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ANNOTATION
THE FLAG SALUTE CASES REVISITED
(Valid Secular Policy us. Freedom of Religion)
By
*
JORGE R. COQUIA
I. History of the Flag Salute Issue in the United
States, p. 279
II. The Minnersville School District vs. Gobitis
Flag Salute and Valid Secular Policy, p. 280
III. The U.S. Supreme Court Reverses ItselfThe
Barnette Decision, p. 281
IV. The Flag Salute Cases in the Philippines, p.
282
V. The West Virginia vs. Barnette Ruling
Applied, p. 282
VI. The Opinion of Secretary Abad Santos
Restored, p. 283
VII. Philippine Supreme Court upholds validity of
Flag Salute Regulation, p. 283
VIII. The "Valid Secular Policy", Freedom of
Religion and Freedom of Conscience Rules, p.
285
IX. The Conscientious Objectors Cases, p. 286
X. The Sunday Closing Cases, p. 289
XI. Far Reaching Consequences of the Ebralinag
and Amolo Cases, p. 290
________________
The Supreme Court in two consolidated cases of Roel
Ebralinag et. al. vs. The Division Superintendent of
Schools of
________________

Member of the Board of Editorial Consultants.

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Cebu, G.R. No. 957701 and May Amolo, et al. vs. The
Division Superintendent of Schools of Cebu, et al., G.R. No.
95887, March 1, 1993 ruled that school pupils may not be
compelled to salute the flag, sing the national anthem and
recite the patriotic pledge if they invoke their religious
belief that the flag is an "image" or "idol" which the Bible
expressly prohibits. The petitioner have cited John 5:2
which reads: "Children, be on your guard against false
gods. "They consider the flag as an image or idol
representing the State."
The decision has apparently followed the trend of court
rulings in the United States, the last of which had reversed
previous rulings on the validity of flag salute school
regulations. As in the United States, the cases were filed by
members of the religious sect called Jehovah's Witnesses.
Likewise in the Philippines the Supreme Court reversed
itself in previous rulings as did the Secretaries of Justice
who have made different rulings following the trend of the
United States courts.
I. History of the Flag Salute Issue in the United
States
The first flag salute case appeared in Kansas in 1907. By
1940, many states adopted rules and statutes requiring the
flag salute and singing of the national anthems in public
schools partly aimed at the stubborn refusal of members of
a religious sect called the "Jehovah's witnesses" whose
belief include the conviction that the flag salute was an
idolatrous practice offensive to Jehovah. Their refusal to
participate in such exercises was based on the ground that
such enactment violated their constitutionally protected
freedom of conscience. Six state Supreme Courts upheld
the validity of such school regulations. It was uniformly
held that participation in flag salute was not a religious
rite, possessed no particular religious significance, was
nothing more than a patriotic act conducive to good
citizenship, and did not involve, much less, violate the
constitutional guarantee of religious freedom. Three
petitions for certiorari were summarily dismissed by the
Supreme Court of the United States (Leoles vs. Londers,

202 U.S. 656 (1937); Herring vs. State Board of Education,

303 U.S.
280

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The Flag Salute Cases Revisited

1938); Gabrielli vs. Knickerbocker, 306 U.S. 621 (1939).

In a fourth case the U.S. Supreme Court gave due course
to a petition for certiorari and upheld Federal Court
decisions sustaining the validity of the school regulations
on compulsory flag salute. (John vs. Deerfield, 306 U.S. 621
(1939)
II. Minnersville School District vs. GobitisFlag
Salute as a Valid Secular Policy
On the sixth occasion the U.S. Supreme Court reversed a
U.S. Circuit Court of Appeals by upholding the validity of
the flag salute school requirements. (Minnersville School
District vs. Gobitis, 309 U.S. 645 (1940).
It appeared in said case that two young children of the
sect of Jehovah's Witnesses were expelled from their school
for refusing to comply with the flag salute regulation of the
Minnersville School District in Pennsylvania. Applying the
"clear and present danger" rule the Circuit Court of
Appeals affirmed the ruling of the district court that there
is no danger to the health, safety, morals, property, or
personal rights of the citizenry as would justify the exercise
of police power which invaded the jealousy guarded area of
conscience. (Minnersville School District vs. Gobitis, 108
2d. (C.A 3) 628 [1939])
In reversing the decision of the Circuit Court of Appeals.
Justice Felix Frankfurter, speaking for the U.S. Supreme
Court, followed the "valid secular policy" said that "the
religious liberty which the constitution protects has never
excluded legislation of general scope not directed against
doctrinal loyalties of particular sects;" conscientious
scruples have not, in the course of long struggle for
religious toleration relieved the individual from obedience
to a general law not aimed at the promotion or restriction
of religious beliefs. The mere possession of religious
convictions which contravene the relevant concerns of a
political society does not relieve the citizen from the
discharge of political responsibilities. Since the inculcation
of patriotism through requiring the saluting of the flag in
the public schools was valid concern of the state, it did not

become invalid because it violated the religious principles

of certain of the children attending public schools.
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III. The U.S. Supreme Court Reverses ItselfThe

Barnette Decision
Adamant in their refusal to comply with the flag salute
school regulations, the witnesses of Jehovah elevated again
the issue to the U.S. Supreme Court. In West Virginia
Board of Education us. Barnette, 319 U.S. 624 (1943), the
West Virginia Board of Education required a daily flag
salute and pledge of allegiance in all public schools. Non
compliance constituted insubordination punishable by
expulsion, and after such expulsion children were to be
deemed unlawfully absent and subject to delinquency
charges. Parents and guardians were subject to prosecution
for contributing to such delinquency.
The Federal District Court, feeling that the ruling of the
Court in the Gobitis case had been seriously impugned in
the dissenting opinion of Justices Black, Douglas and
Murphy in the case of Jones vs. Opelika, 316 U.S. 584
(1942), held that to uphold the legislation in question
would be tantamount to sanctioning a subordination of
religious liberty to the other constitutionally guaranteed
freedoms, for to do so would be to accord these a wider area
for expression and more rigorous standard for restriction
than that conceded to religious freedom. Barnette vs. West
Virginia Board of Education, 47 F. Supp. (D.C., W.Va.) 251
(1942)
Completely reversing the Gobitis case, the Supreme
Court ruled that the action of the State in making it
compulsory for children in public schools to salute the flag
a pledge allegiance to the nation, violates the Fourteenth
Amendment. The issue according to the Court is whether
the process of arousing patriotism can constitutionally be
shortened by substituting a compulsory flag salute and
slogan. To require an individual to salute the flag as a
symbol of utterance and thus to communicate by word or
sign his acceptance to political ideas, according to ponente
Justice Jackson, is objectionable especially if its coerced.
The decision of the U.S. Supreme Court was not based
on religious freedom but upon the general right of freedom

of conscience and though protected by the First

Amendment. Justice Jackson said that "compulsory
identification of opinion
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The Flag Salute Cases Revisited

achieves only unanimity of the graveyard."

While the Barnette case rejected the "valid secular
policy" rule which had been the basis of the Gobitis
decision, the Justice Jackson's Opinion did not recognize as
valid religious objections to the flag salute. Rather, Justice
Jackson held that it violated the First Amendment to
compel anyone to express views or opinions which he did
not hold.
IV. The Flag Salute Cases in the Philippines
The Secretaries of Justice and the courts in the Philippines
have also ruled and made reversals on their rulings on
compulsory flag salute issue in different ways. In 1940 the
Secretary of Justice rendered an opinion that public school
pupils may be compelled to comply with the school
regulation to salute the flag and sing the national anthem:
(Opinion of Secretary Jose Abad Santos (1941). Sustaining
the validity of a Bureau of Education Circular No. 61,
series of 1940, and Commonwealth Act No. 589 (1940), the
Secretary of Justice ruled that there is no constitutional or
statutory provision in the Philippines which makes it a
personal right on the part of its citizens to demand
entrance into the public schools. The right to enter the
public school is merely a privilege a political privilege,
given to those who are able to comply with the
requirements imposed by the competent school authorities.
In view thereof, and in line with the constitutional
mandate that "all schools shall aim to developcivic
conscience and to teach the duties of citizenship" the
regulation requiring all public schools pupils to salute the
flag and providing that pupils who refuse thereof may be
barred from admission to, expelled from, the public schools,
is legal and valid.
V. The West Virginia vs. Barnette Ruling Applied

In 1948, however, apparently relying on the ruling of U.S.

Supreme Court in the West Virginia vs. Barnette case, the
Secretary of Justice reversed the ruling of Secretary of
Justice Abad Santos, in an opinion upon an inquiry the
Secretary of Justice ruled that school authorities cannot
force a student to salute the flag if that is against his
religious scruples, nor can
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they lawfully expel a pupil for refusing to comply with such

requirement. According to the Secretary, persuasion, not
compulsion is the teacher's means to attain the end of
inspiring pupils love of country and reverence for its
institutions. (Opinion No. 225 (1948) in reply to a letter of
Rustico Fernandez of Bohol, See XIII Lawyers Journal
(1948).
VI. The opinion of Secretary Abad Santos Restored
In 1952 the Secretary of Justice reversed the 1948 opinion
and restored the 1940 opinion of Secretary Jose Abad
Santos holding that public school pupils are bound, under
pain of expulsion, to participate in flag ceremonies in
schools notwithstanding their religious convictions
(Opinion No. 370 (1951).
VII. Philippine Supreme Court upholds validity of
Flag Salute Regulation
Like their brethen in the United States, the Jehovah's
Witnesses in the Philippines, adamant in their religious
scruples, brought the case to the Supreme Court in 1959.
In a suit commenced in 1957, petitioners, members of
the Jehovah Witnesses sought to enjoin the school
authorities of the Buenaventura Community School at
Uson, Masbate, from enforcing Department Order No. 8 of
the Department of Education, dated July 21, 1955
implementing the provisions of Republic Act No. 1265
which took effect on June 11, 1955. The Department Order
required daily ritual of a flag salute, singing the national
anthem and recitation of a patriotic pledge. Petitioners'
children refused to abide by the school regulation. After
due investigation, they were expelled from the school.

Petitioners' refusal was based on their religious belief

which include the literal version of Exodus, Chapter 20,
verses 4 and 5. They consider the flag as an "image" within
the command and invoked the U.S. Supreme Court decision
in West Virginia vs. Barnette (supra).
The Supreme Court through Justice Montemayor held
that the flag is not an image but a symbol of the Republic of
the Philippines, an emblem of national sovereignty, of
national unity and cohesion and freedom and liberty which
it and the
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Constitution guarantee and protect. Considering the

separation of the Church and State, the flag is utterly
devoid of any religious significance. Furthermore, it
appeared in said case that there was no absolute
compulsion involved in the flag salute. There was no
criminal or even civil prosecution involved. The petitioners'
children merely lost the benefits of public education being
maintained at the expense of their fellow citizens and
nothing more.
The Court also found that in requiring the school pupils
to participate in the flag salute, the State, through the
Secretary of Education, was not imposing a religion or
religious belief or a religious test. It was merely enforcing a
non discriminatory school regulation applicable to all alike,
whether Christian, Moslem, protestant or Jehovah's
Witnesses. To state was merely carrying out the duty
imposed upon by the Constitution which charges it with
supervision over and regulation of all educational
institutions, to establish and maintain complete and
adequate system of public education, and to see to it that
all schools aim to develop, among other things, civic
conscience and teach the duties of citizenship. The Court
went on to state that freedom of religion guaranteed by the
Constitution does not and cannot mean exemption from or
noncompliance with reasonable and nondiscriminatory
laws, rules and regulations promulgated by competent
authority. Men may differ and do differ on religious beliefs
and creeds, government policies, the wisdom and legality of
laws, even the correctness of judicial decisions, but in the
field of love of country, reverence for the flag, nationality
and patriotism, they can hardly afford to differ for these
are matters which they are actually and vitally interested,

for them they mean national extinction." (Gerona vs.

Secretary of Education, 106 Phil. 2 (1959).
In his concurring opinion, Justice Jesus Barrera, pointed
out the distinguishing features of the Gerona case with the
West Virginia vs. Barnette case heavily relied upon by the
petitioners. In the Barnette case, upon refusal of the school
pupil to abide by the flag salute regulation, said pupil is
not only expelled from school but his parents or guardians
become liable for criminal prosecution for such absence of
expulsion of the disobeying pupil. The delinquent pupil
may be proceeded
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against and sent to the reformatory maintained for

criminally inclined juveniles. Hence, there was conflict
between authority and rights of the individual. As thus
presented the conflict in the Barnette case was between
authority and liberty which attained a proportion of
repugnance to a degree that left no choice to the Court
except to apply the rationale of the grave and imminent
danger rule to enjoin under the circumstances the
enforcement of the West Virginia Board of Education
regulation.
In the Gerona case non compliance in the flag ceremony
does not result in criminal prosecution. Another significant
distinction is that in the Barnette case the regulation
requires a stiff arm salute, the saluter to keep the right
hand raised with the palm turned up while he was required
during the flag ceremony, to stand at attention.
The Jehovah's Witnesses again elevated the issue to the
Supreme Court in 1960 on a different ground. The
petitioner challenged the constitutionality of Department
Order No. 8 of the Department of Education on the ground
that the said Order was not published in the Official
Gazette as required by Commonwealth Act No. 2 and
Article 2 of the Civil Code. In denying the petition, the
Supreme Court held that the requirement of publication
applies only to the circulars that provide penalties for
violation thereof. In the case at bar no penalty for violation
is imposed (People vs. Que Po Lay, L6791, March 24, 1954;
Lim Jon Ting vs. Central Bank, L10666, October 1958) The
ruling in the Gerona case was reiterated (Balbuna vs.
Secretary of Education, 110 Phil. 150 [1960]).

 VIII. The "Valid Secular Policy", Freedom of

Religion and Freedom of Conscience Rules
The Supreme Court in the two cases under annotation have
cited the ruling of the U.S. Supreme Court ruling in the
West Virginia vs. Barnette case but applied the principle of
freedom of religion. Actually, the Barnette case did not
exactly rule on religious objections. Justice Jackson the
ponente held that the school regulation in question violated
the first/amendment to compel anyone to express views or
opinions which he did not
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hold. The issue which the Philippine Court should have

addressed itself on Ebralinag and Amolo cases is whether
Department Order No. 8 which implemented Republic Act
No. 1265 was a valid secular policy. Is the Filipino flag
really an image or idol? Indeed the Filipino flag is a symbol
of the Republic of the Philippines utterly devoid of any
religious significance. It does not represent idolatry or god.
In fact it represents the Filipino people. It is entirely
secular. The religious liberty as enshrined in the
Constitution has never excluded legislation of general
scope not directed against doctrinal loyalties of particular
sects. Conscientious scruples have not in the course of long
struggle for religious toleration relieved the individual from
obedience to a general law not aimed at the promotion or
restriction of religious beliefs. Religious convictions which
contravenes the relevant concerns of a political society does
not relieve the citizen from the discharge of political
responsibilities. The inculcation of patriotism through flag
salute ceremonies and reciting the pledge of loyalty is a
valid concern of the State. It did not become invalid
because it violated religious principles of a certain religious
sect.
Although the freedom of religion has been granted a
"preferred position" in the group of legal values, it is not
altogether absolute as all other rights enumerated in the
Bill of Rights. It may be limited on consideration of public
policy, safety and health. Religious doctrines may not be
used as an excuse for the commission of crimes, infringe
upon the rights of others or evade civic responsibilities for
it would be tantamount to making religious beliefs superior

to the law of the land and in effect permitting every citizen

to be the law unto himself (Watson vs. Jones, 13 Wall. 679
(1871). This is shown in court rulings concerning
conscientious objectors.
IX. Conscientious Objectors Cases
Religious sects such as the Jehovah's Witnesses have
invoked religious conviction to evade civil and political
responsibilities such as military service for the defense of
the state, secondary closing laws. The Selective Draft Acts
of the United States requiring male citizens between the
ages of 21 and 30
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years to register for military duty exempts from the draft

regularly ordained religious ministers. While one
individual questioned the validity of the exemption of
religious ministers as a direct move on establishment of
religion prohibited by the constitution, the Federal Court
held that the law was not an establishment of religion in
the sense understood in the words of the First Amendment
(U.S. vs. Stephens, 245 F. 956 [1917]) The Selective
Training and Service Act (1940) of the United States also
provided for the exemption from military training and
service duly ordained ministers of religion question arose,
however, as to what the term "minister of religion" as used
in the Act meant. The witnesses of Jehovah's went to the
extent of claiming that they are "ministers of religion" as
used in the Act meant. The witnesses of Jehovah all
claimed that they are ministers of religion by distributing
religious pamphlets. In a series of cases, courts refused to
exempt them from military training and service, it
appearing that defendants used only a portion of their time
for religious activities as distributing religious literature
while devoting a major part of their time to secular
activities such as storekeeper, helper in a mill, freight,
traffic clerk or carpenter (Checinski vs. U.S., 129 F. 2d. 461
(1945); U.S. vs. Brooks, 54 F. 2d Supp. 995 (D.C. 1944),
certiorari denied in 324 U.S. 878 (1945) In the case of Fitts
vs. U.S., 334 F. 2d. 477 (1964), a member of the Jehovah's
Witnesses after having been denied exemption was
convicted for failing to report for civilian work assigned to