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Amdt1. Facially Neutral Laws During the 1940s and 1950s

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court’s early cases interpreting the Free Exercise Clause did not articulate one clear standard for evaluating claims under that clause, although some consistent principles did emerge, particularly in cases dealing with similar fact patterns.

Starting with Cantwell v. Connecticut in 1940 and continuing through the following two decades, the Supreme Court considered a series of cases involving state and local regulations restricting solicitation or other activity in public spaces, as applied to people engaged in religious speech.1 Many of these cases invoked both the First Amendment’s Free Exercise and Free Speech Clauses.2 Some cases striking down restrictions on religious speech seemed to draw from free speech jurisprudence outlining protections for speech in public forums.3 Similarly, the Court held unconstitutional under the Free Exercise Clause regulations that it believed were impermissibly broad and discretionary prior restraints on religious speech.4

In Cantwell, for example, the Court held that a state violated the Free Exercise Clause in convicting a man and his two sons under a state law that prohibited unapproved solicitations.5 The man had played a religious record in the street, and his usual practice was to request that listeners would buy further religious materials.6 The Court acknowledged that the state may generally regulate solicitation if the regulation “does not involve any religious test and does not unreasonably obstruct or delay the collection of funds.” 7 However, the regulation challenged in Cantwell allowed a licensing official to decide whether any given solicitation was “religious” and should be approved.8 In the Court’s view, this broad discretion placed “a forbidden burden upon the exercise of liberty protected by the Constitution.” 9

Concerns about impermissible prior restraints also drove the decision in Murdock v. Pennsylvania, in which the Court held that a city could not require religious groups to pay for a license in order to distribute religious literature.10 The Court emphasized first that the “hand distribution of religious tracts is an age-old form of missionary evangelism” that enjoyed the same “protection as the more orthodox and conventional exercises of religion” such as “preaching from the pulpits.” 11 Further, the fact that the religious groups sought contributions did not “transform [their] evangelism into a commercial enterprise” that would merit lessened constitutional protection.12 The Court distinguished taxes on a preacher’s income or property (which it suggested might be allowed) from the challenged city ordinance, because the city’s licensing tax “restrain[ed] in advance those constitutional liberties of press and religion and inevitably tend[ed] to suppress their exercise.” 13 Before its decision in Murdock, the Court had previously approved a similar license fee, stating that religious groups could be subject to reasonable fees when they “use the ordinary commercial methods of sales.” 14 However, the Court vacated Murdock when it issued Jones, concluding that the groups “were engaged in a . . . religious venture” rather than a commercial one.15 In subsequent cases, the Court made clear that Murdock bars only flat license taxes that operate as preconditions on exercising constitutional rights.16

By contrast, in Poulos v. New Hampshire, the Supreme Court held that a city could require religious groups to comply with a permitting scheme to conduct meetings in a public park.17 The Supreme Court “assume[d]” that the permitting scheme entitled religious groups to hold religious services in the park “at reasonable hours and times.” 18 Based on that assumption, the Court upheld the permitting scheme as a reasonable “regulation” rather than “suppression” of speech.19 It also interpreted the law as giving licensing officials “no discretion as to granting permits, no power to discriminate, no control over speech.” 20 Accordingly, the scheme was “not the kind of prepublication license” held unlawful in cases like Murdock and others, but instead “a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.” 21

Other cases from this time period similarly rejected Free Exercise Clause challenges to laws that the Court characterized as reasonable regulations.22 One example is Prince v. Massachusetts, in which a woman was convicted of violating a state child labor law for distributing religious materials and soliciting donations with her minor niece.23 The defendant argued that this application of the law violated her and her niece’s freedom of religion.24 The Supreme Court acknowledged that the Free Exercise Clause protected “[t]he rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief.” 25 Nonetheless, the Court also recognized that the state has broad powers to regulate child welfare, and additionally ruled that the state has greater authority “over children’s activities . . . than over like actions of adults.” 26 The Court declined to apply heightened scrutiny as urged by the defendant, instead accepting the state’s conclusion that “an absolute prohibition” on child labor in certain places was “necessary to accomplish its legitimate objectives.” 27

These early cases dealing with burdens placed on religion by facially neutral laws outlined general principles; their main importance was in establishing that general regulations in the public interest were constitutional so long as they did not run afoul of doctrines prohibiting prior restraints or protecting speech in public forums. However, some early cases hinted at a potentially more rigorous standard of review that would emerge in the 1960s. Murdock, for example, ruled that the flat license tax was “not narrowly drawn to safeguard the people of the community in their homes against the evils of solicitations.” 28 Another case expressed concern about a licensing scheme that lacked “narrowly drawn, reasonable and definite standards for the officials to follow.” 29 Other cases emphasized that laws permissibly regulated religious activity in part because they did not reveal any purpose to discriminate against certain religions or to bar religious exercise.30 The Court would pick up each of these threads in future cases.

See Cantwell v. Connecticut, 310 U.S. 296, 300 (1940). back
See, e.g., Kunz v. New York, 340 U.S. 290, 293–94 (1951) (holding that a city violated the First Amendment by revoking a minister’s permit based on his ridicule of other religious beliefs, citing cases interpreting and applying both the Free Exercise and Free Speech Clauses); see also Amdt1.2.7 Relationship Between Religion Clauses and Free Speech Clause. back
See, e.g., Marsh v. Alabama, 326 U.S. 501, 507–09 (1946) (holding that, as applied to a person distributing religious literature, a state law prohibiting trespass and a company town policy prohibiting the distribution of literature violated the First Amendment, citing protections for speech and religion and a public interest in ensuring “that the channels of communication remain free” ); Tucker v. Texas, 326 U.S. 517, 520 (1946) (applying Marsh to rule unconstitutional a similar application of a different state’s law); Jamison v. Texas, 318 U.S. 413, 414, 416 (1943) (ruling unconstitutional under the Free Speech and Free Exercise Clauses a municipal ordinance prohibiting the distribution of handbills, emphasizing that a person lawfully on a public street retains speech rights). See also infra Amdt1.3.17.1 Early Doctrine. back
See Kunz, 340 U.S. at 293; Niemotko v. Maryland, 340 U.S. 268, 273 (1951); Follett v. Town of McCormick, 321 U.S. 573, 577 (1944); Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943); Jones v. City of Opelika, 319 U.S. 103, 104 (1943) (mem.); Largent v. Texas, 318 U.S. 418, 422 (1943); Cantwell, 310 U.S. at 305. See also infra Amdt1. Laws that Discriminate Against Religious Practice; . back
Cantwell, 310 U.S. at 303. The Court also held that the First Amendment precluded a breach-of-the-peace conviction based on this conduct. Id. at 311. back
Id. at 303. back
Id. at 305. back
Id. back
Id. at 307. See also Largent, 318 U.S. at 422 (holding that a city’s permitting system involving discretionary judgments was “administrative censorship” that “abridge[d] the freedom of religion, of the press and of speech,” in the context of a conviction for distributing religious books). back
Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943). back
Id. at 108–09. back
Id. at 110–11. back
Id. at 112, 114 (emphasis added). back
Jones v. Opelika, 316 U.S. 584, 597–98 (1942), vacated, 319 U.S. 103 (1943) (mem.). Among other factors, the Court in Jones emphasized that the fee did not constitute a “complete prohibition,” was “nondiscriminatory” in the sense that it applied to all booksellers equally, and did not vest “discretionary power in the public authorities to refuse a license to any one desirous of selling religious literature.” Id. at 596, 598. back
Murdock, 319 U.S. at 111; Jones v. City of Opelika, 319 U.S. 103, 104 (1943) (mem.). See also Follett v. Town of McCormick, 321 U.S. 573, 574–75, 577 (1944) (ruling it unconstitutional to impose a flat license tax “in all material respects the same as the ones involved in” Jones and Murdock on a resident preacher). back
See Jimmy Swaggart Ministries v. Cal. Bd. of Equalization, 493 U.S. 378, 389 (1990) (holding that Murdock and Follett “apply only where a flat license tax operates as a prior restraint on the free exercise or religious beliefs,” and did not bar the application of a “generally applicable sales and use tax” to religious materials); Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 24 (1989) (plurality opinion) (holding that Murdock and Follett would not bar the application of a general sales tax to religious publications). back
Poulos v. New Hampshire, 345 U.S. 395, 402–04 (1953). back
Id. at 408. back
Id. at 408. back
Id. at 404. The state officials had in fact denied the defendant a permit to conduct religious activity in a park and arrested him after he held unapproved services, apparently exercising discretion in their control over speech. See id at 397. Although this action was contrary to the Court’s construction of the statute, the Court nevertheless concluded that the defendant could still be prosecuted for proceeding with the services instead of appealing the city’s denial decision. Id. at 414. back
Id. at 403. See also Cox v. New Hampshire, 312 U.S. 569, 578 (1941) (rejecting a Free Exercise Clause challenge to a statute prohibiting processions on public streets). back
See, e.g., Jones v. Opelika, 316 U.S. 584, 596–98 (1942) (involving a licensing scheme for booksellers, as applied to sales that the Court said were “partaking more of commercial than religious or educational transactions” ), vacated, 319 U.S. 103 (1943) (mem.); Minersville School Dist. v. Gobitis, 310 U.S. 586, 597–98 (1940) (involving a requirement for school children to participate in a flag salute, which the Court said served the government’s “legitimate” interest in national unity), overruled by W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Cf. In re Summers, 325 U.S. 561, 571, 573 (1945) (rejecting a conscientious objector’s Free Exercise Clause challenge to a licensing scheme requiring attorneys to swear to support the state constitution and its provision requiring military service, emphasizing “the right of Congress to require military service from every able-bodied man” and the lack of any purpose to discriminate against religious groups); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 262–63 (1934) (saying a constitutional right for religious objectors to avoid military training as a condition of university attendance was “untenable” in light of citizens’ duty “to support and defend government” ). back
Prince v. Massachusetts, 321 U.S. 158, 159–62 (1944). back
Id. at 164. The Court noted that the plaintiff’s claim under the Free Exercise Clause was “buttresse[d] . . . with a claim of parental right as secured by the due process clause of the [Fourteenth] Amendment.” Id. The case also involved an equal protection claim, which the Court similarly rejected. Id. at 170–71. back
Prince, 321 U.S. at 165. back
Id. at 167–68. back
Id. at 170. The Court further said that “[s]treet preaching” could be “regulated within reasonable limits” for adults, and could be prohibited for “children not accompanied by an older person.” Id. at 169. back
Murdock v. Pennsylvania, 319 U.S. 105, 116 (1943). The Court emphasized that the state might have been able to achieve its goals with more narrow restrictions, such as registration requirements, “nominal” fees, or more narrowly drawn proscriptions on certain types of solicitation. Id. at 116–17. back
Niemotko v. Maryland, 340 U.S. 268, 271 (1951). back
Tucker v. Texas, 326 U.S. 517, 520 (1946); In re Summers, 325 U.S. 561, 571, 571 (1945). back