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Recent Restrictions upon Religious Liberty

Published online by Cambridge University Press:  02 September 2013

Victor W. Rotnem  and
F. G. Folsom Jr.
Victor W. Rotnem
Affiliation:
U. S. Department of Justice
F. G. Folsom Jr.
Affiliation:
U. S. Department of Justice
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Extract

Within the last five years, the Supreme Court of the United States has added decisions of greater importance to the case law of religious freedom than had been accumulated in all the years since the adoption of the Bill of Rights. The importance of two of these recent decisions rests upon the subordination of freedom of action based on sectarian beliefs to the restrictions of society as a whole. In one of the two cases, the law of society was a board of education order that school children participate in the flag salute exercise on pain of expulsion from the public schools; in the other, it was peddlers' license tax ordinances. Because neither of these decisions has been accepted as a firmly rooted precedent, it will be well to examine them in the light of the history of the federally secured right of religious freedom and in the light of the immediate public reactions to them.

A considerable proportion of the early emigration to the thirteen original colonies was undoubtedly due to a desire to escape religious persecution in England and on the Continent. Those colonists, however, were as insistent that their own particular form of religion be adhered to as their oppressors had been. The story of Roger Williams, who was expelled from the colony of Massachusetts because of his non-conformist views and who established the colony of Rhode Island as a sanctuary of religious tolerance, and that of Ann Hutchinson, who also was exiled from the Bay Colony for a like reason, are monuments to the intolerance of the Puritans.

Type
Research Article
Information
American Political Science Review , Volume 36 , Issue 6 , December 1942 , pp. 1053 - 1068
Copyright
Copyright © American Political Science Association 1942

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References

1 Minersville District v. Gobitis, 310 U.S. 586 (1940).

2 Jones v. Opelika, 316 U.S. 584 (1942).

3 Permoli v. New Orleans, 3 How. 589, 609 (1845).

4 Davis v. Beason, 133 U.S. 333, 342 (1890).

5 Watson v. Jones, 13 Wall. 679 (1871).

6 Reynolds v. United States, 98 U.S. 145 (1878); Davis v. Beason, 133 U.S. 333 (1890).

7 Watson v. Jones, 13 Wall, 679 (1871).

8 Vidal et al. v. Girard's Executor, 2 How., 43 U.S. 126 (1844).

9 New v. United States, 245 Fed. 710 (1917). See also “Criminal Aspects of Fortune-Telling,” Moody's Monthly, July, 1942, by Pvt. I. H. Rubenstein. Rubenstein was prompted to write this article by the increase of fortune-tellers as an incident of the present war.

10 See Hamilton v. Regents, 293 U.S. 245 (1934).

11 See Palko v. Connecticut, 302 U.S. 319 (1937). It should be noted that most state constitutions already contain provisions similar to those of the First Amendment of the federal constitution.

12 The Jehovah's Witnesses' position somewhat resembles that of the early Christians who were martyred for rejecting the symbols of the self-deified Roman emperors. The resemblance is incomplete, however, because the flag has no parallel religious significance.

13 This claim has been advanced before local boards of the Selective Service System as the basis for demands by individual Witnesses for draft exemption under Section 5(d) of the Selective Training and Service System Act of 1940. In Opinion No. 14, Vol. III, National Headquarters Selective Service System, it was recognized that those Jehovah's Witnesses who devoted their full time to the Society's activities were in a position to be considered by local boards as ministers of the gospel.

14 Lovell v. Griffin, 303 U.S. 444 (1938).

15 Schneider v. Irvington, 308 U.S. 147 (1939).

16 310 U.S. 296 (1940).

17 The objection is often made that one religious sect should not be protected by constitutional guarantees when its members verbally abuse other religions. A test of this view came under a New Jersey statute which made it a misdemeanor to make statements in the hearing of two or more persons which incite or advocate hatred against any group on the ground of race or religion. In a case involving German-American Bund antisemitic utterances, the New Jersey supreme court held this statute so vague that it conflicted with the free-speech and religious-freedom guarantees of the Fourteenth Amendment. State v. Klapprott, 127 N.J.L. 395 (1941). Jehovah's Witnesses had been prosecuted under this same statute. But see Cantwell v. Connecticut, 310 U.S. 296, 309, and 310 (1940), discussed above, in which the federal Supreme Court indicated that the free speech guarantees of the First and Fourteenth Amendments did not protect statements so profane, indecent, or abusive to the person of a listener as to amount to a breach of peace.

18 Cox v. New Hampshire, 312 U.S. 569 (1941). And compare Leiby v. Manchester, 117 F. (2d) 661, holding that the distributors of literature and periodicals must comply with an ordinance requiring buttons to be secured from the superintendent of schools, who had no discretion to refuse them. Cert. den. 313 U.S. 562 (1941).

19 21 F. Supp. 581, E.D. Pa.

20 24 F. Supp. 271, E.D. Pa., June 18, 1938.

21 108 Fed. (2d) 683.

22 The Supreme Court had on four previous occasions upheld flag salute regulations in per curiara decisions: Leoles v. Landers et al., 302 U.S. 656 (1937); Hering v. State Board of Education, 303 U.S. 624 (1938); Gabrielli v. Knickerbocker, 306 U.S. 621 (1939); and Johnson v. Deerfield, 306 U.S. 621 (1939), rehearing denied, 307 U.S. 650 (1939).

23 Sec. 52, T. 18, U.S.C. The respective grand juries refused to indict. Then an information was filed in the worst of the three assaults in which a chief of police and deputy sheriff had forced a group of Jehovah's Witnesses to drink large doses of castor oil and had paraded the victims through the streets of Richwood, West Virginia, tied together with police department rope. The trial of this outrage resulted in a speedy conviction.

24 In re Lefebvre, 20 Atl. 2nd, 185. In re Jones, 24 N.Y. Supp. 2nd, 10 (1940).

25 In re La Trecchia, N.J. Sup. Ct. decided June 30, 1942, holding that the parents cannot be fined when the school board expels their children for refusing to salute the flag; West Virginia v. Mercante, C. Ct. Hancock Co., W.Va., June 1, 1942, to the same effect; and see the following pending cases: South Dakota v. Davis and wife, Sup. Ct. S.D.; Arizona v. Davis, Sup. Ct. Ariz.; Partian v. Oklahoma, Okla. Crim. Ct. of Appeals; Pendley v. Oklahoma, Okla. Crim. Ct. of Appeals; Pendley v. Oklahoma, Okla. Crim. Ct. of Appeals. Cf. People v. Sandstrom, 279 N.Y. 523 (1939).

26 Carter-Mort v. Oklahoma, pending upon appeal, Okla. Crim. Ct. of Appeals.

27 Kennedy et al. v. City of Moscow, Dist. Ct. Idaho. 39 F. Supp. 26 (1941). Reid et al. v. Brookville et al., Dist. Ct., W.D. Pa., decided May 2, 1941.

28 H.R. 689 (Mo.) Regular Legislative Session, 1942.

29 One of these cases, Mississippi v. Mills and Wife, is now pending on appeal in the Miss. Sup. Ct.

30 In the most recent case, the supreme court of Kansas has held that the refusal to salute the flag could not under the Kansas constitution be a ground for expelling a pupil from the Kansas public schools. Kansas v. Smith, decided July 10, 1942.

31 Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Murphy joined in the following remarks, Jones v. Opelika, etc., decided June 8, 1942: “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, 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 this and in the Gobitis case do exactly that.”

32 The amount of the tax was $10 per annum, $5 for transient book agents.

33 The amount of the tax was $25 per month, $10 per week, or $2.50 per day.

34 The amount of the tax was $25 per quarter-year.

35 Age Herald, Birmingham, Ala., June 11, 1942; Courier, Evansville, Ind., June 11, 1942; Free Press, Burlington, Vt., June 10, 1942; Journal-Transcript, Peoria, Ill., June 11, 1942; Times-Dispatch, Richmond, Va., June 12, 1942; Herald, Hutchinson, Kan., June 11, 1942; News and Courier, Charleston, S. C., June 12, 1942; Virginian-Pilot, Norfolk, Va., June 12, 1942; Enterprise, Beaumont, Tex., July 5, 1942; Journal-Times, Racine, Wis., June 11, 1942; Times-Herald, Washington, D. C., June 12, 1942; State Gazette, Trenton, N. J., June 11, 1942; Tribune, Lewiston, Ida., June 11, 1942; Democrat, Johnstown, Pa., June 15, 1942; Post-Dispatch, St. Louis, Mo., June 12, 1942; Journal of Commerce, Chicago, Ill., June 15, 1942; Dispatch, Roswell, N. Mex., June 11, 1942. And see the editorials in Newsweek, June 29, 1942, Vol. 19, No. 26, p. 68, and Time, June 22, 1942, Vol. 39, No. 25, pp. 55, 56.

36 Herald-News, Passaic, N. J., June 11, 1942. Admittedly, this footnote and foot-note 29 represent the sampling method. But observe that on the basis of these samples the ratio is 19 to 1.

37 Cf. Opinion No. 14, Vol. III, National Headquarters Selective Service System.

38 A motion has been made for a rehearing of Jones v. Opelika, etc., decided June 8, 1942. A petition for certiorari has been filed in the Supreme Court in a somewhat similar license tax case arising in the District of Columbia, Busey v. Dist. of Columbia, decided April 15, 1942, in. the U. S. Court of Appeals for the District of Columbia.

On October 6, 1942, a three-judge court sitting in the District Court of the United States for the Southern District of West Virginia in the case of Walter Barnette et al. v. West Virginia State Board of Education granted an injunction against the State Board prohibiting enforcement of the flag salute requirement in the public schools of West Virginia in cases where school children have religious scruples against participating in the salute. The court felt that the authority of the Gobitis case had been so impaired by the change of heart of three members of the Supreme Court who had joined in the majority opinion that it was no longer a binding precedent. An order permitting the defendant, State Board, to appeal was entered by District Judge Ben Moore October 30, 1942.

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