Vol. 10 No. 6 (June 2000) pp. 390-393.

JUDGING JEHOVAH'S WITNESSES: RELIGIOUS PERSECUTION AND THE DAWN OF THE RIGHTS REVOLUTION by Shawn Francis Peters. Lawrence, KS: University Press of Kansas, 2000. 352 pp. Cloth $34.95. ISBN 0-7006-1008-1.

Reviewed by Ken I. Kersch, Department of Political Science, Lehigh University. Email: kik4@lehigh.edu.

Constitutional scholars are well aware of the canonical heft of U. S. Supreme Court decisions involving Jehovah's Witnesses. In the brief period from 1938 and 1955, this small religious sect gave Thurgood Marshall and friends a run for their money in the country's High Court, winning twenty- four cases and spurring its justices to bursts of doctrinal innovation and flights of civil libertarian eloquence. The cognoscenti will know that the free exercise clause was incorporated in a Jehovah's Witness case, CANTWELL v. CONNECTICUT (1940), that Justice Stone first laid out his "preferred position" understanding of the Bill of Rights in a dissent in a Jehovah's Witness case, JONES v. OPELIKA (1942), that a Witness case impelled the Court to announce free speech law's "fighting words" doctrine (CHAPLINSKY v. NEW HAMPSHIRE (1942)), and that Justice Jackson's luminous declaration that the protection of personal, political, and religious heterodoxy is a "fixed star in our constitutional constellation" came in a Jehovah's Witness flag salute case, WEST VIRGINIA v. BARNETTE (1943).

What is less well known is that these decisions, along with hundreds of related rulings from lesser tribunals, both state and federal, were the issue of an outbreak of anti-Witness pogroms which swept the country about the time of the Second World War. Shawn Francis Peters's JUDGING JEHOVAH'S WITNESSES is an account of those pogroms which (in the style of Peter Irons) makes heavy use of first person testimony - in addition to trial records and press accounts -- to put a human face on the cases (canonical and non-canonical alike) and to place them effectively in historical context. Peters is a professor of journalism, and, while the book is sure-footed in its grasp of the legal issues raised by the Witness's encounters with the courts, its heart is clearly in recounting the personal stories of Walter Chaplinsky, Lillian Gobitis, and more obscure Witnesses who were set upon during these pogroms and, spurred on by a conviction that the righteous are always persecuted by the powers that be, fought back in America's courts of law.

As Peters makes plain, during the World War Two era, the Witnesses seemed perpetually on the verge of ending up like Schwerner, Cheney, and Goodman. Their businesses were shunned and they were fired from their jobs.

Their children were expelled from the public schools and, on occasion, declared truants and removed from their homes. They were criminally prosecuted under anti-sedition laws, were dosed with castor oil, and set upon mobs, driven on forced marches, and even separated with sharp blades from their genitals. Through all this, a disgraceful number of police officers watched with

Page 391 begins here

indifference and in some cases joined the fun.

In the early 1940s, approximately 3,000 Jehovah's Witnesses were arrested a year in the United States. A total of nearly 20,000 were arrested between 1933 and 1951. Peters tells us that in Mississippi, a bill was actually introduced in the state legislature entitled "A House Resolution Declaring Open Season on Jehovah's Witnesses" which declared that "the extermination and extinction of said persons shall be deemed an act meritorious and beneficial to the state" and announced that it was "the imperative duty of the citizenry . to exterminate such persons upon sight." It didn't pass.

What was it about the Witnesses that drove many Americans into such frenzy? The subtitle of JUDGING JEHOVAH'S WITNESSES suggests that many average Americans were animated by religious bigotry. The fact is that the Witnesses were a rather strange millennial sect. Founded in Pittsburgh in 1873 by Charles Taze Russell and tracing their spiritual roots back to the early Christian evangelists, the Witnesses preached the immanence of Armageddon and the unique hope of their Bible-reading followers. Russell believed that on Judgment Day, a "little flock" of 144,000 would ascend to heaven and rule there with Christ. On Good Friday 1878, the "Russellites," as they were then known, donned white robes and prepared for their ascension to heaven on Pittsburgh's Sixth Street Bridge. When the great event failed to take place, the Witnesses resorted to a number of clever doctrinal innovations to ensure the continued survival of the faith. They swelled their numbers by positing a class of "Jonadabs" people who were open to being saved through proselytizing. The religion made no formal distinction between laymen and clergy (a matter of significance in the conscientious objector cases) and enjoined the Witnesses to obey all man-made laws not in conflict with the laws of God.

There is little doubt that most Americans (if they thought of it at all) looked askance at the Witness religion. That said, though, it is not quite right to characterize the anti-Witness pogroms as a case of "religious persecution" any more than it is right to characterize as a case of "religious persecution" Creon's decision to mete out a death sentence to Antigone. The real problem was not the Witness's religious beliefs per se but that the members of the sect both refused to salute the flag and to serve their country in war -- even in the form of alternative conscientious objector service -- at a time in which the very survival of the nation was at stake.

Because of their refusal to salute the flag or serve in the armed forces, the Witnesses got caught up in the "Fifth Column" scare of the early 1940s, which was enflamed by a folk-belief that there was a secret network of spies and subversives in the U. S. who were actively aiding the Nazi cause. Many took the Witnesses to be shirkers - if not traitors. As one local government official in Iowa put it "We don't object to their religion but we object to the fact that they're too damn yellow to fight [in the armed services] and then expect the rights that we fought for." By their conduct, the Witnesses loudly set themselves in opposition to patriots in wartime.

Their situation was complicated and, in some cases, tragic. Regrettably, the Supreme Court's decision in MINERSVILLE v. GOBITIS (1940) - which simply reinforced longstanding

Page 392 begins here

precedent holding that compulsory flag salutes in school were constitutional - helped many to rationalize their mistreatment of the Witnesses. Peters reports a sheriff in Maine declaring during one anti-Witness pogrom "They're traitors - the Supreme Court says so. Ain't you heard?"

Peters partly acknowledges the complexity of the Witnesses place in the history of American civil liberties by reminding the reader at various places that the Witnesses themselves were hardly civil libertarian saints. He repeatedly points out that they did not much believe in civil liberty for anyone but themselves. Ex-Witness's quoted in the book refer to the religion as "slavery," and Peters himself describes the religion as "a rigid faith that left virtually no room for ideological flexibility or dissent." Witnesses, moreover, were tirelessly intolerant of the religions of others. We are led by the more low-key style of the contemporary Jehovah's Witnesses who knock politely at our doors (a product of later internal reforms) to underestimate the degree of provocation occasioned by the high-decibel and vicious attacks the war-era Witnesses made upon the religious beliefs of others, especially Catholics. Witnesses deployed sound trucks, sandwich boards, and door-to-door canvassing not so much to persuade as to denounce. Joseph Rutherford, the head of the sect, called Catholicism "the wickedest organization of liars, murderers, and gangsters that has ever cursed the planet." At the same time he tells us this, however, Peters can't quite resist placing a halo that over the Witnesses, presenting them as saintly Saturday Evening Post victims of the dark side of Norman Rockwell's America.

Peters is less careful in acknowledging the legitimate wartime claims of the state. The complexity of the position of Americans who refused to participate in core patriotic rituals and national service at a time in which millions were dying and - it is no exaggeration to say - the future of freedom in the world hung in the balance is reduced to a constitutional morality tale by the author's reflexive resort to civil libertarian bromides.

Thus, Peters writes that, "by imprisoning these Jehovah's Witnesses because they opposed fighting the war, the federal government suppressed the very democratic freedoms it hoped to preserve from the scourge of fascism." As contemporaries such as Stephen Holmes have tried to remind us, however, it is a fundamental (and oft forgotten) principle of politics that civil liberty ultimately depends upon the continued existence and strength of the liberal state. To assume with 20/20 hindsight that the future existence of America was never in doubt is to pooh-pooh the epic significance of the Second World War.

Thus, Felix Frankfurter is condescended to with the report that his "heartfelt devotion to Old Glory as a symbol of all that was noble and good about America was perhaps best expressed in a maudlin speech he delivered in 1944." We are told that "Perhaps because he was so engrossed by the war in Europe [!], Frankfurter privately touted the notion that the Supreme Court had an obligation to consider the critical important of national security when it weighed the constitutional issues at stake in GOBITIS." Would that our Supreme Court justices pondered more important matters!

What's more, Peters implicitly takes for granted that the (later) jurisprudence of the Warren Court represented a triumph of freedom, including religious freedom. Only if one believes this reflexively, however, can

Page 393 begins here

one see the Witness cases as "paving the way" for the later flowering of civil liberties, including religious liberty. Many readers might not see the trajectory of freedom in these rather simplistic, ever-upwards terms.

Someone unburdened by these assumptions might, for example, attempt to make sense of the fact, as reported in passing by Peters, that employers were actually much more solicitous of the civil liberties of Jehovah's Witnesses than were labor unions. Or that the Witnesses felt just as persecuted by (progressive) child labor laws as by other legal disabilities. He might also pause note that the "singularly dark moment" of CHAPLINSKY v. NEW HAMPSHIRE has become a beacon to many on the political Left who are concerned with regulating hate speech and prosecuting hate crimes. But to puzzle these thing out, one would have to assume that the rights and liberties of religious dissenters, the working stiff, blacks, women, and little children - - as such rights have been understood by post-War legal liberals -- do not all fit together in some neat and natural "progressive" package.

Part of Peters's problem here is a problem with the convention of the civil libertarian narrative that Peters follows. The truth is that by now the histories of "little people who fought their way to the Supreme Court to vindicate not only their rights but the rights of all Americans" have themselves become the "maudlin speeches" that its practitioners are so quick to condemn in people like Felix Frankfurter. These Whig narratives made a certain emotional sense during the Manichean battles over racial segregation during the Warren years. By now, though, they have become cliches that do more to obscure than to illuminate the vexed complexities of constitutional clashes.

However, don't get me wrong. Despite its adherence to the hackneyed conventions of the field - hardly a unique failing -- this is a good book. The research is first-rate: Peters painstakingly chronicles the record of the wartime treatment of Jehovah's Witness's (although I would say that, as one reads on, cases and people tend to blend together). His presentation is enlivened by the inclusion of photographs of key people and events. Peters effectively reports debates on the Supreme Court during a sort of golden age of judicial seriousness about both moral issues (spurred by the confrontation with Nazism) and about the role of the judiciary in political life (spurred by the New Deal constitutional stand-off). Despite its theoretical complacency, if one wants to know who the Jehovah's Witnesses were, how their countrymen mistreated them during wartime, and the nature of their legal and personal resistance to this mistreatment, one should certainly begin with this book.

CASE REFERENCES:

CANTWELL v. CONNECTICUT, 310 U.S. 296 (1940).

CHAPLINSKY v. NEW HAMPSHIRE, 315 U.S. 568 (1942).

JONES v. OPELIKA , 316 U.S. 584 (1942).

MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 U.S. 587 (1940).

WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943)