Free Exercise cases and jurisprudence and Hamilton v. Regents and ROTC and course in military science and Cardozo and Morrill Act

In this 5-4 decision (opinion by Justice Stanley Reed), which was one of the first free expression cases that followed the massive changeover in Court personnel in the wake of the "switch in time that saved nine" in 1937, and the fourth "Jehovah's Witnesses" case (Cantwell and Gobitis were decided in 1940 and Cox in 1941), the Court held that regulations in three cities requiring the payment of licensing fees before a person could sell literature as a Book Agent or a transient agent, did not offend the Free Exercise clause of the First Amendment. Though each of the city ordinances differed in particulars from the others, the Opelika ordinance allowed a license so obtained to be revoked at the discretion of the City Commission, with or without notice. The bookselling fee in each of the three cities (also Fort Smith, AR and Casa Grande, AZ) was unrelated to the cost to administer the program.

Other Relevant Facts

Then, as now, the Jehovah's Witnesses were a Christian group which believed in vigorous proselytizing from door to door. The representatives, ordained ministers in this case, would ask permission to play phonograph records that described the contents of books they were selling, and then ask for a contribution, usually $.25, to help defray some of the cost of a book they offered. If the person could not pay, the minister would either leave the book for free or give a pamphlet to the interested person. In no case did Jehovah's Witness ministers obtain a license from the municipality to sell their wares.

Clashing Legal Principles at Issue

The majority framed the issue in thought/action terms that came from the Reynolds case in the previous century. "Courts, no more than Constitutions, can intrude into the consciences of men or compel them to believe contrary to their faith or think contrary to their convictions, but courts are competent to adjudge the acts men do under color of a constitutional right, such as....the free exercise of religion. So the mind and spirit of man remain forever free, while his actions rest subject to necessary accommodation to the competing needs of his followers."

The vital question, then, was whether the action of selling religious books from door to door without a license was something that a city could legitimately control. In resolving the issue, the Court majority distinguished between "censorship and complete prohibition," which this case did not entail and "regulation of the conduct of individuals in the time, manner and place of their activities." In addition, the Court distinguished between "nondiscriminatory regulation of operations which are incidental to the exercise of religion...and those which are imposed upon the religious rite itself or the unmixed dissemination of information."

The decision of the Court followed quickly. "When proponents of religious or social theories use the ordinary commercial methods of sales of articles to raise propaganda funds, it is a natural and proper exercise of the power of the state to charge reasonable fees for the privilege of canvassing." Then, "it is difficult to see in such enactments a shadow of prohibition for the exercise of religion..." The tax was not on religion but on selling Bibles or religious literature.

In Dissent

The two dissenting opinions, by Chief Justice Stone and Justice Murphy, examined both the unlimited discretion of the authorities in Opelika to withdraw a license as well as the amount of fees charged in order to get a license. The majority had considered the amount of fees ($25.00 annually in some cases or $2.50 per day in others) irrelevant because the issue had not been argued below, but the dissenters thought this amount was relevant.

With respect to the former, the Chief Justice argued that "the case presents in its baldest form the question whether the freedoms which the Constitution purports to safeguard can be completely subjected to uncontrolled administrative action." Such discretion was disallowed in both Lovell and Cantwell. One of the defendants (Jones) was prohibited from distributing pamphlets at all unless he paid in advance a year's tax for the exercise of the privilege as well as subjected himself to termination of the license without cause. This, for Justice Stone, constituted a transparent attempt at prior restraint in promoting religious ideas. There was little difference between the taxing of a peddlar of a religious message and taxing a minister before he ascended the pulpit.

The Chief Justice also took pains to point out that the fees unders consideration were not the "nominal fee for a regulatory license," which might be valid, but is a rather substantial amount for persons without independent means or large sales of books. When you consider that the population of two of the towns is not more than 2,000, it takes little imagination to conceive that the license fee would act more in a prohibitory than regulatory manner. In dealing with one of the majority's strongest points, that the license fee was imposed in a nondiscriminatory fashion, the Chief Justice stated: "The constitutional protection of the Bill of Rights is not to be evaded by classifying with business callings an activity whose sole purpose is the dissemination of ideas, and taxing it as business callings are taxed." The freedoms of the First Amendent are "in a preferred position." They extend to every form of taxation "which, because it is a condition of the exercise of the privilege, is capable of being used to control or suppress it." The flat tax, oppressive in amount, is also a type of tax that when applied to interstate commerce, has "repeatedly been deemed by this Court to be prohibited by the commerce clause." It might be constitutional to tax the receipts of sales; but the flat tax envisioned in the cases, combined with the unlimited discretion to revoke licenses in Opelika, AL, should invalidate the ordinaces.