In a 10-7 decision, the U.S. Court of Appeals for the Fifth Circuit voting en banc issued its opinion in Arnold v. Oliver. The Court refused to overturn a panel decision that denied qualified immunity to a teacher who forced a high school senior in a sociology class to write the Pledge of Allegiance over her religious objections to the Pledge under the auspices of an “assignment.”
The seminal case rightly relied upon by the majority at the panel stage—and by a concurring opinion in the denial of en banc—is West Virginia v. Barnette. That 1943 case, a legacy of the Greatest Generation, famously held that government school officials cannot “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.” The Justices found that the State of West Virginia could not force school children to recite the Pledge over their religious objection.
Barnette is particularly noteworthy for a couple of reasons. First, Barnette overturned a case with an almost identical set of facts. Just three years earlier, in Minersville School District v. Gobitis, the Supreme Court held that school officials could punish students for not reciting the Pledge. What had changed in just a few years? World War II. The fight against totalitarianism and for our very national survival sharpened our focus and emphasis on freedom. Second, just two days prior to Arnold, Justice Gorsuch, joined by Justice Alito, issued a scathing, multi-page dissent in a vaccine mandate case, Dr. A. v. Hochul. Justice Gorsuch declared Barnette’s famous line, “our Nation’s proudest boast.” Like Pericles, Justice Gorsuch reminds us all that we live freely, differently, and that makes all the difference.
Paul Clement and Ken Starr might agree. In the late 2000s, more than sixty years after the Barnette decision, the Barnett sisters, nearly ninety years of age, filed amicus briefs in another pivotal Fifth Circuit case, Morgan v. Swanson. Paul Clement represented the Barnett sisters (interestingly, “Barnette” was an unfortunate misspelling by the courts during the course of litigation and it stuck), as amici at the panel stage and Ken Starr represented the sisters as amici at the en banc stage. The Barnett sisters, themselves former elementary students compelled by their faith to obey conscience, felt strongly about defending a new generation of elementary school children who simply sought to share a faith-based origin story of the candy cane with their third grade friends along with others who sought to share “Jesus pencils.”
Unfortunately for the students and the Barnett sisters, the Fifth Circuit ruled against the students and held that government school officials enjoyed qualified immunity when they banned students from sharing items with a religious viewpoint – effectively giving license to such officials to mandate some viewpoints and exclude others.
Morgan was the Gobitis of its time. Just as in Gobitis when the Court held the government could mandate the recitation of the Pledge, Morgan gave license to government school officials to censor speech, including religious speech by refusing to enforce the First Amendment. In both cases, courts allowed secular orthodoxy to prevail. Not enough judges on the Fifth Circuit lived up to what Justices Gorsuch and Alito reminded us is our Nation’s proudest boast.
Bill of Rights Day 2021 and Arnold v. Oliver should be remembered as the Fifth Circuit’s redemption for its mistake in Morgan. Parents and leaders fighting to prevent government officials from indoctrinating their children with Leftist propaganda now have a fighting chance, at least in the Fifth Circuit.
Former Governor of Virginia, Terry McAuliffe, was wrong when he said parents should have no role in directing the education of their children. Thankfully, through the hard work of those like Ken Starr, Paul Clement, Justice Gorsuch, Justice Alito, and others who paved the way, there is a path toward freedom’s redemption for us all.
Hiram Sasser is Executive General Counsel for First Liberty Institute, a non-profit law firm exclusively dedicated to defending religious liberty for all Americans.
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