Chapter VII. Catholics, Mob Violence, Civil Liberties, and the Draft

The psychological nub of their appeal, I believe, is their conviction that all members of the sect must constantly and fully participate in spreading the gospel of the sect, thus supplying to drab and commonplace lives a wonderfully consoling unity of action and purpose. . . We constantly forget how deep the appeal of a communal life lived for a high purpose and involving sacrifice and even martyrdom is. And this appeal operates impartially whether the common purpose be good or bad, rational or unreasoned. Especially is it strong when it combines with its own intrinsic purpose a sanction for rebellion against constituted authority, moral and civil. . . . When we fail to realize this, when we subject the Witnesses to mob violence or to prison, we play directly into their hands and cease ourselves to be Christian. - Harry Lorin Binsse, Commonweal, Jan.10, 1947, p.318

DURING the 1930s and '40s, hundreds of Jehovah's Witnesses were arrested for selling without a license, disturbing the peace, violating Sunday Sabbath laws, refusing to salute the flag; 4,500 were jailed during World War II for violation of the Selective Service Act. Their houses were stoned and raided; their meeting halls were sacked; they were stricken from relief rolls.

The Witnesses were seen as a threat to national security and to interfaith harmony; they were heartily despised by conservative elements of the Roman Catholic Church, which they had insistently and aggressively calumnized. Both their message and the media they employed to promulgate it aroused ire. The Witnesses defied logic, made public nuisances of themselves, merrily invaded privacy and imposed noise pollution on unwitting victims, engaged in Know-Nothing Catholic-baiting, refused to participate in a war that was generally perceived to be a good and righteous war, and gravely offended the sensibilities of people of every class. In the opinion of the American Civil Liberties Union's Leon Friedman, they "deliberately, calculatedly tested the law" - and we must all be pleased that they did: they won 150 State Supreme Court cases and more than 30 precedent-setting Supreme Court cases, forcing the Court to broaden the meaning of the First and Fourteenth Amendments. It is impossible to speak of the history of civil liberties in this country without speaking of them. Whatever their motives, we are very much in their debt.

In the early part of the century, most of the religious opposition to the Witnesses originated with the Protestant churches, who saw them as wayward children. The Catholic Church, unthreatened, maintained a calm and silent dignity. As the Society expanded, and its fulminations against the Vatican grew louder and more abrasive, it became locked in bitter antagonism with the Catholic Church. With exceptions - all on the side of the Church - nobody behaved scrupulously or well.

Nineteen-forty-four: Our hatred for the Church was an invigorating elixir. It drove us to heights of inspired lunacy.

I had been baptized Catholic; I had never been confirmed or taken the Sacrament of the Eucharist. Shortly before my conversion, I went with a friend to Sunday Mass. In my working-class neighborhood, everybody was Catholic or Jewish except our family; we were No Religion. And I didn't much like being No Religion, feeling disinherited and rootless. A priest made some astringent remarks about the antireligious pests who went from door to door badgering people with lies about the Church, and he told his parishioners to slam their doors when Jehovah's Witnesses called. There was something oily and hateful in his voice from which I recoiled; I felt a surge of sympathy for those poor people - whoever they were - who were obliged to go from door to slammed door. The Church was magnificent, I thought, and magnificence ought not to condescend to abuse insignificant pests. (I also recoiled when Japanese were called Japs. I thought they should be afforded the courtesy of their full name, enemies or not. Very refined sensibilities for a 9-year-old - or an obstinate determination to cast in my lot with the maligned.) Later I wallowed in the Witnesses' vilification of the Church and the state.

I found the Witnesses, when they came, congenial. At first shocked, I slipped easily into listening without being offended to off-color jokes about the virginity of Mary; I began to be as derisive as my elders about "dog-collared" priests; I believed absolutely that nuns were forcibly imprisoned (or, alternatively, holding wild orgies within their cloisters); I crossed the street, afraid of contamination, when I passed the local convent, convinced that the shards of glass on top of the high walls that surrounded their green and lovely park were placed there to keep them from escaping (I dreamed of their black habits flying over walls, of bloodied hands and knees, of beseeching faces); I knew that young girls were corrupted in confessionals - and I censored wicked fantasies of fat-priest hands slipping up my legs.(1 wonder how many other Witnesses derived quasi-sexual pleasure from the Watchtower's anti-Church tirades.) The wickedness of the Church was tangible; it was evidenced in its idols, its purple trappings. (When my brother was 4, he blubbered, tears all over his unhappy face, "They're ugly, the Christmas trees, they're ugly." It was the first Christmas we had not had a tree: he thought they were beautiful. When we learned that the Crucifix was a "pagan symbol" - Jesus, we were told, had died on a stake - my brother wrapped my gold cross, with its little agonized Jesus, its tiny crown of thorns, in toilet tissue and dropped it from his bedroom window. I wouldn't even retrieve the gold chain from which it hung; I was afraid to touch it.)

During World War II, the Witnesses-who were themselves being arrested as Fifth Columnists - gave voice to the idea, shared by many non-Catholics, that the Church was an elaborate political organization whose piety was a cloak for Machiavellian schemes of world power; they charged the Church with being the American Fifth Column. Rutherford had made himself highly unpopular by declaring that "religion has always been the chief instrument employed by the Devil to reproach the name of Almighty God . . . all liars and murderers are religionists . . . Eve desired religion, and the Devil saw to it that her desire was fulfilled." Not content with impugning the Church's relationship to the Almighty, Rutherford also attributed the growth of Communism and Nazism to the Church: "Communism has been encouraged by the Jesuits, the secret order of the Roman Catholic Hierarchy, and then used as a camouflage, or a scarecrow, to frighten the people. . . . In this manner, the Nazis of Germany were organized."

I believed, as did all Witnesses, that guns and ammunition were stored in the cellars and crypts of Catholic churches (and that these weapons were smuggled into churches in piano boxes - a picturesque detail which somehow gave weight to these wild charges).

We believed that the Vatican had a standing army waiting for a command to take over America. (Inasmuch as America was at that time five-sixths Protestant, it is wonderful how the Church managed to horrify and fascinate us so.) Another picturesque conceit of Rutherford's was that when Armageddon came, all priests and nuns would disguise themselves in overalls in a futile attempt to hide their clerica1 robes from the Lord. (After World War II, we were absolutely sure that Hitler was hidden in the cellars of the Vatican.)

It is the Witnesses' contention that the Church initiated and engineered attacks against the Witnesses. The Witnesses' verbal abuse of the Church did elicit retaliatory attacks; ruffians and hoodlums often interpreted their priests' indictments of the Witnesses as a mandate to abuse the Witnesses physically.

Class prejudice and fear of foreigners and immigrants played a part in this two-way thrashing. The Witnesses, not troubling to substantiate their claim, said that the Ku Klux Klan was a Catholic terrorist organization, and Watchtower Society representatives railed against Catholic mine workers of "foreign extraction" who objected to the Witnesses' blasting the peace with sound-car invectives against the Church. Catholics, calling Jehovah's Witnesses a wart on the spirit of national advancement," said contrapuntally that the Witnesses were direct spiritual descendants of the American (Know-Nothing) Party of 1835 and spiritual siblings of the KKK, and that the Watchtower Society secured its attention from "the poorer classes of the South's farm tenants; from the hillbillies of the Southwest; from the Okies who, dejected and rejected, wander about hopelessly; from the ignorant, superstitious, and illiterate of large city slums." While the Society issued broadsides against the Church for creating the conditions that allowed Communism to flourish, lay Catholics regarded the Witnesses as "a most pernicious menace to the American way of life" and saw "a shocking parallel between their preachments and Communism." The Jesuit magazine America, while full of ripe invective, showed flashes of insight and pity: “'Pastor' Russell answered their anguish" - the anguish of the chronically unemployed and the victims of social injustice - "by organizing the Russellites," who "continued to rant against and hate everyone and everything not of themselves." [H. C. McGinnis, America, Feb. 8, 15, 1941; March 22, 1941]

The Witnesses retorted that the doctrines of the Trinity and the immortality of the soul were "devilish" and that the Church was politically and spiritually corrupt; but the threat they posed to the religious establishment was probably not the determining factor in their persecution during the 1930s and '40s. It is more likely that the threat they posed to secular authorities was what landed them in jail. The American Legion and the Ku Klux Klan vociferated against the Witnesses because they were not patriotic at a time when national security was in jeopardy. What was really at issue was the American flag.

National unity is the basis of national security. . . . The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization. "We live by symbols." The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution. - Justice Felix Frankfurter, June 3, 1940 (Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 87 L.Ed., 1375)

On October 6, 1935, Judge Rutherford spoke on a coast-to-coast chain radio broadcast on "Saluting the Flag." In his scratchy, thin, wobbly but impassioned tenor, he told his listeners that Scriptural obligations and their relationship to God made it impossible for Jehovah's Witnesses to salute any "image or representation," including the American flag; Rutherford interpreted the second of the Ten Commandments - "Thou shalt not make unto thee any graven image, or any likeness . . . Thou shalt not bow down thyself to them, nor serve them" - to mean that saluting the flag constituted “idolatry." His lecture was published in a booklet called Loyalty, and the Witnesses distributed millions of copies of what appeared to be an inflammatory attack on a cherished institution.

The Witnesses accepted Rutherford's premises, though inconsistent with the rest of their beliefs - according to them, Christians are under no obligation to obey the letter of the Mosaic Law - with a fanaticism that was generally felt to be unlovely. That they were able to do so with slender Scriptural support could lead one to think that on some level they deliberately placed themselves in a position to invite persecution. Hayden C. Covington, then the Society's legal counsel, and a brilliant Constitutional lawyer, has said that lawmakers on municipal and state levels "deliberately laid every legal snare they could think of to foil" the Witnesses. But while the State protected its interest of national security, the Witnesses had something to gain by initiating lawsuits. They had no material emblems to suggest or to represent the singular glory they felt reposed in them. Their meetings, like their lives, were dull and oppressive. They had to look else- where, outside themselves, for the mark of God. He had chosen them, but how could they prove it? Not with magnificent edifices, not with a rich and varied history. They were young, comparatively weak, foolish and insignificant in the eyes of the world; they had no glorious music, no poetry, no formal ritual, no liturgy, and no martyrs. Their first leader had been a haberdasher and, by common view, a scoundrel; their second leader was an intemperate lawyer with a reputation for slick business transactions. However much they suspended disbelief, that must have rankled. Power and glory and all the world and the kingdoms of the world were soon to be heirs, but their leaders were not kings or shepherds or poets or sages. They were wilier, certainly, than most men, and vain, but they were not, by any standards, glorious. Ordinariness was the stale bread of the world from which the Witnesses had fled. To sustain their image of themselves, per- haps they needed to have something immense and extraordinary occur, something that would raise them above themselves, justify and exalt them. Rutherford had one weapon, the law. He used it. He made things happen.

A year and a month after Rutherford's broadcast about flag saluting, something that was to prove to be immense did happen.

On November 6, 1935, two elementary-school children in the coal-mining district of Pennsylvania refused to salute the flag. Their father, Walter Gobitis, was arrested, and the children were expelled from school. Gobitis initiated a suit against the Board of Education, Minersville School District. In 1936, 1,149 Witnesses were arrested for refusal to salute the flag and for violating a variety of state and municipal ordinances. [Yearbook, 1975, pp.169 - 72]

The Supreme Court, having declined several times to review the expulsion of the Gobitis children for not participating in the flag-salute ceremony, accepted jurisdiction in 1940. With one dissenting voice, that of justice Harlan Fiske Stone, the Court ruled to uphold the Gobitis children's expulsion and decided that school boards had the right to choose to require children to salute the American flag. The Court's majority decision, written by Justice Felix Frankfurter, was based on its opinion that religiously motivated refusal to salute the flag represented a threat to nationalism and security.

(Journalist Sydney Zion, who wrote Justice Black's obituary for The New York Times, provides an interesting personal dimension to the Court's decision. According to Zion, Mr. Justice Hugo Black confided that he had voted with the majority because "Felix [Frankfurter] mesmerized us. Felix was an immigrant, passionate about the flag and what it meant to him. We were so moved by his appeal that we went for it. Justice Stone wrote his dissent at the very last moment - and it was so brilliant, it showed us all up." Black remembered sitting beside a swimming pool with Justices William 0. Douglas and Frank Murphy, and saying, "'What are we going to do? Stone is right.' But we were wiped out by Felix's emotional appeal. . . We decided to redress the wrong the next time around.")

The Court handed down its decision on June 3, 1940. Between June 12 and June 20, hundreds of physical attacks upon Witnesses were reported to the United States Department of Justice. (They are spoken of now in almost affectionate terms by the Witnesses; they are their stigmata, and they bind the Witnesses together in purpose.) In Kennebunk, Maine, a Kingdom Hall was burned. In Rockville, Maryland, police came to the assistance of a mob that was dispersing a Witness meeting. In Litchfield, Illinois, 60 Witness canvassers were set upon by practically every man and woman in the town. In Connersville, Indiana, a Witness was charged with riotous conspiracy, his attorney was mobbed, and he was beaten and driven out of town. In Nebraska, a Witness was lured from his house, abducted, and castrated. In West Virginia, the chief of police and deputy sheriff forced Witnesses to drink castor oil and paraded them through the streets tied together with police department rope. [Z&L] From 1940 to 1944, 2,500 incidences of mob violence were recorded.

The nation was threatened by war. An editorial in The Saturday Evening Post said:

It seems likely that the United States harbors no other out-of-step and out-of-sympathy minority of anything like [the Witnesses'] size and militancy. In the event of war, they are sure to furnish the largest quota of conscientious objectors, and, perhaps, the most troublesome. In this near-war period, no other group so boldly condemns not only the current patriotic trend hut patriotism, specifically and in general. No other, for good measure, condemns so many other things by which Americans lay store.

The government did not sanction the fury of the mob. On June 16, 1940, U.S. Solicitor General Francis Biddle told an NBC radio audience: "Jehovah's Witnesses have been repeatedly set upon and beaten. . . . The Attorney General has ordered an immediate investigation of these charges. The people must be alert and watchful, and above all cool and sane. Since mob violence will make the government's task infinitely more difficult, it will not be tolerated. We shall not defeat the Nazi evil by emulating its methods."

In 1940, the ACLU defended 1,300 Witnesses in 200 legal cases.

Nor were the churches monolithically arrayed against the Witnesses; after the first wave of war hysteria had passed, liberal voices were raised in their defense and in reaction against mob terror. An editorial in the October 7, 1942, issue of Christian Century, which calls reports of mob violence in Springfield, Illinois, Klamath Falls, Oregon, and Little Rock, Arkansas, “physically nauseating," reflects the growing revulsion against mob violence among civil libertarians who were beginning to understand that their own First and Fourteenth Amendment rights were put in jeopardy when those of Jehovah's Witnesses were threatened:

More than 100 workers on the War Emergency Pipeline which the government is laying stormed the grounds of a former hospital which the Witnesses had taken over for their meeting. These pipeline workers, according to the Arkansas Gazette, were "armed with guns, sticks, blackjacks and pipe." The attack was made after dark. Two men were shot, five others so severely beaten that they were taken to a Little Rock hospital . . . Occasionally another automobile would turn into the grounds. A dozen or more pipeliners pounced on each car and asked, 'Are you a Witness?' The usual answer came back in a firm voice: 'Yes, I am a Witness.' The driver and other male occupants were then ordered out. Some hesitated. They were dragged out and the pummeling began. Many used their fists, but others wielded clubs, long heavy screwdrivers and blackjacks. The beating usually continued until the victim fell." Remember, the ruffians who engaged in this sort of thing were workers on a government job. They were building a pipeline for Mr. Ickes' department. Mr. Ickes is supposed to be a champion of civil liberties. . . . If civil liberties have any meaning, if religious liberty is more than an empty phrase in this country, the national authorities must put a stop to such mob actions. If no one in the halls of government will speak out to demand that the members of this sect be protected in their constitutional rights, then the churches should do so.

The Witnesses fought their legal battles with skill. Hayden C. Covington earned a reputation for arguing brilliantly before the Court; but all Witnesses learned to equip themselves to deal with police and judges. At weekly "service meetings" during the war years, they received paralegal training. They held mock trials, some of them lasting for weeks, with overseers role-playing the parts of prosecution and defense attorneys. They were coached in how to respond to arresting officers, and how to behave procedurally in order to establish the basis for appellate review of convictions.

For eight years, the Witnesses maintained their own "Kingdom Schools" for children who had been expelled from public schools. The schools were communes. The children were, for the most part, boarders, since gasoline rationing made it impossible for them to return more than once or twice a month to their homes. Instructed by Witness teachers, they began each day with a discussion of a Bible text; one half-hour of Bible study daily was part of the curriculum. They performed kitchen chores and, regardless of age, spent most of Saturday and Sunday mornings proselytizing. It cannot be said to have been a carefree childhood.

Compulsory unification of opinion achieves only the unanimity of the graveyard. - West Virginia State Board of Education V. Barnette, 319 U.S. 624(1943)

In 1943, the Witness children went back to their public-school class- rooms. Mob violence had abated; America had changed. It had become silly to regard these children as a clear and present danger to the national security; and in fact, most Americans, obsessed with the idea that Japanese- Americans threatened their security, had transferred their fear and hatred to the "slant-eyed devils" in their midst. In 1943, the Supreme Court reversed the Gobitis decision by a vote of 6 to 3.

The way had been prepared for the Court's historic reversal in West Virginia v. Barnette:

In an earlier decision, the Court had voted 5 to 4 to uphold the validity of an ordinance requiring the licensing of colporteurs (proselytizers) in cities of Alabama, Arkansas, and Arizona (Jones v. Opelika, 316, U.S. 584, 1942). In a vigorous dissenting opinion, Chief Justice Stone declared that in the decision a way had been found "for the effective suppression of speech and religion despite Constitutional guarantees." The liberal trio, Justices Black, Murphy, and Douglas, in their own dissenting opinion, took the unprecedented step of acknowledging that they had been wrong on the Gobitis flag- salute case.

Jones V. Opelika had roused part of the press to the threat to its own freedom. "As a result," according to an editorial in Christian Century (Jan. 13, 1943, p.38),

newspapers which undoubtedly regard Jehovah's witnesses as a collection of religious crackpots are now giving powerful support to the effort to obtain a reversal of the court's decision. By keeping the issue before the public and by providing eminent legal counsel they have done much to reinstate it on the docket of the highest tribunal. It is a pity that church bodies, whose interests are equally at stake, have done nothing to parallel the efforts of the press to obtain a new hearing.

There may be a tendency in some quarters to minimize the importance of these cases because it is the rights of Jehovah's witnesses which are immediately involved. Do not the Witnesses stand for a hodgepodge of peculiar millennial ideas, and do they not seek to propagate these ideas in ways which sometimes make them a nuisance to the communities in which they are operating? They do. Then why worry about the means which may be taken to force them to conform to community norms or to keep their provocative tracts out of circulation? Because civil liberty under the Constitution means nothing unless it protects the rights of every citizen. Because it is only the attempt of the non-conformist to assert his rights which can test the extent and reality of our civil liberties. And because failure to uphold such civil liberties within the United States will render meaningless such talk as we may indulge in about extending the Four Freedoms to the rest of mankind.

The Court later reexamined the Constitutional issue upon which it had divided in Jones V. Opelika. The issue was whether religious liberty is violated by the imposition of a nondiscriminatory license tax on the sale of religious books and tracts. The Court ruled in Murdock V. Pennsylvania (319 U.S. 105, 1943) that a tax laid on the free exercise of religion, as protected by the First and Fourteenth Amendments, is unconstitutional. Jehovah's Witnesses were, in the opinion of Justice Douglas, engaged in an exercise of religion, equivalent to that of more conventional churches, and not in a commercial enterprise: "The hand distribution of religious tracts . . . occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion."

Ruling that "an itinerant evangelist, however misguided or intolerant he ay be, does not become a mere book agent by selling the Bible or religious tracts to help defray his expenses or to sustain him," the Court thus began legitimize "marginal" religions and to recognize what has been called the minority concept of religion. Street solicitation was accepted as required religious activity and not as commercial peddling; similarly, the right of the Witnesses to regard flag saluting as idolatry, rather than as a patriotic ceremony, was recognized in the Barnettecase. The right of minority groups to protection under the Bill of Rights was seen as essential to the preservation of the rights of the majority:

A curb upon the propagandist activity of the most odious sect - unless it can be shown to be a definite peril to society - is a potential attack upon the liberties of all citizens. Jehovah's Witnesses are, in our judgment, a particularly odious and fanatical sect, but the truth or falsity of their teaching is not at issue. . . The license regulations which the Court validated applied to the vendors of all books and booklets, thereby including religious publications and, incidentally, those of this particular sect.

In the minds of the municipalities which passed the ordinances, the inclusion of Jehovah's Witnesses may well have been more than incidental. It may have furnished the motive for the whole project, the idea being to catch them by making a net that could be used to catch anybody; but there was no evidence to this effect before the Court, and that possibility need not enter into the argument. The point is that this is a net that may be used to catch anybody. No antipathy toward Jehovah's Witnesses, no belief that they are thinkers of dangerous thoughts and propagandists of anarchy, should be permitted to conceal this basic fact. They are the first victims, but any other locally unpopular group may be the next. They clashed with the law when they refused to apply for a license. Any other group may clash with it by being refused a license upon application, or by having the license refused or withdrawn. - Christian Century, June 24,1942, p. 798

Clearly, their defenders did not find Jehovah's Witnesses acceptable; far from it. They found the threat to their own liberties - civil and religious - more odious and pernicious than the sect they were loath to endorse but obliged to defend:

It is unfortunate that the spearhead in the legal fight for religious liberty has to be a group which makes such poor use of it. "Hard cases make bad law," and a good deal of bad law has previously been made in the effort to restrict the activities or modify the mores of this eccentric sect. - Christian Century, May 12, 1943, p.565

It is significant that the Witnesses, who filed appeals regularly on the basis of freedom of religion during the mid-1930s, did not get very far until they changed their tactics and grounded their appeals on freedom of the press in 1938. In that year, the Court struck down an ordinance against literature distribution (Lovell v. Griffin, 303 U.S. 444). Subsequent cases, based on a broad concept of multiple First Amendment rights of speech and advocacy, established new rights for the use of public places, door-to-door solicitation, and "freedom to promulgate.”

The Court edged into the question of religious freedom to act, as opposed to freedom to believe, by way of freedom of the press. In 1940, the Court, overturning a conviction for breach of the peace by a Witness proselytizer, ruled that the First Amendment "embraces two concepts-freedom to believe and freedom to act. The first is absolute, but the second remains subject to regulation for the protection of society." Because the proselytizer "raised no such clear and present menace to public peace and order as to render him liable to conviction," his conviction was set aside. (Cantwell v. Conn., 310 U.S. 296 [1940])

The clear-and-present-danger argument was first advanced by Oliver Wendell Holmes and Louis Brandeis. The ambiguous maxim that freedom of speech or of conscience, or any other freedom, is to be upheld except where the actions constitute "a clear and present danger" to the nation was at issue in the Court's review of the Gobitis flag-salute case.

Civil libertarians asked, Who is to judge when any danger becomes "clear and present"?

There have begun to sprout suggestions that a new rule needs to be adopted - a rule which would guarantee the preservation of civil liberties to those who are dedicated to their preservation for others, and would deny those liberties to those who would (if they had power) deny them to others. It is in the direction of some such rule as this that the four members of the highest court who will probably rule against Jehovah's Witnesses - Justices Frankfurter, Roberts, Reed, and Jackson - appear to be tending. But any such rule is also open to all the abuses of arbitrary application. The issue as to who is to be guaranteed civil liberty is the very center of the struggle for the preservation of the essential democratic freedoms today. And the return of these Jehovah's Witnesses to the Supreme Court will furnish a decisive test as to the degree of American loyalty to the ideals which inspired the Bill of Rights. - Christian Century, Jan.13, 1943, p.39

In the event, however, Justice Robert H. Jackson ruled that First Amendment freedoms "are susceptible of restriction only to prevent clear and immediate danger to interests which the state may lawfully protect." When West Virginia V. Barnette came before the Court, Justice James F. Byrnes, a liberal Roosevelt appointee, had replaced Justice Wiley Rutledge, a strict constructionist; three members of the Court had changed their minds since Gobitis; and two other members of the Court unexpectedly ruled with Justice Jackson that "to compel conscientiously scrupulous children to salute deprives them of the freedom of religion guaranteed by the Fourteenth Amendment." The Court ruled that refusal to salute the flag did not involve any

collision with the rights asserted by any other individual, nor was it accompanied by any conduct which was not peaceable and orderly. . . Censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish . . . Ultimate futility of. . . attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity, as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles, as a means to Russian unity, down to the fast-failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. . . . We apply the limitations of the Constitution with no fear that freedom to be intelligently and spiritually diverse or even contrary will disintegrate the social organization. . . . When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. . . . 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, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. . . . 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 to our Constitution to preserve from all official control.

The claim, widely asserted, that Jehovah's Witnesses through boundless courage and unending perseverance have won more United States Supreme Court victories for the Bill of Rights than any other single group seems to have ample support. -A. L. Winn, ACLU, The Open Forum, Aug.21, 1943, p.1

By the end of World War II, Jehovah's Witnesses had made 190 appeals to higher courts; they had won over 125 State Supreme Court cases, and most of 40 Supreme Court decisions.

The Witnesses established that distribution of literature "calculated to encourage disloyalty to the state and national governments" could not be made the basis for conviction under a sedition statute forbidding that which “'tends to create disloyalty and causes an attitude of stubborn refusal to salute the flag":

If the state cannot constrain one to violate his conscientious religious conviction by saluting the national emblem, then it cannot punish him for imparting his views on the subject to his followers and exhorting them to accept those views. . . . The statute as construed in these cases makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophecies concerning the future of our own and other nations. As applied to the appellants it punishes them although what they communicated is not claimed or shown to have been done with an evil or a sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our government. What these appellants communicated were their beliefs and opinions concerning domestic measures and trends in national and world affairs. . . . Under our decisions criminal sanctions cannot be imposed for such communications. - Taylor v. Miss., 319 U.S. 583,

1943

The Witnesses secured the right to preach in privately-owned or government-owned towns, and in apartments without the permission of landlords; the right to use sound amplifiers "at reasonable volume"; the right of parents to retain custody of children reared in their faith; the right to advertise meetings by placards; the right not to serve on juries.

Nineteen-forty-four: The Court had ruled, in Barnette V. West Virginia, that the Witnesses' "spiritual arbitrariness" would not "disintegrate the social order." Unhappily for me, this enlightened view was not shared by public-school children. At the time I was converted, the threat of mob violence had receded, and the days of communal suffering were an occasion for nostalgia; there was never any question of my being expelled from school or arrested. But I did spend a lot of time in the offices of principals, assistant principals, and deans explaining why I didn't salute the flag; and the Witnesses' admonition not to "make friends with the world" was, for me, almost entirely gratuitous: very few children wanted to make friends with me.

Teachers frequently singled me out for attention. The nicest regarded me with a mixture of admiration and pity; the coarsest treated me with frank and meddlesome curiosity; they all tried to change me. I was a challenge - intelligent, earnest, serious, aloof, passionate, and perverse, living a mysterious inner life that vexed or titillated them depending on their temperaments. This, while it fed but did not satisfy my hunger for approval, did not endear me to my peers.

I was almost always alone. I always had to be assigned a partner for school activities. In high school, walking down the corridor between classes was an agony repeated every forty-five minutes because nobody ever walked with me. I don't think anyone knew I suffered; I appeared remote and self-contained. But while I had created my isolation, and the other - children reacted self-preservatively by scorning my difference and my alien behavior, I hated it. Everything commonplace enthralled me: girls' linking pinkies with other girls in easy friendship, sharing sodas and cupcakes in lunchroom; it all seemed remarkable and unattainable. Other girls were famous for playing Chopin Polonaises, or being good at volleyball, or knowing about sex; I was notorious for not saluting the flag. I had a seventh -grade teacher who cultivated me as if I were an exotic flower; but when I became friendly with another girl in her class, she put an end to the - .friendship by telling the girl's mother that I was trying to convert her (I was) and that I was a pernicious influence. I learned to fear betrayal.

The simple act of going to a theater or to a ball game was filled with dread expectation, because the national anthem might be played, the flag saluted. . . . I could never expect not to be different from other people. (I had crushes on at least three of the Brooklyn Dodgers, and I haunted a car dealer from whom they bought their cars - but I was afraid to go to their games.) I never, in all those years, did less than was required of me; I never even tried to purchase the normality I wanted so desperately by relaxing my vigil. (The trouble was, of course, that while I wanted to be just like everybody else, I also enjoyed being extraordinary and unique - I must have wanted that more.)

During World War II, over 8,000 draft-age Witnesses registered with their draft boards as ministers. Roughly half were granted the ministerial classification, 4-D. Approximately 4,000 were imprisoned. It has been estimated that 60 to 70 percent of all federal offenders convicted for draft violations during World War II were Witnesses. There were more Witnesses in prison for refusing induction than there were Quakers. (Quakers accepted alternative civilian service - hospital work, work in charitable institutions - in lieu of induction in the armed forces; the Witnesses did not.)

When World War II ended, the Witnesses imprisoned for draft violations came home like conquering heroes. Denied the ministerial status they sought, they had spent the war years in federal penitentiaries, while at the local congregations myths grew up around them. Although I had never met them, I felt as if I had complete information about each of the four or five men whose triumphant return to my local South Brooklyn congregation was eagerly awaited. When they returned, it was as if bas-reliefs representing virtue, allegiance, and integrity had sprung to life and moved. Having been in prison lent them an aura of moral authority. We expected that their deprivations had increased their wisdom and spirituality; their suffering had made them glamorous. And sexy. Young girls who had grown up romancing about them were prepared to adore them.

We saw the returning convicts as whole of soul, adorable martyrs. Fellow prisoners had tended to see them as enigmatic nuisances.

Jim Peck and Ralph diGia, pacifists who are on the staff of the War Resisters League, were imprisoned conscientious objectors in Danbury Federal Penitentiary, where the Witnesses represented one-third to one-half the draft violators, from 1942 to 1945. They express no small amazement (and irritation) at the Witnesses' homogeneity and their determined aloofness from other prisoners, their lack of spontaneity, warmth and passion:

PECK: If you were unlucky enough to land at a table with them in the mess hall, either they were silent or they tried to push their religion at you. I never saw them kid around, and I never saw them get worked up about anything; they were monomaniacal. When the rest of us complained - we had a three-month strike against racial segregation, and naturally we griped about the food a lot - they remained completely indifferent and aloof. When some of us pulled "tough time," they unbent to the extent of telling us not to worry because The Watchtower said the war would be over on such-and-such a date and we'd be out of jail. The funny thing was, when the date came and went and the war still wasn't over, they never had any rationalization or excuse; they simply never mentioned it again.

DIGIA: You couldn't have a real conversation with them. No hope. I never could understand their language. One of the Witnesses tried to convert me, and I said, "Look, we're all human beings." And he said, "No, only God is a Being; we're human creatures." How can you talk to somebody who makes distinctions like that? What does that even mean? . . . The Witnesses all spouted the same things. Most of them at Danbury were working-class Irish and Italian from poor Catholic families. Some were sophisticated urban types, and some were farm boys. Some were personable and some were mean. But it didn't matter which of them you talked to, you got the same language. . . . When enough of them arrived in Danbury, they were lodged together in one dorm; they were allowed to have meetings and run their own affairs. They chose segregation. They had their own authoritarian leadership; everyone learned the same thing at the same time. They were all strongly anti-Catholic. The main villain was "the Pope of Rome," the Vatican - not Hitler, not the warden, not the U.S. for putting them in jail. Somehow or other, the Vatican," we were made to feel, was responsible for the whole war, and for our being in prison.

PECK I never really got to know any of them. And I tried. All the other COs were really friendly. JWs never made a friend. They quite distinct - they never saw themselves as a community of resisters.

DIGIA You talk a lot on work gangs; you become close. They didn't talk After work, they'd go off and study the Bible. They had nothing to do with us.

PECK They didn't consider themselves COs; they said they weren't conscientiously opposed to wars because they would fight at Armageddon - the final war of good versus evil - if God required them to They resented being called Cos.

DiGIA: You could sense a lot of suppressed violence in them. They never actually fought with anyone, but you felt an underlying hostility and resentment. They seemed to resent our not accepting them as the Chosen. They reacted badly to being confronted or challenged. They got especially uneasy if you talked about race; most of them came out of racist, anti-Semitic backgrounds, and they still practiced a subtle racism. There were no blacks among the Witnesses in Danbury while I was there, so because the Witnesses were housed separately, they wound up being the only prisoners who weren't integrated with blacks. They'd say, "This government is run by man; man is not perfect; God will change things at Armageddon; we won't try to change things.

PECK: Their relationship with the guards was very different from that of the COs. The rest of us spoke up about injustice. They were strictly correct. They obeyed all the rules. They knew what to do for their own survival. Once I was asked to make up some red- white-and-blue victory-garden signs. I said, "If I'd wanted to do that, I wouldn't be here in the first place." I got ten days in the hole. I can't imagine a Witness making that kind of protest - because he wouldn't be able to find a Scripture saying you weren't allowed to make a red-white-and-blue victory-garden sign.

DIGIA: But if they'd been denied narrowly conceived religious rights, they'd have spoken up.

PECK: They never seemed to pull "tough time." They never got restless.

DIGIA: Well, they were always together, constantly reinforcing their belief that they had the truth and that they' were superior. They nourished one another. They had a high survival rate in concentration camps, I understand, probably for the same reason. The rest of us - well, our outside lives impinged; not them. They were much more together than the other COs. The COs never acted as a homogeneous unit; they did. They were a We, doing it for God. We used to debate what was good, what was bad, what was moral, what was immoral; they had all the answers before they asked any of the questions. Their imperatives all came from the outside. From Covington. They didn't get the idea to be sheltered together; that came from the organization; but once the Society told them to live together, I think they would have died rather than live apart, with the rest of us. You got the feeling that nothing came from an individual, that they were - I don't know - absent.

PECK: Their attitude toward us was that of the religious toward the heathen.

DIGIA: The enlightened to the unenlightened, the washed to the un washed.

PECK: Yes. They had no interest in us, no curiosity about us, no fellow feeling - unless we showed signs of accepting their belief.

DiGIA: They had no conception of our struggle.

PECK: A lot of jail is just waiting around. You stand and wait and wait and wait. They'd wait around in clumps. At one call-out when we were waiting and waiting, they made a formal attempt to preach to us. Otherwise they ignored us. They didn't think we were in any way different from murderers or bootleggers; the fact that we were there for conscience’s sake didn't matter to them at all. I don't think they made a distinction between Gandhi and Hitler. The idea was, if you're not doing God's will - as expressed in The Watchtower - you could be planting daisies or shooting babies - it's all the same. As a matter of fact, I think they tried harder to convert non-COs, people who didn't have a developed consciousness.

DIGIA: During the Vietnam War, a JW came to my door, and he started his rap by saying how the world was in bad trouble, using Vietnam as evidence. So I said I'd been in prison with JWs during the Second World War, and that I thought it was a good thing that they didn't fight. He went right on talking as if I hadn't said anything. It all came back to me: how much like robots they were, disregarding anything anybody else said, not making any compassionate connection. He had no commonality of interest, no feeling that friendship had just been offered - he just continued his pitch. He couldn't have cared less. I remembered that the JWs had been told by their superiors that we COs were not "correctly motivated." It's strange - they don't have the strength to make independent decisions, or the courage to find out about other people; but they had the strength to go to concentration camps in Germany. A strange kind of courage. One year the WRL got a list from Spain, from Amnesty International, and I saw that the Spanish jails were full of JWs. But they didn't welcome any support from us. When I got out of prison, I was involved in the amnesty campaign, and of course we tried to enlist the Witnesses' support. Not available.

PECK: Their love, if it was there, didn't reach out to other people. Even among the Witnesses, I never felt real comradeship. They never kidded each other - and you kid one another in prison to stay sane; they didn't. No warmth, nothing playful. Just earnest one- track agreement. They never seemed to relax. We used to wonder if they were like that when they were alone together. Did they think they had to be superhuman in front of the rest of us? Did they talk about sex when the lights went out in their dorm? Prisoners obsess about sex. We never heard them mention it.

DIGIA: I can't think what they were interested in except their theology. I can't remember anything that passed for what you'd call a conversation. You know, I have so little sense of them as individuals, I can't remember one singular thing about one single Witness. There was one guy who seemed awfully nice; I had the feeling that he was trying to reach out to us but that he was also afraid to get to know us, because it would scare him if he discovered we weren't bad people. How could any one who liked us believe God was going to savage us?

PECK: I really don't think of them as resisters. I think of them as capitulators. There are times I actually forget that the Witnesses ever went to jail.

Peck and diGia remark that the Witnesses did not think of themselves, nor did they wish to be thought of, as conscientious objectors. Very few Witnesses applied for CO status; those who did were regarded, by the rest of us, as compromisers. The only honorable course - directed by the Watchtower Society - was to apply for ministerial exemption. Even fewer Witnesses agreed to perform alternative civilian service; those who did were treated like outcasts by the rest of us. During the Vietnam War, the Society issued new imperatives: many Witnesses applied for CO status, and when ordered by the courts, they did perform alternative (civilian) service.

Under the 1940 Selective Service Act (Sec. Sd, Par. 360), "regular or duly ordained ministers of religion" and divinity students were exempted from the draft (but not from registering for the draft). A "regular minister of religion" was defined as "a man who customarily preaches and teaches the principles of religion of a recognized church, religious cult, or religious organization of which he is a member, without having been formally ordained as a minister of religion; and who is recognized by such church, sect, or organization as a minister." Under the Act, the Witnesses were "considered to constitute a recognized religious sect."

Hayden C. Covington and General Lewis B. Hershey, Deputy Director of Selective Service, arranged for the exemption of "full-time" ministers (called "pioneers") and members of the Bethel Family. (It would have been unthinkable, during the First World War, when leaders of the Society were imprisoned under the Sedition and Espionage Acts, for such an agreement to be made.)

Those who were once persecuted were now privileged. But while "pioneers" appointed by the Society, and members of the Bethel family, had no trouble getting ministerial exemptions, such was not the case for Witnesses who spent most of their time in secular employment.

The local boards were empowered to use their own discretion with respect to those Witnesses who were not clearly granted exemption by the Act. As Major Edward S. Shattuck, Chief of the Legal Division of Selective Service, wrote, "In the last analysis, it is the function of the local selective service board to review the facts in each case and make the proper classification decision." (File Ref. Ill-Ministers; Sec. Sd; Par. 360b; Jan. 25, 1941)

Covington contends that many boards acted in an "arbitrary and capricious" manner by denying Witnesses ministerial status. [pp.9, 13, U.S.A. v. Ray Robert Hartman (Brief for appellant by Covington) Oct.1953] But it can't be denied that the boards, given wide discretionary powers and with popular sentiment to contend with, had a tough time. "Each of Jehovah's witnesses is a minister. If he is not a preacher he is not one of Jehovah's witnesses," Covington argued. If the boards had followed that criterion, they would have been obliged to classify as a minister every Witness who registered for the draft. Theoretically, one could be converted in June, baptized in July, spend seven hours preaching in August, and be granted ministerial exemption. World War II was a popular war; it is easy to see why local boards did not grant across-the-board exemptions where the case for exemption looked at all thin. The Witnesses' argument, which is difficult to controvert, is that if they are a recognized religion, they do have the right to establish the criteria as to who is a minister of that religion. [Cole, pp.201- 203]

Congress had made no provision for a judicial review of a registrant's classification. Witnesses who were sentenced in district courts for violation of the Selective Service Act were denied the right to plead their cases. The decisions of the local boards made in conformity with regulations were final, even though they may have been erroneous. But, after the war in Europe was over, the Supreme Court, reversing a prior decision (Falbo v. U.S., 320 U.S 549, Jan. 3, 1944), condemned the practice of denying registrants the right to defend themselves against indictments brought against them. William Murray Estep, one of Jehovah's Witnesses, was classified 1-A and ordered to report for induction; he refused to be inducted, claiming he was exempt from service because he was a minister. He was indicted for violation of the Act. At the trial he sought to attack the classification given him by the local board. The court ruled that no such defense could be tendered; he was sentenced to three and one-half years. The judgment of conviction was affirmed on appeal. (Estep v. U. S., 326, U.S. 114, Feb. 4, 1946)

The Supreme Court ruled that Estep's conviction "reduced criminal trials under the Act to proceedings . . . barren of the customary safeguards which the law has designed for the protection of the accused." Mr. Justice Murphy, concurring with the majority opinion of Mr. Justice Douglas, wrote:

To sustain the convictions . . . would require adherence to the proposition that a person may be criminally punished without ever being accorded the opportunity to prove that the prosecution is based upon an invalid administrative order. That is a proposition to which I cannot subscribe. It violates the most elementary and fundamental concepts of due process of law. [p.9 (Oct. Term 1945. Nos. 292 and 66 on Writ of Certiorari to U.S. Circuit Court of Appeals for the Third Circuit)]

Also concurring, Mr. Justice Rutledge wrote:

I do not think Congress can make it a crime punishable by the federal judicial power to violate an administrative order without affording an adequate opportunity to show its constitutional invalidity. [p.15 (Ibid.)]

The Estep ruling that courts must allow draft registrants to prove that local boards acted without jurisdiction meant that the boards were no longer the final arbiters of registrants' fate - a significant addition to the literature of civil liberties, because it prevented local boards from the Unchecked exercise of local prejudices. The Estep case is an important one in the annals of civil liberties. The Court did not rule on the merits of Estep's claim that he was a minister; it simply ruled that the appeals court had acted in violation of due process by not allowing him to make a defense. Estep set an important precedent: due process of law could not be eroded, even during a national emergency.

At the beginning of the war, district judges, according to Covington, were almost "totally antagonistic. They were against any defense being made by Jehovah's Witnesses at their trials." [Faith, p. 187] They were, he says, greatly prejudiced. "After a large number of cases continued to flow through their courts," Covington says, "many of the judges began to change and mellow. They afterward took a more restrained attitude in presiding at the trial of cases involving Jehovah's Witnesses." [Ibid., p.1861

The Estep case had something to do with their "mellowing," of course, as did victory in the European theater of war. As the threat to national security diminished, both courts and draft boards exerted less pressure on dissenters. Unorthodox religions were beginning, in a less repressive climate, to enjoy the full protection of the courts.

A decision of the United States Court of Appeals reflects this trend:

Whatever a draft board or a court, or anybody else for that matter, may think of Jehovah's Witnesses] is of little consequence. . . . They. . . are entitled to the same treatment as the members of any other religious organization.

One may preach or teach from the pulpit, from the curbstone, in the fields, or at the residential fronts. . . To be a "regular minister" of religion the translation of religious principles into the lives of his fellows must be the dominating factor in his own life, and must have that continuity of purpose and action that renders other purposes and actions relatively unimportant - Hull v. Stalter, 151 F. 2d 633(1945)

The courts treated draft-age Witnesses with increasing leniency as time went on, accelerating the process of legitimizing a marginal religion.

Dickinson v. U.S. is a case in point: George Lewis Dickinson claimed a 4-D exemption in 1948; he was at that time working forty hours a week as a radio repairman, devoting "an uncertain number of hours a week" leading two Bible study groups and "several hours a week" proselytizing. The board classified him 1-A. After 1950, he requested reclassification, because he had, in the spring of 1949, quit his job and begun to work as a "pioneer," devoting 150 hours each month to proselytizing. He continued to work five hours a week as a radio repairman. The local board refused to change his classification. The Supreme Court ruled, Mr. Justice Tom Clark delivering the opinion, that

Dickinson made out a case which meets the statutory criteria. He was ordained in accordance with the ritual of his sect and . . . he meets the vital test of regularly, as a vocation, teaching and preaching the principles of his sect and conducting public worship in the tradition of his religion. That the ordination, doctrines, or manner of preaching that this sect employs diverge from the orthodox and traditional is no concern of ours; of course the statute does not purport to impose a test of orthodoxy.

The statutory definition of a "regular or duly ordained minister" does not preclude all secular employment. . . . A statutory ban on all secular work would mete out draft exemptions with an uneven hand, to the detriment of those who minister to the poor and thus need some secular work in order to survive. . .

Dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice. - Dickinson v. United States, 346 U.S. 389

“Suspicion and speculation" had in fact arisen that Dickinson and many like him had quit their secular jobs precisely in order to evade the draft. From 1939 to 1945 the number of "pioneer" Witnesses doubled. Early during World War II, the government charged that the Society's publications were urging more Witnesses into the full-time work in order to evade the draft. The government's interpretation of the Society's instructions was challenged successfully by Covington, who said that from the beginning of its history, the Society had urged Witnesses into full-time preaching. (He was right.)

Arguing the case of Dickinson, Covington posed as an ecumenicist and a defender of democracy. Raising the specter of "godless communism," he argued passionately - though perhaps somewhat disingenuously - that

the preaching activities of ministers of religion and evangelists bear burdens that ordinarily fall on the Government. They do work of an eleemosynary comforting nature. The Government would be required to do this if there were no religions. The Government would be required to impose additional taxes. . . . It may have to draft people to do the work of charity. Christian preaching to the people of this land does what the Government could not possibly do.

The value of the moral restraints placed upon the people by the work of ministers and evangelists cannot be limited. An invaluable sense of personal duty to principles of justice and righteousness results from the work of ministers of all religions. It is not confined to the general populace. Politicians, officials of government and all public officers are constantly reminded of this sense of responsibility to these principles that comes from preaching.

If democracy is to last, ministers must be kept free from compulsory military service. The dry-rot of internal corruption has destroyed some of the greatest nations on earth because of lack of Christian principles. Preaching and proselytizing the people through the word of God is an insurance against barbarism and the disintegration of the nation.

This brief is a victory of pragmatism over literalism. The Watchtower Society, of which Covington was an officer, certainly did not believe that "an invaluable sense of personal duty to principles of justice and righteousness results from the work of ministers of all religions." Covington's eloquent pleading for democracy scarcely jibes with the Witnesses' refusal to vote. The “disintegration of the nation" was faced, by the Witnesses, with jubilation, not remorse: they prayed daily for the disintegration of all nations in a bloody God-designed catastrophe. But Covington was not above using Cold War rhetoric, any more than he was above citing St. Francis and St. Dominic as precedents for lay preaching. Covington brilliantly utilized anything that worked, and the Court was being asked to adjudicate legal, not theological, matters. Covington's brief for Dickinson was an example of what the Witnesses call using the Devil's weapons against the children of darkness; it reminds me of the many times I heard the Society's officers brag about securing victory by being "wily as serpents, and harmless as doves."

By the time of the Korean War, which was, if not entirely unpopular, certainly fairly incomprehensible to most Americans, the concept of minority religion was so deeply ingrained in the legal fabric that by Covington's own admission [Cole, pp. 121-22, 200 - 06], the Witnesses were winning many more draft cases than they had in World War II: "The federal courts," he said, "have borne down hard on local boards and appeal boards for capricious and arbitrary refusal to permit registrants who are Witnesses a fair opportunity to state their case, or denial of their exempt status, as ministers."

The Korean war saw a further improvement in the Witnesses' status: convicted draft violators were paroled earlier and, by all accounts, treated better than other COs. And during the war in Vietnam, draft-age Witnesses received discriminatory preferential treatment from boards and courts.

Bureau of Prisons statistics show that 75 percent of the men serving time in jail for draft violations during the Vietnamese war were Jehovah's Witnesses. As of June, 1968, 574 out of 739 Selective Service violators in federal penitentiaries were Jehovah's Witnesses. (The reason the number of total draft violators is surprisingly low is [in addition to the fact that Canada harbored many COs] that there were built-in loopholes in the law which many resisters - or evaders - took advantage of; the New York City Board of Education, for example, received 20,000 more applications for teachers' licenses in 1969 than it had in 1968. Jehovah's Witnesses could not, for the most part, have leaped into that draft-exempt profession: most have no college degree.]) It is generally conceded that the Witnesses were accorded more courtesy of belief and trust than any other class of objector.

(The above statistics, and the following quotations, come from Dr. Wilard Gaylin's book In the Service of Their Country: War Resisters in Prison (New York: Viking, 1970).)

Voices from Federal Penitentiaries:

One of the fellows did an informal check and found out that the average Muslim received one and a half more years than the JWs. - a black civil-rights worker [p.91]

There is that whole silly hypocrisy of talking about rehabilitation. In actuality it is quite clear that what they want to do is punish us. It's so obvious. You merely have to study the difference in the attitudes of the Parole Board toward the JWs and the rest of us. The JWs are granted paroles - some after twelve or fifteen months. None of us gets out then. - an Irish-Catholic poverty worker [p. 136]

I can't even get in an argument with [one of the JWs] over religion, which is the only thing he seems to know, because . . . it's a snobbish thing for me to say, but that son-of-a-bitch is as ignorant a person as I have ever met. Yet his attitudes constantly reflect an enormous, unwarranted conceit. . . . He refers to the other prisoners as dumb cons.

It’s a combination of his personal habits, his lumpishness, and his unwarranted conceit that simply repulses me. He never does anything. He Sits like a log for hours on end, and I sense that in his mind he's knocking me and I can't stand it. This is the thing that gets me. . . this supercilious attitude of his. . . . I doubt that he has the intelligence to be supercilious, but I can't stand that attitude. It's totally unjustified and gratuitous in every respect, and it's that which bugs me. . . . His attitude that he's a Christian, in particular, drives me crazy, because I know he couldn't possibly be a Christian. I'm not a Christian but I like to think I know what a Christian should be, and there aren't that many of them around.

At times when he's got his back toward me for a small second a huge compassionate feeling will seize me and I will say, "He's just a human being. He isn't as fortunate as you are and he has as much right . . . he has to be what he is." - a WASP college graduate [pp.

203-04]

During the Indochinese conflict the Witnesses were less intransigent (and perhaps wilier) than they had been during World War II. Their strategy changed: a large number applied for CO status - and those who asked for a CO, rather than a ministerial, exemption invariably got it.

Covington argued that the fact that the Witnesses were not pacifists did not militate against their being COs.

The issue of pacifism arose in 1950, when 10,000 foreign delegates to a convention in Yankee Stadium had difficulty clearing immigration because they were charged with being pacifists. Pragmatic as always, the Watchtower Society declared that they were "neutral" - but not pacifists. In a I petition adopted by the U.S. delegates (which Covington incorporated in one of his legal briefs - U.S. v. Ray Robert Hartman), it was declared that the definition of pacifism found in Webster's "does not fit a true Christian. Jehovah's witnesses began with Abel. A long list of witnesses for Jehovah have records in theocratic warfare showing they were not pacifists. The exploits of Abraham, Moses, Joshua, Barak, Gideon, Jephthah, Samson, Samuel and David demonstrate this. . . . The military exploits of all of these famous witnesses for Jehovah were part of theocratic warfare. However, such witnesses did not fight for Babylon, the Medes or the Persians. They fought under the direction of God for the theocratic nation of Israel. Since the fall of the Jewish nation and the advent of Christianity the warfare of his Christians has not extended to military weapons. . . . Modern-day Christians, Jehovah's witnesses, follow the rule of love of God and love of neighbor. . . . There is no retaliation by Jehovah's witnesses. Killing of a burglar who breaks in at night is justified. Killing a thief who breaks in by day is condemned." It was probably the first time a judge of the appellate courts was asked to decide a case on the basis of what Jephtha and Barak I had done, and the first time anybody was asked to make a moral distinction between killing by night and killing by day.

Witnesses who were instructed by their local boards to report for alternative civilian work refused to obey that injunction. They were then prosecuted for failure to report for service. They did perform alternative service when ordered to do so by a judge of the courts, apparently justifying this about-face by contending that the courts, as opposed to the draft boards, constituted part of the "higher powers" they were commanded by the Apostle Paul to obey. The Witnesses evidently considered compliance with draft-board orders to be tantamount to collaboration with military authorities; they accepted court orders to perform alternative civilian work as a form of "punishment" by duly constituted civilian authorities.

Judges have been suspending sentence in order to place the defendant on probation, subject to his actual performance of the identical conscientious objector work which he had refused to perform on the order of the Selective Service Board. We take judicial notice that Jehovah's Witnesses are responding to court orders to perform the identical conscientious objector work which they will not perform in response to a Selective Service Board order. - United States v. Daniels, 429 F.2d 1273, 1274,6th Cir., 1970

The great majority [of defendants placed on probation] are Jehovah's Witnesses who were classified as conscientious objectors. They refused to report for alternative service because they regard the Selective Service System as an arm of the military. To perform work directed by the military would compromise their religious convictions.

A few years ago, I stumbled onto the idea that Jehovah's Witnesses would do alternative service if I ordered it because I am not in the military. Romans XIII teaches that the orders of those in civil authority are equivalent to the orders of God.

I know that Selective Service is happy about this solution, and a number of courts throughout the country are using the same technique. - Gus. J. Solomon, Chief Judge, U.S. District Court in Ore- gon (50 F. R. D. 481, 487, 1970)

It may be conjectured that the Witnesses were considerably less threatening to established authority than radical longhairs. They were not making whoopee or revolution on college campuses (and they were clean and quiet; and they didn't "off the pigs"; it's unlikely that many of them had ever even heard of Ho Chi Minh). In a climate of protest and rage, among 1960s freaks and moral anarchists, the Witnesses seemed like a breath of '40s small-town air.

In any case, it is a matter of record that the Witnesses were given preferential treatment by the courts. According to attorney Leon Friedman,

a strategy developed throughout the Federal judiciary as judge talked to judge; when a judge refused exemption to a Witness, the case would go to appeals. Although the general rule is that a sentence within the statutory maximum will not be disturbed by an appeal court, courts would in fact frequently vacate or reduce sentences. Appeal courts modified sentences imposed by trial courts, sentences which, in the ordinary way, would not be reviewable. In other words, an extraordinary situation arose in which lower courts were allowed to interpret statutes, in spite of the axiom that "a sentence imposed by a Federal district judge, if within the statutory limits, is generally not subject to review.

And draft lawyers loved it: "If you treat the Witnesses that way, we argued, "you have to treat our clients equally well.

Civil libertarians loved it because it permitted them to argue that "the importance of fair sentencing overrides the reluctance of appellate courts to interfere with the sentencing procedures." (Appellant's Brief, U.S. Court of Appeals, Second Circuit [Docket No. 71-2 187], McCord V. United States; United States V. McCord, 466 F.2d 17 [1972]) The treatment of the Witnesses by appeals courts established the proposition that the sentencing judge's discretion, while broad, is not absolute.

The preferential treatment of the Witnesses had become paradigmatic. Draft lawyers used them to say to the courts, Why aren't you giving our conscientious clients equally good treatment?

Friedman and Chester Mirsky, attorneys for Michael Witt McCord, claimed, in their brief, that had McCord, a conscientious objector who had been sentenced to a one-year imprisonment by a lower court, been a Witness, he would never have been sentenced.

McCord had served one year of his civilian-work alternative - he worked for the American Friends Service Committee and for the Legal Aid Society - before he quit for conscientious reasons. He was, at the time of his appeal, a student at the Harvard Divinity School, and he was working to provide housing for the urban poor at the Boston Housing Authority. A man of tender conscience, McCord wrote to Selective Service Board:

I oppose this system . . . because it is unfair in its operation and unfair in the sense that it accords the state a measure of power over its citizens to which it holds no legitimate claim. Each man has a right to his own life and no other man, nor any group of men, however idealistic their motives, possesses the moral authority to [force others] to forfeit this claim. . .

I am very deeply concerned about love and about how I can most honestly and generously manifest love for my brothers and sisters of this world - all of them (American, North Vietnamese, South Vietnamese, Russian - ALL). Of one thing I am absolutely certain: My notion of love is incompatible with war and with those activities and attitudes which make wars possible. . . . I am opposed to the activities of the Defense Department and of Selective Service, and . . . I reject . . . racism and chauvinism, and those philosophies like capitalism and communism which divide human beings and which relegate love and tenderness and nonviolence to inferior positions on the hierarchy of human values. . .

I am not an anarchist, but neither do I feel that my first moral and intellectual obligation is to the principle of majoritarian rule. Life, perhaps, would be a lot simpler if one knew that "the will of the people" was somehow infallible, but it's not, and life is not simple. There are times when a man must obey his conscience. I heard recently the story of a young Huguenot girl who was imprisoned for her Protestant beliefs in Southern France in the seventeenth century. She spent 39 years in prison, from the time she was fourteen. All she had to do to gain her release was speak two words, "J'abjure" ("I recant"). She refused; instead, in the stone wall she scratched another word- "Resistez."

McCord's attorneys said that their client "was, at all times, and is, prepared to continue [civilian alternative work] if ordered to do so by a court. Such a sentence is ordinarily imposed in similar cases involving Jehovah's Witnesses but was denied" McCord.

Attorney Mirsky told the court [Appellant's Brief, op. cit.]:

The defendant's position is . . . very similar to many of the positions described today by Jehovah's Witnesses, although he is not one; he has arrived at his ideals and beliefs independently, but he presents the same picture to your Honor, it seems to me, as the philosophy of that of Jehovah's Witnesses. . .

Many Courts . . . for years have given Jehovah's Witnesses who refused to comply with an order from the Selective Service System the right to comply in substance with that order from the Department of Probation, arid have always continuously granted probation in cases like that. . .

McCord . . . is exactly like a Jehovah's Witness. He states to your Honor he is willing to perform alternate service work. Not as a participant of Selective Service obligation, as a contingency obligation. . .

The Jehovah's Witnesses have stated to the Court for years, we have taken the position that this is basically contradictory to our beliefs to accept an order from Selective Service. We are ready and willing and able in substance to perform alternative service work to any- one who wishes to order us. . .

We feel that [McCord's] sentence . . . as imposed is itself basically a denial of the man's due process. . . . We feel that the man is placed in a position which is categorically a denial of his legal protection in relation to Jehovah's Witnesses. He stands as a CO, found to be a CO as your Honor knows, by the local board. He meets the requirements. Just as the Jehovah's Witnesses - one is a religious objector, one is a philosophical objector. He goes to jail, and one does not.

I think it is a denial of equal protection.

The position of the United States Assistant Attorney was that McCord had no right to "lump himself with the Jehovah's Witnesses. It's quite obvious," he argued,

that the Jehovah's Witnesses are an unusual problem, and the practice has been in this District, not exclusively, to allow them to complete their work. Their objection is based on religious grounds, very deep religious grounds. A Jehovah's Witness would rather be flogged and tortured to death, rather than obey the order of a sector of authority to serve. They serve only if it is imposed as a punishment of the Court.

But McCord's attorneys argued that "to grant such requests [to vacate sentence] to Jehovah's Witnesses while denying it to others in the same position is a violation of the equal protection tenets of the Fifth Amendment."

In the earlier draft case of Joel Simon Meyers against the United States of America (U.S. Court of Appeals for the Second Circuit, on appeal from the U.S. District Court for the Eastern District of New York; Meyers v. United States, 446 F.2d 37 [1971]), New York Civil Liberties attorney Alan H. Levine cited statistics from the Eastern District of New York which demonstrated that, from 1967 to 1970, 88.5 percent of all Jehovah's Witnesses who came before the courts for that district were offered probation; only 36.5 percent of the COs appearing before the courts were offered probation.

McCord's attorneys used these statistics to argue that Jehovah's Witnesses were being treated in a privileged manner that discriminated against other COs.

If a federal statute prescribed a different mode of punishment for Jehovah's Witnesses and non-Jehovah's Witnesses, it would violate the equal protection clause.

The fact that special treatment of the Jehovah's Witnesses emerges out of informal judicial policy instead of being required by an explicit federal statute does not affect the reach of the equal protection guarantees. Any distinct governmental entity that engages in discriminatory treatment of one class is bound by the equal protection clause. Indeed discriminatory treatment by the judiciary is even more dangerous than that embodied in a statute since the courts can oversee explicit legislative discrimination. But who is to judge the judges?

The Assistant U.S. Attorney, however, took the position that

There is absolutely no reason whatsoever whereby persons who are conscientious objectors who refuse to perform work should be equated in any way at all with the Jehovah's Witnesses.

Circuit Judge Waterman ruled against McCord, although he agreed that

The appellant's statistical research does, in fact, tend to show that many federal district judges acting with their broad discretionary powers have been increasingly lenient in the sentences they have handed down in Selective Service cases. The statistics also show the Jehovah's Witness violators have regularly been included in the group toward whom an increasing number of judges have shown a growing lenience.

Dissenting Judge Feinberg said:

I do not for a moment even intimate that the treatment of Jehovah's Witnesses, if it is as alleged, is not sensible. But in those circumstances I would think that considerations of fair play would suggest that appellant's sentence be no harsher than those given to Jehovah's Witnesses - United States v. McCord, 466 F.2d 17(1972)

Leon Friedman, one of McCord's attorneys, says that Judge Waterman said, off the record, "Jehovah's Witnesses are different from other people. . . I have a gardener who is a JW, and he's different . . . they're different, they think differently from the rest of us. . . . Maybe I should disqualify myself from cases they're involved in." Friedman says, "I'll never forget that."

Contents

I Personal Beginnings: 1944

11 Organizational Beginnings: (1873-1912) Charles Taze Russell

III Waiting for the World to Die

IV Accumulating Wealth While the World Refuses to Die

V God Can't Kill Arnold

VI In Transition

VII Catholics, Mob Violence, Civil Liberties, and the Draft

VIII The Lure of Certainty

IX The Heroic Opportunity and Adventure: Jehovah's Witnesses Overseas

X Leaving: 1955

Abbreviated Codes for Sources Frequently Cited and Additional Sources

Index

from: http://www.nytimes.com/2002/04/26/obituaries/26HARR.html