West Virginia State Board of Education V. Barnette - Arguments

Arguments

The state's principal argument was that Barnette raised no substantial federal question because Gobitis settled the constitutional questions raised by the flag-salute expulsions. The state's brief quoted extensively from Justice Frankfurter's Gobitis opinion. Given the clear indications that at least five justices were ready to lay aside the Gobitis precedent, there was little else the state's lawyers could do. The American Legion's amicus curiae brief filed in support of the state's appeal did little more than duplicate the West Virginia argument.

Hayden Covington answered the state's appeal in a brief that was a mixture of Jehovah's Witnesses Bible teachings and Constitutional arguments. He included a fiery attack on the Court's Gobitis opinion, especially rejecting Justice Frankfurter's deference to legislative policymaking authority. Such deference, he argued, allowed the legislature to define its own powers. He emphasized the nationwide persecution of Jehovah's Witnesses that had followed Gobitis and concluded with a long list of law journal and newspaper articles that criticized the decision. The American Bar Association's Committee on the Bill of Rights and the American Civil Liberties Union filed amicus curiae briefs that argued Gobitis was bad law and should be overruled.