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America's New Lesson in Tolerance

Guest Kurt

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What one of the Supreme Court’s most humiliating mistakes tells us about the debate over Colin Kaepernick’s national-anthem protest.

“We almost beat one guy to death to make him kiss the flag,” a patriot in Litchfield, Illinois, told a Chicago reporter in 1940.

When that vigilante beat a dissenter in the street—and when hundreds like him brutalized, terrorized, and even mutilated Jehovah’s Witnesses around the country —they were acting, they believed, with the imprimatur of the law, the Constitution, and the Supreme Court, which had ruled that the Witnesses’ religious objection to reciting the Pledge of Allegiance was invalid.

The Court and the nation learned a lesson from that episode. Lessons in tolerance, however, must be learned anew generation by generation. Not long ago, the public worked itself into an uproar when Olympic gymnast Gabby Douglas, respectfully standing for the anthem in Rio, simply did not place her hands the way some people thought she should. But that was mere prologue to the outcry over San Francisco 49ers quarterback Colin Kaepernick, who refused even to stand for the anthem before a game at Levi’s Stadium, and who, unlike Douglas, did so in protest.

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” he said afterwards, citing recent incidents including white-supremacist protests and police shootings of African-American civilians.  The patriotic denunciations of Kaepernick are available on virtually any website and inescapable on any talk-radio station. He has been vilified (and supported) by fellow athletes and by groups of veterans. The San Francisco police union weighed in. No matter what their position, people all over the nation seem deeply anxious about whether this one highly paid athlete will behave in the manner expected of him. And many will be watching Thursday night at the 49ers-Chargers game to see whether he has learned his lesson.

Flags and anthems and patriotic display can inspire love and heroism but they can also bring out the worst in people. Add war, social unease, sports, and race and the fists are likely to fly. This was the context of one of the Court’s most humiliating mistakes—one that led directly to violence in the streets, required the Court to eat its own words, and may teach us a lesson in tolerance today.

Let’s be clear what is at stake. Kaepernick has not expressed allegiance to or support for the nation’s enemies. He has not made any criticism or attack on America’s military. He has not refused to do his job as quarterback. He has not asked anyone to take down a flag, or sought to veto the playing of “The Star-Spangled Banner.” He has not asserted a right to discriminate against anyone who does want to stand and salute during the National Anthem.

Kaepernick has simply indicated that, for reasons he is willing to explain, he himself will not pay personal homage to our nation’s symbol. Others may think he shouldn’t feel that way, but he does, and he will not pretend to feel what he does not.

That issue—the compelled assertion of personal allegiance, a requirement by the state that individuals express feelings they did not hold—brought the flag before the Court in 1940, and, after the decision, led directly to blood in the streets of American towns like Litchfield.

Minersville School District v. Gobitis arose in 1935, when two Jehovah’s Witnesses, Billy and Lillian Gobitas, refused to engage in a required flag salute and pledge of allegiance at their Pennsylvania elementary school. For Witnesses, pledging allegiance to any human symbol is a violation of the Second Commandment: “You must not make for yourself a carved image or a form like anything that is in the heavens above or on the earth below or in the waters under the earth.  You must not bow down to them nor be enticed to serve them … ” The local school board expelled them; local people boycotted the family store.

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