Legal Experts Split on Veto of Flag Pledge by Dukakis

Times Staff Writer

Legal experts are divided on whether Vice President George Bush or Democratic presidential nominee Michael S. Dukakis is right in their dispute over Gov. Dukakis’ veto of a Massachusetts law requiring the Pledge of Allegiance in schools.

But most, citing a 1943 Supreme Court decision, side with Dukakis.

The decision declared that U.S. citizens are free to ignore government demands that they pledge their support for “orthodox” views, even if this means refusing to salute the American flag.

Can’t Prescribe Orthodoxy

“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 (or) religion . . . or force citizens to confess by word or act of faith therein,” Justice Robert H. Jackson wrote in the case of West Virginia Board of Education vs. Barnette.

Dukakis relied on the decision in 1977 when he vetoed a law that would have required all teachers--at the risk of a $5 fine--to begin every school day by leading a Pledge of Allegiance to the flag.


Bush has said that he would have signed the bill and implied that Dukakis’ veto calls his patriotism into question. “What is (it) about the Pledge of Allegiance that upsets him so much?” Bush asked Wednesday. Dukakis has countered by suggesting that Bush does not respect the Constitution.

For decades, Justice Jackson’s opinion has been cited as setting forth the clear principle that no American may be compelled to endorse any particular opinion. As Dukakis, a 1960 Harvard Law School graduate, noted: “The flag-salute cases are studied by every first-year law student.”

Extent of Ruling Disputed

But other lawyers say the issue is not so clear. Did the court intend to strike down all laws mandating flag salutes and pledges in schools? Or did it merely intend to require that dissenting students--such as the children of Jehovah’s Witnesses who appealed the Barnette case to the high court--be exempted from the requirement of saluting the flag?

Conservative legal experts say the latter, more narrow view of the ruling is correct. “That may be Harvard Law School dogma” to say all mandatory pledge laws are unconstitutional, “but it’s not the law,” said Jeffery D. Troutt, legal director of the Free Congress Foundation. “As long as the children can be excused . . . for reasons of conscience, there is nothing unconstitutional about a mandatory Pledge of Allegiance,” he said.

Legal experts who back Dukakis note that the Massachusetts Supreme Court concluded in an advisory opinion for the governor that the bill should be rejected. “Although the Pledge of Allegiance is unobjectionable, the teaching of the Barnette decision is clear,” the 5-2 majority said.

Dukakis’ Action Backed

University of Virginia law professor A. E. Dick Howard said he has “no doubt at all” that Dukakis made the right decision. “The teaching of Barnette is that the state cannot require public affirmation of a particular point of view. So I don’t see that he had any other choice,” Howard said.

Howard noted also that the Jackson decision specifically reversed a court ruling handed down just three years before that had upheld a state law requiring the use of the Pledge of Allegiance in schools.

“How could a governor sign into law a bill that his state supreme court has just said is unconstitutional?” New York University law professor Burt Neuborne asked. “If he had signed it and I were representing a teacher who was fined under this law, I would have sought damages from state officials for having knowingly and willfully violated the constitutional rights of their teachers.”

Bruce Fein, a former Justice Department lawyer, said Dukakis should have signed the bill but made clear that teachers could seek an exemption. “Why reach out and veto it, unless you want to prove you are faithful to the ACLU?” Fein asked.

Ruled on Flag Day

Justice Jackson’s opinion--which was issued on Flag Day in 1943--states that “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 concluded: “We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment of our Constitution to reserve from all official control.”

Today, both sides agree on one point: This legal controversy has had no practical significance in Massachusetts. Dukakis’ veto was overridden in the Legislature, and school days in Massachusetts routinely begin with the recitation of the pledge. The state Department of Education has never enforced the law, and no one has filed a court challenge seeking to overturn it.