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Religion And The U. S. Supreme Court – Cases (2 of 4)

Religion And The U. S. Supreme Court – Cases (2 of 4)

by Bill Schultz

From 1943 through 1960

Table of Contents

  • Jamison v. Texas, 318 U.S. 413 (March 8, 1943).


    Justice Black (apparently with Chief Justice Stone and Justices Douglas, Murphy, Reed, Roberts, Jackson and partly Frankfurter) held unconstitutional a Dallas, Texas municipal ordinance making it unlawful to distribute handbills and other sorts of advertising or free speech items.

    Justice Frankfurter “acquiesced” in the Court’s refusal to reconsider its prior holding allowing Supreme Court review of municipal ordinances, but otherwise joined in the opinion of the Court.

  • Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667 (March 8, 1943).


    Justice Reed (apparently with Chief Justice Stone and Justices Douglas, Murphy, Black, Roberts, Jackson and Frankfurter) held unconstitutional a Paris, Texas municipal ordinance requiring the obtaining of a permit from the mayor before offering printed matter for sale (in this case, Bible tracts, etc.).

  • Jones v. Opelika, 319 U.S. 103 (May 3, 1943). Decided together with Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943), below.


  • Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943).

    ***** LANDMARK CASE *****


    Justice Douglas (with Chief Justice Stone and Justices Black, Murphy, and Rutledge) held that a license tax could not be imposed upon Jehovah’s Witnesses who “sold” religious literature in a door-to-door campaign as this infringed their freedoms of speech, press, and religion.

    Justice Reed (with Justices Roberts, Frankfurter, and Jackson) dissented, with a lengthy review of the history of the First Amendment privileges and their application, concluding with this: “This late withdrawal of the power of taxation over the distribution activities of those covered by the First Amendment fixes what seems to us an unfortunate principle of tax exemption, capable of indefinite extension. We had thought that such an exemption required a clear and certain grant. This we do not find in the language of the First and Fourteenth Amendments. We are therefore of the opinion the judgments below should be affirmed.”

    Justice Frankfurter (with Justice Jackson) dissented, refusing to see the “flat tax” as an invalid scheme. “There is nothing in the Constitution which exempts persons engaged in religious activities from sharing equally in the costs of benefits to all, including themselves, provided by government.”

    Justice Jackson dissented, with his full opinion summarized below in the case of Douglas v. City of Jeannette, 319 U.S. 157 (May 3, 1943).

    Personal Comments: This case marked the true turn-around in First Amendment jurisprudence. While other laws had been previously invalidated on occasion which mentioned religion as part of the justification for the conduct upheld therein (see, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925) where compulsory school attendance was overturned as an interference with “parental rights”), in this case, a general system for the use of religious and free speech rights to invalidate an otherwise neutral law was deckared. (c.f. Reynolds v. United States, 98 U.S. 145 (1878) for the opposite proposition.) The key element here was a combination of “religious speech” as being in the “most protected category of speech” along with “overbroad restrictions on protected speech.” Of course, it would be many years before the Supreme Court would develop that language to describe its own principles. In future years, it will be impossible to understand the pattern of outcomes for First Amendment cases unless you learn to spot this marriage between the Free Exercise Clause and Free Speech cases. Without that marriage present in a Free Exercise case, the statutes have been largely upheld. The exceptions involved proof of legislative intent to enact a statute which burdened some specific religious practice, something most legislative bodies don’t document! For example, in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (June 11, 1993) the City Council acted to ban the practices of the Santeria religion about two months after a Santeria church acquired property rights within the city. Coincidence? No way, said the Supreme Court. But in every Free Exercise case not involving that type of proof and not involving a marriage between Free Speech and Free Exercise, or at least Free Exercise and some other right which has been announced as protected by the Fourteenth Amendment, such as raising children (see, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925) and its precedent case, Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923), declaring those rights), the statute has survived challenge.

  • Martin v. Struthers, 319 U.S. 141 (May 3, 1943).


    Justice Black (apparently with Chief Justice Stone and Justices Douglas, Murphy, and Rutledge) overturned a ban on doorbell ringing and knocking for the purpose of distributing handbills or literature, but indicated that an ordinance enforcing homeowner signs banning such disturbances would be constitutional.

    Justice Murphy (with Justices Douglas and Rutledge) concurred, noting that “if regulation should be necessary to protect the safety and privacy of the home, an effort should be made at the same time to preserve the substance of religious freedom.”

    Justice Frankfurter apparently dissented (his views printed with this case are somewhat ambiguous, but he also joined the dissent of Justice Jackson, below).

    Justice Reed (with Justices Roberts and Jackson) dissented, noting “While I appreciate the necessity of watchfulness to avoid abridgments of our freedom of expression, it is impossible for me to discover in this trivial town police regulation a violation of the First Amendment. No ideas are being suppressed. No censorship is involved. The freedom to teach or preach by word or book is unabridged, save only the right to call a householder to the door of his house to receive the summoner’s message. I cannot expand this regulation to a violation of the First Amendment.”

    Justice Jackson dissented, with his full opinion summarized below in the case of Douglas v. City of Jeannette, 319 U.S. 157 (May 3, 1943).

  • Douglas v. City of Jeannette, 319 U.S. 157 (May 3, 1943).


    Chief Justice Stone (apparently with Justices Douglas, Black, Murphy, and Rutledge) held that, in light of the decision rendered for Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943), there was no reason to suppose that the authorities sought to be restrained herein would not follow those newly-declared principles of law, and thus the decision dismissing the suit was affirmed for want of any equity to be done.

    Justice Jackson (with Justice Frankfurter) concurred in the result. “This record shows us something of the … problem of those in local authority when the right to proselyte comes in contact with what many people have an idea is their right to be let alone.” … “In my view the First Amendment assures the broadest tolerable exercise of free speech, free press, and free assembly, not merely for religious purposes, but for political, economic, scientific, news, or informational ends as well. When limits are reached which such communications must observe, can one go farther under the cloak of religious evangelism? Does what is obscene, or commercial, or abusive, or inciting become less so if employed to promote a religious ideology? I had not supposed that the rights of secular and nonreligious communications were more narrow or in any way inferior to those of avowed religious groups.” … “Neither can I think it an essential part of freedom that religious differences be aired in language that is obscene, abusive, or inciting to retaliation. We have held that a Jehovah’s Witness may not call a public officer a ‘God damned racketeer’ and a ‘damned Fascist,’ because that is to use ‘fighting words,’ and such are not privileged. [Citation.] How then can the Court today hold it a ‘high constitutional privilege’ to go to homes, including those of devout Catholics on Palm Sunday morning and thrust upon them literature calling their church a ‘whore’ and their faith a ‘racket’?[Footnote omitted.] Nor am I convinced that we can have freedom of religion only by denying the American’s deep-seated conviction that his home is a refuge from the pulling and hauling of the market place and the street. For a stranger to corner a man in his home, summon him to the door and put him in the position either of arguing his religion or of ordering one of unknown disposition to leave is a questionable use of religious freedom.”

    Justices Reed and Roberts aren’t clearly identified as to their vote on this case, but it can be presumed that they too at least concurred in the result.

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943).

    ***** LANDMARK CASE *****


    Justice Jackson (with the Chief Justice and Justices Black, Douglas, Murphy, and Rutledge) Explicitly overruled Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010 (June 3, 1940), plus any intervening Per Curium opinions relying upon the principles expressed in that opinion, thereby granting the Jehovah’s Witnesses the right to refuse to participate in flag salutes and other ceremonies they viewed as idol worship. The key holding is: “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. If there are any circumstances which permit an exception, they do not now occur to us.”

    Justices Black and Douglas concurred. “Reluctance to make the Federal Constitution a rigid bar against state regulation of conduct thought inimical to the public welfare was the controlling influence which moved us to consent to the Gobitis decision. Long reflection convinced us that although the principle is sound, its application in the particular case was wrong.” … “No well-ordered society can leave to the individuals an absolute right to make final decisions, unassailable by the State, as to everything they will or will not do. The First Amendment does not go so far. Religious faiths, honestly held, do not free individuals from responsibility to conduct themselves obediently to laws which are either imperatively necessary to protect society as a whole from grave and pressingly imminent dangers or which, without any general prohibition, merely regulate time, place or manner of religious activity.” … “Neither our domestic tranquillity [sic] in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremonial, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution’s plan and purpose.”

    Justice Murphy concurred. “The trenchant words in the preamble to the Virginia Statute for Religious Freedom remain unanswerable: ‘… all attempts to influence (the mind) by temporal punishment, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, ….'”

    Justices Roberts and Reed dissented, adhering to the views expressed by the majority in Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010 (June 3, 1940).

    Justice Frankfurter dissented. “The constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which except by leave of religious loyalties is within the domain of temporal power. Otherwise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws.”

  • Taylor v. Mississippi, 319 U.S. 58 (June 14, 1943).


    Justice Roberts (with an apparently unanimous court) overturned a Mississippi statute making it a felony punishable by imprisonment “until treaty of peace be declared by the United States but such imprisonment shall not exceed ten years” for various sorts of speech, writings, and conduct which (among other things) “reasonably tends to create an attitude of stubborn refusal to salute, honor or respect the flag or government of the United States, or of the state of Mississippi.” “The statute as construed in these cases makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the future of our own and other nations. As applied to the appellants it punishes them although what they communicated is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state,[footnote omitted] or to have threatened any clear and present danger to our institutions or our government.”

    Personal Comments: In light of the subsequent controversy over the burning of the American flag as an act of protest, the Mississippi statute herein challenged was a frankly ludicrous and way overbroad repeal of liberties which we take for granted.

  • Prince v. Massachusetts, 321 U.S. 158 (Jan. 31, 1944).


    Justice Rutledge (with Chief Justice Stone and Justices Black, Reed, and Douglas) held as proper a criminal conviction of a Jehovah’s Witness mother who used her 9-year-old daughter as part of her street missionary efforts. “The state’s authority over children’s activities is broader than over like actions of adults. This is peculiarly true of public activities and an matters of employment. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection.” … “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” … “We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.”

    Justice Murphy dissented. “This attempt by the state of Massachusetts to prohibit a child from exercising her constitutional right to practice her religion on the public streets cannot, in my opinion, be sustained.” … “No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against rights of those who dare to express or practice unorthodox religious beliefs. And the Jehovah’s Witnesses are living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure.” … “We should therefore hesitate before approving the application of a statute that might be used as another instrument of oppression. Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger.”

    Justice Jackson (with Justices Roberts and Frankfurter) dissented. “The novel feature of this decision is this: the Court holds that a state may apply child labor laws to restrict or prohibit an activity of which, as recently as last term, it held: ‘This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. …'” citing to Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943). “If the Murdock doctrine stands along with today’s decision, a foundation is laid for any state intervention in the indoctrination and participation of children in religion, provided it is done in the name of their health or welfare.” … “This case brings to the surface the real basis of disagreement among members of this Court in previous Jehovah’s Witness cases. [Citations.] Our basic difference seems to be as to the method of establishing limitations which of necessity bound religious freedom.” … “My own view may be shortly put: I think the limits begin to operate whenever activities begin to affect or collide with liberties of others or of the public. Religious activities which concern only members of the faith are and ought to be free-as nearly absolutely free as anything can be. But beyond these, many religious denominations or sects engage in collateral and secular activities intended to obtain means from unbelievers to sustain the worshippers and their leaders. They raise money, not merely by passing the plate to those who voluntarily attend services or by contributions by their own people, but by solicitations and drives addressed to the public of sales and Bingo games and lotteries. All such money-raising activities on a public scale are, I think, Caesar’s affairs and may be regulated by the state so long as it does not discriminate against one because he is doing them for a religious purpose, and the regulation is not arbitrary and capricious, in violation of other provisions of the Constitution.”

  • Follett v. McCormick, 321 U.S. 573 (March 27, 1944).


    Justice Douglas (with Chief Justice Stone and Justices Black, Murphy, and Rutledge) held unconstitutional as applied a statute requiring a “business license” for the distribution and sale of religious literature by a Jehovah’s Witness, who was convicted of willfully violating the business license requirement. The license was held to be “a flat tax imposed on the exercise of a privilege granted by the Bill of Rights,” and was thus unconstitutional. “This does not mean that religious undertakings must be subsidized. The exemption from a license tax of a preacher who preaches or a parishioner who listens does not mean that either is free from all financial burdens of government, including taxes on income or property. We said as much in [Murdock v. Pennsylvania, 319 U.S. 105 (May 3, 1943)]. But to say that they like other citizens may be subject to general taxation does not mean that they can be required to pay a tax for the exercise of that which the First Amendment has made a high constitutional privilege.”

    Justice Murphy concurred, taking issue with the dissent by noting “There is an obvious difference between taxing commercial property and investments undertaken for profit, whatever use is made of the income, and laying a tax directly on an activity that is essentially religious in purpose and character or on an exercise of the privilege of free speech and free publication.”

    Justice Reed concurred in the result, based upon the force of the precedents of Jones v. Opelika, 319 U.S. 103 (May 3, 1943) and Murdock v. Pennsylvania, 319 U.S. 105 (May 3, 1943), even though he still adhered to the reasoning of his dissents for the Jones and Murdock cases.

    Justices Roberts, Frankfurter, and Jackson dissented. “Unless the phrase ‘free exercise’, embodied in the First Amendment, means that government must render service free to those who earn their living in a religious calling, no reason is apparent why the appellant, like every other earner in the community, should not contribute his share of the community’s common burden of expense.” … “Not only must the court, if it is to be consistent, accord to dissemination of all opinion, religious or other, the same immunity, but, even in the field of religion alone, the implications of the present decision are startling. Multiple activities by which citizens earn their bread may, with equal propriety, be denominated an exercise of religion as may preaching or selling religious tracts.”

  • United States v. Ballard, 322 U.S. 78 (April 24, 1944).


    Justice Douglas (with Justices Black, Reed, Murphy, and Rutledge) reversed a Court of Appeals reversal of a criminal conviction for mail fraud, noting “we do not agree that the truth or verity of respondents’ religious doctrines or beliefs should have been submitted to the jury” (it being unclear whether the Court of Appeals had ordered that action as part of its order for a new trial). “So we conclude that the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents.” The case was then remanded to the Court of Appeals for consideration of “other distinct grounds” for the reversal of the convictions.

    Chief Justice Stone (with Justices Roberts and Frankfurter) dissented, noting “I am not prepared to say that the constitutional guaranty of freedom of religion affords immunity from criminal prosecution for the fraudulent procurement of money by false statements as to one’s religious experiences, more than it renders polygamy or libel immune from criminal prosecution.” The trial court “submitted to the jury the single issue whether petitioners honestly believed that they had occurred, with the instruction that if the jury did not so find, then it should return a verdict of guilty. On this issue the jury, on ample evidence that respondents were without belief in the statements which they had made to their victims, found a verdict of guilty.” … “I think the judgment below should be reversed and that of the District Court reinstated.”

    Justice Jackson dissented, noting that “The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which charged that their representations were false and that they ‘well knew’ they were false. The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could be convicted.” … “The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.” … “Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt.” … “I would dismiss the indictment and have done with this business of judicially examining other people’s faiths.”

  • In re Summers, 325 U.S. 561 (June 11, 1945).


    Justice Reed (with Chief Justice Stone and Justices Frankfurter, Jackson, and Burton) refused to reverse a decision of the Supreme Court of the State of Illinois, which had refused to admit an attorney to the practice of law on the grounds that he was a conscientious objector to war and could not therefore agree to “protect and defend” the State by service in the Illinois militia. “It is impossible for us to conclude that the insistence of Illinois that an officer who is charged with the administration of justice must take an oath to support the Constitution of Illinois and Illinois’ interpretation of that oath to require a willingness to perform military service violates the principles of religious freedom which the Fourteenth Amendment secures against state action, when a like interpretation of a similar oath as to the Federal Constitution bars an alien from national citizenship.”

    Justice Black (with Justices Douglas, Murphy, and Rutledge) dissented, noting that “The question is, therefore, whether a state which requires a license as a prerequisite to practicing law can deny an applicant a license solely because of his deeply-rooted religious convictions.” … “Yet the Quakers have had a long and honorable part in the growth of our nation, and an amicus curiae brief filed in their behalf informs us that under the test applied to this petitioner, not one of them if true to the tenets of their faith could qualify for the bar in Illinois.” … “I cannot agree that a state can lawfully bar from a semi-public position, a well-qualified man of good character solely because he entertains a religious belief which might prompt him at some time in the future to violate a law which has not yet been and may never be enacted. Under our Constitution men are punished for what they do or fail to do and not for what they think and believe. Freedom to think, to believe, and to worship, has too exalted a position in our country to be penalized on such an illusory basis.”

    Personal Comments: This case is probably no longer good law, because it relies to a considerable degree upon 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), both of which were overruled by Girouard v. United States, 328 U.S. 61 (April 22, 1946). Instead, this case probably demonstrates the pressure building within the Court for Girouard‘s ultimate reversal of the law.

  • Marsh v. Alabama, 326 U.S. 501 (Jan. 7, 1946).


    Justice Black (with Justices Douglas, Murphy, and Rutledge) overturned a criminal conviction of a Jehovah’s Witness for distributing religious literature within a privately owned “company town” against the posted wishes of the property owner. The Court rejected “the state’s contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms” “of press and religion.” The Court held that “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” … “As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The ‘business block’ serves as the community shopping center and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.”

    Justice Frankfurter concurred in part, arguing that so long as the Constitution requires municipalities to be open for this sort of activity, “I am unable to find legal significance in the fact that a town in which the Constitutional freedoms of religion and speech are invoked happens to be company-owned.” … “And so I agree with the opinion of the Court, except that portion of it which relies on arguments drawn from the restrictions which the Commerce Clause imposes on State regulation of commerce.”

    Justice Reed (with Chief Justice Stone and Justice Burton) dissented, complaining “This is the first case to extend by law the privilege of religious exercises beyond public places or to private places without the assent of the owner.” … “Our Constitution guarantees to every man the right to express his views in an orderly fashion. An essential element of ‘orderly’ is that the man shall also have a right to use the place he chooses for his exposition. The rights of the owner, which the Constitution protects as well as the right of free speech, are not outweighed by the interests of the trespasser, even though he trespasses in behalf of religion or free speech.”

  • Tucker v. Texas, 326 U.S. 517 (Jan. 7, 1946).


    Justice Black (with Justices Douglas, Murphy, and Rutledge) overturned a criminal conviction of a Jehovah’s Witness for continuing to “peddle merchandise” after having been asked by the property owner’s agent to leave. The property was a “company town” owned by the United States, but the Court elected to follow the “company town” precedent for private property decided the same day in Marsh v. Alabama, 326 U.S. 501 (Jan. 7, 1946), refusing to allow the property manager to ban or control the distribution of religious literature.

    Justice Frankfurter concurred in part and concurred in the result, refusing to acknowledge that any Act of Congress was being challenged herein on constitutional grounds, and concurring in part and in the result for the reasons stated in his separate opinion for Marsh v. Alabama, 326 U.S. 501 (Jan. 7, 1946), noting that “In the case of communities established under the sponsorship of the United States by virtue of its pending power, it would, I should think, be even less desirable than in the case of company towns to make the constitutional freedoms of religion and speech turn on gossamer distinctions about the extent to which land has been ‘dedicated’ to public uses.”

    Chief Justice Stone and Justices Reed and Burton dissented for the reasons they stated in Marsh v. Alabama, 326 U.S. 501 (Jan. 7, 1946).

  • Girouard v. United States, 328 U.S. 61 (April 22, 1946).***** LANDMARK CASE *****


    Justice Douglas (with Justices Black, Murphy, Rutledge, and Burton) upheld the granting of US citizenship to a Seventh Day Adventist who stated on his citizenship application that he was not willing to take up arms but would serve as a noncombatant, in the process declaring that United States v. Schwimmer, 279 U.S. 644 , 49 S.Ct. 448 (May 27, 1929), United States v. Macintosh, 283 U.S. 605 , 51 S. Ct. 570 (May 25, 1931), and United States v. Bland, 283 U.S. 636 , 51 S.Ct. 569 (May 25, 1931) were all wrongly decided. “The test oath is abhorrent to our tradition. Over the years Congress has meticulously respected that tradition and even in time of war has sought to accommodate the military requirements to the religious scruples of the individual. We do not believe that Congress intended to reverse that policy when it came to draft the naturalization oath.”

    Chief Justice Stone (with Justices Reed and Frankfurter) dissented because “the court below, in applying the controlling provisions of the naturalization statutes, correctly applied them as earlier construed by this Court, whose construction Congress has adopted and confirmed.”

  • Cleveland v. United States, 329 U.S. 14 (Nov. 18, 1946).


    Justice Douglas (with Chief Justice Vinson and Justices Reed, Frankfurter, and Burton) held that certain Mormons who practices polygamy were properly convicted of violating the Mann Act, making criminal “the transportation in interstate commerce of ‘any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose’.” The Court found that polygamy was just such an “other immoral purpose.”

    Justice Rutledge concurred in the result, apparently agreeing that Caminetti v. United States, 242 U.S. 470 (January 15, 1917) was wrongly decided, but that until there were a majority of the Court willing to overrule that case, or until Congress overruled the Court by altering its enactment, it remains the law of the land and should be adhered to.

    Justices Black and Jackson dissented, asserting that the court’s opinion necessarily extended the rule of Caminetti v. United States, 242 U.S. 470 (January 15, 1917), which they deemed to be “dubious” and which should at least be limited to its facts.

    Justice Murphy dissented, holding that it was wrong to place polygamy in the same statutory class with “prostitution and debauchery,” and would have reversed the convictions on that ground.

  • Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947).***** LANDMARK CASE *****


    Justice Black (apparently with Chief Justice Vinson and Justices Reed, Douglas, and Murphy) held that a state law which, among other things, allowed parents to be reimbursed for the cost of bus fare to transport their children to and from school, did not violate the Establishment Clause by failing to eliminate reimbursements where the child attended a religious school. “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.” The standard for First Amendment jurisprudence with respect to religion, as set forth by this case, is often quoted by subsequent cases:

    “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.'”

    [Quoted from Torcaso v. Watkins, 367 U.S. 488 (June 19, 1961), which also noted: “While there were strong dissents in the Everson case, they did not challenge the Court’s interpretation of the First Amendment’s coverage as being too broad, but thought the Court was applying that interpretation too narrowly to the facts of that case.”]

    Justice Jackson (with Justice Frankfurter) dissented: “The Court’s opinion marshals every argument in favor of state aid [to the parents of Catholic children] and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters.”

    Justice Rutledge (with Justices Jackson, Frankfurter, and Burton) dissented, arguing that no amount of aid to religious schools, however small, should be held to be allowable by the First Amendment.

  • Rescue Army v. Municipal Court, 331 U.S. 549 (June 9, 1947).


    Justice Rutledge (with Chief Justice Vinson and Justices Reed, Frankfurter, Jackson, and Burton) after a lengthy discussion of the unusual procedural posture of the case, the challenged statute, and some of the surrounding facts, dismissed the appeal “without prejudice” to further review should that become necessary. The appeal herein was with respect to the denial of a write of prohibition to prevent a series of criminal prosecutions in the Municipal Court of California for the violation of City of Los Angeles ordinances regulating solicitation of contributions for charitable and religious purposes.

    Justice Black concurred in the result.

    Justice Murphy (with Justice Douglas) dissented, noting a pair of clear issues presented by the current record that seemed ripe for decision.

  • Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (March 8, 1948).


    Justice Black (with Chief Justice Vinson and Justices Douglas, and Murphy) declared unconstitutional “the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education.” This invalidated a program where “released time” religious instruction was performed in public school buildings by religious instructors provided by a local council of churches.

    Justice Frankfurter (with Justices Jackson, Rutledge, and Burton) concurred in the result, noting that “We dissented in [Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947)] because in our view the Constitutional principle requiring separation of Church and State compelled invalidation of the ordinance sustained by the majority. Illinois has here authorized the commingling of sectarian with secular instruction in the public schools. The Constitution of the United States forbids this.”

    Justice Jackson concurred in the result, but expressed some dismay at what he viewed to be a future flood of litigation challenging a multiplicity of relationships between schools and churches, and cautioned the federal courts to be certain of proper jurisdiction before proceeding. “It is idle to pretend that this task is one for which we can find in the Constitution one word to help us as judges to decide where the secular ends and the sectarian begins in education. Nor can we find guidance in any other legal source. it is a matter on which we can find no law but our own prepossessions. If with no surer legal guidance we are to take up and decide every variation of this controversy, raised by persons not subject to penalty or tax but who are dissatisfied with the way schools are dealing with the problem, we are likely to have much business of the sort. And, more importantly, we are likely to make the legal ‘wall of separation between church and state’ as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded.”

    Justice Reed dissented, noting “As I am convinced that this interpretation of the First Amendment is erroneous, I feel impelled to express the reasons for my disagreement. By directing attention to the many instances of close association of church and state in American society and by recalling that many of these relations are so much a part of our tradition and culture that they are accepted without more, this dissent may help in an appraisal of the meaning of the clause of the First Amendment concerning the establishment of religion and of the reasons which lead to the approval or disapproval of the judgment below.”

  • Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951).


    Chief Justice Vinson (with Justices Reed, Douglas, Jackson, Burton, Clark, and Minton) overturned the convictions of two Jehovah’s Witnesses for “breach of the peace” due to their conducting a public meeting in a park after a permit for said meeting had been denied for no apparent good reason.

    Justice Black concurred in the result.

    Justice Frankfurter concurred in the result, conducting a lengthy comparison of the three cases decided this day against prior precedents and finding each result to be justified by both the facts and the precedents.

  • Kunz v. New York, 340 U.S. 290 (January 15, 1951).


    Chief Justice Vinson (with Justices Reed, Douglas, Burton, Clark, and Minton) declared unconstitutional a New York City ordinance which made it unlawful to hold a religious meeting on a street without a permit, which permit could be denied for arbitrary reasons. “We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.”

    Justice Black concurred in the result.

    Justice Frankfurter concurred in the result, as part of his common opinion stated in Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951).

    Justice Jackson dissented, noting “The speeches which Kunz has made and which he asserts he has a right to make in the future were properly held by the courts below to be out of bounds for a street meeting and not constitutionally protected. This Court, without discussion, makes a contrary assumption which is basic to its whole opinion.”

  • Feiner v. New York, 340 U.S. 315 (January 15, 1951).


    Chief Justice Vinson (with Justices Reed, Jackson, Burton, and Clark) upheld the conviction of a university student for his making of an inflammatory speech which engendered a sufficiently angry reaction that it could be reasonably determined to have been an “incitement to a breach of the peace,” of which he was convicted.

    Justice Frankfurter concurred in the result, as part of his common opinion stated in Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951).

    Justice Black dissented, noting “I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. The end result of the affirmance here is to approve a simple and readily available technique by which cities and states can with impunity subject all speeches, political or otherwise, on streets or elsewhere, to the supervision and censorship of the local police. I will have no part or parcel in this holding which I view as a long step toward totalitarian authority.”

    Justice Douglas (with Justice Minton) dissented, noting “A speaker may not, of course, incite a riot any more than he may incite a breach of the peace by the use of ‘fighting words.’ [Citation.] But this record shows no such extremes. It shows an unsympathetic audience and the threat of one man to haul the speaker from the stage. It is against that kind of threat that speakers need police protection. If they do not receive it and instead the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedly struck down.”

  • Zorach v. Clauson, 343 U.S. 306 (April 28, 1952).


    Justice Douglas (with Chief Justice Vinson and Justices Reed, Burton, Clark, and Minton) upheld as constitutional a New York “released time” religious education program whereby some students would be released from public schools in order to attend religious education classes while the remaining students would be retained in the public schools, with appropriate checks to see that the released students did attend the religious classes, etc., distinguishing Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (March 8, 1948) on the grounds that it involved the use of public school facilities for the religious education programs.

    Justice Black dissented, noting “I see no significant difference between the invalid Illinois system and that of New York here sustained. Except for the use of the school buildings in Illinois, there is no difference between the systems which I consider even worthy of mention. … The First Amendment has lost [much] if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law.”

    Justice Frankfurter dissented, noting “The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released-time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the case.”

    Justice Jackson (with Justice Frankfurter) dissented, noting “This released time program is founded upon a use of the State’s power of coercion, which, for me, determines its unconstitutionality. Stripped to its essentials, the plan has two stages: first, that the State compel each student to yield a large part of his time for public secular education; and, second, that some of it be ‘released’ to him on condition that he devote it to sectarian religious purposes. … My evangelistic brethren confuse an objection to compulsion with an objection to religion. … The day that this country ceases to be free for irreligion it will cease to be free for religion – except for the sect that can win political power.”

  • Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (November 24, 1952).


    Justice Reed (with Chief Justice Vinson and Justices Black, Frankfurter, Douglas, Burton, Clark, and Minton) held that New York violated the First Amendment Free Exercise Clause when it enacted a statute to settle a property dispute over control of the Russian Orthodox Cathedral in New York because the duty of secular authorities in resolving church property disputes is to determine what the ruling of the proper ecclesiastical body is and then implement that ruling (at least, in the case of a hierarchical church).

    Justice Frankfurter (with Justices Black and Douglas) concurred, noting “it is not a function of civil government under our constitutional system to assure rule to any religious body by a counting of heads. Our Constitution does assure that anyone is free to worship according to his conscience. A legislature is not free to vest in a schismatic head the means of acting under the authority of his old church, by affording him the religious power which the use and occupancy of St. Nicholas Cathedral make possible.”

    Justice Black “agrees with [the opinion of Justice Frankfurter] on the basis of his view that the Fourteenth Amendment makes the First Amendment applicable to the States.”

    Justice Jackson dissented, noting “whatever the canon law is found to be and whoever is the rightful head of the Moscow patriarchate, I do not think New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution.”

  • Wieman v. Updegraff, 344 U.S. 183 (December 15, 1952).


    Justice Clark (with Chief Justice Vinson and Justices Black, Reed, Frankfurter, Douglas, and Minton) held as unconstitutional a test oath which lumped together innocent involvement with “Communist front” groups and knowingly disloyal conduct of the same sort, stating that university teachers could not be terminated for refusing to sign such an oath.

    Justice Burton concurred in the result.

    Justice Black concurred, noting “Governments need and have ample power to punish treasonable acts. But it does not follow that they must have a further power to punish thought and speech as distinguished from acts.”

    Justice Douglas concurred.

    Justice Frankfurter (with Justice Douglas) concurred, noting “It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers must fulfill their function by precept and practice, by the very atmosphere which they generate; they must be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom, to assure which the freedoms of thought, of speech, of inquiry, of worship are guaranteed by the Constitution of the United States against infraction by National or State government.”

  • Fowler v. Rhode Island, 345 U.S. 67 (March 9, 1953).


    Justice Douglas (with Chief Justice Vinson and Justices Black, Jackson, Burton, Clark, and Minton) held that when a statute, as applied, provides “that a religious service of Jehovah’s Witnesses is treated differently than a religious service of other sects, … [t]hat was a discrimination which we held to be barred by the First and Fourteenth Amendments,” following Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951).

    Justice Frankfurter concurred with the opinion except to the extent which it relied upon the First Amendment for support, finding that the “Equal Protection Clause” of the Fourteenth Amendment provided sufficient support to reach the result.

    Justice Jackson concurred in the result.

  • Poulos v. New Hampshire, 345 U.S. 395 (April 27, 1953).


    Justice Reed (with Chief Justice Vinson and Justices Jackson, Burton, Clark, and Minton) held that a city ordinance, construed by the Supreme Court of New Hampshire as creating an absolute right to a license to speak, subject only to certain limited time, place, and manner restrictions, was not unconstitutional, even though it was religious speech which was being performed; and that having been unlawfully denied a license by the officials of the city, the proper remedy was to seek relief in the courts rather than to proceed to speak without the required license and defend against the subsequent criminal case on the basis of the unlawful denial of a license.

    Justice Frankfurter concurred in the result, complaining that the majority opinion went too far and discussed an issue which was not properly before the US Supreme Court.

    Justice Black dissented, noting that if the license to speak was “arbitrarily and unreasonably” denied, then it should not be a criminal offense to exercise the rights which were so denied.

    Justice Douglas (with Justice Black) dissented. “There is no free speech in the sense of the Constitution when permission must be obtained from an official before a speech can be made. That is a previous restraint condemned by history and at war with the First Amendment. The nature of the particular official who has the power to grant or deny the authority does not matter. Those who wrote the First Amendment conceived of the right to free speech as wholly independent of the prior restraint of anyone. The judiciary was not granted a privilege of restraint withheld from other officials. For history proved that judges too were sometimes tyrants.”

  • Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (June 6, 1960).


    Per Curium found that the common law of the State of New York also could not be used to prevent the proper ecclesiastical body from appointing the head of the Russian Orthodox Church in New York, following Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (November 24, 1952).

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The text of this compilation is Copyright © 2000-2001, by William A. Schultz. All Rights Reserved. Used by permission of the author.

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