Chapter VII. Catholics, Mob Violence, Civil
Liberties, and the Draft
The psychological nub of their appeal, I believe, is their
conviction that all members of the sect must constantly and fully participate
in spreading the gospel of the sect, thus supplying to drab and commonplace
lives a wonderfully consoling unity of action and purpose. . . We constantly
forget how deep the appeal of a communal life lived for a high purpose and
involving sacrifice and even martyrdom is. And this appeal operates impartially
whether the common purpose be good or bad, rational or unreasoned. Especially
is it strong when it combines with its own intrinsic purpose a sanction for
rebellion against constituted authority, moral and civil. . . . When we fail to
realize this, when we subject the Witnesses to mob violence or to prison, we
play directly into their hands and cease ourselves to be Christian. - Harry
Lorin Binsse, Commonweal, Jan.10, 1947, p.318
DURING the 1930s and '40s, hundreds of
Jehovah's Witnesses were arrested for selling without a license, disturbing the
peace, violating Sunday Sabbath laws, refusing to salute the flag; 4,500 were
jailed during World War II for violation of the Selective Service Act. Their
houses were stoned and raided; their meeting halls were sacked; they were
stricken from relief rolls.
The Witnesses were seen as a threat to
national security and to interfaith harmony; they were heartily despised by
conservative elements of the Roman Catholic Church, which they had insistently
and aggressively calumnized. Both their message and the media they employed to
promulgate it aroused ire. The Witnesses defied logic, made public nuisances of
themselves, merrily invaded privacy and imposed noise pollution on unwitting
victims, engaged in Know-Nothing Catholic-baiting, refused to participate in a
war that was generally perceived to be a good and righteous war, and gravely
offended the sensibilities of people of every class. In the opinion of the
American Civil Liberties Union's Leon Friedman, they "deliberately,
calculatedly tested the law" - and we must all be pleased that they did:
they won 150 State Supreme Court cases and more than 30 precedent-setting Supreme
Court cases, forcing the Court to broaden the meaning of the First and
Fourteenth Amendments. It is impossible to speak of the history of civil
liberties in this country without speaking of them. Whatever their motives, we
are very much in their debt.
In the early part of the century, most
of the religious opposition to the Witnesses originated with the Protestant
churches, who saw them as wayward children. The Catholic Church, unthreatened,
maintained a calm and silent dignity. As the Society expanded, and its
fulminations against the Vatican grew louder and more abrasive, it became
locked in bitter antagonism with the Catholic Church. With exceptions - all on
the side of the Church - nobody behaved scrupulously or well.
Nineteen-forty-four: Our hatred for the
Church was an invigorating elixir. It drove us to heights of inspired lunacy.
I had been baptized Catholic; I had
never been confirmed or taken the Sacrament of the Eucharist. Shortly before my
conversion, I went with a friend to Sunday Mass. In my working-class
neighborhood, everybody was Catholic or
Jewish except our family; we were No Religion. And I didn't much like being No
Religion, feeling disinherited and rootless. A priest made some astringent
remarks about the antireligious pests who went from door to door badgering
people with lies about the Church, and he told his parishioners to slam their
doors when Jehovah's Witnesses called. There was something oily and hateful in
his voice from which I recoiled; I felt a surge of sympathy for those poor
people - whoever they were - who were obliged to go from door to slammed door.
The Church was magnificent, I thought, and magnificence ought not to condescend
to abuse insignificant pests. (I also recoiled when Japanese were called Japs.
I thought they should be afforded the courtesy of their full name, enemies or
not. Very refined sensibilities for a 9-year-old - or an obstinate
determination to cast in my lot with the maligned.) Later I wallowed in the
Witnesses' vilification of the Church and the state.
I found the Witnesses, when they came,
congenial. At first shocked, I slipped easily into listening without being
offended to off-color jokes about the virginity of Mary; I began to be as
derisive as my elders about "dog-collared" priests; I believed absolutely
that nuns were forcibly imprisoned (or, alternatively, holding wild orgies
within their cloisters); I crossed the street, afraid of contamination, when I
passed the local convent, convinced that the shards of glass on top of the high
walls that surrounded their green and lovely park were placed there to keep
them from escaping (I dreamed of their black habits flying over walls, of
bloodied hands and knees, of beseeching faces); I knew that young girls were
corrupted in confessionals - and I censored wicked fantasies of fat-priest
hands slipping up my legs.(1 wonder how many other Witnesses derived
quasi-sexual pleasure from the Watchtower's anti-Church tirades.) The
wickedness of the Church was tangible; it was evidenced in its idols, its
purple trappings. (When my brother was 4, he blubbered, tears all over his
unhappy face, "They're ugly, the Christmas trees, they're ugly." It
was the first Christmas we had not had a tree: he thought they were beautiful.
When we learned that the Crucifix was a "pagan symbol" - Jesus, we
were told, had died on a stake - my brother wrapped my gold cross, with its
little agonized Jesus, its tiny crown of thorns, in toilet tissue and dropped
it from his bedroom window. I wouldn't even retrieve the gold chain from which
it hung; I was afraid to touch it.)
During World War II, the Witnesses-who
were themselves being arrested as Fifth Columnists - gave voice to the idea,
shared by many non-Catholics, that the Church was an elaborate political
organization whose piety was a cloak for Machiavellian schemes of world power;
they charged the Church with being the American Fifth Column. Rutherford had
made himself highly unpopular by declaring that "religion has always been
the chief instrument employed by the Devil to reproach the name of Almighty God
. . . all liars and murderers are religionists . . . Eve desired religion, and
the Devil saw to it that her desire was fulfilled." Not content with
impugning the Church's relationship to the Almighty, Rutherford also attributed
the growth of Communism and Nazism to the Church: "Communism has been
encouraged by the Jesuits, the secret order of the Roman Catholic Hierarchy,
and then used as a camouflage, or a scarecrow, to frighten the people. . . . In
this manner, the Nazis of Germany were organized."
I believed, as did all Witnesses, that
guns and ammunition were stored in the cellars and crypts of Catholic churches
(and that these weapons were smuggled into churches in piano boxes - a
picturesque detail which somehow gave weight to these wild charges).
We believed that the Vatican had a standing army waiting for a
command to take over America. (Inasmuch as America was at that time five-sixths
Protestant, it is wonderful how the Church managed to horrify and fascinate us
so.) Another picturesque conceit of Rutherford's was that when Armageddon came,
all priests and nuns would disguise themselves in overalls in a futile attempt
to hide their clerica1 robes from the Lord. (After World War II, we were
absolutely sure that Hitler was hidden in the cellars of the Vatican.)
It is the Witnesses' contention that
the Church initiated and engineered attacks against the Witnesses. The
Witnesses' verbal abuse of the Church did elicit retaliatory attacks; ruffians
and hoodlums often interpreted their priests' indictments of the Witnesses as a
mandate to abuse the Witnesses physically.
Class prejudice and fear of foreigners
and immigrants played a part in this two-way thrashing. The Witnesses, not
troubling to substantiate their claim, said that the Ku Klux Klan was a
Catholic terrorist organization, and Watchtower Society representatives railed
against Catholic mine workers of "foreign extraction" who objected to
the Witnesses' blasting the peace with sound-car invectives against the Church.
Catholics, calling Jehovah's Witnesses a wart on the spirit of national
advancement," said contrapuntally that the Witnesses were direct spiritual
descendants of the American (Know-Nothing) Party of 1835 and spiritual siblings
of the KKK, and that the Watchtower Society secured its attention from
"the poorer classes of the South's farm tenants; from the hillbillies of
the Southwest; from the Okies who, dejected and rejected, wander about
hopelessly; from the ignorant, superstitious, and illiterate of large city
slums." While the Society issued broadsides against the Church for
creating the conditions that allowed Communism to flourish, lay Catholics regarded the Witnesses as "a most
pernicious menace to the American way of life" and saw "a shocking
parallel between their preachments and Communism." The Jesuit magazine
America, while full of ripe invective, showed flashes of insight and pity:
“'Pastor' Russell answered their anguish" - the anguish of the chronically
unemployed and the victims of social injustice - "by organizing the
Russellites," who "continued to rant against and hate everyone and
everything not of themselves." [H. C. McGinnis, America, Feb. 8,
15, 1941; March 22, 1941]
The Witnesses retorted that the
doctrines of the Trinity and the immortality of the soul were
"devilish" and that the Church was politically and spiritually
corrupt; but the threat they posed to the religious establishment was probably
not the determining factor in their persecution during the 1930s and '40s. It
is more likely that the threat they posed to secular authorities was what
landed them in jail. The American Legion and the Ku Klux Klan vociferated
against the Witnesses because they were not patriotic at a time when national
security was in jeopardy. What was really at issue was the American flag.
National unity is the
basis of national security. . . . The ultimate foundation of a free society is
the binding tie of cohesive sentiment. Such a sentiment is fostered by all
those agencies of the mind and spirit which may serve to gather up the
traditions of a people, transmit them from generation to generation, and
thereby create that continuity of a treasured common life which constitutes a
civilization. "We live by symbols." The flag is the symbol of our
national unity, transcending all
internal differences, however large, within the framework of the Constitution. - Justice Felix Frankfurter, June 3, 1940 (Minersville
School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 87 L.Ed., 1375)
On October 6, 1935, Judge Rutherford
spoke on a coast-to-coast chain radio broadcast on "Saluting the
Flag." In his scratchy, thin, wobbly but impassioned tenor, he told his
listeners that Scriptural obligations and their relationship to God made it
impossible for Jehovah's Witnesses to salute any "image or
representation," including the American flag; Rutherford interpreted the
second of the Ten Commandments - "Thou shalt not make unto thee any graven
image, or any likeness . . . Thou shalt not bow down thyself to them, nor serve
them" - to mean that saluting the flag constituted “idolatry." His lecture was published
in a booklet called Loyalty, and the Witnesses distributed millions of copies
of what appeared to be an inflammatory attack on a cherished institution.
The Witnesses accepted Rutherford's
premises, though inconsistent with the
rest of their beliefs - according to them, Christians are under no obligation to obey the letter of the
Mosaic Law - with a fanaticism that was
generally felt to be unlovely. That they were able to do so with slender Scriptural support could lead one to
think that on some level they
deliberately placed themselves in a position to invite persecution.
Hayden C. Covington, then the Society's
legal counsel, and a brilliant
Constitutional lawyer, has said that lawmakers on municipal and state
levels "deliberately laid every
legal snare they could think of to foil" the Witnesses. But while the State protected its interest of
national security, the Witnesses had
something to gain by initiating lawsuits. They had no material emblems to suggest or to represent the
singular glory they felt reposed in
them. Their meetings, like their lives, were dull and oppressive. They
had to look else- where, outside
themselves, for the mark of God. He had chosen
them, but how could they prove it? Not with magnificent edifices, not
with a rich and varied history. They
were young, comparatively weak, foolish and
insignificant in the eyes of the world; they had no glorious music,
no poetry, no formal ritual, no
liturgy, and no martyrs. Their first leader had been a haberdasher and, by common view, a scoundrel; their second
leader was an intemperate lawyer with a
reputation for slick business
transactions. However much they suspended disbelief, that must have
rankled. Power and glory and all the
world and the kingdoms of the world were soon
to be heirs, but their leaders were not kings or shepherds or poets
or sages. They were wilier, certainly,
than most men, and vain, but they were
not, by any standards, glorious. Ordinariness was the stale bread of
the world from which the Witnesses had
fled. To sustain their image of
themselves, per- haps they needed to have something immense and
extraordinary occur, something that
would raise them above themselves, justify and
exalt them. Rutherford had one weapon, the law. He used it. He made
things happen.
A year and a month after Rutherford's
broadcast about flag saluting, something that was to prove to be immense did
happen.
On November 6, 1935, two
elementary-school children in the
coal-mining district of Pennsylvania refused to salute the flag.
Their father, Walter Gobitis, was
arrested, and the children were expelled from
school. Gobitis initiated a suit against the Board of Education,
Minersville School District. In 1936,
1,149 Witnesses were arrested for refusal to salute the flag and for violating a variety of state and municipal ordinances.
[Yearbook, 1975, pp.169 - 72]
The Supreme Court, having declined
several times to review the expulsion
of the Gobitis children for not participating in the flag-salute ceremony, accepted jurisdiction in 1940.
With one dissenting voice, that of
justice Harlan Fiske Stone, the Court ruled to uphold the Gobitis
children's expulsion and decided that
school boards had the right to choose to require children to salute the
American flag. The Court's majority decision, written by Justice Felix Frankfurter, was based on its
opinion that religiously motivated
refusal to salute the flag represented a threat to nationalism and
security.
(Journalist Sydney Zion, who wrote
Justice Black's obituary for The New
York Times, provides an interesting personal dimension to the Court's decision. According to Zion, Mr.
Justice Hugo Black confided that he had
voted with the majority because "Felix [Frankfurter] mesmerized us. Felix was an immigrant, passionate about
the flag and what it meant to him. We
were so moved by his appeal that we went for it. Justice Stone wrote his dissent at the very last moment -
and it was so brilliant, it showed us
all up." Black remembered sitting beside a swimming pool with Justices William 0. Douglas and Frank
Murphy, and saying, "'What are we going
to do? Stone is right.' But we were wiped out by Felix's emotional appeal. . . We decided to redress the wrong
the next time around.")
The Court handed down its decision on
June 3, 1940. Between June 12 and June
20, hundreds of physical attacks upon Witnesses were reported to the United States Department of Justice. (They are
spoken of now in almost affectionate
terms by the Witnesses; they are their
stigmata, and they bind the Witnesses together in purpose.) In
Kennebunk, Maine, a Kingdom Hall was
burned. In Rockville, Maryland, police came to the assistance of a mob that was dispersing a Witness meeting. In
Litchfield, Illinois, 60 Witness canvassers were set upon by practically every
man and woman in the town. In
Connersville, Indiana, a Witness was charged with riotous conspiracy, his attorney was mobbed, and he was beaten
and driven out of town. In Nebraska, a
Witness was lured from his house, abducted,
and castrated. In West Virginia, the chief of police and deputy sheriff forced Witnesses to drink castor oil
and paraded them through the streets tied together with police department rope.
[Z&L] From 1940 to 1944, 2,500
incidences of mob violence were recorded.
The nation was threatened by war. An
editorial in The Saturday Evening Post said:
It seems likely that the United States harbors no
other out-of-step and out-of-sympathy
minority of anything like [the Witnesses'] size and militancy. In the event of war, they are sure to furnish
the largest quota of conscientious objectors,
and, perhaps, the most troublesome. In
this near-war period, no other group so boldly condemns not only the current patriotic trend hut
patriotism, specifically and in
general. No other, for good measure, condemns so many other things by
which Americans lay store.
The government did not sanction the
fury of the mob. On June 16, 1940, U.S.
Solicitor General Francis Biddle told an NBC radio audience: "Jehovah's Witnesses have been
repeatedly set upon and beaten. . . .
The Attorney General has ordered an immediate investigation of
these charges. The people must be alert
and watchful, and above all cool and sane.
Since mob violence will make the government's task infinitely more difficult, it will not be tolerated. We
shall not defeat the Nazi evil by emulating its methods."
In 1940, the ACLU defended 1,300
Witnesses in 200 legal cases.
Nor were the churches monolithically
arrayed against the Witnesses; after
the first wave of war hysteria had passed, liberal voices were raised in their defense and in reaction
against mob terror. An editorial in the
October 7, 1942, issue of Christian Century, which calls reports of
mob violence in Springfield, Illinois,
Klamath Falls, Oregon, and Little Rock,
Arkansas, “physically nauseating," reflects the growing revulsion
against mob violence among civil
libertarians who were beginning to understand that their own First and Fourteenth Amendment rights were put in
jeopardy when those of Jehovah's
Witnesses were threatened:
More than 100 workers on the War Emergency Pipeline which
the government is laying stormed the grounds of a former hospital which the Witnesses had taken over for their
meeting. These pipeline workers,
according to the Arkansas Gazette, were "armed with guns, sticks, blackjacks and pipe." The
attack was made after dark. Two men were shot, five others so severely beaten
that they were taken to a Little Rock
hospital . . . Occasionally another
automobile would turn into the grounds. A dozen or more pipeliners pounced on
each car and asked, 'Are you a Witness?' The usual answer came back in a firm
voice: 'Yes, I am a Witness.' The driver and other male occupants were then
ordered out. Some hesitated. They were dragged out and the pummeling began.
Many used their fists, but others wielded clubs, long heavy screwdrivers and
blackjacks. The beating usually continued until the victim fell."
Remember, the ruffians who engaged in
this sort of thing were workers on a government job. They were building a
pipeline for Mr. Ickes' department. Mr. Ickes is supposed to be a champion of civil liberties. . . . If civil liberties have any meaning, if religious liberty is
more than an empty phrase in this country, the national authorities must put a
stop to such mob actions. If no one in
the halls of government will speak out to demand that the members of this sect be protected in their
constitutional rights, then the
churches should do so.
The Witnesses fought their legal
battles with skill. Hayden C. Covington
earned a reputation for arguing brilliantly before the Court; but all Witnesses learned to equip themselves to
deal with police and judges. At weekly
"service meetings" during the war years, they received paralegal training. They held mock trials,
some of them lasting for weeks, with
overseers role-playing the parts of prosecution and defense attorneys. They were coached in how to
respond to arresting officers, and how to
behave procedurally in order to establish the basis for appellate
review of convictions.
For eight years, the Witnesses
maintained their own "Kingdom
Schools" for children who had been expelled from public schools.
The schools were communes. The children
were, for the most part, boarders, since
gasoline rationing made it impossible for them to return more than once
or twice a month to their homes.
Instructed by Witness teachers, they began
each day with a discussion of a Bible text; one half-hour of Bible study
daily was part of the curriculum. They performed kitchen chores and,
regardless of age, spent most of Saturday and Sunday mornings
proselytizing. It cannot be said to
have been a carefree childhood.
Compulsory unification
of opinion achieves only the unanimity of the graveyard. - West Virginia State
Board of Education V. Barnette, 319 U.S. 624(1943)
In 1943, the Witness children went back
to their public-school class- rooms.
Mob violence had abated; America had changed. It had become silly to regard these children as a clear and present
danger to the national security; and in
fact, most Americans, obsessed with the idea that Japanese- Americans threatened their security, had transferred
their fear and hatred to the
"slant-eyed devils" in their midst. In 1943, the Supreme Court reversed the Gobitis decision by a
vote of 6 to 3.
The way had been prepared for the
Court's historic reversal in West Virginia v. Barnette:
In an earlier decision, the Court had
voted 5 to 4 to uphold the validity of
an ordinance requiring the licensing of colporteurs (proselytizers) in cities of Alabama, Arkansas, and Arizona (Jones
v. Opelika, 316, U.S. 584, 1942).
In a vigorous dissenting opinion, Chief Justice Stone declared that in the
decision a way had been found "for the effective suppression of speech and religion despite Constitutional
guarantees." The liberal trio,
Justices Black, Murphy, and Douglas, in their own dissenting opinion,
took the unprecedented step of
acknowledging that they had been wrong on the
Gobitis flag- salute case.
Jones V. Opelika had roused part of
the press to the threat to its own freedom. "As a result," according
to an editorial in Christian Century (Jan. 13, 1943, p.38),
newspapers which undoubtedly regard Jehovah's witnesses as
a collection of religious crackpots are
now giving powerful support to the effort to obtain a reversal of the court's
decision. By keeping the issue before
the public and by providing eminent legal counsel they have done much to reinstate it on the docket of the
highest tribunal. It is a pity that
church bodies, whose interests are equally at
stake, have done nothing to parallel the efforts of the press to obtain a new hearing.
There may be a tendency in some quarters to minimize the
importance of these cases because it is the rights of Jehovah's witnesses which are immediately involved. Do
not the Witnesses stand for a hodgepodge of peculiar millennial ideas, and do
they not seek to propagate these ideas
in ways which sometimes make them a nuisance to the communities in which they
are operating? They do. Then why worry about the means which may be taken to
force them to conform to community norms or to keep their provocative tracts
out of circulation? Because civil
liberty under the Constitution means nothing
unless it protects the rights of every citizen. Because it is only the attempt of the non-conformist to assert
his rights which can test the extent and
reality of our civil liberties. And because failure to uphold such civil liberties within the
United States will render meaningless
such talk as we may indulge in about extending the Four Freedoms to the rest of mankind.
The Court later reexamined the
Constitutional issue upon which it had divided in Jones V. Opelika. The
issue was whether religious liberty is
violated by the imposition of a nondiscriminatory license tax on the sale of
religious books and tracts. The Court ruled in Murdock V. Pennsylvania (319 U.S. 105, 1943) that a
tax laid on the free exercise of religion,
as protected by the First and
Fourteenth Amendments, is unconstitutional.
Jehovah's Witnesses were, in the opinion of Justice Douglas, engaged in
an exercise of religion, equivalent to
that of more conventional churches, and
not in a commercial enterprise: "The hand distribution of religious
tracts . . . occupies the same high
estate under the First Amendment as do worship
in the churches and preaching from the pulpits. It has the same claim
to protection as the more orthodox and
conventional exercises of religion."
Ruling that "an itinerant
evangelist, however misguided or intolerant he ay be, does not become a mere
book agent by selling the Bible or
religious tracts to help defray his expenses or to sustain him,"
the Court thus began legitimize
"marginal" religions and to recognize what has been called the minority concept of religion.
Street solicitation was accepted as
required religious activity and
not as commercial peddling; similarly, the
right of the Witnesses to regard flag saluting as idolatry, rather than
as a patriotic ceremony, was recognized
in the Barnette case. The right of minority groups to protection under the Bill of Rights was seen as essential
to the preservation of the rights of
the majority:
A curb upon the propagandist activity of the most odious
sect - unless it can be shown to be a
definite peril to society - is a
potential attack upon the liberties of all citizens. Jehovah's Witnesses
are, in our judgment, a particularly
odious and fanatical sect, but the truth
or falsity of their teaching is not at issue. . . The license regulations which the Court
validated applied to the vendors of all books and booklets, thereby including
religious publications and, incidentally, those of this particular sect.
In the minds of the municipalities which passed the
ordinances, the inclusion of Jehovah's
Witnesses may well have been more than incidental. It may have furnished the
motive for the whole project, the idea
being to catch them by making a net that could be used to catch anybody; but there was no evidence to
this effect before the Court, and that
possibility need not enter into the argument. The point is that this is a net that may be used to
catch anybody. No antipathy toward Jehovah's Witnesses, no belief that they are
thinkers of dangerous thoughts and
propagandists of anarchy, should be permitted
to conceal this basic fact. They are the first victims, but any other locally unpopular group may be the
next. They clashed with the law when they refused to apply for a license. Any
other group may clash with it by being
refused a license upon application, or by having the license refused or withdrawn. - Christian Century, June
24,1942, p. 798
Clearly, their defenders did not find
Jehovah's Witnesses acceptable; far from it. They found the threat to their own
liberties - civil and religious - more odious and pernicious than the sect they
were loath to endorse but obliged to defend:
It is unfortunate that the spearhead in the legal fight
for religious liberty has to be a group
which makes such poor use of it. "Hard
cases make bad law," and a good deal of bad law has previously been
made in the effort to restrict the activities or modify the mores of this eccentric sect. - Christian Century,
May 12, 1943, p.565
It is significant that the Witnesses,
who filed appeals regularly on the
basis of freedom of religion during the mid-1930s, did not get very far until they changed their tactics
and grounded their appeals on freedom
of the press in 1938. In that year, the Court struck down an ordinance
against literature distribution (Lovell v. Griffin, 303 U.S. 444). Subsequent cases, based on a broad concept
of multiple First Amendment rights of
speech and advocacy, established new rights for the use of public
places, door-to-door solicitation, and
"freedom to promulgate.”
The Court edged into the question of
religious freedom to act, as opposed to
freedom to believe, by way of freedom of the press. In 1940, the Court, overturning a conviction for
breach of the peace by a Witness
proselytizer, ruled that the First Amendment "embraces two
concepts-freedom to believe and freedom
to act. The first is absolute, but the second
remains subject to regulation for the protection of society."
Because the proselytizer "raised
no such clear and present menace to public peace and order as to render him liable to conviction," his conviction
was set aside. (Cantwell v. Conn.,
310 U.S. 296 [1940])
The clear-and-present-danger argument
was first advanced by Oliver Wendell Holmes and Louis Brandeis. The ambiguous
maxim that freedom of speech or of conscience, or any other freedom, is to be
upheld except where the actions constitute "a clear and present
danger" to the nation was at issue in the Court's review of the Gobitis
flag-salute case.
Civil libertarians asked, Who is to
judge when any danger becomes "clear and present"?
There have begun to sprout suggestions that a new rule
needs to be adopted - a rule which would guarantee the preservation of
civil liberties to those who are
dedicated to their preservation for others,
and would deny those liberties to those who would (if they had power)
deny them to others. It is in the direction of some such rule as this that the
four members of the highest court who will probably rule against Jehovah's
Witnesses - Justices Frankfurter, Roberts, Reed, and Jackson - appear to be
tending. But any such rule is also open
to all the abuses of arbitrary application. The issue as to who is to be guaranteed civil liberty is the very
center of the struggle for the
preservation of the essential democratic freedoms today. And the return of these Jehovah's Witnesses to the
Supreme Court will furnish a decisive
test as to the degree of American loyalty to the ideals which inspired the Bill
of Rights. - Christian Century, Jan.13, 1943, p.39
In the event, however, Justice Robert
H. Jackson ruled that First Amendment freedoms "are susceptible of
restriction only to prevent clear and
immediate danger to interests which the state may lawfully protect." When West Virginia V.
Barnette came before the Court, Justice
James F. Byrnes, a liberal Roosevelt appointee, had replaced Justice
Wiley Rutledge, a strict
constructionist; three members of the Court had changed their minds since
Gobitis; and two other members of the Court
unexpectedly ruled with Justice Jackson that "to compel
conscientiously scrupulous children to
salute deprives them of the freedom of religion guaranteed by the Fourteenth Amendment." The Court
ruled that refusal to salute the flag
did not involve any
collision with the rights asserted by any other
individual, nor was it accompanied by any conduct which was not peaceable and
orderly. . . Censorship or suppression of expression of opinion is tolerated by our Constitution only when the
expression presents a clear and present
danger of action of a kind the State is empowered to prevent and punish . . . Ultimate futility of. . . attempts to compel coherence is the lesson of every such effort from the
Roman drive to stamp out Christianity, as a disturber of its pagan unity, the
Inquisition, as a means to religious
and dynastic unity, the Siberian exiles, as a
means to Russian unity, down to the fast-failing efforts of our
present totalitarian enemies. Those who
begin coercive elimination of dissent
soon find themselves exterminating dissenters. . . . We apply the limitations of the Constitution with no fear
that freedom to be intelligently and
spiritually diverse or even contrary will disintegrate the social organization. . . . When they are so
harmless to others or to the State as
those we deal with here, the price is not too great. But freedom to differ is not limited to things
that do not matter much. That would be
a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart
of the existing order. . . . 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. . . . We think the
action of the local authorities in compelling the flag salute and
pledge transcends constitutional
limitations on their power and invades the sphere of intellect and spirit which
it is the purpose of the First
Amendment to our Constitution to preserve from all official control.
The claim, widely
asserted, that Jehovah's Witnesses through boundless courage and unending
perseverance have won more United States Supreme Court victories for the Bill
of Rights than any other single group seems to have ample support. -A. L. Winn, ACLU, The
Open Forum, Aug.21, 1943, p.1
By the end of World War II, Jehovah's
Witnesses had made 190 appeals to higher courts; they had won over 125 State
Supreme Court cases, and most of 40 Supreme Court decisions.
The Witnesses established that
distribution of literature "calculated to encourage disloyalty to the
state and national governments" could not be made the basis for conviction
under a sedition statute forbidding that which “'tends to create disloyalty and
causes an attitude of stubborn refusal to salute the flag":
If the state cannot constrain one to violate his
conscientious religious conviction by
saluting the national emblem, then it cannot punish him for imparting his views on the subject to his followers
and exhorting them to accept those views.
. . . The statute as construed in these
cases makes it a criminal offense to communicate to others views and opinions
respecting governmental policies, and prophecies concerning the future of our own and other nations. As applied to
the appellants it punishes them
although what they communicated is not claimed or shown to have been done with
an evil or a sinister purpose, to have
advocated or incited subversive action against the nation or state, or to have threatened any clear and
present danger to our institutions or
our government. What these appellants communicated were their beliefs and
opinions concerning domestic measures and trends in national and world affairs. . . . Under our decisions
criminal sanctions cannot be imposed
for such communications. - Taylor v. Miss., 319 U.S. 583,
1943
The Witnesses secured the right to
preach in privately-owned or government-owned towns, and in apartments without
the permission of landlords; the right to use sound amplifiers "at
reasonable volume"; the right of parents to retain custody of children
reared in their faith; the right to advertise meetings by placards; the right
not to serve on juries.
Nineteen-forty-four: The Court had ruled,
in Barnette V. West Virginia, that the Witnesses' "spiritual arbitrariness"
would not "disintegrate the social order." Unhappily for me, this
enlightened view was not shared by
public-school children. At the time I was converted, the threat of mob violence had receded, and the days of
communal suffering were an occasion for
nostalgia; there was never any question of my being expelled from school or arrested. But I did spend a lot of
time in the offices of principals,
assistant principals, and deans explaining why I didn't salute the flag; and the Witnesses' admonition not to
"make friends with the world" was, for me, almost entirely gratuitous: very few children wanted to
make friends with me.
Teachers frequently singled me out for
attention. The nicest regarded me with
a mixture of admiration and pity; the coarsest treated me with frank and meddlesome curiosity; they
all tried to change me. I was a
challenge - intelligent,
earnest, serious, aloof, passionate, and perverse, living a mysterious inner life that vexed or titillated them
depending on their temperaments. This,
while it fed but did not satisfy my hunger for
approval, did not endear me to my peers.
I was almost always alone. I always had
to be assigned a partner for school
activities. In high school, walking down the corridor between classes was an agony repeated every forty-five minutes
because nobody ever walked with me. I don't think anyone knew I suffered; I
appeared remote and self-contained. But
while I had created my isolation, and the
other - children reacted self-preservatively by scorning my difference
and my alien behavior, I hated it.
Everything commonplace enthralled me:
girls' linking pinkies with other girls in easy friendship, sharing
sodas and cupcakes in lunchroom; it all
seemed remarkable and unattainable. Other girls were famous for playing Chopin Polonaises, or being good at volleyball, or knowing about sex; I was
notorious for not saluting the flag. I
had a seventh -grade teacher who cultivated me as if I were an exotic
flower; but when I became friendly with
another girl in her class, she put an
end to the - .friendship by telling the girl's mother that I was trying
to convert her (I was) and that I was a
pernicious influence. I learned to fear
betrayal.
The simple act of going to a theater or
to a ball game was filled with dread expectation, because the national
anthem might be played, the flag
saluted. . . . I could never expect not to be different from other people. (I had crushes on at least
three of the Brooklyn Dodgers, and I
haunted a car dealer from whom they bought their cars - but I was afraid
to go to their games.) I never, in all
those years, did less than was required
of me; I never even tried to purchase the normality I wanted so desperately
by relaxing my vigil. (The trouble was,
of course, that while I wanted to be
just like everybody else, I also enjoyed being extraordinary and unique
- I must have wanted that more.)
During World War II, over 8,000
draft-age Witnesses registered with
their draft boards as ministers. Roughly half were granted the ministerial classification, 4-D.
Approximately 4,000 were imprisoned. It has
been estimated that 60 to 70 percent of all federal offenders
convicted for draft violations during
World War II were Witnesses. There were more
Witnesses in prison for refusing induction than there were Quakers.
(Quakers accepted alternative civilian
service - hospital work, work in charitable
institutions - in lieu of induction in the armed forces; the Witnesses
did not.)
When World War II ended, the Witnesses
imprisoned for draft violations came
home like conquering heroes. Denied the ministerial status they sought, they had spent the war years in
federal penitentiaries, while at the
local congregations myths grew up around them. Although I had never met them, I felt as if I had complete
information about each of the four or
five men whose triumphant return to my local South Brooklyn congregation was
eagerly awaited. When they returned, it was as if bas-reliefs representing virtue, allegiance, and
integrity had sprung to life and moved.
Having been in prison lent them an aura of moral authority. We expected that their deprivations had increased their
wisdom and spirituality; their
suffering had made them glamorous. And sexy. Young girls who had grown
up romancing about them were prepared
to adore them.
We saw the returning convicts as whole
of soul, adorable martyrs. Fellow prisoners had tended to see them as enigmatic
nuisances.
Jim Peck and Ralph diGia, pacifists who
are on the staff of the War Resisters League, were imprisoned conscientious
objectors in Danbury Federal Penitentiary, where the Witnesses represented
one-third to one-half the draft violators, from 1942 to 1945. They express no small
amazement (and irritation) at the Witnesses' homogeneity and their determined
aloofness from other prisoners, their lack of spontaneity, warmth and passion:
PECK: If you were unlucky enough to land at a table with
them in the mess hall, either they were silent or they tried to push their
religion at you. I never saw them kid around, and I never saw them get worked
up about anything; they were monomaniacal. When the rest of us complained - we
had a three-month strike against racial segregation, and naturally we griped
about the food a lot - they remained completely indifferent and aloof. When
some of us pulled "tough time," they unbent to the extent of telling
us not to worry because The Watchtower said the war would be over on
such-and-such a date and we'd be out of jail. The funny thing was, when the
date came and went and the war still wasn't over, they never had any
rationalization or excuse; they simply never mentioned it again.
DIGIA: You couldn't have a real conversation with them. No
hope. I never could understand their language. One of the Witnesses tried to
convert me, and I said, "Look, we're all human beings." And he said,
"No, only God is a Being; we're human creatures." How can you talk to
somebody who makes distinctions like that? What does that even mean? . . . The
Witnesses all spouted the same things. Most of them at Danbury were
working-class Irish and Italian from poor Catholic families. Some were
sophisticated urban types, and some were farm boys. Some were personable and
some were mean. But it didn't matter which of them you talked to, you got the
same language. . . . When enough of them arrived in Danbury, they were lodged
together in one dorm; they were allowed to have meetings and run their own
affairs. They chose segregation. They had their own authoritarian leadership;
everyone learned the same thing at the same time. They were all strongly
anti-Catholic. The main villain was "the Pope of Rome," the Vatican -
not Hitler, not the warden, not the U.S. for putting them in jail. Somehow or
other, the Vatican," we were made to feel, was responsible for the whole
war, and for our being in prison.
PECK I never really got to know any of them. And I tried.
All the other COs were really friendly. JWs never made a friend. They quite
distinct - they never saw themselves as a community of resisters.
DIGIA You talk a lot on work gangs; you become close. They
didn't talk After work, they'd go off and study the Bible. They had nothing to
do with us.
PECK They didn't consider themselves COs; they said they
weren't conscientiously opposed to wars because they would fight at Armageddon - the
final war of good versus evil - if God required them to They resented being
called Cos.
DiGIA: You could sense a lot of suppressed violence in
them. They never actually fought with anyone, but you felt an underlying
hostility and resentment. They seemed to resent our not accepting them as the
Chosen. They reacted badly to being confronted or challenged. They got
especially uneasy if you talked about race; most of them came out of racist,
anti-Semitic backgrounds, and they still practiced a subtle racism. There were
no blacks among the Witnesses in
Danbury while I was there, so because the Witnesses were housed separately,
they wound up being the only prisoners who weren't integrated with blacks.
They'd say, "This government is run by man; man is not perfect; God will
change things at Armageddon; we won't try to change things.
PECK: Their
relationship with the guards was very different from that of the COs. The rest of us spoke up about injustice. They
were strictly correct. They obeyed all the rules. They knew what to do for
their own survival. Once I was asked to make up some red- white-and-blue
victory-garden signs. I said, "If I'd wanted to do that, I wouldn't be here
in the first place." I got ten days in
the hole. I can't imagine a Witness making that kind of protest -
because he wouldn't be able to find a Scripture saying you weren't allowed to
make a red-white-and-blue victory-garden sign.
DIGIA: But if they'd been denied narrowly conceived
religious rights, they'd have spoken up.
PECK: They never
seemed to pull "tough time." They never got restless.
DIGIA: Well, they were always together, constantly
reinforcing their belief that they had
the truth and that they' were superior. They nourished one another. They had a
high survival rate in concentration camps, I understand, probably for the same
reason. The rest of us - well, our
outside lives impinged; not them. They were much more together than the other
COs. The COs never acted as a homogeneous unit; they did. They were a We,
doing it for God. We used to debate what was good, what was bad, what was
moral, what was immoral; they had all the answers before they asked any of the
questions. Their imperatives all came from the outside. From Covington. They didn't get the idea to
be sheltered together; that came from the organization; but once the Society
told them to live together, I think they would have died rather than live
apart, with the rest of us. You got the
feeling that nothing came from an
individual, that they were - I don't know - absent.
PECK: Their attitude
toward us was that of the religious toward the heathen.
DIGIA: The enlightened to the unenlightened, the washed to
the un washed.
PECK: Yes. They had
no interest in us, no curiosity about us, no fellow feeling - unless we showed
signs of accepting their belief.
DiGIA: They had no conception of our struggle.
PECK: A lot of jail
is just waiting around. You stand and wait and wait and wait. They'd wait
around in clumps. At one call-out when we were waiting and waiting, they made a
formal attempt to preach to us. Otherwise they ignored us. They didn't think we
were in any way different from murderers or bootleggers; the fact that we were
there for conscience’s sake didn't matter to them at all. I don't think they
made a distinction between Gandhi and Hitler. The idea was, if you're not doing
God's will - as expressed in The Watchtower - you could be planting daisies or
shooting babies - it's all the same. As a matter of fact, I think they tried harder to convert
non-COs, people who didn't have a
developed consciousness.
DIGIA: During the Vietnam War, a JW came to my door, and
he started his rap by saying how the world was in bad trouble, using Vietnam as
evidence. So I said I'd been in prison with JWs during the Second World War,
and that I thought it was a good thing that they didn't fight. He went right on
talking as if I hadn't said anything. It all came back to me: how much like
robots they were, disregarding anything anybody else said, not making any
compassionate connection. He had no commonality of interest, no feeling that
friendship had just been offered - he just continued his pitch. He couldn't
have cared less. I remembered that the JWs had been told by their superiors
that we COs were not "correctly motivated." It's strange - they don't
have the strength to make independent decisions, or the courage to find out
about other people; but they had the strength to go to concentration camps in
Germany. A strange kind of courage. One year the WRL got a list from Spain,
from Amnesty International, and I saw that the Spanish jails were full of JWs.
But they didn't welcome any support from us. When I got out of prison, I was
involved in the amnesty campaign, and of course we tried to enlist the
Witnesses' support. Not available.
PECK: Their love, if
it was there, didn't reach out to other
people. Even among the Witnesses, I never felt real comradeship. They
never kidded each other - and you kid one another in prison to stay sane; they
didn't. No warmth, nothing playful. Just earnest one- track agreement. They
never seemed to relax. We used to wonder if they were like that when they were
alone together. Did they think they had to be superhuman in front of the rest
of us? Did they talk about sex when the
lights went out in their dorm? Prisoners obsess about sex. We never heard them
mention it.
DIGIA: I can't think what they were interested in except
their theology. I can't remember
anything that passed for what you'd call a conversation. You know, I have so
little sense of them as individuals, I can't remember one singular thing about
one single Witness. There was one guy
who seemed awfully nice; I had the feeling that he was trying to reach out to
us but that he was also afraid to get
to know us, because it would scare him if he discovered we weren't bad people.
How could any one who liked us believe God was going to savage us?
PECK: I really don't
think of them as resisters. I think of them as capitulators. There are times I
actually forget that the Witnesses ever went to jail.
Peck and diGia remark that the
Witnesses did not think of themselves,
nor did they wish to be thought of, as conscientious objectors. Very few Witnesses applied for CO status;
those who did were regarded, by the
rest of us, as compromisers. The only honorable course - directed by the
Watchtower Society - was to apply for ministerial exemption. Even fewer Witnesses agreed to perform
alternative civilian service; those who
did were treated like outcasts by the rest of us. During the Vietnam War, the Society issued new imperatives: many
Witnesses applied for CO status, and
when ordered by the courts, they did perform alternative (civilian) service.
Under the 1940 Selective Service Act
(Sec. Sd, Par. 360), "regular or
duly ordained ministers of religion" and divinity students were exempted from the draft (but not from registering
for the draft). A "regular
minister of religion" was defined as "a man who customarily preaches
and teaches the principles of religion
of a recognized church, religious cult,
or religious organization of which he is a member, without having been formally ordained as a minister of religion;
and who is recognized by such church,
sect, or organization as a minister." Under the Act, the Witnesses were "considered to
constitute a recognized religious sect."
Hayden C. Covington and General Lewis
B. Hershey, Deputy Director of Selective Service, arranged for the exemption of
"full-time" ministers (called
"pioneers") and members of the Bethel Family. (It would have been unthinkable, during the First
World War, when leaders of the Society
were imprisoned under the Sedition and Espionage Acts, for such an agreement to be made.)
Those who were once persecuted were now
privileged. But while "pioneers" appointed by the Society, and
members of the Bethel family, had no
trouble getting ministerial exemptions, such was not the case for Witnesses who spent most of their time
in secular employment.
The local boards were empowered to use
their own discretion with respect to those Witnesses who were not clearly
granted exemption by the Act. As Major Edward S. Shattuck, Chief of the Legal
Division of Selective Service, wrote,
"In the last analysis, it is the function of the local selective service board to review the facts in each
case and make the proper classification decision." (File Ref.
Ill-Ministers; Sec. Sd; Par. 360b; Jan. 25, 1941)
Covington contends that many boards
acted in an "arbitrary and
capricious" manner by denying Witnesses ministerial status. [pp.9,
13, U.S.A. v. Ray Robert Hartman (Brief for appellant by Covington)
Oct.1953] But it can't be denied that
the boards, given wide discretionary
powers and with popular sentiment to contend with, had a tough time.
"Each of Jehovah's witnesses is a
minister. If he is not a preacher he is not one of Jehovah's witnesses," Covington argued. If the boards had
followed that criterion, they would
have been obliged to classify as a minister every Witness who registered for the draft. Theoretically, one could be
converted in June, baptized in July,
spend seven hours preaching in August, and be
granted ministerial exemption. World War II was a popular war; it is
easy to see why local boards did not
grant across-the-board exemptions where the
case for exemption looked at all thin. The Witnesses' argument, which is
difficult to controvert, is that if they are a recognized religion, they do
have the right to establish the criteria as to who is a minister of that
religion. [Cole, pp.201- 203]
Congress had made no provision for a
judicial review of a registrant's
classification. Witnesses who were sentenced in district courts for violation of the Selective Service Act
were denied the right to plead their
cases. The decisions of the local boards made in conformity with regulations were final, even though they may have been
erroneous. But, after the war in Europe
was over, the Supreme Court, reversing a prior decision (Falbo v. U.S., 320 U.S 549, Jan. 3,
1944), condemned the practice of
denying registrants the right to defend themselves against indictments
brought against them. William Murray
Estep, one of Jehovah's Witnesses, was
classified 1-A and ordered to report for induction; he refused to be
inducted, claiming he was exempt from
service because he was a minister. He was
indicted for violation of the Act. At the trial he sought to attack the classification given him by the local board.
The court ruled that no such defense
could be tendered; he was sentenced to three and one-half years. The judgment of conviction was affirmed on
appeal. (Estep v. U. S., 326, U.S.
114, Feb. 4, 1946)
The Supreme Court ruled that Estep's
conviction "reduced criminal
trials under the Act to proceedings . . . barren of the customary safeguards which the law has designed for the
protection of the accused." Mr.
Justice Murphy, concurring with the majority opinion of Mr. Justice Douglas, wrote:
To sustain the convictions . . . would require adherence
to the proposition that a person may be criminally punished without ever being
accorded the opportunity to prove that the prosecution is based upon an invalid administrative order.
That is a proposition to which I cannot
subscribe. It violates the most elementary and fundamental concepts of due
process of law. [p.9 (Oct. Term 1945. Nos. 292 and 66 on Writ of Certiorari to
U.S. Circuit Court of Appeals for the Third Circuit)]
Also concurring, Mr. Justice Rutledge
wrote:
I do not think Congress can make it a crime punishable by
the federal judicial power to violate an administrative order without affording
an adequate opportunity to show its constitutional invalidity. [p.15 (Ibid.)]
The Estep ruling that courts
must allow draft registrants to prove
that local boards acted without jurisdiction meant that the boards were no longer the final arbiters of
registrants' fate - a significant
addition to the literature of civil liberties, because it prevented
local boards from the Unchecked
exercise of local prejudices. The Estep case is an important one in the annals of civil
liberties. The Court did not rule on the
merits of Estep's claim that he was a minister; it simply ruled that the
appeals court had acted in violation of
due process by not allowing him to make a
defense. Estep set an important precedent: due process of law
could not be eroded, even during a
national emergency.
At the beginning of the war, district
judges, according to Covington, were
almost "totally antagonistic. They were against any defense being made by Jehovah's Witnesses at their
trials." [Faith, p. 187]
They were, he says, greatly prejudiced. "After a large number of
cases continued to flow through their
courts," Covington says, "many of the judges began to change and mellow. They afterward took a
more restrained attitude in presiding
at the trial of cases involving Jehovah's Witnesses." [Ibid.,
p.1861
The Estep case had something to
do with their "mellowing," of
course, as did victory in the European theater of war. As the threat
to national security diminished, both
courts and draft boards exerted less
pressure on dissenters. Unorthodox religions were beginning, in a
less repressive climate, to enjoy the
full protection of the courts.
A decision of the United States Court
of Appeals reflects this trend:
Whatever a draft board or a court, or anybody else for
that matter, may think of Jehovah's
Witnesses] is of little consequence. . .
. They. . . are entitled to the same treatment as the members of any
other religious organization.
One may preach or teach from the pulpit, from the
curbstone, in the fields, or at the residential fronts. . . To be a "regular minister" of religion the translation
of religious principles into the lives
of his fellows must be the dominating factor in his own life, and must have that continuity of purpose and action that
renders other purposes and actions
relatively unimportant - Hull v. Stalter, 151 F. 2d 633(1945)
The courts treated draft-age Witnesses
with increasing leniency as time went on, accelerating the process of
legitimizing a marginal religion.
Dickinson v. U.S. is a case in point:
George Lewis Dickinson claimed a 4-D
exemption in 1948; he was at that time working forty hours a week as a radio repairman, devoting "an
uncertain number of hours a week"
leading two Bible study groups and "several hours a week"
proselytizing. The board classified him
1-A. After 1950, he requested reclassification,
because he had, in the spring of 1949, quit his job and begun to work as a
"pioneer," devoting 150 hours each month to proselytizing. He continued to work five hours a week as a
radio repairman. The local board
refused to change his classification. The Supreme Court ruled, Mr.
Justice Tom Clark delivering the
opinion, that
Dickinson made out a case which meets the statutory
criteria. He was ordained in accordance
with the ritual of his sect and . . . he
meets the vital test of regularly, as a vocation, teaching and preaching the principles of his sect and
conducting public worship in the
tradition of his religion. That the ordination, doctrines, or manner
of preaching that this sect employs
diverge from the orthodox and traditional
is no concern of ours; of course the statute does not purport to
impose a test of orthodoxy.
The statutory definition of a "regular or duly
ordained minister" does not preclude all secular employment. . . . A
statutory ban on all secular work would
mete out draft exemptions with an uneven hand, to the detriment of those who
minister to the poor and thus need some
secular work in order to survive. . .
Dismissal of the claim solely on the basis of suspicion
and speculation is both contrary to
the spirit of the Act and foreign to our
concepts of justice. - Dickinson v. United States, 346 U.S. 389
“Suspicion and speculation" had in
fact arisen that Dickinson and many like him had quit their secular jobs
precisely in order to evade the draft.
From 1939 to 1945 the number of "pioneer" Witnesses doubled. Early
during World War II, the government charged that the Society's publications were urging more Witnesses into
the full-time work in order to evade
the draft. The government's interpretation of the Society's instructions was challenged successfully by
Covington, who said that from the
beginning of its history, the Society had urged Witnesses into full-time preaching. (He was right.)
Arguing the case of Dickinson,
Covington posed as an ecumenicist and a defender of democracy. Raising the
specter of "godless communism," he argued passionately - though
perhaps somewhat disingenuously - that
the preaching activities of ministers of religion and
evangelists bear burdens that ordinarily
fall on the Government. They do work of an eleemosynary comforting nature. The
Government would be required to do this if there were no religions. The
Government would be required to impose additional taxes. . . . It may have to
draft people to do the work of charity.
Christian preaching to the people of this
land does what the Government could not possibly do.