People v. Sandstrom , 279 N.Y. 523 ( 1939 )

I concur in the decision and in all that is said in the opinion except in so far as it indicates that the defendants' daughter may, on pain of expulsion, be compelled to salute the flag though such salute be contrary to her religious convictions and her conscience.

The American flag is the symbol of our country; the symbol of the ideals which are embodied in our Constitution; the symbol of the spirit which should animate our institutions. In the noble words of Charles Sumner, it is "to be cherished by all our hearts, to be upheld by all our hands." I do not doubt that our schools will utterly fail in their purpose if they do not teach the children those great principles of liberty and democracy for which the founders of the Republic fought, which they formulated in the Declaration of Independence and which by the Bill of Rights, in our Constitution, were made inviolate. The schools, I agree, should not only teach these principles to the children but the teachers should also inspire the children with a love of country so deep and so understanding that when they grow up, they will be ready to defend it against attack by enemies from without and against attack by enemies within who would undermine its principles and destroy its Constitution. The State may require that "studies plainly essential to good citizenship" should be taught in the schools. (Pierce v. Society of Sisters, 268 U.S. 510.)

The statutory directions to the Commissioner of Education "to prepare, for the use of the public schools of the state, a program providing for a salute to the flag, for instruction in its correct use and display and such other patriotic exercises as may be deemed by him to be expedient * * *" (Education Law, §712), may be regarded as a legislative determination that such a program will tend to inculcate a love of country in the children and should be part of the school exercises. I do not differ with my associates when they say that "saluting the flag in no sense is an act of worship or a species of idolatry, nor does it constitute any approach to a religious observance. The flag has nothing to do with religion, and in all the history of this country it has stood for just the contrary, namely, the principle that people may worship as they please or need not worship at all." Like my associates, I believe that the Legislature may properly direct the preparation of a "program providing for a salute to the flag, as part of the regular exercises of every school." Like my associates, I find it difficult to understand how any reasonable and well-disposed person can object to such a salute on religious or other grounds. The question remains whether the Legislature intended to direct or could, under our Constitution, direct that a child may be compelled to join in the exercises in those rare cases where such exercises are contrary to the religious principles and doctrines of the child and its parents.

Religious freedom guaranteed by the Constitution is broader than the principle that "people may worship as they please or need not worship at all." It includes the right of the individual to carry out every obligation which he believes has a divine sanction, "to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights." (Watson v. Jones, 80 U.S. 679, at 728.) (Italics here and throughout this opinion are mine.) "The term ``religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. * * * With man's relations to his Maker and the obligations he may think theyimpose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with." (Davis v. Beason, 133 U.S. 333, at 342.) There are many acts which are not acts of worship and which for most men have no religious significance and are entirely unrelated to the practice of any religious principle or tenet but which may involve a violation of an obligation which other men may think is imposed upon them by divine command or religious authority. To use a homely illustration, partaking of food is ordinarily in no sense "any approach to a religious observance." It is purely mundane, with no religious significance, and yet ordinances establishing fast days or prohibiting the use of certain kinds of food are a part of the religion of many people. Interference by the State with such religious ordinances; commands by the State or its officers to violate these ordinances, can be justified only where observance of the religious ordinances obstructs "the laws of society designed to secure its peace and prosperity, and the morals of its people." The right of the principal of the school to command the little child of the defendants to join in the salute of the flag must be tested by the same standards.

When the Legislature directed the Commissioner of Education to prepare a program providing for a salute to the flag, it did not in terms provide that all the school children must join in the salute. Perhaps the Legislature assumed that because the salute to the flag is not a religious act, no person would object to the program on religious grounds. Perhaps it assumed that no well-disposed person could object to the salute on any reasonable ground and that a principal of a school might in the exercise of a reasonable discretion and without offending the religious convictions of any person, direct all the children of the school to join in the patriotic exercises. None the less, I can find in the statute no fair implication that every child must take part in such exercises, even though some children might be taught by their parents or religious instructors that a salute to the flag would be disobedience to the command of God. A command of the State to such a child, whether given by the Legislature or by a school principal deriving authority from the statute would, I think, transcend the limitations imposed by the Constitution upon the powers of government.

Episcopalians and Methodists and Presbyterians and Baptists, Catholics and Jews, may all agree that a salute to the flag cannot be disobedience to the will of the Creator; all the judges of the State may agree that no well-intentioned person could reasonably object to such a salute; but this little child has been taught to believe otherwise. She must choose between obedience to the command of the principal of the school, and obedience to what she has been taught and believes is the command of God. She has chosen to obey what she believes to be the command of God. I cannot assent to the dictum of the prevailing opinion that she must obey the command of the principal, though trembling lest she incur the righteous wrath of her Maker and be slain "when the battle of Armageddon comes."

The Constitution of the State in guaranteeing liberty of conscience has expressly imposed the same limitations upon its exercise which are implied in the guaranty contained in the Federal Constitution. It "shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State." (Art. 1, § 3.) The words "inconsistent with the peace or safety of this State" should not, I agree, be limited too closely. It has been said by Chief Justice HUGHES, with the concurrence of Mr. Justice HOLMES, Mr. Justice BRANDIES and Mr. Justice STONE, that "The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field. What that field is, under our system of government, presents in part a question of constitutional law and also, in part, one of legislative policy in avoiding unnecessaryclashes with the dictates of conscience." (United States v.Macintosh, 283 U.S. 605, at 634.) There is no need here to attempt to mark the exact limits of governmental powers in constraint of conscience. Certainly such governmental powers may not at their widest be asserted to prohibit beliefs and practices which are not in conflict with good order or to compel acts which have no reasonable relation to the peace or safety or even the general welfare of the State or Nation.

It is true, as the prevailing opinion points out, that in other States where such question has been presented the courts have accepted the argument that the State may attach reasonable conditions to the right of a child to attend school and have held that the school authorities may expel a child for refusal to join in school exercises which include a salute to the flag. In this State the Constitution (Art. IX, § 1) provides that "all the children of this State may be educated" in the free common schools of the State. A right guaranteed by the Constitution to all children of the State may not be abridged and invaded by the Legislature or by any administrative officer of the State. This court has called it a "legal right." (People ex rel. Cisco v. SchoolBoard, 161 N.Y. 598.) The right to attend school is, from its nature, subject to the condition that each child will conduct itself in orderly manner and will obey the orders of the teachers and administrative officers of the school acting within the limits of their authority and the constitutional guaranty is not invaded by a statute enacted by the State in the exercise of its police power. Such statute must, however, have "adequate connection with the common good." To justify exclusion of a child from the common schools it "must tend in a degree that is perceptible and clear towards the preservation of the * * * health * * * or welfare of the community, as those words have been used and construed in the many cases heretofore decided." (Matter of Viemeister, 179 N.Y. 235, 238.) The Legislature cannot authorize the school authorities to give an order which outrages the religious conscience of a child at least unless such order does in reasonable degree tend to promote the general health or welfare or is required for the orderly conduct of the school.

An act of disrespect to the flag by child or parent may be punished, but there is no disrespect to the flag in refusal to salute the flag by a child who has been taught that it is a moral wrong to show respect in the form of a salute. The legitimate purpose of the salute to the flag is, as Chief Judge CRANE points out, to inculcate love of country and reverence for the things which the flag represents; it may be an aid in teaching good citizenship — but surely not where a little child is compelled in fear and trembling to join in an act which her conscience tells her is wrong. She does not insist upon doing an act which might harm herself or others; she does not refuse to do an act which might promote the peace, safety, strength or welfare of her country. She does not ask to stay away from any courses of instruction offered by the school. She does not refuse to show love and respect for the flag. She refuses only to show her love and respect in manner which she believes her God has forbidden. She asks only that she be not compelled to incur the wrath of her God by disobedience to His commands. The flag salute would lose no dignity or worth if she were permitted to refrain from joining in it. On the contrary, that would be an impressive lesson for her and the other children that the flag stands for absolute freedom of conscience except where freedom of conscience is asserted "to justify practices inconsistent with the peace or safety of this State."

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.

O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur with CRANE, Ch. J.; LEHMAN, J., concurs in separate opinion.

Judgments reversed, etc.