We must have before us the pertinent provisions of the Education Law (Cons. Laws, ch. 16) to understand this case. Section 712 of that law, as found in book 16 of McKinney's Consolidated Laws of New York (Annotated), makes it the duty of the Commissioner of Education to prepare, for the use of public schools of the State, a program providing for a salute to the flag, for instruction in its correct use and display and such other patriotic exercises as may be deemed by him to be expedient.
In each school district of the State, each minor from seven to sixteen years of age shall attend upon full time day instruction (§ 621). Persons in parental relationship to such a minor "shall cause such minor to attend upon instruction as hereinbefore required" (§ 627, subd. B [2]). A minor under seventeen years of age required to attend upon instruction, who is irregular in such attendance or insubordinate or disorderly during such attendance, is a school delinquent and may be required, pursuant to the provisions of section 628, to attend a special day school or attend upon instruction under confinement at a parental school or elsewhere. Subdivision F (a) provides that the school authorities may suspend a minor from required attendance upon instruction, who is insubordinate or disorderly, that is, may expel such a scholar. *Page 527
In section 627 we find this exception: A person in parental relation to a minor shall not be subject to the provisions of this section requiring the minor to attend upon instruction if it can be shown that he is unable to control the minor.
Any violation of these provisions shall be punishable for the first offense by a fine not exceeding ten dollars, or ten days in prison, or for each subsequent offense by a fine not exceeding fifty dollars, or by imprisonment not exceeding thirty days, or both by such fine and imprisonment (§ 641).
These provisions spell out the following procedure for recalcitrant scholars: If the parent refuses to send the minor to school or refuses to cause him to attend upon instruction, the parent can be punished as provided by the law. The minor himself who is insubordinate or disorderly and refuses to obey regulations may be expelled or, for continued insubordination or non-attendance, may be sent upon proper notice to a parental school.
Under the above provisions of the law the district school at Lake Ronkonkoma, town of Brookhaven, county of Suffolk, pursuant to the regulations of the Commissioner of Education, as required by section 712, had a simple ceremony of saluting the flag. Grace Sandstrom, a young girl thirteen years of age, refused to take part in these ceremonies and refused to make the salute with the other scholars. She was repeatedly requested to do so by her teacher and principal, and still refused. The teachers were not at fault. Every time she was sent home she was sent back by her parents. She never refused to attend the school; she always came back, and yet she refused to comply with the regulations or take part in the ceremony. As soon as she was sent home the truant officer was notified and she was immediately sent back by her parents. There is no evidence in the case that she ever was kept home or was refused attendance upon instruction or that she desired to stay away from school *Page 528 or attempted to do so. In fact, she persisted upon coming as well as being steadfast in her refusal to salute the flag. Two other children, younger than herself, of the same family, were also students in the school, but there seems to have been no trouble with them.
This proceeding was then taken before the justice of the peace to punish the parents under section 627, subdivision 2, of the Education Law, the information stating that they wrongfully and unlawfully and maliciously did keep one Grace Sandstrom from attending upon full time instruction in the public school, she being a minor between seven and sixteen years of age. The fact is, as is evidenced throughout the entire record, that the parents did nothing of the kind. They repeatedly sent the child back and the child always came back to school after being sent home. I can see no justification for this proceeding against the parents. If the young girl was insubordinate and disobedient to all the proper orders and regulations of the school, she is the one that should have been dealt with under the provisions of the Education Law. In like cases where this same question has arisen, the procedure has always been to expel the student, not to punish the parents unless they in some way have disobeyed the law.
Before suggesting, however, that this young girl be summarily dealt with, let us consider the case a step further.
The defendants are members of, or associated with, the religious order known as Jehovah's Witnesses. Part of their belief is that allegiance is due only to God, and that the salute or recognition of the national flag is placing this symbol above the Almighty. The young girl Grace, upon the stand in this case, explained her actions by saying, "Mr. Terry [the principal of the school] went up to the front of the room and he said he did not want to see anybody not saluting the flag. * * * I told him that saluting the flag is like worshiping an image, and that in the Bible in the twentieth chapter of Exodus *Page 529 it says, `Thou shalt not make unto thee any graven image of anything in heaven above or in the earth beneath; thou shalt not bow down to them nor serve them.' * * * He sent me home."
"Q. Did your parents ever keep you from going to school? A. No. I came to school one day. Mr. Terry asked me if I would salute the flag and I said `No.' He said I should put my books in my desk and go home.
"Q. People who write the pamphlets and papers for your religion, do you know if they ever said anything whether Jehovah's Witnesses should salute the flag or not? A. In the `Loyalty' booklet it told about other school children who had refused and that they were expelled.
"Q. What do you think would happen to you if you salute the flag contrary to your conscience? A. When the battle of Armageddon comes, I would be slain. Because the flag is an image and it says in the Bible not to bow down to images."
The appellants claim that to compel Grace to salute the flag contrary to her religious convictions or conscience is contrary to the provisions of the State Constitution (Art. 1, § 3), which reads: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State."
Saluting the flag in no sense is an act of worship or a species of idolatry, nor does it constitute any approach to a religious observance. The flag has nothing to do with religion, and in all the history of this country it has stood for just the contrary, namely, the principle that *Page 530 people may worship as they please or need not worship at all. On the other hand, our Constitution, both Federal and State, recognizes that a religious belief, whatever it is, cannot interfere with the laws which the State enacts for its preservation, safety or welfare. In time of war the government may seize property and take liberty for its self protection. We are all familiar with the draft which called our young men to arms and to service for the nation. For the preservation of peace and for the prevention of war, the State may take measures which may lead the youth of the country to respect law and order, and to value the protection and the blessings afforded by those fundamental principles, of which the flag is a mere representative.
The State cannot reasonably be required to defer the adoption of measures for its own peace and safety until revolutionary utterance and acts lead to actual disturbance of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, seek to prevent evil in its incipiency. (Gitlow v. New York, 268 U.S. 652, 669.)
While legislation for the establishment of religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. (Davis v. Beason, 133 U.S. 333, p. 345.)
The States, like Congress, are free to reach actions which are in violation of social duties or subversive of good order. (Reynolds v. United States, 98 U.S. 145, 164.)
In Pierce v. Society of Sisters (268 U.S. 510, p. 534) the court said: "No question is raised concerning the power of the State reasonably to regulate all schools, * * * to require * * * that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."
The recent case of Hamilton v. Regents (293 U.S. 245) related to the action of the University of California in *Page 531 expelling students who refused to take the required course of military training. The students objected to taking this course of training because of conscientious convictions and the teachings of the Methodist Episcopal Church and of the Epworth League in reference to war and the preparations for war. The court, treating the action of the University of California as being that of the State itself, said: "Appellants assert — unquestionably in good faith — that all war, preparation for war, and the training required by the university, are repugnant to the tenets and discipline of their church, to their religion and to their consciences. * * * Government, federal and state, each in its own sphere owes a duty to the people within its jurisdiction to preserve itself in adequate strength to maintain peace and order and to assure the just enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend government against all enemies" (p. 261).
Quoting from United States v. Schwimmer (279 U.S. 644), the court continued: "Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the Government" (p. 263).
There is another strength which is necessary to preserve the government besides military force, and that is the moral strength, or public opinion of its citizens. Public opinion is as vital to the maintenance of good government as an army or a navy; in fact these latter can be destroyed quicker by public opinion than by the attacks of an enemy. Many a nation has succumbed to the breakdown of the morale of its people. The State, therefore, is justified in taking such measures as will engender and maintain patriotism in the young.
Provisions in other States similar to our own, requiring salute to the flag, have been held legal, and the expulsion of pupils for disobedience sustained. (Nicholls v. Mayor, 7 N.E. Rep. [2d] 577, not yet officially reported, *Page 532 decided April 1, 1937, by the Supreme Judicial Court of Massachusetts; Leoles v. Landers, 184 Ga. 580; Hering v.State Board of Education, 117 N.J.L. 455.)
These are ponderous truths to flash upon this little girl who in all conscientiousness cannot, at her time of life, grasp them. Let us re-examine this statute which the Legislature has adopted. Surely from the reading of it we can gather that it was never intended to force patriotism upon children by a militaristic order. It seeks to teach, to enlighten, to reveal, to lead the mind, to understand and appreciate what our government really is and what the flag stands for. This young girl is deep in her reverence for the commands of the Old Testament. We hope, and so evidently did the Legislature, that by a course of instruction in our public schools, the children will see that that justice, that mercy and that humility which is the burden of Holy Writ, is also the aim and object of the things the American flag stands for.
The Education Law says that the Commissioner shall prepare a program, not merely for the salute to the flag, but for instruction in its correct use, and for such other patriotic exercises as may be deemed by him to be expedient. The emphasis here, I am sure, must be placed more upon instruction than mere blind obedience. We require the children to go to school to be instructed, among other things, in patriotism, which means to acquire some knowledge of the history and struggle of man to devise a government which will protect and develop the best in life. Surely, saluting a flag, even an American flag, is of little vital force to the nation unless behind it there is a love and reverence for the things it represents.
The program of the Commissioner of Education was in accordance with the Education Law, not contrary to any rights preserved by the Constitution. Grace, in attending this school, provided by the State for her education, should have participated in the ceremony with the other scholars. We must say, as judges interpreting the *Page 533 law, that if she is to stay in school she must be obedient. May there not be, however, a better way for accomplishing the purposes of this law than immediate resort to disciplinary measures? Faith in our fine educational system and its corps of efficient teachers leads one to believe that with a little more patience and some tact, as the child grows in knowledge a reverence for our flag will develop, and she will be glad that it is still here to salute. This section 712 of the Education Law relating to the salute to the flag has in substance been upon the statute books since 1898, a period of forty years. This is the first time that any trouble has arisen regarding its enforcement, which is some indication of its universal observance.
The conviction of the defendant parents should be reversed, and the information dismissed, for the reasons which we have stated at the beginning of this opinion, and if it is thought necessary to carry the matter further, the action must be against the scholar, not the parents.
In each case, the judgment should be reversed and the information dismissed.