By Christa Lasher
What is the first word of the First Amendment? Congress—”Congress shall make no law…” And for most of American history, following the creation of the Bill of Rights, that is just to whom the First Amendment applied—Congress. That means that the First Amendment only applied to the federal government and that the individual states did not necessarily have to abide by First Amendment Religion Clauses.
In 1940, however, that changed through a process known as the incorporation doctrine. Gradually, the Court began to apply the Bill of Rights to the states through the Fourteenth Amendment. The incorporation of the First Amendment via the Fourteenth came with Cantwell v. Connecticut, one of the many Jehovah’s Witness cases of the 1930s and 40s. In fact, Jehovah’s Witnesses, with their enthusiastic and prolific participation in the judicial system, have had a major effect in First Amendment jurisprudence. For an excellent, if overly generous, history on Jehovah’s Witness involvement in the courts, I recommend reading Judging Jehovah’s Witnesses by Shawn Francis Peters.
Now for the facts of the case which involve a father and his two sons, Newton, Jesse, and Russell Cantwell, all Jehovah’s Witness ministers. It is important to note that one of the key practices of the Jehovah’s Witnesses is proselytizing, which at the time in question, included passing out literature or playing recordings. In the late 1930’s, the Cantwells were doing just that on Cassius Street, a street with a very high concentration of Catholic residents, located in New Haven, Connecticut. The Cantwells split up to move individually from door to door asking the person who answered for permission to play one of the records he was carrying. If given permission, he would play a record which introduced one of the books he carried. He would then ask the person to buy the book or to give a contribution. If rebuked, he would go on his way and try again at the next door.
On that particular day and in that particular neighborhood, the Cantwells, specifically Jesse Cantwell, decided to play a decidedly anti-Catholic tract to two men, Catholics both, who had agreed to listen to his record. The men quickly became incensed by the recording and even reported feeling the urge to hit Cantwell. They demanded that Cantwell leave, and he did so. Each Cantwell was arrested that day under a statute that stated that no one may solicit money for any religious or charitable purpose without receiving approval from the Secretary of the Public Welfare Council. Said Secretary would determine if, given a religious purpose, it was a genuine religious purpose and provide a certificate. The Cantwells had received no such certificate. The Cantwells argued that such a law was, on its face and as applied, offensive to the due process clause of the Fourteenth Amendment, the Freedom of Speech, and the Free Exercise Clause. The Court agreed.
We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of the law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.
And that’s the million dollar statement!
The Court ruled that the religion clauses of the First Amendment forbade the government from requiring its citizens to accept any creed or practice – this is the Establishment Clause. The clauses also permit citizens to exercise freely within whatever religion they prefer – the Free Exercise Clause.
Thus the Amendment embraces two concepts – the freedom to believe and the freedom to act. The first is absolute but, in the nature of things, the second cannot be.
Here, the Court is in line with the Reynolds ruling. Recall that Reynolds was the first Free Exercise case – indeed the first religion clause case – and it involved the Mormons and polygamy. In Reynolds, the Court ruled that a person may believe whatever they want, but action must conform with the law. In the Cantwell case, the Court agreed with the previous ruling in Reynolds. However, the Court in the Cantwell case added a stipulation: any regulation of action must not “unduly… infringe the protected freedom.” Whereas Reynolds gave the government the right to regulate as it best saw fit, Cantwell constrains the power of that regulation. They ruled that a
State may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting… and may safeguard the peace… without unconstitutionally invading the liberties protected by the Fourteenth Amendment.
For the most part, the rest of the decision seems to lie with Freedom of Speech, the free communication of ideas, and when and how the government may regulate this. What is clear is that it cannot be regulated based upon content. The Court ruled that the process for obtaining a certificate for solicitation was unconstitutional because it required that the Secretary (a state representative) determine what constituted a genuine religious purpose. The State, the Court declared, is forbidden to determine what a genuine religious purpose is or is not. As there is far too much at risk that bias and discrimination may color the process.
Most significant in Free Exercise jurisprudence is the constraint placed upon legislation. The Court in Reynolds did not see fit to constrain in any way the legislature’s power to regulate action. If a generally applicable law, like the Morrill Anti-Bigamy Act, were to hamper the exercise of religion—that law did not necessarily offend the Free Exercise Clause. Cantwell subtly changes that. A generally applicable law may still infringe on free exercise (after all, belief is protected absolutely, practice cannot be) if it does not do so unduly.
The next case we will explore, Everson v. Board of Education, tests the first Establishment Clause. You will see that, while Free Exercise jurisprudence is relatively predictable, Establishment Clause jurisprudence is far more convoluted.