Murdock v. Pennsylvania
319 US 105 (Decided May 3, 1943)
This is another of the Jehovah's Witnesses cases that came before the Court in the 1940s. Though it is technically not correct to say that it reversed Jones v. Opelika (1942), because the Court vacated Jones in a per curiam decision handed down the same day, in fact it did so. Murdock is a landmark decision which had the effect of allowing Jehovah's Witnesses and other religious goups who sold literature door-to-door to avoid paying licensing taxes to distribute their literature.
The about-face in the Court's jurisprudence in less than eleven months, when the legal issues were identical can probably be attributed not to the compelling strength of the dissenting arguments in Jones but to the most mundane of reasons: the change in Court personnel. South Carolinian Justice James Byrnes resigned late in 1942 after only one year on the bench, citing his restlessness on the bench when the country was involved in a great War, and Kentuckian Wiley Rutledge was appointed in his place. Byrnes voted with the majority in 1942; Rutledge voted with the new majority in 1943. Constitutional rights may at times hang on such thin reeds.
The fact of changed Court personnel or the narrowness of the majority (5-4) decision did not dissuade Justice William O. Douglas from using the majority opinion to give the impression that very clear constitutional rights received their full vindication through the decision. He said that the business licensing tax, which fell on the Jehovah's Witness ministers, was "in substance" the same as laying a tax specifically on the free exercise of religion. The activity of these Witnesses was "more than preaching; it is more than distribution of religious literature....This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits." "We only hold that spreading one's religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types."
Justice Douglas knew, however, that he had to deal with the fact that the religious literature was distributed along with an appeal for funds. That is, why wouldn't it be legitimate to charge the religious group or the minister a fee when he or she used ordinary commercial methods of sales of articles that would have subjected other salespeople to licensing fees? He recognized that "the problem of drawing the line between a purely commercial activity and a religious one will at times be difficult." But, on the record before the Court, "it plainly cannot be said that petitioners wer engaged in a commercial rather than a religious venture."
Thus, in the final analysis, the majority opinion rested on the notion that house-to-house visitation and sale of religious materials was more like a religious (hence, tax-exempt) than commercial (taxed) venture. In addition, the nature of the tax, and its destructive influence, could not be ignored. Since the license tax is a fixed fee, unrelated to the scope of activities envisioned, "it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise."
Justice Stanley Reed, the author of the majority opinion in Jones, wrote in dissent. Though Justice Frankfurter also filed a dissenting opinion, it did not differ substantially from that of Justice Reed. Reed does not simply rehash the argument he made in Jones, even though the same principle, that subjection to nondiscriminatory nonexcessive taxation in the distribution of literature does not violate the Free Exercise Clause, is the key to his opinion. What he does here is to call upon history as a help to confirm his approach.
The history to which he makes refernce is the debate over ratification of the Bill of Rights in the First Congress (1789). He noted that Congressional debates did not connect discussions of taxation to the debate over the freedoms in the First Amendment, and inferred from this that "the subjects (of religion and free speech) were looked upon from standpoints entiredly distinct from taxation." The freedom of which the Amendment spoke was the practice of religion rather than freedom from all forms of taxation.
And then he raised a hypothetical question. If the exemption from taxation applies to distribution of religious literature because of the constituional protection of "Free Exercise," why shouldn't the same exemption from business licensing taxes apply to newspapers, since they are protected by "Freedom of the Press?" The resulting decision "forces a tax subsidy, notwithstanding our accepted belief in the separation of church and state."
Thus, very early on in the Court's modern Free Exercise jurisprudence the issue arose that actually would become the most prominent issue in contemporary Establishment Clause cases: to what extent a benefit neutrally given or a fee neutrally imposed insulates a statute from either a Free Exercise or Establishment Clause challenge? We also see an issue arise here that will be difficult to sort out, that will have its analogue in Establishment Clause cases, and that is, 'When does an activity become more religious than commercial, thus exempting it from taxation or more commercial than religious? The issue in the Establishment Clause arena was "When does aid to a religious organization become direct, and disallowed, or indirect, and possible allowed?"
Copyright © 2004-2007 William R. Long