Linda C. McClain (Boston University – School of Law) & James E. Fleming (Boston University – School of Law) have posted “What Shall Be Orthodox” in Polarized Times: Overview and Response to Commentators (90 Missouri Law Review (2025)) on SSRN. Here is the 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 our forthcoming book, tentatively entitled “What Shall be Orthodox” in Polarized Times, we argue that, 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 over parents’ rights to opt their children out of curriculum that conflicts with their religious beliefs. Barnette also features in conservative challenges to state antidiscrimination laws and bans on conversion therapy.
Our book analyzes battles over “what shall be orthodox” in contemporary legal and political controversies in the United States. In this article, we give an overview of the book, followed by some remarks in response to the published essays by several commentators: Susan Frelich Appleton, Carlos Ball, John Q. Barrett, and John and Cameron Kang. Advancing a constitutional liberalism, the book aims 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. What conservatives have portrayed as 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.