WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNETTE (1943) (amicus)
In West Virginia State Board of Education v. Barnette, the Supreme Court ruled that public schools could not force their pupils to observe patriotic “ritual[s]” like reciting the Pledge of Allegiance or saluting the American flag. The ACLU filed an amicus brief in support of the Barnettes, a family of Jehovah’s Witnesses whose faith forbade making oaths to national symbols. Wrote Justice Robert Houghwout Jackson for a 6–3 majority, “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.”
A mere three years before Barnette, the Court had upheld forced pledge policies. In an 8–1 decision, Minersville School District v. Gobitis affirmed a Pennsylvania public school’s mandatory flag salute ceremony despite the objections of Jehovah’s Witnesses enrolled in the district. The forced-pledge policy at issue in Barnette was enacted by West Virginia’s Board of Education in the wake of the Gobitis ruling and borrowed language from Justice Felix Frankfurter’s majority opinion, including the assertion that “national unity is the basis of national security.” In Barnette, the Court rejected that reasoning, finding that the “relatively recent phenomenon” of nationalism could not and should not justify coerced or compelled patriotic gestures. Determining that compulsory demonstrations of patriotism in public school classrooms are a clear violation of the First Amendment, the Court affirmed the rights of students to remain seated for the pledge due to their religious beliefs, as a gesture of protest, or for any other reason.
Victory Formation
BRIT BENNETT
In August 2016, San Francisco 49ers quarterback Colin Kaepernick made headlines and, later, history when he chose to sit during the pregame national anthem. When asked later, he told NFL Media, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” A week later, Kaepernick, joined by teammate Eric Reid, knelt during the national anthem. The two players, concerned that their protest might be considered antimilitary or antipolice, chose to kneel instead of sit when Nate Boyer, a former NFL player and Green Beret, suggested it. “We chose to kneel because it’s a respectful gesture,” Reid later wrote in an op-ed in the New York Times. “I remember thinking our posture was like a flag flown at half-mast to mark a tragedy.”
I used to wear an enamel pin on my backpack that featured the iconic image of Kaepernick, afro picked, kneeling. Sometimes I would forget it was there until I heard white people, standing in a line behind me, grumble about it. The suddenness of their anger always surprised me. Kneeling is, almost universally, considered a gesture of humility and respect. On the football field, players take a knee when someone gets injured. In different faiths, kneeling is a common posture of prayer. Servitude, even. And yet, kneeling during the anthem inspires rage because the issue, of course, is not the anthem or flag or military. The problem is black disobedience. A kneeling black body becomes dangerous because a disobedient black body is dangerous.
At the time, Kaepernick’s protest seemed as if it might be just one controversial moment in a long NFL season. Few of us imagined then that Kaepernick’s simple act would inspire hundreds of athletes to follow suit, across sports and nations; his protest created such a public firestorm that NFL team owners, worried it was crashing ratings, held crisis meetings, and the president of the United States capitalized on it as a polarizing issue that rallied his political base. Two years later, Colin Kaepernick is no longer what he has always been—a football player—and has instead transformed into something else: a hero or a traitor, a martyr or a pariah, depending on who you ask.
Several writers, including the New Yorker’s Jeffrey Toobin, have wisely connected Kaepernick’s protest to a landmark 1943 Supreme Court case, West Virginia v. Barnette. The West Virginia Board of Education required public schools to include the salute to the flag as a mandatory school activity, and when children in a family of Jehovah’s Witnesses, whose religion forbade them from pledging to symbols, refused to perform the salute, they were sent home, threatened with reform school, and their parents faced prosecutions for causing juvenile delinquency. In a 6–3 decision, the Court overruled its previous decision and held that forcing schoolchildren to salute the flag is unconstitutional. In an opinion written by Robert Houghwout Jackson, the Court found that reverence for a national symbol like the flag does not trump the constitutional right to free expression.
“Though the Flag Salute Cases are generally seen as involving freedom of religion,” John W. Johnson writes in Historic U.S. Cases: An Encyclopedia, “that issue is virtually absent from Jackson’s majority opinion.” Instead, Jackson grounds his opinion as one of freedom of speech and expression. “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men,” Jackson wrote. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.”
Even further, Jackson argues that not only is it unconstitutional for the state to compel patriotic speech from its citizens but it is also ineffective. Forcing an NFL player to stand for the anthem, as President Trump has repeatedly suggested, cheapens the gesture altogether. “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds,” Jackson wrote. In other words, standing for the anthem actually means more as an expression of patriotism if players have the right to choose not to.
In February 2019, Kaepernick and Reid reached a confidential settlement with the NFL after alleging that team owners worked together to keep them off the field due to their protest. Days later, a news story went viral about a sixth grader in Lakeland, Florida, who faced misdemeanor charges after an altercation with a teacher began when he refused to recite the Pledge of Allegiance. Recently, during a literary festival in Vincennes, a French reader asked if I ever said the pledge in school and, if so, why I did not refuse. “You know those words are not true,” she said, meaning, you as a black person know that there is not liberty and justice for all. I did know and yet I stood, every morning at 9:00 a.m., along with the rest of my class. Every so often, there were a few dissenters who remained seated. Always white kids, goths and punks, whose protest seemed to me then as just another way to be edgy. They could afford to broadcast all the ways in which they were different, but sometimes, when you were one of three black kids in a classroom, you just wanted to put your head down and get along. I grew up in a military town in a time of war. I still remember yellow ribbons on those black classroom doors.
The fact of it is, I wanted to tell the French reader, that I knew as a child what Kaepernick knew: kneeling, which is that dissent from my black body, is not safe. The same way I knew, standing, during a San Diego State football game, as the crowd cheered for military jets thundering overhead and service members marched onto the field to present the flag. And don’t I sometimes find these symbols beautiful? Aren’t I moved during Whitney Houston’s National Anthem? Don’t we keep a folded flag for my grandfather on the mantel? You can live this way, finding beauty within violence. But eventually it bowls you over, knocking you down to your knees.
KOREMATSU V. UNITED STATES (1944)
In Korematsu v. United States, the US Supreme Court held that discriminatory policies based on race were subject to high levels of judicial scrutiny and that the internment of Japanese Americans was constitutional because it was based not on racism but on national security and “military necessity.” Two associated cases, Hirabayashi v. United States (1943) and Yasui v. United States (1943), follow nearly identical reasoning.
While Korematsu is often cited as one of the Court’s worst decisions, the curious fact remains that Korema
tsu is arguably still good law. In numerous cases on racial discrimination, Korematsu was cited alongside Brown v. Board of Education of Topeka (1954) as binding precedent supporting heightened scrutiny. Even when the Court expressly renounced Korematsu in Trump v. Hawaii (2018), the repudiation’s uncertain breadth and precedential value obscure whether Korematsu was overruled in its entirety or just in part.
The Nail
STEVEN OKAZAKI
Deru kugi wa utaeru. The nail that sticks up gets hammered down. Japanese Americans heard that proverb a lot in 1942, when their president ordered 140,000 of them forcibly removed from their homes by soldiers with guns and government guys in suits and herded (as in transported in livestock trucks and put into horse stalls) into “the camps.”
The government designated them “assembly centers” and “relocation centers,” which sounds like a church gathering followed by witness protection.
Most Japanese Americans called them “the camps,” and they weren’t talking about a place where they ran around in shorts and made lanyards. My Uncle Chico, who drove a semitrailer truck for a living and didn’t tolerate bullshit, referred to them as “god damn concentration camps,” which, minus the “god damn,” is how the US government labeled them early on until they realized how bad it sounded.
They’re usually referred to as “the internment camps,” which seems accurate when you read the dictionary definition of internment as “the state of being confined as a prisoner, especially for political or military reasons.” While that sounds plenty serious, a lot of Japanese Americans (I’ll sometimes refer to them as JAs from now on) feel it’s too soft. It makes what happened seem justifiable for a nation at war; it doesn’t explain why they needed to incarcerate whole families; and it doesn’t capture the injustice, humiliation, and devastating impact the experience had, and continues to have, on the JA community. Which is to say that internment doesn’t reflect the racism of it all.
I think of them as the prison camps where my mother and father (who hadn’t met yet), grandparents, aunts, uncles, and two cousins were sent because they had Japanese faces. Faces that made white people uncomfortable. Faces white people didn’t trust to stand next to them in the grocery store, to be on their kid’s baseball team, or sit next to in church. Faces they twisted into ugly caricatures with slanted eyes, buck teeth, bad haircuts, and big round glasses to make them feel okay about fucking them over, taking away their homes and businesses, and crushing the little bit of dignity they’d worked so hard to acquire. Since JAs hadn’t committed any acts of espionage or sabotage, it could only have been because of their faces.
When FDR signed Executive Order 9066 and the mass incarceration of “all persons of Japanese ancestry” was implemented, virtually the whole country—liberals and conservatives, Republicans and Democrats, and every religious denomination except the Jehovah’s Witnesses and the Quakers—either supported it or remained silent. California’s attorney general, Earl Warren, later chief justice of the Supreme Court and revered civil liberties champion, vigorously pushed to strip “the Japs” of their rights and get them out of his state. He never apologized for it.
There was no one in the JA community to say, “Hey, this is wrong! Let’s get organized and refuse to go,” because immediately after the attack on Pearl Harbor, two months before the order was issued, the FBI picked up and imprisoned anyone who might say that: community leaders, teachers, priests, businessmen, judo instructors, and others. And if they had protested, the soldiers would have pointed guns at their heads, maybe beat the crap out of them, then thrown them into the special camp they built for troublemakers.
In Dorothea Lange’s powerful photographs of the mass evacuation, you see JAs of all ages with numbers pinned to their coats, standing next to their belongings, waiting to board buses and trains. They look lost and bewildered, but not broken or hopeless, as if they still believe in their country, even as they enter the camps surrounded by barbed wire, with machine guns pointed at them, in the middle of nowhere.
The nail that sticks up.
Three Japanese Americans refused to go. Minoru “Min” Yasui, twenty-five years old, was born in Hood River, Oregon. He was passionate and superpatriotic. As a good American (and attorney and former Boy Scout), he believed it was his obligation to oppose the government’s orders. He presented himself at a downtown Portland police station and demanded to be arrested. His case went all the way to the Supreme Court, which ruled unanimously that the government had the right to restrict the lives of citizens during wartime.
Gordon Hirabayashi, twenty-four years old, was born in Seattle, Washington. He was a college student and a registered conscientious objector supported by a community of Quaker friends. Stubbornly idealistic, he acted on principle and turned himself in to the FBI as an act of civil disobedience. He entered a plea of not guilty on “the basis that both the exclusion law and curfew were racially prejudiced and unconstitutional.” In a decision on the same day as Yasui v. United States, the Supreme Court upheld his conviction.
Fred Korematsu, twenty-three years old, born in Oakland, California, was the most unlikely of resisters. When his parents and three brothers gave up their home and flower-growing business and reported for evacuation, Fred stayed behind with his Caucasian girlfriend. His response was essentially, “I didn’t do anything wrong, so why should I have to go?” So he kept his head down and hid out, until the military police arrested him three weeks later in May 1942.
The national American Civil Liberties Union, which had close ties to President Roosevelt, refused to act. However, Ernest Besig, the director of the Northern California ACLU affiliate, broke from his national office, approached Fred, and asked him if he would be willing to be a test case to challenge the legality of the mass incarceration. Fred said yes, and an extraordinary attorney named Wayne M. Collins took his case.
Fred hadn’t evaded the camps as a moral stand. He just didn’t show up with his suitcase when he was told to. Why should he have?
He acted for himself and maybe for his girlfriend. He imagined himself an individual, with rights, the same rights as every other citizen. This was bold in 1942. People of color didn’t do that. Fred Korematsu was a nail that stuck up.
So he was hammered down. He was tried and convicted, losing at every step of the way—at federal court in San Francisco, at the appeals court, and at the Supreme Court. He was sent to join his family at the Tanforan Assembly Center near San Francisco, and at the Topaz War Relocation Center in Utah. He had rocked the boat and brought unwanted notoriety to his family. In camp, he was shunned as a troublemaker who’d made all Japanese Americans look bad. After the war, as his family restarted their flower business, he drifted from the community, married, had two children, worked as a draftsman, and served as president of the local Lions Club.
Forty years after Fred’s arrest, a law professor at the University of California, San Diego, Peter Irons, and a researcher, Aiko Herzig-Yoshinaga, discovered clear evidence that the US government attorney who had argued Korematsu v. United States before the Supreme Court in 1944 had deliberately lied, suppressed, and distorted evidence about the threat that Japanese Americans posed. With a team of young JA attorneys by his side, Fred Korematsu made national news when his conviction was vacated by the US District Court in San Francisco.
Fred didn’t fit the image of a civil rights hero. He was shy, a bit awkward, and he mumbled. He wasn’t comfortable talking about what happened. His life had been made harder because of it. But there was steadiness and confidence in the way he carried himself, always sharply dressed, clutching or smoking his pipe.
After forty years, he was embraced by a JA community that saw itself and Fred differently. He became comfortable speaking in public and inspired people with his straightforward honesty. He became a civil rights hero. His pursuit of justice resonated with the racial, ethnic, and social issues of the present. He spoke out against the targeting of Muslims and people of Middle Eastern and South Asian descent after 9/
11 and against the detention without due process of prisoners at Guantánamo. An elementary school, middle school, and high school were named after him. In 1998, he was awarded the Presidential Medal of Freedom, the highest civilian honor in the United States.
* * *
The camps devastated the economic and social life of the Japanese American community. Ten years after the war, they still couldn’t live, work, get their hair cut, or go bowling where they wanted. Seventy-five percent of JA men were self-employed, which means no one would employ them, except to mow their lawns or clean their houses. Twenty years after, the community began to thrive, build their own churches, establish their own baseball teams and bowling leagues, go to their own dentists and barbers, and raise families.
Then, gradually, the community stopped thriving. Before World War II, Japanese Americans represented the largest Asian population in America. Now we are among the smallest, the only Asian ethnic group that has shrunk instead of grown in the past twenty years. The community survives, but the trauma brought on by the camps, which broke down the family structure and undermined the psyche and aspirations of the JA people, both individually and as a community, is still being felt generations later.
Political hysteria and fear of immigrants continue to threaten our humanity. Asian Americans are confronted by the same ugly stereotypes or “poof”; they’re invisible in the media. The other day, I heard a popular NPR host refer to China’s economic rise as a “Chinese Pearl Harbor.” Asian faces still make people uncomfortable. The big and little slights are a constant, often in the most progressive settings. People who don’t see themselves as prejudiced express concern about Asians getting into the top universities.
Fight of the Century Page 5