The Judge in Tupelo that put the lawyer in jail for not saying the Pledge of Allegiance was wrong, but why?

This past Wednesday, October 6, 2010, a judge in Tupelo apparently ordered everyone in his courtroom to stand and recite the Pledge of Allegiance.  One lawyer stood, but did not actually say it.  The judge held the lawyer in criminal contempt, and sent him to jail for a few hours before releasing him.  The internet has predictably been abuzz about it, and opinions are strong.  A few blogs are calling for the judge to be removed, he’s an embarrassment, the lawyer is a hero for standing up for our rights, etc.


What is the law on it?

No way I can briefly lay out the principles of constitutional law in a blog post, so I’m just going to tell you about the U.S. Supreme Court case that is “on point” on this issue.  In 1943, the Court decided West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), and held that the Free Speech Clause of the First Amendment to the U.S. Constitution protected students from being forced to salute the flag and say the Pledge of Allegiance in school.  The students that actually brought the lawsuit were Jehovah’s Witnesses, whose religion apparently forbids taking oaths or pledging to symbols, but the Court did not decide the case on religious grounds (the Free Exercise Clause), but instead said that government does not have the power to compel speech of that type for anyone.

Justice Robert Jackson wrote the Court’s opinion, and stated:  

“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.”

Two other justices wrote in a concurring opinion:

“Words uttered under coercion are proof of loyalty to nothing but self-interest . . . Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions.”

The Barnette case is seventy years old, and it is still good, binding law.  If you “Shepardize” it (you look up all the cases since then that have cited it as precedent), you will see that it has been cited as authority literally hundreds of times for the principle that government cannot compel speech of this type.


So how do I sleep at night knowing that dang LAWYER in Tupelo can get away with not saying the Pledge of Allegiance?


I know what the law is, and I know that lawyer in Tupelo has every right to refuse to say the Pledge of Allegiance if he doesn’t want to.  And I know that the judge was wrong for putting him in jail for not saying it.  I served 23 years in the United States Marine Corps, many of them carrying a rifle, in the freezing rain, uphill, both ways, miles and miles, loving every second, defending that lawyer’s right to make his little protest in court.  But that does not mean I have to like it.  In fact, I will even admit a very small desire, which I will suppress, to bust his head.  In a perfect world everyone would think just like me.  But our country is great because not everyone thinks like me, and the law is the law, and it applies to everyone equally.

Let’s respect that lawyer’s right not to say the Pledge of Allegiance, and his right to bring untoward attention to himself and to the legal profession.  Fifty years from now, maybe a hundred, your great grandchildren may be in a courtroom, and some judge may demand that they declare allegiance to some other disagreeable entity, religion, or system of thought.  If they refuse, they will be protected by the very same laws that are getting our attention this week.  If that doesn’t make this country the greatest in the world, I don’t know what does.