Amendment 1 — Laws Neutral To Religious Practice During The 1940s And 1950s

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court’s early cases interpreting the Free Exercise Clause did not articulate one clear standard for evaluating claims under that clause, although some consistent principles did emerge, particularly in cases dealing with similar fact patterns.

Starting with Cantwell v. Connecticut in 1940 and continuing through the following two decades, the Supreme Court considered a series of cases involving state and local regulations restricting solicitation or other activity in public spaces, as applied to people engaged in religious speech.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn1amd1 " See Cantwell v. Connecticut, 310 U.S. 296, 300 (1940). ") Many of these cases invoked both the First Amendment ’s Free Exercise and Free Speech Clauses.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn2amd1 " See, e.g., Kunz v. New York, 340 U.S. 290, 293–94 (1951) (holding that a city violated the First Amendment by revoking a minister’s permit based on his ridicule of other religious beliefs, citing cases interpreting and applying both the Free Exercise and Free Speech Clauses); see also . ") Some cases striking down restrictions on religious speech seemed to draw from free speech jurisprudence outlining protections for speech in public forums.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn3amd1 " See, e.g., Marsh v. Alabama, 326 U.S. 501, 507–09 (1946) (holding that, as applied to a person distributing religious literature, a state law prohibiting trespass and a company town policy prohibiting the distribution of literature violated the First Amendment, citing protections for speech and religion and a public interest in ensuring “that the channels of communication remain free” ); Tucker v. Texas, 326 U.S. 517, 520 (1946) (applying Marsh to rule unconstitutional a similar application of a different state’s law); Jamison v. Texas, 318 U.S. 413, 414, 416 (1943) (ruling unconstitutional under the Free Speech and Free Exercise Clauses a municipal ordinance prohibiting the distribution of handbills, emphasizing that a person lawfully on a public street retains speech rights). See also . ") Similarly, the Court held unconstitutional under the Free Exercise Clause regulations that it believed were impermissibly broad and discretionary prior restraints on religious speech.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn4amd1 " See Kunz, 340 U.S. at 293; Niemotko v. Maryland, 340 U.S. 268, 273 (1951); Follett v. Town of McCormick, 321 U.S. 573, 577 (1944); Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943); Jones v. City of Opelika, 319 U.S. 103, 104 (1943) (mem.); Largent v. Texas, 318 U.S. 418, 422 (1943); Cantwell, 310 U.S. at 305. See also ; . ")

In Cantwell, for example, the Court held that a state violated the Free Exercise Clause in convicting a man and his two sons under a state law that prohibited unapproved solicitations.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn5amd1 " Cantwell, 310 U.S. at 303. The Court also held that the First Amendment precluded a breach-of-the-peace conviction based on this conduct. Id. at 311. ") The man had played a religious record in the street, and his usual practice was to request that listeners would buy further religious materials.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn6amd1 " Id. at 303. ") The Court acknowledged that the state may generally regulate solicitation if the regulation “does not involve any religious test and does not unreasonably obstruct or delay the collection of funds.” [7](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn7amd1 " Id. at 305. ") However, the regulation challenged in Cantwell allowed a licensing official to decide whether any given solicitation was “religious” and should be approved.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn8amd1 " Id. ") In the Court’s view, this broad discretion placed “a forbidden burden upon the exercise of liberty protected by the Constitution.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn9amd1 " Id. at 307. See also Largent, 318 U.S. at 422 (holding that a city’s permitting system involving discretionary judgments was “administrative censorship” that “abridge[d] the freedom of religion, of the press and of speech,” in the context of a conviction for distributing religious books). ")

Concerns about impermissible prior restraints also drove the decision in Murdock v. Pennsylvania, in which the Court held that a city could not require religious groups to pay for a license in order to distribute religious literature.[10](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn10amd1 " Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943). ") The Court emphasized first that the “hand distribution of religious tracts is an age-old form of missionary evangelism” that enjoyed the same “protection as the more orthodox and conventional exercises of religion” such as “preaching from the pulpits.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn11amd1 " Id. at 108–09. ") Further, the fact that the religious groups sought contributions did not “transform [their] evangelism into a commercial enterprise” that would merit lessened constitutional protection.[12](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn12amd1 " Id. at 110–11. ") The Court distinguished taxes on a preacher’s income or property (which it suggested might be allowed) from the challenged city ordinance, because the city’s licensing tax “restrain[ed] in advance those constitutional liberties of press and religion and inevitably tend[ed] to suppress their exercise.” [13](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn13amd1 " Id. at 112, 114 (emphasis added). ") Before its decision in Murdock, the Court had previously approved a similar license fee, stating that religious groups could be subject to reasonable fees when they “use the ordinary commercial methods of sales.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn14amd1 " Jones v. Opelika, 316 U.S. 584, 597–98 (1942), vacated, 319 U.S. 103 (1943) (mem.). Among other factors, the Court in Jones emphasized that the fee did not constitute a “complete prohibition,” was “nondiscriminatory” in the sense that it applied to all booksellers equally, and did not vest “discretionary power in the public authorities to refuse a license to any one desirous of selling religious literature.” Id. at 596, 598. ") However, the Court vacated that decision approving the license fee when it issued Jones, concluding that the groups “were engaged in a . . . religious venture” rather than a commercial one.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn15amd1 " Murdock, 319 U.S. at 111; Jones v. City of Opelika, 319 U.S. 103, 104 (1943) (mem.). See also Follett v. Town of McCormick, 321 U.S. 573, 574–75, 577 (1944) (ruling it unconstitutional to impose a flat license tax “in all material respects the same as the ones involved in” Jones and Murdock on a resident preacher). ") In subsequent cases, the Court made clear that Murdock bars only flat license taxes that operate as preconditions on exercising constitutional rights.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn16amd1 " See Jimmy Swaggart Ministries v. Cal. Bd. of Equalization, 493 U.S. 378, 389 (1990) (holding that Murdock and Follett “apply only where a flat license tax operates as a prior restraint on the free exercise or religious beliefs,” and did not bar the application of a “generally applicable sales and use tax” to religious materials); Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 24 (1989) (plurality opinion) (holding that Murdock and Follett would not bar the application of a general sales tax to religious publications). ")

By contrast, in Poulos v. New Hampshire, the Supreme Court held that a city could require religious groups to comply with a permitting scheme to conduct meetings in a public park.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn17amd1 " Poulos v. New Hampshire, 345 U.S. 395, 402–04 (1953). ") The Supreme Court “assume[d]” that the permitting scheme entitled religious groups to hold religious services in the park “at reasonable hours and times.” [18](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn18amd1 " Id. at 408. ") Based on that assumption, the Court upheld the permitting scheme as a reasonable “regulation” rather than “suppression” of speech.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn19amd1 " Id. at 408. ") It also interpreted the law as giving licensing officials “no discretion as to granting permits, no power to discriminate, no control over speech.” [20](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-during-the-1940s-and-1950s#fn20amd1 " Id. at 404. The state officials had in fact denied the