For the prosecutor, Major & Carlsen (James A. Major, of counsel).
For the defendant, David T. Wilentz, Attorney-General, and Harry A. Walsh, Assistant Attorney-General.
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The Civil Service Commission certified prosecutor as first on the roster of eligibles, with the status of a "disabled war veteran," for appointment to fill a vacancy in the position of "bridge attendant" in the Bergen County service. He was the only war veteran certified; and the appointing authority, the Board of Chosen Freeholders, was therefore under a peremptory duty to appoint him to the vacant position, unless there was "good cause" to the contrary. Chapter 381 of the Laws of 1938 (Pamph. L., p. 951); N.J.S.A. 11:27-4, 11:27-5.
The Freeholders refused to make the appointment on the sole ground, it is conceded, that prosecutor had declared an unwillingness "to salute the flag of the United States." He is an adherent of the religious sect known as "Jehovah's Witnesses;" and he said that, while he "respected" the nation's emblem, he deemed the salute to be in contravention of the "laws of God." He interprets the Bible as forbidding "salutation to inanimate objects, because inanimate objects cannot receive that salutation." But he said that he "would pledge" his allegiance to the government and "to the things for which the flag stands." The Witnesses deem the flag to be an "image" within the prohibition of Exodus, chapter 20, verses 4 and 5.
Prosecutor appealed to the Civil Service Commission. That tribunal sustained the action of the Freeholders. It found that, although prosecutor had qualified for the positions in competitive civil service examinations, he did not render "satisfactory service" as a probationary motor vehicle inspector in the year 1938, and in a training school conducted at
the Rahway Reformatory for prison and reformatory officers, subsequent to the civil service examination for the position, he demonstrated that he was "of a highly nervous disposition" and "temperamentally unsuited to service as a prison and reformatory officer." The Commission held that it is not its "function * * * to rule on the question of whether his beliefs disqualify him for public employment," but that the Board of Freeholders "is not acting arbitrarily or beyond its reasonable authority when it requires that public employees under its jurisdiction shall salute, and be willing to salute, the Flag on appropriate occasions and otherwise conform to the patriotic practices recognized by law and custom as commendable and proper by the great body of citizens of this State and of the United States." It also found that prosecutor is not "able to devote himself to the daily routine performance of the duties of the position, properly and effectively perform those duties, accept and observe reasonable directions from his supervising officers and work in co-operation with his fellow employees."
It is not within the province of the appointing authority to deny prosecutor his statutory right to the appointment in issue on the ground that he entertains religious scruples against the patriotic exercise of saluting the flag. The legislature has not ordained that the right to hold a public office or position may be conditioned upon observance of a compulsory flag-salute ritual. Nor would such a regulation be within its competency. It is not merely a question of the right to an exemption, on religious grounds, from a general legal duty to give the salute. The legislative body does not possess the power thus to control the mind of the individual. The supreme arbiter of the meaning of federal constitutional limitations has lately ruled that such a precept directed to public school pupils by the local regulatory body invades the sphere of intellect and spirit reserved from all official control by the First and Fourteenth Amendments of the nation's organic law. Freedom of religious conscience and belief, and of speech and of press, secured by these amendments is susceptible of restriction only to prevent grave and immediate
danger to interests which the state may lawfully protect. It is not within the power of officialdom to coerce individual affirmation of a belief and an attitude of mind -- to compel the individual to give utterance to what is not in his mind. The flag salute is a form of utterance. Coerced acceptance of a patriotic creed is beyond official authority. The conscience of the individual may not thus be trammeled. The Bill of Rights enjoins such assertions of official authority. The Fourteenth Amendment, as now applied to the states, protects the citizen against the state itself and all of its creatures. It safeguards against hostile state action the individual freedom of mind preserved against Congressional abridgement by the First Amendment. Government itself exists by the consent of the governed; and the Bill of Rights forbids coercion of that consent by those in power. No official, high or petty, "can prescribe what shall be ...