Cantwell v. Connecticut
310 US 296 (Decided May 20, 1940)
This first decision of the modern era invoking the Free Exercise clause is significant not necessarily for the holding but for the variety and simplicity of the legal concepts it explores. It does not really examine the "tension" between the two religion clauses or plumb the depths of what Free Exercise might entail. Nevertheless, it is important because it is the case first recognizing the Incorporation doctrine for the Free Exercise clause. In addition, it is the first of several "Jehovah's Witnesses cases," which, like the "Mormon cases" of the 1870s and 1880s, bequeathed to us some basic concepts in Free Exercise jurisprudence.
Newton Cantwell (a Jehovah's Witness) and his two sons were arrested in New Haven, CT in 1938 for, among other things: (1) violation of a Connecticut statute requiring solicitors to obtain a certificate from the secretary of the public welfare council ("Secretary") before soliciting funds from the public, and (2) breach of the peace. They went into a heavily Catholic neighborhood of New Haven without such a certificate and, with permission of a solicited citizen, play a phonograph record summarizing the contents of a book they carried, entitled Enemies, which was an attack on organized religion in general and especially the Roman Catholic Church. The two citizens who heard the record were incensed; though they wanted physically to assault the Cantwells, they restrained themselves.
The statute they allegedly violated was an early type of consumer protection law: it required the Secretary, before issuing a certificate permitting solicitation, to determine whether the cause was
"a religious one or is a bona fide object of charity or philanthropy" and whether the solicitation "conforms to reasonable standards of efficiency and integrity."
Upon determination of the cause's legitimacy, a solicitation certificate would be issued. The Connecticut Supreme Court upheld the conviction of all three on the statutory charge and affirmed one son's conviction of breach of the peace, but remanded the breach of peace charge against the other two for a new trial.
The Supreme Court's Analysis
Writing for a unanimous Court, Justice Roberts had three points to make. First, the Court held that the statute, as construed, deprived the Cantwells "of their liberty without due process of law in contravention of the Fourteenth Amendment." The fundamental concept of liberty embodied in the Fourteenth Amendment embraces (hence "incorporates") the liberties guaranteed in the First Amendment. Thus, "the Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws." This is not the place to describe and criticize the Incorporation doctrine; suffice it to say that it entered into the Court's Religion Clause jurisprudence through this case (Free Exercise) and Everson (1947--Establishment Clause). The Court then went on to articulate the principle of law from Reynolds (1878), that the freedom to believe assured by the First Amendment is absolute, but the freedom to act can be regulated for the protection of society. In addition, the Court stated that "general and non-discriminatory legislation" can regulate the times, places and manner of solicitation. But, was the Connecticut solicitation statute an appropriate vehicle to protect society and thus to curtail the religious action of the Cantwells?
The Court argued, second, that the solicitation statute's empowering the Secretary to determine whether the cause is a religious one involves "an appraisal of facts, the exercise of judgment, and the formation of an opinion." Drawing on an already-existing distinction between an official's "discretionary and ministerial" act, the Court held that the statute, which really authorized a previous restraint upon a guaranteed freedom, was "obnoxious" to the Constitution. The Court did not want to be misunderstood to imply that under the guise of religion people may commit frauds upon the public; rather,
"to condition the solicitation of aid for the perpetuation of religioius views...upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."
Third, the Court turned to the breach of the peace charge. Using the "clear and present danger" free speech analysis of Justice Holmes, the Court argued that "no one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect." Yet, in the facts of the case, it was clear that the Cantwell's were courteous did nothing menacing to their hearers. The charge brought against them was a general common law charge, and must be dismissed. However, the Court also opined that if the legislature had passed a statute that was "narrowly drawn to prevent the supposed evil," this statute would receive much more careful, and presumably sympathetic, consideration.
Thus, this first modern foray into the Free Exercise clause was relatively noncontroversial. The decision was made on the basis of a ministerial/discretionary distinction and on the generality of the common law breach of the peace action. Limitations on religious action were reaffirmed, but only in the most general terms. More cases would have to arise in the ensuing years to refine the Court's analysis.
Copyright © 2004-2007 William R. Long