Opinion
Submitted May 5, 1942 —
Decided June 30, 1942.
1. The State may compel those who attend the public schools to salute the flag.
2. The proofs in this case do not show that the parents of children of school age excluded from public school were disorderly persons, in that they failed to keep their children in the school.
On appeal from the Juvenile and Domestic Relations Court, Bergen County.
Before Justices BODINE, HEHER and PERSKIE.
For the appellant, Abram Waks, Hayden C. Covington and Paul Rittenberg.
For the respondent, Maurice D. Emont.
For American Civil Liberties Union, Arthur Garfield Hays and Thomas M. McDade.
The appellants were convicted in the Juvenile and Domestic Relations Court of Bergen County of being disorderly persons, in that they had not kept in regular attendance at school their two children aged 13 and 14. N.J.S.A. 18:14-39, 40. They were powerless so to do, because the children were expelled from school, and excluded each day when they reported for attendance. The children were trained in the beliefs of Jehovah's Witnesses and would not salute the American flag pursuant to N.J.S.A. 18:14-80. This statute is of somewhat modern origin. It was upheld as constitutional in Hering v. State Board of Education, 117 N.J.L. 455; affirmed in 118 Id. 566. Appeal dismissed, 303 U.S. 624. For a full discussion pro and con see Minersville School District v. Gobets, 310 Id. 586.
Stripped of excess verbiage the situation, in the present case, is that the appellants' children will not salute the flag. The school authorities deny them schooling and seek to have the parents fined because they do not keep the children in school against the will of the school authorities. It cannot be claimed that the parents refused to keep the children in school because the proofs show otherwise. Tactful guidance is a requisite in education. Public education can only be justified because of the benefits to the state in having all its citizens literate.
As Judge Lehman said in People v. Sandstrom, 279 N.Y. 523; 18 N.E. Rep. (2 d) 840 (at p. 847): "The salute of the flag is a gesture of love and respect — fine when there is real love and respect back of the gesture. The flag is dishonored by a salute by a child in reluctant and terrified obedience to a command of secular authority which clashes with the dictates of conscience. The flag `cherished by all our hearts' should not be soiled by the tears of a little child. The Constitution does not permit, and the legislature never intended, that the flag should be so soiled and dishonored."
Liberty of conscience is not subject to uncontrolled administrative action. Jones v. Opelika, 314 U.S. 593 (United States Supreme Court), 86 L.Ed. 1174.
The conviction will be set aside.