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Sean Kirst: Amid anthem dispute, a look back at WNY jurist's role in pledge ruling

Marie Barnett Snodgrass apologized in advance. The Flag Day decision that made her a living part of American history occurred 75 years ago this week, when Snodgrass, now 85, was just a little girl.

"Your memory can get kind of dim," she said.

There was no need to worry. When she spoke of those days – and the role a U.S. Supreme Court justice from Chautauqua County played in her life – the images were anything but faded.

For a time in the early 1940s, Snodgrass and her late sister, Gathie Barnett Evans, would get up every morning and walk to school in Charleston, West Virginia. Each day, the adults there would send them home. The girls were Jehovah's Witnesses. They would stand in respect during the morning Pledge of Allegiance, but they declined to recite the pledge or offer a salute.

In return, school officials kicked them out.

"It was against our Bible principles," said Snodgrass, who lives in Florida. Within her faith, the belief is that your true and highest allegiance is to God. Yet this was during the rising passions of wartime, and that concept of faith put the children in direct opposition with the idea of "compulsory participation" in the pledge.

Elsewhere in the nation, Jehovah's Witnesses making similar choices faced contempt, even violence. Truant officers began stopping by the home of the Barnetts, and their congregation – responding to the expulsion of the girls – supported them in a legal case that eventually wound its way to the Supreme Court.

The dispute was litigated amid the boiling emotions of World War II. While Snodgrass said her teacher was never upset with her, many throughout the nation were not so tolerant. Furious about the position on the pledge, critics often described Jehovah's Witnesses as being anti-American, emotion that did not sway the majority on the Supreme Court.

On Flag Day 1943 – a date chosen by sheer coincidence – the nine justices released a 6-3 ruling that determined the girls were within their First Amendment rights, and that a compulsory salute law was unconstitutional.

Robert H. Jackson as a Supreme Court justice. (Image courtesy of the Robert H. Jackson Center)

The majority decision, whose eloquent language makes it unforgettable to Supreme Court scholars, was written by Justice Robert H. Jackson, for whom Buffalo's U.S. courthouse is named.

Despite that honor - to paraphrase Greg Peterson, a lawyer and co-founder of the Robert H. Jackson Center in Jamestown - Jackson may be the most historically important Western New Yorker you almost never hear about.

Raised in Frewsburg in Chautauqua County, he finished law school in Albany at 20. His biographer, John Q. Barrett of St. John's University School of Law, said Jackson left Jamestown in 1934 to work for President Franklin Roosevelt's "New Deal." Within seven years, Jackson was serving on the Supreme Court.

"It's an amazing rocket ship of a trajectory," Barrett said.

In the last dozen years of his life, Jackson played a key role in several monumental decisions. He served as chief prosecutor at Nuremberg, during the trials of many Nazis accused of war crimes. In 1944, he wrote a powerfully analytical dissent – going directly against the president who appointed him - to the Supreme Court decision that upheld the constitutionality of forcing 120,000 Japanese-Americans to leave the West Coast, most en route to internment camps during World War II.

Not long before Jackson's death, he was deeply involved in shaping the nation-changing decision in Brown v. Board of Education, a ruling that helped to end legally mandated school segregation by overturning the failed policy of "separate but equal."

As for the decision regarding the Barnett sisters – their name was misspelled as "Barnette" on court documents – it is seen as so pivotal that Barrett wrote recently that many scholars see it as "a high point in U.S. Supreme Court history."

Released 75 years ago today, that opinion was written by Jackson, who had deep roots in both Jamestown and Buffalo – and who once had a law office in Ellicott Square.

In 1940, three years before Chief Justice Harlan Stone assigned Jackson to write that opinion, Jackson – then U.S. attorney general – had watched in dismay as the court ruled overwhelmingly against a Jehovah's Witness in an earlier case. In the aftermath of the ruling, the child was beaten by his schoolmates.

Once on the court, Jackson was prepared when the Barnett case arrived.

In Florida this week, Snodgrass said she was largely unaware of the latest debate concerning respect for the flag and the First Amendment, the bitterly contested idea of whether National Football League owners can order players to stop kneeling as a form of protest during the playing of the national anthem.

Barrett said he has no doubt that some players involved in that movement are aware of Jackson's 1943 decision, which offered strong words on the idea of clamping down on protest:

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."

There is even a family connection between Jackson and Roger Goodell, the NFL commissioner who recently announced a new league policy that players must either stand for the anthem or wait until it ends, in the locker room. Goodell's brother, Tim, is on the board of directors at the Robert H. Jackson Center. Barrett said Jackson was a friend and neighbor to Goodell's grandfather, a Jamestown physician, and later helped Charles Goodell – a future senator and the commissioner's father – find his first job in Washington.

Barrett, the Jackson biographer, said there is one major legal difference in the situations involving the children, the pledge and the anthem protests in today's NFL. The children, he said, attended a public school; NFL owners contend the players are being asked to follow rules set by an employer in a private workplace.

In a matter of law, that would become the key point of argument about First Amendment rights, Barrett said, if the NFL's anthem policy were ever tested in court.

Judges and dignitaries pose for photographs during a ceremony to officially name the Robert H. Jackson United States Courthouse in Niagara Square on Monday, Sept. 30, 2013. (Derek Gee/Buffalo News)

In Jamestown, Peterson said he will mark the Flag Day anniversary by visiting the Jackson Center and reflecting for a moment by the flagpole, whose base is engraved with these words from Jackson's 1943 decision:

“The very purpose of a Bill of Rights was to withdraw certain subjects from … political controversy. One’s … fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

More than a decade ago, the Jackson Center hosted a discussion featuring the two Barnett sisters and others directly involved in the case. In October, Peterson said, the center will offer a two-day remembrance focused on the 75th anniversary, with an emphasis on  schoolchildren from the region.

For her part, Marie Barnett Snodgrass will spend this Flag Day following the routine at the center of her life: She will go to her church for a weekly study meeting. In itself, that simple journey reflects the gratitude she feels toward Jackson, and the ruling.

"The freedom to believe what you want to believe and not be discriminated against," Snodgrass said. "That's quite a freedom we have in this country."

Sean Kirst is a columnist with The Buffalo News. Email him at skirst@buffnews.com or read more of his work in this archive.

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