By Joel P. Engardio
Mormons took a lot of abuse for helping pass Proposition 8 in California, where 52% of voters banned the right of gay couples to marry in 2008. But will anyone thank Jehovah's Witnesses for their role in getting the law declared unconstitutional?
One of the biggest outcries over Prop 8 was that the fundamental rights of a minority group could be taken away by popular vote — which isn't supposed to happen in America, land of the free.
Vaughn Walker, the federal judge who struck down Prop 8 this week, boldly said it "was premised on the belief that same-sex couples simply are not as good as opposite-sex couples." He also minced no words with the electorate: "That the majority of California voters supported Proposition 8 is irrelevant."
This is where Jehovah's Witnesses come in. On Page 116 of Judge Walker's ruling, he cites a 1943 Supreme Court case where the high court did a rare reversal of itself, acknowledging a mistake it made in a Jehovah's Witness case three years earlier. What happened between 1940 and 1943 to Jehovah's Witnesses gave Judge Walker in 2010 his most potent precedent to show that voter will does not trump the protection of minority rights.
A villain of that era
In the 1940s, Jehovah's Witnesses weren't just unpopular and marginalized. They were seen as criminal and a threat to democracy. It was blasphemous enough that they preached there was no hell or trinity and went knocking on doors to say so. But they also refused to salute the flag or say the Pledge of Allegiance.
Lillian Gobitas was among thousands of Jehovah's Witness children expelled from public school for not saluting the flag. Her case (Minersville School District v. Gobitis) went to the Supreme Court and a fundamental question was asked: Should a free society force its citizens to engage in patriotic ritual? In 1940, the court said yes. National unity was at stake.
But Jehovah's Witnesses wouldn't comply, saying the flag salute is an idolatrous act of worship of a man-made symbol, which is forbidden by God. In response, mobs attacked Jehovah's Witnesses in 44 states, burned their houses of worship and beat them. First lady Eleanor Roosevelt spoke out against the violence. At the height of World War II, when the U.S. was fighting nationalism in Germany, where Jehovah's Witnesses were being sent to concentration camps for refusing to do the Nazi salute, the Supreme Court revisited the case (West Virginia State Board of Education v. Barnette). A stunning reversal was announced June 14, 1943 — Flag Day.
In 2010, the value Judge Walker saw in the Jehovah's Witness case was how Justice Robert Jackson in 1943 addressed the "tyranny of the majority," a problem that's been around since at least 1835 when Alexis de Tocqueville first wrote the phrase in his book, Democracy in America.
The 1940 Supreme Court used "national unity" to justify forcing kids to salute the flag. It also said the threat of being expelled from school was a good way to achieve compliance. If anyone felt put out, the court said, he could seek remedy at the ballot box by asking the majority to see it his way.
When Justice Jackson got the chance to reverse the 1940 ruling, he tackled the ballot box notion head-on. He wrote that the "very purpose" of the Bill of Rights was to protect some issues from the volatility of politics and "place them beyond the reach of majorities."
"One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly," Jackson said, "may not be submitted to vote."
Rights trump elections
Judge Walker used Jackson's line in striking down the 52% majority vote that had taken away the fundamental right of gay and lesbian couples to marry in California.
While we can thank Jehovah's Witnesses for this precedent that aims to prevent tyranny of the majority, it should be noted they don't like gay marriage. They consider it sin and aren't afraid to say so. But not one devoted Jehovah's Witness voted for or supported Prop 8. Jehovah's Witnesses are apolitical. Rather than forcing their beliefs through legislation, they prefer to find converts by sharing a message.
Justice Jackson saw how protecting the rights of an unpopular religion demonstrated the beauty and full potential of the Bill of Rights for every unpopular group to follow.
"Fundamental rights," Jackson wrote in 1943 and Judge Walker quoted in 2010, "depend on the outcome of no elections."