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Religion And The U. S. Supreme Court – Cases (1 of 4)

Religion And The U. S. Supreme Court – Cases (1 of 4)

by Bill Schultz

From the nation’s founding through 1942

Table of Contents

  • Declaration of Independence (July 4, 1776).


    Personal Comments: The Declaration of Independence has no force of law whatsoever, and thus cannot be cited as a precedent in any legal sense. Still, it keeps getting mentioned, over and over, as the “foundation of our freedoms,” or words to that effect.

  • Articles of Confederation (1781).


    Personal Comments: The Articles of Confederation were totally superceded by the adoption of the Constitution, and thus they have no current legal authority. Still, they will occasionally be cited as examples of what the “founding fathers” thought on one subject or another.

  • Memorial and Remonstrance (1785), by James Madison.


    Personal Comments: This document, coming two years before the Constitution, and being in some sense “adopted” by a large portion of the citizens of Virginia in 1785, is taken by some to express the full and complete understanding of what became the far more abbreviated language of the First Amendment of the Establishment Clause of the Constitution with respect to religion. This document surfaced in the dissent for Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947).

  • Constitution (1787).


    Personal Comments: The Constitution is the foundation for all law within the United States. Ultimately, every legal right or disability must be allowed by the Constitution or else it is “unconstitutional.” The primary duty of the United States Supreme Court is to interpret the Constitution, and so various provisions of the Constitution are debated in almost every case heard before the Supreme Court.

  • Letter to the Danbury Baptists (January 1, 1802), by Thomas Jefferson, as President.


    Personal Comments: This letter, even though issued by Jefferson while he was in office (“on duty,” so to speak) has no legal authority. Recently, Justice Scalia has complained, again and again, that the early decision of Reynolds v. United States, 98 U.S. 145 (1878) gave too much weight to this letter in establishing the meaning of the religion clauses within the First Amendment. Still, what the Reynolds Court went on to declare is probably still an overly narrow interpretation of the religion clauses of the first amendment: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Even many Christians today believe that the government ought to keep out of even the religious actions taken by any church group. But where one person’s faith healer is allowed to practice medicine without a license, another person’s bigamous marriage, witchcraft, or chicken sacrifices must also be allowed. Drawing the line between “must be allowed” and “may be prohibited” is a very difficult task.

  • Vidal v. Girard’s Executors, 2 How. 127 (1844).


    Justice Story (with a unanimous court) affirmed a lower court’s decree dismissing a suit challenging a will which gave a substantial fortune to the City of Philadelphia to found what is now Girard College as an elementary and secondary school for homeless boys. The relatives challenged “anti-Christian” will provisions: “First, because of the exclusion of all ecclesiastics, missionaries, and ministers of any sect from holding or exercising any station or duty in the college, or even visiting the same: and Secondly, because it limits the instruction to be given to the scholars to pure morality, and general benevolence, and a love of truth, sobriety, and industry, thereby excluding, by implication, all instruction in the Christian religion.” The Supreme Court refused to construe implication into reality, finding that the provisions did not require an exclusion of instruction about Christianity, or even Christian religious instruction.

  • Watson v. Jones, 80 U.S. 679 (1871).


    Justice Miller (with Justices Nelson, Swayne, Field, Strong, and Bradley) defined the three classes of religious trust as 1) an explicit trust (such as that created by a will); 2) an independent congregational church; and 3) a church which is subject to the control of some superior church body. Finding the instant controversy to be in this latter class, “we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” … “In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it.” … “Whatever may have been the case before the Kentucky court, the appellants in the case presented to us have separated themselves wholly from the church organization to which they belonged when this controversy commenced. They now deny its authority, denounce its action, and refuse to abide by its judgments. They have first erected themselves into a new organization, and have since joined themselves to another totally different, if not hostile, to the one to which they belonged when the difficulty first began. Under any of the decisions which we have examined, the appellants, in their present position, have no right to the property, or to the use of it, which is the subject of this suit.”

    Justice Clifford (with Justice Davis) dissented on jurisdictional grounds, noting that “I am of the opinion that the Circuit Court had no jurisdiction to hear and determine the matter in controversy, as there were two courts of common law exercising the same jurisdiction between the same parties in respect to the same subject-matter, within the same territorial limits, and governed by the same laws.”

  • Reynolds v. United States, 98 U.S. 145 (1878).


    Chief Justice Waite (with an apparently unanimous court, with the one exception, below) affirmed a criminal conviction for the crime of bigamy. The bulk of the opinion was taken up with the denial of a defense of religious duty, the court holding that with the First Amendment, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” “… we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity.”

    Justice Field concurred in part, and dissented only on the issue of whether or not certain testimony was admissible.

    Chief Justice Waite (with an apparently unanimous court) upon consideration of the petition for rehearing, the opinion was amended to reduce the sentence by omitting the phrase “at hard labor.”

  • Murphy v. Ramsey, 114 U.S. 15 (March 23, 1885).


    Justice Matthews (for an apparently unanimous court) held that a board with the power to appoint registrars to register people to vote was without power to require an oath to be taken by each voter, and thus any registrars who required any such oath committed their own wrong in denying any eligible voter the right to register. Thus any plaintiff who could show that they were entitled to vote and were not otherwise disqualified from voting (i.e., by their participation in any bigamous or polygamous relationship) could recover in damages for any such wrong upon proper proof. The cases against the board were dismissed and the cases were individually analyzed for liability of the registrars, with some dismissals being affirmed and others reversed, but with no constitutional issues of any great import discussed.

  • Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299 (February 3, 1890).


    Justice Field (with an apparently unanimous court) rejected a writ of habeas corpus seeking the release of a Mormon convicted of polygamy. “The first amendment to the constitution, in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.” … “It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.” … “However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.” … “Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.” … “It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed, and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further from the truth. While legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as ‘religion.'”

  • Mormon Church v. United States, 136 U.S. 1 (May 19, 1890).


    Justice Bradley (with Justices Miller, Harlan, Gray, Blatchford, and Brewer) reviewed at length, and completely upheld, an act of Congress which dissolved the Mormon Church’s primary corporate holding entity and escheated to the United States all property thereof, with certain identified exceptions, as punishment for encouraging the idea that polygamy ought to be practiced.

    Chief Justice Fuller (with Justices Field and Lamar) dissented. “Congress has the power to extirpate polygamy in any of the territories, by the enactment of a criminal code directed to that end; but it is not authorized, under the cover of that power, to seize and confiscate the property of persons, individuals, or corporations, without office found, because they may have been guilty of criminal practices.” … “If this property was accumulated for purposes declared illegal, that does not justify its arbitrary disposition by judicial legislation. In my judgment, its diversion under this act of congress is in contravention of specific limitations in the constitution; unauthorized, expressly or by implication, by any of its provisions; and in disregard of the fundamental principle that the legislative power of the United States, as exercised by the agents of the people of this republic, is delegated, and not inherent.”

  • Holy Trinity Church v. United States, 143 U.S. 457, 12 S. Ct. 511 (February 29, 1892).

    In his dissent for Lee v. Weisman, 505 U.S. 577 (1992), at 640, Justice Scalia labels this case an “aberration” in the law for advocating the dogmas of particular sects.


    Justice Brewer (with an apparently unanimous court) held that a prohibition against the aid or encouragement of alien immigration “to perform labor or service of any kind” could not and did not include an arrangement to hire a foreign minister to server at a US church as Congress could not have intended to bar this particular activity. The general principle thus declared is that “however broad the language of the statute may be, the act, although within the letter, is not with the intention of the legislature, and therefore cannot be within the statute.”

    Personal Comments: This case is primarily known for its bigoted declaration of Christian dogma. Two quoted sentences should suffice to make this point. “Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted [sic] upon Christianity, and not upon the doctrines or worship of those impostors.” … “These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.” The modern religious right seizes upon this “aberration” of a case as an example of what the true founders of our nation, and the patriots who came after, all believed. But Justice Brewer was the son of missionaries and was obviously inculcated with missionary zeal, as this opinion clearly demonstrates. His unrestrained expressions of bigotry against Muslim and Buddhist believers cannot be allowed to represent the true stance of our pluralistic society. Instead, his bigotry must be condemned!

  • Bradfield v. Roberts, 175 U.S. 291 (December 4, 1899).


    Justice Peckham (with an apparently unanimous court) denied a challenge to a hospital corporation established by Congress which was to be run by Roman Catholics on the ground that this amounted to an unconstitutional “establishment” of religion by Congress. “Whether the individuals who compose the corporation under its charter happen to be all Roman Catholics, or all Methodists, or Presbyterians, or Unitarians, or members of any other religious organization, or of no organization at all, is of not the slightest consequence with reference to the law of its incorporation, nor can the individual beliefs upon religious matters of the various incorporators be inquired into. Nor is it material that the hospital may be conducted under the auspices of the Roman Catholic Church. To be conducted under the auspices is to be conducted under the influence or patronage of that church. The meaning of the allegation is that the church exercises great and perhaps controlling influence over the management of the hospital. It must, however, be managed pursuant to the law of its being.” … “The act of Congress, however, shows there is nothing sectarian in the corporation, and ‘the specific and limited object of its creation’ is the opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the corporation.” … “Without adverting to any other objections to the maintenance of this suit, it is plain that complainant wholly fails to set forth a cause of action, and the bill was properly dismissed by the Court of Appeals, and its decree will therefore be affirmed.”

  • Jacobson v. Massachusetts, 197 U.S. 11 (February 20, 1905).


    But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’ [Citations omitted.] … ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’

    Personal Comments: Its difficult to characterize this case as being specifically about religion, although it does end up getting cited in many modern First Amendment cases. The issue here is over somebody who refused to be vaccinated against smallpox and was fined accordingly. Religion is never explicitly mentioned as an excuse for refusal. I see this case as being primarily important for the lengthy quote I’ve selected, above, stating what amounts to the fundamental charter for any civilized government and its citizens.

  • Quick Bear v. Leupp, 210 U. S. 50 (May 18, 1908).


    Chief Justice Fuller (with an apparently unanimous court) held that certain Indians could not challenge the actions of the federal government in contracting with sectarian (primarily Roman Catholic) schools to educate the Indians because the funds paid on the contract were out of a trust fund provided for Indian education under obligations assumed by treaty, and thus these were not “public funds” but were instead the private funds of the Indians, held in trust for them, and there were no constitutional objections possible when the Indians themselves obviously expressed a desire to obtain their education through this sort of school by their enrolling therein.

  • Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923).


    Justice McReynolds (for an apparently unanimous Court) held unconstitutional a Nebraska statute which criminalized teaching younger children in any language other than English.

    Personal Comments: This case is primarily important for its statement of the doctrine of substantive due process, and it is cited as authority for this concept by Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925), below.

  • Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925).


    Justice McReynolds (for an apparently unanimous Court) held unconstitutional an Oregon initiative statute requiring all children within the State of Oregon between certain ages to attend public schools and providing for criminal sanctions for the failure to do so. The Court relied upon the precedent of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923), which in turn declared the general principles for the construction of the Fourteenth Amendment’s protection of the “liberty” of every person as including “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” So, in this case, the court held that while “Generally, it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the state upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Appellees asked protection against arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property.”

    Personal Comments: To the extent that the free exercise of religion is at all implicated in this case, it is clear that this is one of those “hybrid” cases later recognized by Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990). As such, this case deserves recognition as the first I know of which recognized any such “hybrid” rights, although, again, religion gets barely a mention herein, and only in the recital of facts alleged by the appellees.

  • United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448 (May 27, 1929). *OVERRULED* by Girouard v. United States, 328 U.S. 61 (April 22, 1946).


    Justice Butler (with Chief Justice Taft and Justices Van Devanter, McReynolds, Sutherland, and Stone) reversed a Court of Appeals reversal of a District Court judgment denying citizenship to a conscientious objector.

    Justice Holmes (with Justice Brandies) dissented. “The applicant seems to be a woman of superior character and intelligence, obviously more than ordinarily desirable as a citizen of the United States.”

    Justice Sanford dissented, agreeing with the Court of Appeals.

  • Gonzalez v. Archbishop, 280 U.S. 1 (Oct. 14, 1929).


    Justice Brandeis (with an apparently unanimous court) held that the courts could not be used to force the granting of a hereditary chaplaincy, along with its income, to an individual who did not meet the requirements of the religious authorities for the holding of that ecclesiastical office.

  • Cochran v. Louisiana Bd. of Ed., 281 U. S. 370 (April 28, 1930).


    Chief Justice Hughes (with an apparently unanimous court) held that it was not a violation of the First Amendment for the State of Louisiana to provide school books, free of charge, to all students, using tax revenues to pay for them, when some of those students attended private sectarian schools. “The schools, however, are not the beneficiaries of these appropriations. They obtain nothing from them, nor are they relieved of a single obligation, because of them.” … “What the statutes contemplate is that the same books that are furnished children attending public schools shall be furnished children attending private schools.”

  • United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570 (May 25, 1931). *OVERRULED* by Girouard v. United States, 328 U.S. 61 (April 22, 1946).


    Justice Sutherland (with Justices Van Devanter, McReynolds, Butler, and Roberts) denied citizenship to a conscientious objector. “Naturalization is a privilege, to be given, qualified, or withheld as Congress may determine, and which the alien may claim as of right only upon compliance with the terms which Congress imposes.” … “The privilege of the native-born conscientious objector to avoid bearing arms comes, not from the Constitution, but from the acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and, if it be withheld, the native-born conscientious objector cannot successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general.” … “It is not within the province of the courts to make bargains with those who seek naturalization. They must accept the grant and take the oath in accordance with the terms fixed by the law, or forego the privilege of citizenship. There is no middle choice. If one qualification of the oath be allowed, the door is opened for others, with utter confusion as the probable final result.”

    Chief Justice Hughes (with Justices Holmes, Brandeis, and Stone) dissented. “The question before the Court is the narrower one whether the Congress has exacted such a promise. That the Congress has not made such an express requirement is apparent. The question is whether that exaction is to be implied from certain general words which do not, as it seems to me, either literally or historically, demand the implication. I think that the requirement should not be implied, because such a construction is directly opposed to the spirit of our institutions and to the historic practice of the Congress.” … “It seems to me that the applicant has shown himself in his behavior and character to be highly desirable as a citizen, and, if such a man is to be excluded from naturalization, I think the disqualification should be found in unambiguous terms and not in an implication which shuts him out and gives admission to a host far less worthy.”

  • United States v. Bland, 283 U.S. 636, 51 S.Ct. 569 (May 25, 1931). *OVERRULED* by Girouard v. United States, 328 U.S. 61 (April 22, 1946).


    Justice Sutherland (with Justices Van Devanter, McReynolds, Butler, and Roberts) denied citizenship to a conscientious objector, following the lead case of United States v. Macintosh, 283 U.S. 605 , 51 S. Ct. 570 (May 25, 1931), announced that same day.

    Chief Justice Hughes (with Justices Holmes, Brandeis, and Stone) dissented for the same reasons noted for their dissent in United States v. Macintosh, 283 U.S. 605 , 51 S. Ct. 570 (May 25, 1931).

  • Hamilton v. Board of Regents, 293 U.S. 245 (Dec. 3, 1934).


    Justice Butler (with Chief Justice Hughes and Justices Van Devanter, McReynolds, Brandeis, Sutherland, Stone, Roberts, and Cardozo) upheld a requirement of the University of California that, as a condition of attendance, all able bodied citizens of the United States must take a course of military training leading to their possible commission as officers in the reserve. The university had refused to make the requirement optional or to make provisions for any conscientious objectors. “California has not drafted or called them to attend the University. They are seeking education offered by the state and at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs and conscientious objections to war, preparation for war, and military education.” … “Plainly there is no ground for the contention that the regents’ order, requiring ablebodied [sic] male students under the age of twenty-four as a condition of their enrollment to take the prescribed instruction in military science and tactics, transgresses any constitutional right asserted by these appellants.”

    Justice Cardozo (with Justices Brandeis and Stone) concurred, adding “If they elect to resort to an institution for higher education maintained with the state’s moneys, then and only then they are commanded to follow courses of instruction believed by the state to be vital to its welfare. This may be condemned by some as unwise or illiberal or unfair when there is violence to conscientious scruples, either religious or merely ethical. More must be shown to set the ordinance at naught. In controversies of this order, courts do not concern themselves with matters of legislative policy, unrelated to privileges or liberties secured by the organic law. The First Amendment, if it be read into the Fourteenth, makes invalid any state law ‘respecting an establishment of religion, or prohibiting the free exercise thereof.’ Instruction in military science is not instruction in the practice or tenets of a religion. Neither directly nor indirectly is government establishing a state religion when it insists upon such training. Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free exercise of religion when the liberties of the Constitution are read in the light of a century and a half of history during days of peace and war.”

    Personal Comments: Given the heavy reliance herein on the citizenship case of United States v. Schwimmer, 279 U.S. 644 , 49 S.Ct. 448 (May 27, 1929) and United States v. Macintosh, 283 U.S. 605 , 51 S. Ct. 570 (May 25, 1931), which were explicitly overruled by Girouard v. United States, 328 U.S. 61 (April 22, 1946) so far as requiring a “test oath” might be concerned, it is doubly questionable what authority this case might retain, in light of Sherbert v. Verner, 374 U.S. 398 (June 17, 1963), which even recent Supreme Court cases have held to require a government must make exceptions with respect to religious beliefs when administering a general benefit program in which each individual is evaluated for participation.

  • Lovell v. Griffin, 303 U.S. 444 (March 28, 1938).


    Chief Justice Hughes (with all but Justice Cardozo) invalidated a requirement that a license must first be obtained from the City Manager before distribution of printed religious materials could be made within the city. “We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.” … “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.”

  • Schneider v. State, 308 U.S. 147 (Nov. 22, 1939).


    Justice Roberts (with an apparently unanimous court, less one) overturned as unconstitutional prior restraints a series of municipal laws which 1) forbade the distribution of handbills advertising a political meeting; 2) forbade the distribution of handbills explaining the nature of a labor dispute; 3) forbade the distribution of handbills announcing a meeting to protest certain aspects of the state unemployment insurance system; and 4) prohibiting a Jehovah’s Witness from soliciting door-to-door. “We are of opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.” The fourth statute “bans unlicensed communication of any views or the advocacy of any cause from door to door, and permits canvassing only subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and who may distribute it.” … “We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires. Nor do we hold that the town may not fix reasonable hours when canvassing may be done by persons having such objects as the petitioner. Doubtless there are other features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty. We do hold, however, that the ordinance in question, as applied to the petitioner’s conduct, is void, and she cannot be punished for acting without a permit.”

    Justice McReynolds dissented without an opinion.

  • Cantwell v. Connecticut, 310 U.S. 296 (May 20, 1940).


    Justice Roberts (with an apparently unanimous court) overturned criminal convictions obtained against three Jehovah’s Witnesses, holding that the requirement of obtaining a certificate from a state official, who must determine if the cause propounded was a “religious” one, was unconstitutional. The Court also limited the common law crime of “breach of the peace” so as to not criminalize activity protected by the First Amendment so long as that activity “did not amount to a breach of the peace. One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer.” … “We find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion.”

  • Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010 (June 3, 1940). *OVERRULED* by West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943)


    Justice Frankfurter (with Chief Justice Hughes and Justices Roberts, Black, Reed, Douglas, and Murphy) reversed lower court rulings prohibiting the school from enforcing a requirement to salute the flag of the United States against the children of Jehovah’s Witnesses who were religiously opposed to saluting any flag or other thing. “But for us to insist that, though the ceremony may be required, exceptional immunity must be given to dissidents, is to maintain that there is no basis for a legislative judgment that such an exemption might introduce elements of difficulty into the school discipline, might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise.” … “A society which is dedicated to the preservation of these ultimate values of civilization may in self-protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties. That is to say, the process may be utilized so long as men’s right to believe as they please, to win others to their way of belief, and their right to assemble in their chosen places of worship for the devotional ceremonies of their faith, are all fully respected.”

    Justice McReynolds concurred in the result.

    Justice Stone dissented. “The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For by this law the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions. It is not denied that such compulsion is a prohibited infringement of personal liberty, freedom of speech and religion, guaranteed by the Bill of Rights, except in so far as it may be justified and supported as a proper exercise of the state’s power over public education.” … “Here we have such a small minority entertaining in good faith a religious belief, which is such a departure from the usual course of human conduct, that most persons are disposed to regard it with little toleration or concern. In such circumstances careful scrutiny of legislative efforts to secure conformity of belief and opinion by a compulsory affirmation of the desired belief, is especially needful if civil rights are to receive any protection. Tested by this standard, I am not prepared to say that the right of this small and helpless minority, including children having a strong religious conviction, whether they understand its nature or not, to refrain from an expression obnoxious to their religion, is to be overborne by the interest of the state in maintaining discipline in the schools.”

  • Cox v. New Hampshire, 312 U.S. 569 (March 31, 1941).


    Chief Justice Hughes (with an apparently unanimous court) affirmed criminal convictions for Jehovah’s Witnesses who were found guilty of “‘taking part in a parade or procession’ on public streets without a permit as the statute required.”

    Personal Comments: At best, this case stands for the proposition that non-discriminatory and objectively reasonable time, place, and manner restrictions must be observed under penalty of law.

  • Jones v. Opelika, 316 U.S. 584 (June 8, 1942).

    Vacated and *OVERRULED* by Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943).


    Justice Reed (with Justices Roberts, Frankfurter, Byrnes, and Jackson) found valid three different licensing schemes which were being applied to Jehovah’s Witnesses, in the process distinguishing Lovell v. Griffin, 303 U.S. 444 (March 28, 1938) as involving a license scheme where the grant of the license was totally discretionary on the part of the authorities.

    Chief Justice Stone (with Justices Black, Douglas, and Murphy) dissented, stating that a license requirement for the practice of constitutionally guarenteed freedom of speech makes a mockery of that guarentee, particularly in the lead case where the license was revokable for literally no reason with no hearing and no appeal.

    Justice Murphy (with Chief Justice Stone and Justices Black and Douglas) dissented, noting “There is no suggestion in any of these three cases that petitioners were perpetrating a fraud, that they were demeaning themselves in an obnoxious manner, that their activities created any public disturbance or inconvenience, that private rights were contravened, or that the literature distributed was offensive to morals or created any ‘clear and present danger’ to organized society.”

    Justices Black, Douglas, and Murphy dissented, stating “The opinion of the Court sanctions a device which in our opinion suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which [Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010 (June 3, 1940)] took against the same religious minority and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.”

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