Commentary
Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
There are a lot of things to be thankful for this holiday season. I’m thankful for Will Phillips.
Will is a fifth-grader at West Fork Elementary in Washington County, Ark. According to various newspaper and online accounts, he’s a pretty typical 10-year old — though it’s worth noting that he’s smart enough to have skipped a grade this year and wants to be lawyer when he grows up.
Will isn’t waiting to grow up to teach us a lesson about how the First Amendment empowers us all. In early October, he decided to stay seated when others in his class stood for morning recitation of the Pledge of Allegiance. He says he just doesn’t agree anymore that “there’s currently liberty and justice for all.”
And so he sits, almost 218 years after the First Amendment was ratified on Dec. 15, 1791.
The first time Will remained in his seat was Oct. 5, when a substitute teacher asked him to stand with his classmates and he declined. That went on for a few more days until the issue got personal. In an interview, Will said the sub “got a lot more angry and raised her voice and brought my mom and my grandma up. After a few minutes, I said, ‘with all due respect, ma’am, you can go jump off a bridge.’”
The “bridge” remark drew a visit to the principal’s office, an assignment to look up information on the U.S. flag and its meaning, and a call to his mother — who supported her son’s objection to standing with his classmates, if not necessarily his comment to the substitute teacher.
To the credit of school officials in Washington County, they recognize that students cannot be forced to recite the pledge, given a landmark U.S. Supreme Court decision in 1943, West Virginia Board of Education v. Barnette, that said students could opt out of recitation. (By the way, Barnette reversed a 1940 Supreme Court decision mandating that children must participate. That case involved another fifth-grader, Billy Gobitis.)
The tension between honoring individual rights and instilling patriotism in the classroom didn’t end a half-century ago. In 2003, Colorado legislators passed a state law to mandate the recitation of the pledge by teachers and students, but amended it a year later after objections to comply with Barnette. In 2004, the 11th U.S. Circuit Court of Appeals upheld an Alabama student’s right to refuse to say the pledge while silently holding one fist in the air, saying it was not enough to trigger a school’s actions against what administrators had called disruptive behavior. Last October the same court declined to strike down a Florida law requiring a note from parents if a student refused to say the pledge — though it forbade the school system from making the student stand silently.
But back to Will Phillips and to another complicating factor in his decision: His objection to the saying the pledge involves his belief, after research and study, that the United States does not currently offer liberty and justice for gays and lesbians. Will isn’t gay, but his family has defended and marched on behalf of friends who are.
Gay rights and disagreements over the Pledge of Allegiance are emotionally wrought conflicts in our society. There no doubt are those who disagree with Will for refusing, on any grounds, to participate in the pledge. And just as certainly, there are those with opposite views on extending rights of any or all kinds to those who are gay.
Still, we should pause and be thankful for Will — and others like him — who follow up on their beliefs with more than the shrill cliché or smarmy insult and who are willing to step outside their own comfort zone to exercise their rights.
The bitter rhetoric of our age should also at least acknowledge this real-life example of the principle that Justice Robert Jackson described in 1943 in Barnette: "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."
The First Amendment also provides that no one in his class, his school or his community has to agree with Will. It does not shield any of us from the negative opinions others may have when we stand up — or sit down, for that matter — for our beliefs. Will told the Arkansas Times that in the lunchroom and in the hallway he now often faces taunts: “It’s always the same people, walking up and calling me a gaywad.”
Insults, biases or honest disagreements aside, let’s be thankful that 66 years after Justice Jackson wrote his legal opinion, there is a young Will Phillips who — while seated firmly in his chair each morning — clearly has his eye on that “fixed star.”
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].
