Document Type
Article
Publication Date
Summer 2025
ISSN
0026-6604
Publisher
University of Missouri Columbia School of Law
Language
en-US
Abstract
“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.” Justice Robert Jackson wrote this celebrated passage in his majority opinion in West Virginia State Board of Education v. Barnette (1943), which protected the First Amendment right of Jehovah’s Witness children not to participate in a compulsory flag salute in public schools. In recent years, protests against imposed orthodoxy—usually invoking Barnette—have occurred in a growing number of contexts, often when conservatives resist governmental promotion of public values concerned with equality. Many controversies, like Barnette, concern schools: conflicts over how best to teach U.S. history, civics, and patriotism, and whether state restrictions and mandates on teaching about race, gender, or sexual orientation are unconstitutional. Barnette also features in conservative challenges to state antidiscrimination laws. The children in Barnette, members of a persecuted religious minority, have become the symbol of today’s religious and social conservatives, who contend their “unpopular” dissenting beliefs are threatened by the compelled orthodoxy of hostile majorities.
Our book analyzes battles over “what shall be orthodox” in contemporary legal and political controversies in the United States. We plan to give Barnette’s principles their proper role in protecting our basic liberties, but to temper overextending them to eviscerate civic education programs and antidiscrimination laws—programs and laws crucial to the health and maintenance of our constitutional democracy. We propose to secure the status of equal citizenship for all while protecting the central range of application for the basic liberties conservatives fear are being trammeled. What conservatives have portrayed as their championing of freedom over and against liberal, feminist, or progressive compulsion of orthodoxies, we demonstrate to be clashes between conservative orthodoxies seeking to maintain or restore a traditional status quo and liberal, feminist, or progressive measures aiming to secure the status of equal citizenship for all.
In our book, we defend such measures aiming to secure the status of equal citizenship for all against conservative resistance on four fronts: (1) resistance to moral pluralism itself; (2) resistance to civic education seeking to cultivate civic virtues and to foster mutual respect and equality for all; (3) resistance to antidiscrimination laws in the name of protecting freedom of speech, association, and religious liberty; and (4) resistance to gender equality, including reproductive freedom and gender-affirming care, in defending traditional gender norms. We conclude with strategies for building and maintaining a liberal, feminist, or progressive “Constitution in exile” over the next generation or longer, while conservatives are likely to dominate the Supreme Court.
In this article, we give an overview of the book, followed by some remarks in response to the published essays by commentators.
Recommended Citation
Linda C. McClain & James E. Fleming,
"What Shall Be Orthodox" in Polarized Times: Overview and Response to Commentators
,
90
Missouri Law Review
659
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4134
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Law and Politics Commons, Law and Society Commons, Legal History Commons
