme Court says so,” one Texas sheriff told a northern journalist.
By 1943, the court itself repented. The public outcry, the addition of a new justice, and three switched votes produced a new rule. Whatever “free exercise” of religion required, the new majority decided, the salute requirement violated the First Amendment’s twin guarantee, free speech. In a famous passage, Justice Robert Jackson wrote that “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.”
Stripped of its color of law, persecution of the Witnesses slowly subsided. And the Court cleansed its escutcheon of a deep blot.
Critics will be quick to point out that the court’s misadventure is not directly on point in the Kaepernick. No one is forcing anyone to stand or exacting any legal punishment for those who do not. And Kaepernick, having made a political gesture, should expect criticism as well as discussion of his criticisms of American society.
Nonetheless, the debate needs careful watching, remembering the context ofGobitis. That case arose as the world slid into war. The collapse of France, which happened while the opinion was being written, offered a terrifying spectacle—the strongest military power in Europe undone in large part by its own internal disunity. Americans were worried about “fifth columnists” at home, and they mistook the Witnesses (persecuted in Axis and Allied countries alike) for Nazi sympathizers.
The current controversy has already produced a public jersey burning. It would be too easy for the dispute to swell into boycotts and blacklists. How much of the national truculence about this minor football dispute arises from one stark fact—that the current state of “authorized military force,” begun in the wake of September 11, is now by far the longest “war” the United States has fought—nearly twice the length of the Revolution, nearly five times the length of World War II? For a decade and a half Americans have hated and feared an unseen, and indeed largely unnamed, enemy, one that has drawn blood inside the nation’s borders and killed its young soldiers abroad. The country is nervous, and has reason to be.
Society should be wary lest fear, xenophobia, religious intolerance, and racial animosity don patriot’s garb.
Stir into the brew another simmering American toxin. Since slavery times, dissent by black Americans has alarmed the white majority. Southern society kept a wary eye on black preachers—a vigilance that found an echo in 2008, when many whites suspected that candidate Barack Obama was tainted by exposure to a black minister named Jeremiah Wright. Wright’s critical rhetoric, however, had deep roots, going back at least as far as Frederick Douglass, who in 1852 addressed a largely white Fourth of July celebration by saying, “The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought light and healing to you, has brought stripes and death to me. This Fourth July is yours, not mine.”
Dissent by athletes in particular has often brought sharp rebuke; American society has come to repent the punishments visited on Muhammad Ali for his draft refusal and on Tommie Smith and John Carlos for their public protest at the 1968 Olympics. But the urge to punish new dissenters is persistent; it can link powerfully with hatred of foreigners. In an echo of the Gobitis era, one presidential candidate has proposed that this hatred take the form of law, whether of religious bans, “deportation forces,” or required indoctrination. Blood has already been shed at his rallies; without a change in rhetoric, there will be more.
The debate over Kaepernick’s seated posture will be a welcome one if it begins with the recognition that symbolic issues are complex, that the conscience is a personal matter, and a society should be wary lest fear, xenophobia, religious intolerance, and racial animosity don patriot’s garb.
In a free country, no one has to kiss the flag.
http://www.theatlantic.com/politics/archive/2016/09/americas-new-lesson-in-tolerance/498404/
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