Facially Neutral Laws That Interfere With Religious Practice: Early Doctrine

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The Supreme Court’s first encounter with free exercise claims occurred in a series of cases in which the Federal Government and the territories moved against members of the Church of Jesus Christ of Latter-Day Saints because of their practice of polygamy. Actual prosecutions and convictions for bigamy presented little problem for the Court, as it could distinguish between beliefs and acts.1 But the presence of large numbers of Latter-Day Saints in some of the territories made convictions for bigamy difficult to obtain, and in 1882 Congress enacted a statute that barred bigamists, polygamists, and any person cohabiting with more than one woman from voting or serving on juries.

The Court sustained the law, even as applied to persons entering the state prior to the enactment of the original law prohibiting bigamy and to persons as to whom the statute of limitations had run.2 Subsequently, an act of a territorial legislature that required a prospective voter not only to swear that he was not a bigamist or polygamist but also that “I am not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees or any other person to commit the crime of bigamy or polygamy. or which practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization; that I do not and will not, publicly or privately, or in any manner whatever teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy,” was upheld in an opinion that condemned plural marriage and its advocacy as equal evils.3 And, finally, the Court sustained the revocation of the charter of the Church and confiscation of all church property not actually used for religious worship or for burial.4

In a number of cases involving Jehovah's Witnesses, the Court confirmed the rights of religious proselytizers and other advocates to use the streets and parks to broadcast their ideas, though some of the decisions may be based more squarely on the speech clause than on the Free Exercise Clause.

The leading case is Cantwell v. Connecticut.5 Three Jehovah’s Witnesses were convicted under a statute that forbade the unlicensed soliciting of funds for religious or charitable purposes, and also under a general charge of breach of the peace. The solicitation count was voided as an infringement on religion because the issuing officer was authorized to inquire whether the applicant's cause was a religious one and to decline to issue a license if he determined that it was not.6 Such power amounted to a prior restraint upon the exercise of religion and was invalid, the Court held.7 The breach of the peace count arose when the three Jehovah's Witnesses—a man with his two sons—stopped two Catholic men and, with their permission, played them a phonograph record which attacked the Catholic Church. The Court voided the breach-of-the-peace conviction under the clear-and-present danger test, finding that the interest sought to be upheld by the state did not justify the suppression of religious views that simply annoyed listeners.8

A series of sometimes-conflicting decisions followed. At first, the Court sustained the application of a non-discriminatory license fee to vendors of religious books and pamphlets,9 but eleven months later it vacated the decision and struck down such fees.10 A city ordinance making it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature was held to violate the First Amendment when applied to distributors of leaflets advertising a religious meeting.11 

A state child labor law, however, was held to be validly applied to punish the guardian of a nine-year-old child who permitted her to engage in preaching work and the sale of religious publications after hours.12 The Court decided a number of cases involving meetings and rallies in public parks and other public places by upholding licensing and permit requirements which were premised on nondiscriminatory times, places, and manners terms and which did not seek to regulate the content of the religious message to be communicated.13 

In 2002, the Court struck down on free speech grounds a town ordinance requiring door-to-door solicitors, including persons seeking to proselytize about their faith, to register with the town and obtain a solicitation permit.14 The Court stated that the requirement was offensive to the very notion of a free society.

In early cases, the Court sustained the power of a state to exclude from its schools children who because of their religious beliefs would not participate in the salute to the flag,15 only within a short time to reverse itself and condemn such exclusions, but on speech grounds rather than religious grounds.16 Also, the Court seemed to be clearly of the view that government could compel those persons religiously opposed to bearing arms to take an oath to do so or to receive training to do so,17 only in later cases to cast doubt on this resolution by statutory interpretation,18 and still more recently to leave the whole matter in some doubt.19


1.    Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879)cf. Cleveland v. United States, 329 U.S. 14 (1946) (no religious-belief defense to Mann Act prosecution for transporting a woman across state line for the immoral purpose of polygamy).

2.    Murphy v. Ramsey, 114 U.S. 15 (1885).

3.    Davis v. Beason, 133 U.S. 333 (1890). Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases. Id. at 341–42.

4.    The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). [T]he property of the said corporation . . . [is to be used to promote] the practice of polygamy—a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. . . . The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world. Id. at 48–49.

5.    310 U.S. 296 (1940).

6.    310 U.S. at 305.

7.    310 U.S. at 307. The freedom to act must have appropriate definition to preserve the enforcement of that protection [of society]. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. . . . [A] State may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. Id. at 304.

8.    310 U.S. at 307–11. In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probabilities of excesses and abuses, these liberties are in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. Id. at 310.

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

10. Jones v. Opelika, 319 U.S. 103 (1943)Murdock v. Pennsylvania, 319 U.S. 105 (1943)See also Follett v. Town of McCormick, 321 U.S. 573 (1944) (invalidating a flat licensing fee for booksellers). Murdock and Follett were distinguished in Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 389 (1990), as applying only where a flat license fee operates as a prior restraint; upheld in Swaggart was application of a general sales and use tax to sales of religious publications.

11. Martin v. City of Struthers, 319 U.S. 141 (1943)But cf. Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance sustained in commercial solicitation context).

12. Prince v. Massachusetts, 321 U.S. 158 (1944).

13. E.g.Niemotko v. Maryland, 340 U.S. 268 (1951)Kunz v. New York, 340 U.S. 290 (1951)Fowler v. Rhode Island, 345 U.S. 67 (1953)Poulos v. New Hampshire, 345 U.S. 395 (1953)See also Larson v. Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by Unification Church members).

14. Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150 (2002).

15. Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).

16. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). On the same day, the Court held that a state may not forbid the distribution of literature urging and advising on religious grounds that citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 583 (1943). In 2004, the Court rejected for lack of standing an Establishment Clause challenge to recitation of the Pledge of Allegiance in public schools. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).

17. See United States v. Schwimmer, 279 U.S. 644 (1929)United States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland, 283 U.S. 636 (1931) (all interpreting the naturalization law as denying citizenship to a conscientious objector who would not swear to bear arms in defense of the country), all three of which were overruled by Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) (upholding expulsion from state university for a religiously based refusal to take a required course in military training); In re Summers, 325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because as conscientious objector he could not take required oath).

18. United States v. Seeger, 380 U.S. 163 (1965)see id. at 188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 (1970)see also id. at 344 (Justice Harlan concurring).

19. Gillette v. United States, 401 U.S. 437 (1971) (holding that secular considerations overbalanced free exercise infringement of religious beliefs of objectors to particular wars).

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