State v. Board Public Instruction Hillsborough County

Pursuant to authority vested in it by law, the Board of Public Instruction of Hillsborough County, as a part of its patriotic program, promulgated a regulation requiring all children attending the public free schools to salute the flag.

Plaintiffs in error are citizens of Hillsborough County and are enrolled in the public free school located at Lutz. They are members of a religious sect known as "Jehovah's Witnesses" and declined to make any manual obeisance to the flag as required by the regulation referred to. They were ordered to leave school but were permitted to return on condition that they salute the flag in obedience to the Board's regulation. Persisting in their refusal, alternative writ of mandamus was directed to defendants commanding them to permit relators (plaintiffs in error here) to re-enter school or show cause why they refuse to do so. A motion to quash was granted, the cause dismissed, and the instant writ of error was prosecuted.

The question we are called on to answer is whether or not as part of its patriotic program, the Board of Public Instruction of Hillsborough County may require all children attending the public free schools to salute the flag even though for religious reasons, they have conscientious scruples against doing so.

Plaintiffs in error contend that any manual salute or physical obeisance to the flag is contrary to the law of God and deprives them of their free exercise of religious liberty. To support this contention, they rely on verses four, five, and six, Chapter Twenty of the Book of Exodus, Section 5, Declaration of Rights, Constitution of Florida, and the First and Fourteenth Amendments to the Federal Constitution.

In so far as reliance is placed on the First and Fourteenth Amendments to the Constitution of the United States, the Supreme Court has definitely settled that question contrary to the contention of plaintiff in error. Leoles v. Landers,302 U.S. 656, 58 Sup. Ct. Rep. 364, 82 L.Ed. 507 (192 S.E. 218,184 Ga. 580); Coale v. Pearson, 290 U.S. 597, 54 Sup. Ct. 131, 78 L.Ed. 525; Hamilton v. Regents of University of California,293 U.S. 245, 55 Sup. Ct. 197, 79 L.Ed. 343; Herring v. State Board of Education of New Jersey, 303 U.S. 624, 58 Sup. Ct. 752, 82 L.Ed. 1087.

The Fourth, Fifth and Sixth verses of Exodus Twenty, were embraced in the command of Moses to the children of Israel forbidding them to make and worship graven images. Like all law, whether promulgated by statute, edict, or ukrase, this command grew out of the exigencies of the times and we cannot see that it has any relation whatever to the present situation. It would be as pertinent to rely on some requirement of the Assyrian, the Hittite, or the Code of Hammurabi.

Saluting the flag is nothing more than a symbolic expression or a restatement of one's loyalty and fervor for his country and its political institutions. It is patriotism in action. It has no reference to or connection whatever with one's religious belief. Saluting the flag connotes a love and patriotic devotion to country while religious practice connotes a way of life, the brand of one's theology or his relation to God. They are as clearly distinguished as Communism is from Democracy, as Calvanism is from Shintoism, or as Nudism is from the rule in Shelley's case. One is in no sense inconsistent with the other and saluting the flag does not approach religious rite.

Even if it be so, freedom of religious practice is not an absolute right. As do all other constitutional guaranties, it has its limitations. Practices in the name of religion that are contrary to approved canons of morals or that are inimical to the public welfare, will not be permitted even though done in the name of religion. To symbolize the flag as a graven image and ascribe to the act of saluting it a species of idolatry is too vague and far fetched to be even tinctured with the flavor of reason.

The First Amendment applied a break to the nation. The Fourteenth Amendment applied a break to the States. Section 5, Declaration of Rights, Constitution of Florida, applied an additional break to the State of Florida. For the purpose of this case, they may all be read together and when so done, they ban any State law "respecting an establishment of religion or prohibiting the free exercise thereof." Requiring children who attend the public free schools to join in patriotic exercises, such as saluting the flag, in no respect infringes on a free exercise of their religious belief nor can we see that it tends in any way to set up a State religion. The Constitution contains no other inhibition.

If an objection as remote from religious grounds as the one involved here may be successfully interposed for that reason, then there is no limit to the reasons that conscientious objectors may advance as grounds for avoiding patriotic duties. Individual judgment in matters of religion no less than in civic controversies must give way to that of the instrumentality set up by the State to direct it.

The law of this State (Sections 1683, 616, 618, 619, and 620) requires that the flag be displayed daily, the weather permitting, from the State Capitol, from every County Court house and public school building and that the Constitution including American ideals and institutions be taught in all high schools, colleges and universities. Nothing more is shown to have been done in this case.

In addition to the cases cited, the following cases support this view: Leoles v. Landers, supra; Herring v. State Board of Education of New Jersey, 118 N.J.L. 566, 194 A. 177; Charlotte Gabrielli v. Dorothy Knickerbocker, Cal.App. 74 P.2d 290; Nicholls v. Mayor and School Committee of Lynn, Mass, 7 N.E.2d 577; Gobotis, et al., v. Minersville School District, 21 F. Supp. 581; Pierce v. Society of Sisters of the Holy Name of Jesus and Mary, 268 U.S. 510, 45 Sup. Ct. 571, 69 L.Ed. 1070; Nichols v. Mayor and School Committee of Lynn, 110 A. L. R. 377.

There was no error, so the judgment is affirmed.

Affirmed.

WHITFIELD, BROWN, BUFORD, CHAPMAN and THOMAS, J. J., concur.

ON PETITION FOR REHEARING