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321 US 573 (Decided March 27, 1944)
Bill Long
At issue in this case was whether a McCormick, SC town ordinance establishing a license fee for agents selling books in the town violated the Free Exercise clause as applied to a local resident--a Jehovah's Witness-- who refused to pay the fee but nevertheless went from house to house selling and distributing Jehovah's Witness books and literature. This case may sound identical to Murdock (1943), but differs from it in that here the defendant resided in McCormick and, presumably, would not be as negatively affected by the fee as the itinerant preachers in Murdock (because the fee for "agents" selling books was $1 per day or $15 per year). The Court held, 6-3, that the reasoning of Murdock applied to this case: that is, it was a violation of Follett's Free Exercise rights to be compelled to pay the license fee to distribute/sell religious materials from house to house.
Issues in the Case
Since we have seen almost identical factual scenarios in previous cases, our focus will be on clarifying the majority analysis. Justice Douglas, also the author of Murdock, reiterated that the principle of Murdock was since the sellers were engaged in a "religious" rather than a "commercial" venture, the sales of the books could not be measured by standards governing the sales of wares and merchandise by "hucksters" and other merchants. Freedom of speech, the press and religion are in a favored position. In addition, the "flat license tax" was inherently vicious because it tends to restrain in advance those constitutional liberties.
The South Carolina Supreme Court, however, distinguished this case from Murdock by pointing out that the principle of Murdock only applied to itinerant preachers. In this case the defendant's employment was as a local bookseller; in Murdock the person was a "colporteur." But the US Supreme Court emphasized that the important inquiry was to determine if the books were religious. If so, Follett would then be "preaching the gospel" by going from house to house presenting the gospel.
The question for the Court, as Justice Douglas defined it, was therefore narrow. "It is whether a flat license tax as applied to one who earns his livelihood as an evangelist or preacher in his home town is constitutional." As he did in Murdock, so Justice Douglas opined here that "if this license tax would be invalid as applied to one who preaches the Gospel from the pulpit, the judgment below must be reversed." That is, he interpreted the act of the Jehovah's Witness in selling/distributing books to be an act equivalent to worship in the other religious denominations. A tax on the Jehovah's Witness for selling books door to door would be equivalent to taxing the preacher for preaching. There was also no constitutional difference between a town resident selling books in this manner and an itinerant evangelist selling literature like this. Hence, the judgment of the South Carolina Supreme Court must be reversed.
Concurring and Dissenting
Justice Reed, the author of the 1942 Opelika decision that was vacated in 1943 and reversed by Murdock, would have maintained his approach (that the sales of books partook more of commercial than religious transactions), but since the Court had gone in a different direction in Murdock (that sales of religious books by Jehovah's Witnesses was akin to worship and therefore a protected, non taxable activity), he could do nothing but concur. Justice Murphy, in concurrence, stressed that the effect of their decision was not to subsidize religion.
The three dissenters (Roberts, Frankfurter and Jackson) recognized that this decision extended the rule of Murdock to resident sellers but stressed again that because the town ordinance was not discriminatory (in that it was a fee laid on all who sold books), it could not be unconstitutional. Second, the tax was not so onerous as to discourage or suppress the pursuit of one's calling. In fact, the tax was a "monetary exaction reasonably related to the cost of maintaining society by governmental protection." "Free Exercise" does not mean that government must "render service free to those who earn their living in a religious calling."
The dissenters also pointed out that if such an exemption from taxation was allowed for a door-to-door bookseller of religious books, and if the freedoms of press, religion and speech were so special, then a tax on publishers or vendors of books of any kind was illegitimate, because it would infringe on free speech rights. "Thus the decision precludes nonoppressive nondiscriminatory licensing or occupation taxes on publishers, and on news vendors as well, since, without the latter, the dissemination of views would be impossible."
And, the parade of horribles presented by the dissenters continues. If immunity from taxation was allowed for religious booksellers, why not the same immunity for those who devote their lives to healing the sick (from a perspective of religious philosophy) or "to a myriad other worthy objects" because the motivation for such service is the person's religious convictions?
Copyright © 2004-2007 William R. Long |