Tuesday, 8 April 2025
JEHOVAH'S servants Champions of civil liberty.
Jehovah’s Witnesses were unlikely champions of religious freedom.
BY SARAH BARRINGER GORDONOne of the most momentous cases on the Supreme Court docket as war raged globally in 1943 was about a single sentence said aloud by schoolchildren every day. They stood, held their right hands over their hearts or in a raised-arm salute and began, “I pledge allegiance to the flag…” To most Americans the pledge was a solemn affirmation of national unity, especially at a time when millions of U.S. troops were fighting overseas. But the Jehovah’s Witnesses, a religious sect renowned for descending en masse on small towns or city neighborhoods and calling on members of other faiths to “awake” and escape the snare of the devil and his minions, felt otherwise. They insisted that pledging allegiance to the flag was a form of idolatry akin to the worship of graven images prohibited by the Bible. In West Virginia State Board of Education v. Barnette, Walter Barnett (whose surname was misspelled by a court clerk) argued that the constitutional rights of his daughters Marie, 8, and Gathie, 9, were violated when they were expelled from Slip Hill Grade School near Charleston, W.Va., for refusing to recite the pledge.
In a landmark decision written by Justice Robert Jackson and announced on Flag Day, June 14, the Supreme Court sided with the Witnesses. “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds,” Jackson said. “If there is any fixed star in our constitutional constellation, 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.”
Jehovah’s Witnesses were unlikely champions of religious freedom. The sect’s leaders denounced all other religions and all secular governments as tools of the devil, and preached the imminence of the Apocalypse, during which no one except Jehovah’s Witnesses would be spared. But their persistence in fighting in the courts for their beliefs had a dramatic impact on constitutional law. Barnette is just one of several major Supreme Court decisions involving freedom of religion, speech, assembly and conscience that arose from clashes between Jehovah’s Witnesses and government authorities. The Witnesses insisted that God’s law demanded they refrain from all pledges of allegiance to earthly governments. They tested the nation’s tolerance of controversial beliefs and led to an increasing recognition that a willingness to embrace religious diversity is what distinguishes America from tyrannical regimes.
The Witness sect was founded in the 1870s, and caused a stir when the founder, Charles Taze Russell, a haberdasher in Pittsburgh, predicted the world would come to an end in 1914. Russell died in 1916; he was succeeded by his lawyer Joseph Franklin Rutherford, who shrewdly emphasized that the Apocalypse was near, but not so near that Witnesses didn’t have time to convert new followers, which they were required to do lest they miss out on salvation. This “blood guilt” propelled in-your-face proselytizing by Witnesses in various communities on street corners and in door-to-door visits. Soon the sect developed a reputation for exhibiting “astonishing powers of annoyance,” as one legal commentator put it.
Rutherford ruled the Witnesses with an iron fist. He routinely encouraged public displays of contempt for “Satan’s world,” which included all other religions and all secular governments. At the time, the number of Witnesses in the U.S.—roughly 40,000—was so small that many Americans could ignore them. But in Nazi Germany, no group was too small to escape the eye of new chancellor Adolf Hitler, who banned the Witnesses after they refused to show their fealty to him with the mandatory “Heil Hitler” raised-arm salute. (Many Witnesses would later perish in his death camps.) In response, Rutherford praised the German Witnesses and advised all of his followers to refuse to participate in any oaths of allegiance that violated (in his view) the Second Commandment: “Thou shall have no Gods before me.”
With conflict looming around the world in the 1930s, many states enacted flag salute requirements, especially in schools. The steadfast refusal of Witnesses to pledge, combined with their refusal to serve in the military or to support America’s war effort in any way, triggered public anger. Witnesses soon became a ubiquitous presence in courtrooms across the country.
The relationship between Witnesses and the courts was complicated, in part because of the open disdain Rutherford and his followers displayed toward all forms of government and organized religion. Rutherford instructed Witnesses not to vote, serve on juries or participate in other civic duties. He even claimed Social Security numbers were the “mark of the beast” foretold in Revelations. The Catholic Church, said Rutherford, was a “racket,” and Protestants and Jews were “great simpletons,” taken in by the Catholic hierarchy to “carry on her commercial, religious traffic and increase her revenues.” Complaints about unwelcome public proselytizing by Witnesses led to frequent run-ins with state and local authorities and hundreds of appearances in lower courts. Every day in court for Rutherford and the Witnesses’ chief attorney, Hayden Covington, was an opportunity to preach the true meaning of law to the judges and to confront the satanic government.
In late 1935, Witness Walter Gobitas’ two children—Lillian, 12, and Billy, 10—were expelled from school in Minersville, Pa., because they balked at the mandatory recital of the Pledge of Allegiance, and a long court battle ensued. When Gobitis v. Minersville School District (as with Barnette, a court clerk misspelled the family surname) made its way to the Supreme Court in the spring of 1940, Rutherford and Covington framed their argument in religious terms, claiming that any statute contrary to God’s law as given to Moses must be void. The Court rejected the Witnesses’ claim, holding that the secular interests of the school district in fostering patriotism were paramount. In the majority opinion, written during the same month that France fell to the Nazis, Felix Frankfurter wrote: “National unity is the basis of national security.” The plaintiffs, said Frankfurter, were free to “fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies.”
In a strongly worded dissent, Justice Harlan Stone argued that “constitutional guarantees or personal liberty are not always absolutes…but it is a long step, and one which I am unwilling to take, that government may, as a supposed educational measure…compel public affirmations which violate their public conscience.” Further, said Stone, the prospect of help for this “small and helpless minority” by the political process was so remote that Frankfurter had effectively “surrendered…the liberty of small minorities to the popular will.”
Public reaction to Gobitis bordered on hysteria, colored by the hotly debated prospect of American participation in the war in Europe. Some vigilantes interpreted the Supreme Court’s decision as a signal that Jehovah’s Witnesses were traitors who might be linked to a network of Nazi spies and saboteurs. In Imperial, a town outside Pittsburgh, a mob descended on a small group of Witnesses and pummeled them mercilessly. One Witness was beaten unconscious, and those who fled were cornered by ax- and knife-wielding men riding the town’s fire truck as someone yelled, “Get the ropes! Bring the flag!” In Kennebunk, Maine, the Witnesses’ gathering place, Kingdom Hall, was ransacked and torched, and days of rioting ensued. In Litchfield, Ill., an angry crowd spread an American flag on the hood of a car and watched while a man repeatedly smashed the head of a Witness upon it. In Rockville, Md., Witnesses were assaulted across the street from the police station, while officers stood and watched. By the end of the year, the American Civil Liberties Union estimated that 1,500 Witnesses had been assaulted in 335 separate attacks.
The reversal of Gobitis in Barnette just three years later was remarkably swift considering the typical pace of deliberations in the Supreme Court. In the wake of all the violence against Witnesses, three Supreme Court justices—William O. Douglas, Frank Murphy and Hugo Black—publicly signaled in a separate case that they thought Gobitis had been “wrongly decided.” When Barnette reached the Supreme Court in 1943, Harlan Stone, the lone dissenter in Gobitis, had risen to chief justice. The facts of the two cases mirrored each other, but the outcome differed dramatically. Most important, in ruling that Witness children could not be forced to recite the pledge, the new majority rejected the notion that legislatures, rather than the courts, were the proper place to address questions involving religious liberty. The “very purpose” of the Bill of Rights, wrote Justice Robert Jackson, was to protect some issues from the majority rule of politics. “One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, may not be submitted to vote….Fundamental rights depend on the outcome of no elections.” Jackson’s opinion was laced with condemnation of enforced patriotism and oblique hints at the slaughter taking place in Hitler’s Europe. “Those who begin in coercive elimination of dissent soon find themselves exterminating dissenters,” Jackson wrote. “Compulsory unification of opinions achieves only the unanimity of the graveyard.” Religious dissenters, when seen from this perspective, are like the canary in the coal mine: When they begin to suffer and die, everyone should be worried that the atmosphere has been polluted by tyranny.
Today, the Witnesses still proselytize, but their right to do so is well established thanks to their long legal campaign. Over time they became less confrontational and blended into the fabric of American life.
In the wake of the Barnette decision, the flag and the Pledge of Allegiance continued to occupy a key (yet ambiguous) place in American politics and law. The original pledge was a secular oath, with no reference to any power greater than the United States of America. The phrase “under God” was added by an act of Congress and signed into law by President Dwight Eisenhower on Flag Day, June 14, 1954. Eisenhower, who had grown up in a Jehovah’s Witness household but later became a Presbyterian, alluded to the growing threat posed by Communists in the Soviet Union and China when he signed the bill: “In this way we are reaffirming the transcendence of religious faith in America’s heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resources in peace and war.”
Eisenhower’s political instincts for the ways that religion functioned in American life were finely honed: Support for the amendment to the Pledge of Allegiance was strong, including an overwhelming majority of Catholics and Protestants as well as a majority of Jews. According to a Gallup survey, the only group that truly opposed the change was the smattering of atheists. In a country locked in battle with godless communism, a spiritual weapon such as an amended pledge that was not denominationally specific made sense. Only after the intervening half-century and more does the “Judeo-Christian” God invoked in the pledge seem less than broadly inclusive.
Sarah Barringer Gordon is the author of The Spirit of the Law: Religious Voices and the Constitution in Modern America.
On the triumph for religious liberty in Norway
Norway, Jehovah’s Witnesses “Fully Vindicated” By Appeal Court
A wrong decision denying state subsidies and registration to the organization because of its policy towards excluded ex-members has been overturned in appeal.
Norway, Jehovah’s Witnesses “Fully Vindicated” By Appeal CourtA wrong decision denying state subsidies and registration to the organization because of its policy towards excluded ex-members has been overturned in appeal.“Jehovah’s Witnesses have been fully vindicated in that the decisions to refuse grants and registration are invalid.” This is the conclusion (p. 34) of the Court of Appeal of Borgarting, which on March 14, 2025 reversed the decision of the Oslo District Court of March 24, 2024. We explained in “Bitter Winter” why the latter decision was wrong, dangerous for religious liberty, and inconsistent with the international obligations of Norway under UN and European conventions. The Court of Appeal came to the same conclusions.The case started, the Court of Appeal notes, in 2021 when “the Ministry of Children and Family Affairs received a letter from Rolf Johan Furuli, a former member of the Jehovah’s Witnesses” (p. 3). The complaint was about the Jehovah’s Witnesses’ practice of counseling members not to associate with ex-members (except cohabiting relatives) who had been expelled as guilty and unrepentant of serious sins or had publicly disassociated themselves from the organization. It was alleged that the Jehovah’s Witnesses thus violate the right of their members to change their religious beliefs, since the fear compels members who would like to leave to remain in the organization. Furuli also stated that the same practice applies to “children” (meaning minors) who are allegedly baptized before “they are mentally mature enough to fully understand what they are doing” (p. 3).Eventually, this led to decisions of the government and the State Administrator of Oslo and Viken to deny the Jehovah’s Witnesses the state subsidies they had peacefully received for thirty years based on Section 16 of the Norwegian Constitution (“All religious and philosophical communities must be supported on an equal footing”). Registration as a religious organization of the Norwegian Jehovah’s Witnesses under Law No. 31 of April 24, 2020, was also deniedThese administrative decisions were confirmed by the Oslo District Court on March 24, 2024. The Jehovah’s Witnesses appealed. The Centre for Law and Religious Freedom at Jagiellonian University in Krakow, the Religious Freedom Clinic at Harvard Law School, and the Norwegian Helsinki Committee sent letters supporting the position of the Jehovah’s Witnesses, which were accepted to “form part of the basis for the decision in the case” (p. 5)The Court of Appeal first examines the practice it prefers to call “social distancing” from ex-members who have been expelled or have publicly disassociated themselves from the Jehovah’s Witnesses. It states that it will mostly rely on published literature of the Jehovah’s Witnesses, and that the testimonies it heard persuaded the court that what happens in practice “is essentially in line with what is described in Jehovah’s Witnesses’ written material.”There is no disagreement between the parties, the court notes, on the fact that the Jehovah’s Witnesses teach “social distancing” on the basis of their interpretation of the Bible, particularly of 1 Corinthians 5:13 (“Expel the wicked person from among you”) and 5:11 (“Do not even eat with such people”). This “exclusion” does not apply to members who simply become inactive without publicly announcing that they have left the Jehovah’s Witnesses.Additionally, as the Court of Appeals summarizes from Jehovah’s Witnesses’ literature, in fact “‘family ties’ are not broken by withdrawal or exclusion. This is reflected in two exceptions in particular to the general rule of avoiding contact. Firstly, baptized members will still be able to have normal day-to-day contact with withdrawn or excluded members who live in the same householdas the member, even though the spiritual fellowship will cease. Secondly, baptized members will be able to have contact with excluded or withdrawn family members with whom they do not live in connection with what is referred to… as ‘necessary family matters.’” For example, “If excluded parents become ill or are no longer able to care for themselves financially or physically, children who are Jehovah’s Witnesses will have the biblical and moral duty to help them. Likewise, if an excluded [non-cohabiting] child is not well physically or emotionally, parents who are Jehovah’s Witnesses will care for him” (p. 17).Members who do not respect the exclusion policy might be subject to religious discipline, but “only if there is ‘persistent spiritual contact or persistent open criticism of the decision to exclude’” (p. 18).
As for minors, “most people who grow up in families where the parents are Jehovah’s Witnesses are baptized around the age of 15–18” (p. 14). Just one individual testified that she was baptized at age 11, but this was decades ago. There are also children of Jehovah’s Witnesses who freely decide not to join the organization. “Based on the evidence,” the Court of Appeal noted, “such a choice will not prevent normal contact with their family and other members of Jehovah’s Witnesses” (p. 14–5).The Court of Appeal also noted that before being baptized, minors can participate in the preaching work as “unbaptized preachers” if the elders decide they are mature enough. “It is not unusual to become an unbaptized preacher at the age of 11–15” (p. 14). Unbaptized preachers can also be excluded if they are unrepentant of serious sins. The consequences are less severe than in the case of baptized members. Excluded unbaptized preachers are prevented from preaching or speaking in congregational meetings. “Caution” is recommended in associating with them, but according to several witnesses (although others disagreed) in practice this suggestion “is of little consequence” (p. 19).
The Court of Appeal examined separately the two grounds the state mentioned for withdrawal of subsidies and denial of registration: first, that the consequences of exclusion violate the right to freely leave a religious organization; and second, that trying minors who have committed serious sins and subjecting them to social distancing violate children’s rights.The Court of Appeal states that Jehovah’s Witnesses do comply with Section 2 of the Norwegian Religious Communities Act, as leaving the organization can be done by sending a simple written request. It also notes that during the works of the Stålsett Committee that prepared the Act, it was explicitly “not recommended” to include “social ostracism” of ex-members among the criteria justifying the refusal of state subsidies (p. 21). But in the case of the Jehovah’s Witnesses there is not even a “full social ostracism,” the appeal judges note. Cohabiting relatives are not subject to “social distancing,” and contacts for “necessary family matters” are preserved. In addition, “those who have withdrawn will also be able to have normal contact with family members who are not baptized Jehovah’s Witnesses (including siblings who have chosen not to be baptized), and other networks outside Jehovah’s Witnesses” (p. 23). The Court of Appeal concluded that “there is therefore no question of ‘full social ostracism and/or serious financial consequences’ in the event of withdrawal, which was the situation the Stålsett Committee considered regulating that could provide grounds for refusing subsidies. As mentioned, the Committee [in the end] concluded that it was not appropriate to regulate this by law” (p. 23).Obviously, leaving the Jehovah’s Witnesses includes unpleasant consequences but this is true for many religious organizations and the “consequences do not entail sufficient undue pressure to violate the member’s right to free withdrawal under Article 9(1) of the ECHR [European Convention on Human Rights] or other human rights obligations or the Norwegian Constitution” (p. 22). The Court of Appeal also “emphasizes, among other things, that the social consequences of opting out—which can undoubtedly be very difficult for many—are set out in the Jehovah’s Witnesses’ rules and are something that the members are familiar with, both those who opt out and the remaining members. It is thus not a new and unknown ‘sanction’ that is implemented” (p. 22).In case of minors who are either baptized or unbaptized preachers, the State argued that subjecting them to proceedings before a judicial committee and excluding them, with the consequences of “social distancing,” can constitute “psychological violence” and “negative social control” under Article 19 of the Convention on the Rights of the Child and Section 30 of the Norwegian Children Act, thus justifying the denial of subsidies and registration. The Court of Appeal cautions that its conclusions are “subject to doubt,” a point on which opponents of the Jehovah’s Witnesses have insisted. In reading the decision, it is however clear that “doubts” mostly derive from the fact that concepts such as “negative social control do not have a clearly defined content in Norwegian law” (p. 30).As for “psychological violence,” a recognition of both international and Norwegian case law shows that it should normally involve “a pattern of abusive acts or behavior that is repeated or persists over time” (p. 26). Meeting a committee of elders may be perceived as “unpleasant and humiliating” by minors (p. 26), although their parents will accompany them “which will usually make the conversation less stressful, at least to some extent,” and the rules of the Jehovah’s Witnesses require “that the conversation with the elders will be as gentle and less detailed as possible” (p. 27). Additionally, just as adults, minors become “familiar with… the consequences of violating the norms” before being baptized (p. 27). At any rate, the court concludes, the meeting with the elders “will normally take place over a relatively short period of time leading up to a possible exclusion. That meeting cannot therefore be said to constitute a ‘pattern of offensive acts or behavior that is repeated or persists over time’.. it does not have the character of psychological ‘abuse’” (p. 27).Nor is “social distancing” of minors a case of psychological violence either. “it follows from Jehovah’s Witness rules that family ties are not broken by exclusion. For children who live at home, as the vast majority of minors do, this means that the family’s everyday activities continue. The minor’s emotional and physical needs will therefore continue to be met by the parents, and the child will be able to socialize with the other family members in the household… If a minor child does not live at home, parents will have a duty to take care of an excluded child who is not well physically or emotionally… The fact that some parents may act more harshly towards a child who is excluded or withdrawn than the Jehovah’s Witness rules allow, for example by freezing the child out socially at home or requiring the child to move out, is not something that Jehovah’s Witnesses as a religious community encourage; on the contrary” (p. 28).As for the elusive “negative social control,” the vagueness of the concept implies a high threshold for proving that it exists in a religious organization. In this case, any consideration of possible infringement of children’s rights should be “balanced against children’s and parent’s freedom of religion or belief” (p. 32). Sections 2 and 3 of the Norwegian Religious Communities Act regard minors who have reached the age of 15 as mature enough to join a religious community and acknowledge that there may be some under the age of 15 who are capable to “forming their own opinions” and have the right to participate in religious activities (p. 32). Accordingly, minors have the right to be baptized as Jehovah’s Witnesses. They also have the right not to be baptized even if their parents are Jehovah’s Witnesses, and in fact “this is not entirely unusual” (p. 32) and does not lead to exclusion policies be applied against them.Obviously, “social control is present in all families and organizations, including religious communities” (p. 31). However, “there is no evidence that baptized minors who grow up in Jehovah’s Witnesses have greater psychological challenges than others in the population” (p. 32). Therefore, “the Court of Appeal has concluded that the practice of social distancing towards underage baptized members does not ‘violate children’s rights,’ as it has not been proven that this practice exposes children to psychological violence and/or negative social control aimed at children” (p. 34).As for minors who are unbaptized preachers, it would be enough to apply the same comments to them to exclude any violation of children’s rights. Nonetheless, the appeal judges note that “Although many underage unbaptized preachers, on the one hand, will often be younger than baptized minors, and thus often more vulnerable, on the other hand, an unbaptized preacher will not be excluded and thus not be avoided by other Jehovah’s Witnesses in the same way as underage baptized Jehovah’s Witnesses who are excluded” (p. 34).As Jehovah’s Witnesses were successful on all points in their appeal, they were awarded legal costs in the amount of NOK 8.5 million (US $796,000). As the leading Norwegian Christian newspaper “Dagen” commented on March 14, it was a “devastating judgement” in which the arguments used by the government against the Jehovah’s Witnesses were “dismantled.”
The ruling (which the State can appeal at the Supreme Court) is in line with decisions rendered in several democratic countries, as well as by the European Court of Human Rights, about the exclusion policy of the Jehovah’s Witnesses. It may constitute an important precedent for other countries unwisely considering to act against the Jehovah’s Witnesses because of their exclusion policy, which is clearly protected by international
Eritrea frames mischief by law.
Persecution of Eritrean Jehovah’s Witnesses condemned by human rights experts
Kathryn Post
November 7, 2024
(RNS) — Thirty years after Eritrea revoked the citizenship of Jehovah’s Witnesses, international human rights experts are condemning the nation’s persecution of the religious group and advocating for the release of wrongfully detained prisoners.
“As of the latest information available, 64 Jehovah’s Witness worshippers remain in detention for exercising their faith,” Mohamed Babiker, a United Nations expert on Eritrea’s observance of human rights, reported to the body’s committee on social, humanitarian and cultural issues on Oct. 30. “Just last month, 25 Jehovah’s Witnesses, including two children, were arrested. While the two minors were later released, the 23 adults were reportedly transported to Mai Serwa prison.”
The September raid, the first major action against Jehovah’s Witnesses in Eritrea since 2014, broke up a worship service at the home of Letebrhan Tesfay, 85, one of the first Eritreans to become a Jehovah’s Witness, according to Jarrod Lopes, a U.S. spokesperson for the group.
Tesfay, who was among those arrested, “outlasted the oppression under Emperor Haile Selassie and is poised to do the same again,” Lopes said in an email. “Witnesses currently facing ruthless persecution for their faith share the same determination, hope, and inner peace as the Witnesses who proved faithful before them.”
Those imprisoned in the raid have not been formally charged, tried or sentenced, a Jehovah’s Witnesses report alleged. In a 2023 report, the U.S. State Department said Eritrean prisoners commonly face “harsh” and “life threatening” prison conditions. n light of the arrests, human rights experts have chosen to speak up as the anniversary of the denial of citizenship approached. On Oct. 25, the United States Commission on International Religious Freedom shared statements from two of its commissioners on X.
“We are concerned for Jehovah’s Witnesses in #Eritrea, particularly those who are imprisoned, many of whom have been held unjustly for decades under horrific conditions,” said a statement attributed to Commissioner Vicky Hartzler. “@StateDept should continue to work for their release, freedom, and citizenship.”Jehovah’s Witnesses, whose beliefs don’t allow them to participate in the military, refused to be recruits in the Eritrean War of Independence between the Ethiopian government and separatists from 1961 to 1991. While Jehovah’s Witnesses characterized their lack of participation as political neutrality, not opposition to Eritrean independence, the Eritrean government responded by stripping Jehovah’s Witnesses of their citizenship. Since then, 270 Jehovah’s Witnesses have been imprisoned in Eritrea, according to the faith group.Many Jehovah’s Witnesses in Eritrea are effectively barred from holding government jobs, receiving government benefits and accessing bank accounts. The lack of official documents also prevents many Jehovah’s Witnesses from owning property, finding employment or leaving the country. Worship must also be conducted in secret.
They aren’t the only faith group facing opposition in Eritrea. In addition to the more than 60 Jehovah’s Witnesses being held, hundreds of other Christians are being arbitrarily imprisoned, according to Babiker.
“I urge the Eritrean government to take bold and comprehensive action to address the human rights situation in the country,” said Babiker at the U.N. committee meeting. “Meaningful and genuine reforms can only set Eritrea on a path toward a society where human rights are upheld and fulfilled.”
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