What have the conservatives on the Supreme Court unleashed with their stripping Muslims and non-white voters of their civil and human rights? The same thing that always happens when the government winks at white/christian supremacy: anti-minority violence.
Unlike many modern religious liberty cases, where religious conservatives demand the
power to limit the rights of others,
Gobitis involved
two children who were expelled from a public school for refusing to say
the Pledge of Allegiance. The two youths were Jehovah’s Witnesses, and
they believed that “such a gesture of respect for the flag was forbidden
by command of Scripture.”
As
a matter of law, the Gobitis children should have prevailed. Generally,
the First Amendment does not permit the government to force individuals
to speak against their will. “If there is any fixed star in our
constitutional constellation,” the Supreme Court later held in a similar
case, “it is that no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of
opinion, or
force citizens to confess by word or act their faith therein.”
And yet, Gobitis now
stands as the paradigmatic example of how the Supreme Court can turn
its back on a vulnerable group — and unleash the wolves of
authoritarianism in the process.
A
society committed to “ultimate values of civilization,” Justice Felix
Frankfurter wrote, “may, in self-protection, utilize the educational
process for inculcating those almost unconscious feelings which bind men
together in a comprehending loyalty, whatever may be their lesser
differences and difficulties.”
“National unity,” Frankfurter added, “is the basis of national security.”
The Gobitis decision
was not a sweeping denial of the shared humanity of Jehovah’s
Witnesses. It did not strip Witnesses of all their rights to seek
protection from the law, or declare them to be enemies of American
society. Yet it may as well have done so, because the public reaction to
the decision was swift and harsh.
Solicitor
General Francis Biddle warned that “self-constituted bands of mob
patrioteers are roaming about the country, setting upon these people,
beating them, driving them out of their homes.”
A
lawyer who belonged to the faith lamented that hundreds of his fellow
Witnesses were “beaten, kidnapped, tarred and feathered, throttled in
castor oil, tied together an chased through the streets, castrated,
maimed, hanged, shot, and otherwise consigned to mayhem.”
In one of these incidents, which is recounted in historian Shawn Francis Peters’ book
Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution,
Witnesses in a small Pennsylvania town were harassed, arrested on
frivolous charges, set upon by mobs of fifty men or more, beaten,
kicked, and dragged through the streets, then held and questioned by
police for hours before they could seek medical treatment for their
injuries.
In another incident, which took place just days after the Gobitis decision, vigilantes burned a Jehovah’s Witnesses’ place of worship in Maine, then rioted for days.
SNIP
One
again, in other words, a Supreme Court decision making a relatively
narrow incursion on minority rights fostered a much larger attack on
those rights. State lawmakers’ reaction to Crawford was neither as violent as the aftermath of Gobitis and Brown II nor as transparently lawless. But Crawford may provide the biggest warning of all about what could happen in the immediate aftermath of the Muslim Ban decision.
The story of Gobitis was
a story of authoritarian elements within the general populace viewing a
Supreme Court decision as a license to lash out at a disfavored
minority group. The story of Crawford,
by contrast, is the story of anti-democratic elements who wield the
official power of the government deciding to push the envelope after the
Supreme Court signaled that they were likely to get away with it.
Trump v. Hawaii is
a case about an authoritarian, anti-democratic president. And it is a
case about a racist, who does not feel bound by the Constitution, and
who likes to lash out at vulnerable immigrants.
There’s no telling what he may do if the Supreme Court emboldens him further.
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