Robert Jackson's Memo to FDR on Gobitis

Cross-posted at Legal History Blog:

On June 3, 1940, then-Attorney General Robert Jackson authored a memo to President Franklin Roosevelt, as was his practice, discussing the various Supreme Court decisions in which the United States had an interest. Jackson singled out Minersville School District v. Gobitis, even though the United States filed no brief in that case.

He wrote:

Among the decisions of the Court in non-Government litigation the one of most interest was that in Minersville School District v. Gobitis. In this case, the Court, in an opinion by Mr. Justice Frankfurter, held that the School Board could constitutionally exact a salute to the flag, even though the child was a member of the sect which believed the salute to be idolatrous worship of a man-made object or institution. The Court paid eloquent service to the principle that "the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law." But, the Court said, "the mere possession of religious convictions * * * does not relieve the citizen from the discharge of political responsibilities." Salute to the flag the Court considered to be a relevant requirement to obtain that "national unity" which "is the basis of national security." Mr. Justice Stone dissented. He recognized the power of government to control conduct notwithstanding religious scruples but thought the guarantee of religious freedom forbade the legislature to "compel public affirmations which violate * * * religious conscience."

Although one must be careful not to read too much into a synopsis, it is interesting how Jackson characterized the outcome. First, he framed the Witnesses' claim in a charitable light. Second, Jackson never mentioned the overwhelming nature of the decision, which was 8-1. Third, he didn't endorse the determinative rationale, which he put strictly in the mouths of the Justices; instead, he praised only the ruling's "eloquent" affirmation of the idea that one's "convictions" reached in the pursuit of life's mysteries lie "beyond the reach of law." Fourth, he gave equal time to Stone's dissent, which stressed the importance of "religious conscience."

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