Tag Archives: 310 U.S. 296

Application of the First Amendment to the States: 1868-1947


Jerald Finney
Copyright © January 16, 2012


Click here to go to links to all Chapters in Section V.


Note. This is an edited version of God Betrayed, Section V, Chapter 3.


Application of the First Amendment to the States: 1868-1947

The Supreme Court used the Fourteenth Amendment to open the door for the federal government to get into state government affairs. Since state governments had illegally gotten into the affairs of individual, family, and church governments, the United States Supreme Court was able to intercede into those governments. The purpose of the Fourteenth Amendment, which was ratified after the Civil War, was to protect the status of Black Americans and insure their freedom, but it has been used for other purposes with no regard for its intent.  The Fourteenth Amendment says, in relevant part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. CONST. amend. XIV, § 1).

Although the Fourteenth Amendment was ratified in 1868, the complete sovereignty of the states in matters of religion was not challenged until well into the twentieth century. When that challenge came, the constitutional prohibition of an establishment of religion was expanded into a prohibition of the reading of the Bible, the recitation of the Lord’s Prayer in public schools, posting the Ten Commandments in public schools of America, and many other prohibitions intended to remove all vestiges of God over civil government. Endless debates continue concerning the limitations imposed by the First Amendment by the Supreme Court through the Fourteenth Amendment. One thing is certain—only a view that allows the Supreme Court to invoke the philosophies and beliefs of the majority on the Court and impose them on the American people can explain the perversion by the Court of the fundamental law of America.

Two “distinct and totally divergent trends” in Supreme Court Fourteenth Amendment jurisprudence emerged. Initially, after the ratification of the Fourteenth Amendment, the Court declared unconstitutional laws passed to uphold the rights of Negroes. At the same time, the Court relied upon the Fourteenth Amendment to control state legislative power over corporations. The Court extended “to corporations by a series of ever widening interpretations of the amendment a measure of freedom from state regulation that accorded with the spirit of the times but hardly with the spirit of the men who framed the amendments and the American people who adopted them.” Thus the amendment became the “Magna Charta of corporation freedom … while its application to its real purpose, the achievement of legal equality for all Americans, was lulled to a fitful slumber” (William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), p. 144). However, the incorporation of the First Amendment into the Fourteenth would be almost eighty years in the future.

The first instance where the Supreme Court may have applied the First Amendment to the states through the Fourteenth was in 1871. The case involved a dispute between majority (who disbelieved in slavery) and minority (who supported slavery) membership in a Presbyterian Church in Louisville, Kentucky, each claiming the exclusive use of the property held and owned by that local church (Watson v. Jones, 80 U.S. 679, 728 (1871)). The Court stated, “The full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe on personal rights, is conceded to all. The law knows no heresy, and is committed to support no dogma, the establishment of no sect” (Ibid. at 728). “The statement is not explicit, but in its context this is obviously a declaration of religious freedom for minorities. For over seventy years, the Fourteenth Amendment would be applied for the protection of minority freedom” (Marnell, pp. 145-146).

In 1879, an opinion delivered by Supreme Court Justice Stephen J. Field

“at least intimated that the Fourteenth Amendment was applicable to the protection of religious liberty. He stated, ‘In our country hostile and discriminating legislation by a statute against persons of any class, sect, creed or nation, or whatever form it may be expressed is forbidden by the Fourteenth Amendment’ (Ho Ah Kow v. Numan, 12 Fed. Cas. No. 6546, pp. 252, 256. In 1885 he expanded this doctrine: ‘The Fourteenth Amendment … undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights…’ (Barber v. Connolly, 113 U.S. 27, 31). His point of view was shared in various dissenting opinions by Justice John M. Harlan (1833-1911), but the Supreme Court majority continued to … disregard its possible applicability to cases involving religion” (Ibid., pp. 148-149. See also, Spies v. Illinois, 123 U.S. 166 (1887) and in in re King, 46 F. 905, 912 (a circuit court opinion) for evidence of this viewpoint.).

It took fifty more years for a majority of the Court to imply that the Fourteenth Amendment gave religious liberty to the citizens of the states. In 1923 the Supreme Court in Meyer v. State of Nebraska took another step toward incorporation of the First Amendment into the Fourteenth:

“Defendant, state of Nebraska, enacted a statute that [criminalized] the teaching of languages other than English to any child [in a private, denominational, parochial or public school] who had not completed the eighth grade. Plaintiff teacher was tried and convicted for teaching German to a child who had not yet passed the eighth grade. The state supreme court affirmed the judgment. The Supreme Court reversed, holding that the statute was arbitrary and unreasonable and infringed on the liberty guaranteed by the Fourteenth Amendment to the United States Constitution. [The issue was whether a Nebraska state ‘statute as construed and applied unreasonably infringed upon the liberty guaranteed by the Fourteenth Amendment to the United States Constitution: ‘No state … shall deprive any person of life, liberty or property without due process of law.’] The Court stated that education and acquisition of knowledge were matters of supreme importance that should be diligently promoted. The Court held that the liberty guaranteed by U.S. Const. amend. XIV protected plaintiff’s right to teach and the right of parents to engage plaintiff to teach their children” (Meyer v. Nebraska, 262 U.S. 390, 397; 43 S. Ct. 625, 626; 67 L. Ed. 1042; 1923 U.S. LEXIS 2655; 29 A.L.R. 1446 (1923)(edited)).

The Court “gave an oblique rather than a direct guarantee to religious freedom from state action” (Marnell, p. 150). In defining the liberty guaranteed the Court stated:

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men…. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts” (262 U.S. at 397-400). [Emphasis mine.]

What was not addressed in Meyer “was the fact that training in this school had religious connotations; indeed, Meyer based his defense upon that fact. On the basis of the precedent set in Meyer … there came two years later a finding, much better known…” (Marnell, p. 151).  In Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-535; 45 S. Ct. 571, 573; 69 L. Ed. 1070; 1925 U.S. LEXIS 589; 39 A.L.R. 468 (1925), the Court held that Oregon Compulsory Education Act of 1922, which practically construed required all normal children between ages of 8 and 16 years to attend public schools. The issue in the case was the constitutional right of religious organizations to operate a religious-oriented, alias parochial, school in the face of a contrary state statute affirmed by the voters. The Court held that the Act violated the Fourteenth Amendment in that it deprived parents and children of their rights in matter of selection of schools and … destroys private schools and diminishes the value of their property. The Court said:

“Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” (Marnell, p. 153 citing 268 U.S. at 534-535; 45 S. Ct. at 573).

Meyer and Pierce gave parochial schools their legal guarantee of existence. “[T]he Court protected a religious minority in the exercise of a right which could hardly be said to have a common border with the corresponding right of the majority” (Ibid., p. 154).

Little by little, the Court used the Fourteenth Amendment to secure the rights of Americans against state infringement, although the Court, in 1937, restricted application of the Fourteenth Amendment to fundamental liberties which included freedom of thought and speech (Palko v. State of Connecticut, 309 U.S. 319 (1937)). In Gitlow a New York Statute prohibited language advocating, advising, or teaching the overthrow of organized government by unlawful means (Gitlow v. New York, 268 U.S. 652, 664-665 (1925)). Although the constitutionality of the statute and the conviction were upheld, the Court stated, “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States (Ibid., p. 666). “It was widely inferred that freedom of speech and of the press carried as an inevitable corollary freedom of religion” (Marnell, p. 155). Justice Cordoza, in a concurring opinion in Hamilton, a case which upheld a law requiring military training at a state university, stated, “I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states” (Hamilton v. University of California, 293 U.S. 245, 265 (1934)).

In 1938 the Court, in a case involving a Jehovah’s Witness arrested convicted, and fined for distributing religious tracts without a permit, held that the ordinance requiring a permit was unconstitutional, ruling that “it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship (Lovell v. City of Griffin, 303 U.S. 444 (1938)). Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value” (Ibid., pp. 451, 452).

Soon thereafter, Jehovah’s Witnesses in Connecticut were arrested, tried, and convicted for violating an ordinance requiring approval by a certain public official before one could solicit funds for “any alleged religious, charitable, or philanthropic cause.” The Supreme Court reversed the state court stating:

“We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment…. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment….
“It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth” (Cantwell v. Connecticut, 310 U.S. 296, 303-304, 305 (1940)).

For the first time, the Court explicitly held that the Fourteenth Amendment secures the religious guarantees of the Bill of Rights against state infringement. Prior to Cantwell, the few religion-clause cases decided by the Court involved actions against the federal government. After Cantwell, the majority of religion clause cases going to the Supreme Court were aimed at state actions.

Next came two flag-salute cases, Minnersville School District v. Gobitis, 310 U.S. 586 (1940) and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Barnette reversed Minnersville which upheld a state law that required all public school students to salute the American flag. Jehovah’s Witnesses refused to do so based upon a literal interpretation of Exodus 20.4, 5—they considered the flag an “image.” Minnersville held that the promotion of national cohesion through the compulsory flag salute was an interest more important than the preservation of religious freedom.

Barnette held that the required flag salute was a violation of the first and Fourteenth amendments in the case of students with a conscientious objection to it grounded upon religious belief. Justice Jackson, writing for the majority stated:

“The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual….
“To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind….
“The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement…. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard” (West Virginia State Board of Education v. Barnette, 319 U.S. 624 at 630, 634, 641 (1943)).

The above assertions of the court were biblically correct, but the societal context as compared to that of the founding of the nation had been changed considerably in an unconstitutional and unbiblical manner. For example, the education of the majority of children had been placed in the hands of a public school system. Justice Jackson noted:

“These principles [in the Bill of Rights] grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions” (Ibid., pp. 639-640).

The court also examined the question of power of the civil government versus individual liberty, and then discussed whether the proper place to address the issue was within the legislature:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections” (Ibid., p. 638).

As to this assertion, the Court can and does hand down decisions which make law and which go beyond interpretation of the Constitution. Some such decisions are within the Constitutional powers of the Court, but some are not. As it has turned out, many decisions of the Court were correct when judged by the highest law, the Bible, while others were contrary to the principles of the highest law and will contribute to the ultimate destruction of the nation. It is important to note that not just the Court, but all branches of civil government, both state and national, as well as individual government, family government, and church government have steadily declined toward chaos as man acts according to his nature without the proper standards (doing that which is right in his own eyes).

The Legality of Door-to-Door Evangelism

Jerald Finney
Copyright © December 10, 2011

Note.  The first article is an abbreviated version of the second longer, more complex, and more detailed article which follows it below. See EN1

The Legality of Door-to-Door Evangelism

Brother David Muralt was one of the most humble dedicated soul winners I have ever known.
Brother David Muralt was one of the most humble dedicated soul winners I have ever known.

Given all the God-given freedoms that the courts have taken from Americans, it is surprising that Americans still have the right to communicate freely in America.  The First Amendment protects American Christians as they communicate the Gospel door-to-door and through street preaching, carrying signs, and handing out tracts and other literature in the public forum. This article deals only with door-to-door evangelism.

God’s Word tells believers what He wants them to do.  If He tells them to do something, it is legal and issue becomes whether the government rules regarding that activity are legal.  “We ought to obey God rather than men” (Acts 5:29).  Door-to-door evangelism is legal.  The Bible says it is legal, and God told us to do it. See EN2. As a lawyer, the author addresses only the earthly consequences of door-to-door evangelism in the United States.

For the time being believers who go door-to-door spreading the Gospel can rest easy because Christians are still protected in this enterprise due to the efforts of Jehovah’s Witnesses (“JWs”), a cult.  Because of the JWs’ stand for door-to-door communication on behalf of their cult, Baptists, if they are not already doing so, can begin to go out and do what God has told them to do—the government cannot persecute them for doing so.  It may give one who does door-to-door evangelism a citation for allegedly violating a law prohibiting his efforts and take him to court (probably will not, especially if he calls a Christian attorney familiar with the issue should the government threaten him), but as it now stands, he will prevail should the government illegally  interfere with his activity.

May the author present to you a brief example of government infringement of this constitutionally protected activity  from his personal case file? The case was resolved by the author and never went to court. Near the end of the year 2000, a police officer of the city of West Lake Hills, Texas, a suburb of Austin, Texas, informed members of Capitol City Baptist Church that they could not continue their activity without a permit. The author was asked to handle the case. He called the Westlake Hills city administrator, researched the law (the city ordinance being relied on by the police officer and relevant Constitutional law), and drafted a letter to the city administrator. As a result, the city attorney agreed with this author and notified the police department that the activity was constitutionally protected. See the more lengthy article below for more information, including a copy of the letter sent to the Westlake Hills city administrator. Note. A copy of the letter which the author sent to the city administrator is included as EN22 of the longer version of this article below.

DSCN1574In 2002, the United States Supreme Court again dealt with the issue of door-to-door evangelism in Watchtower Bible and Tract Society of New York v. Village of StrattonStratton reaffirms the right of every citizen to engage in face-to-face conversation with his neighbors.  The Court reminded us that the American people do not require the government’s protection from speech, recognizing that the proper response to the unwelcome door-to-door canvasser is not government regulation but the homeowner’s absolute right to shut the door.  Government lacks the authority to stop Americans from talking to each other–even if they don’t want to.  Liberty ensures one’s right to speak to his neighbors even when his speech annoys them.

Although one can evangelize door-to-door in America without a permit and without being punished by the state, a homeowner can tell someone to leave his property and not come back.  If one does not leave after being told to leave or comes back after being told not to come back, he can be punished under the law of criminal trespass.  To go onto another’s property marked by a “no-trespassing” sign is also punishable under the criminal law.  Also, other criminal laws such as those regarding “disorderly conduct” still apply to one’s activities.

“For most of modern American history, we’ve worked very hard to legislate, regulate and agitate to get the true believers out of sight and out of mind. We’ve tried to license them out of existence, put them in jail, limit them to certain public places, forbid them from all public places.” EN3 . The secular law journal note from which the last statement was taken also states: “The strongest challenge to individual liberty in this nation may not be dramatic displays of force, similar to terrorism or totalitarianism, but instead, the intolerance of some Americans for day-to-day annoyances and unorthodox forms of self-expression. As the Stratton ordinance [the ordinance being challenged in the Stratton case] demonstrates, the character of this nation is defined not just in the legislative chamber and in the courtroom but also on the doorstep.” EN4.  Christians should be even more concerned than a secular writer about our ability to freely communicate without persecution.  What are Christians in this free society doing to define the nature of this nation on the doorsteps of our neighbors?  How do our efforts compare with those of the early Christians who suffered persecution and death for their obedience to God’s directions?

Thank God that, due to the efforts of the JWs, Christians can go to door-to-door and offer to communicate truth.

Endnotes

EN1 Many Christians have not taken the time to study as they should.  They have so often settled for simple answers without gaining an understanding of not only temporal facts, but also the reasoning and rationale needed to counter the complex arguments constantly being published by Satan and his followers.  It is one thing to sit in church and listen to sermons aimed at God’s people.  Sermons have a distinct purpose, and, to paraphrase Doctor J. Vernon McGee, “The cookies should be on the bottom shelf so the children can reach them.”  It is another thing to go into the world as a good soldier of the Lord Jesus Christ, fully armed for the particular battles the Lord calls us to engage in.

The Bible deals with both simple and complex issues.  If everything in God’s Word is simple, why is it that God saw the necessity of having pastors and other church members to “[s]tudy to shew thyself approved unto God, a workman that needeth not to be ashamed, rightly dividing the word of truth (2 Timothy 2:15)” and to be diligent to grow in knowledge among other virtues (2 Peter 1:3-10)?  Why are so many so easily deceived about how to be saved?  Why do we have doctrines such as Calvinism with its variations?  Why are there so many different cults which claim to know the truth of the Bible?  Why are so many of us saved people unable to answer questions concerning many biblical principles and are therefore not only ineffective witnesses for the true Gospel, but also ignorant of biblical principles concerning witnessing, helping our neighbors, the biblical guidelines concerning the role of civil government, the role of the church, the role of the family, the role of the individual in relation to himself, the family, and the government, husband-wife and parent-child relationships, etc.?

The article above deals with door-to-door evangelism.  The shortened version basically says that the government cannot punish a person for engaging in that activity.  That version will not equip a believer to do anything other than assert that the law allows you to go door-to-door.  Reading the longer article below will help one to gain a deeper understanding of the issue; to counter verbal attacks while going door-to-door; to turn the attacks toward a discussion of the Gospel and the role of the Gospel in the development of this nation and the God-given freedoms we enjoy, including the freedom of speech which includes the freedom to evangelize door-to-door without persecution; and finally to go into a discussion of salvation.  The longer article not only gives a much more in-depth analysis of the issue, it also paves the way for an even further study.

EN2 To gain deeper understanding of biblical teachings concerning public ministry, one can consult the writings of men like Dr. Gerald Sutek—who has written several books on the subject, helped many churches and Christians to become involved in Street preaching, and practices what he preaches.

EN3 Laurence D. Cohen, Editorial, With God (and the Supreme Court) on Their Side, Hartford Courant, July 11, 2002, at A9 cited in Proselytizers, Pamphleteers, Pests, and Other First Amendment Champions: Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton , 18 BYU J. Pub. L. 229, 233-234 (2003).

EN4 Id. at 234.

The Legality of Door-to-Door Evangelism (Full version) See EN1

SAM_0058God’s Word tells believers what God wants them to do.  If He tells believers to do it, it is legal.  If He tells believers to do something, the issue becomes whether the government rules regarding that activity are legal.  “We ought to obey God rather than men.” EN2. Door-to-door evangelism is legal.  The Bible tells us it is legal, and we are told to do it.  For the most part, I the author leaves an in-depth biblical explanation of what Scripture says regarding public ministry, including door-to-door evangelism, to men like Dr. Gerald Sutek EN3, and addresses earthly consequences of the activity in the United States.  Regardless of the latter, door-to-door evangelism is legal and God says do it.  Should someone wish to take such scriptures as, “Obey every ordinance of man,” out of context, or misinterpret scriptures such as “Blessed are the meek,” or use their own reasoning to the effect that Christians are not to offend any man, and use them as an excuses not to obey God, the author suggests that they examine their faith and understanding very carefully.

Christians who decide to obey God in the area of public ministry can rest easy because they are still protected in this enterprise due to the efforts of members of the Jehovah’s Witnesses (“JWs”), a cult. EN4. Because of the JWs’, Baptists, if they are not already doing so, can begin to go out and do what God has told them to do and the government cannot persecute them for doing so.  It may cite a person for some alleged offense and take take to court (probably will not, especially if a Christian attorney familiar with the issue is consulted); but, as it now stands, a person who practices door-to-door evangelism will prevail should the government interfere with his activity.

May the author present to you a brief example of government infringement of this constitutionally protected activity from his personal case file? The case was successfully resolved by the author and never went to court. Near the end of the year 2000, a police officer of the city of West Lake Hills, Texas, a suburb of Austin, Texas, informed members of Capitol City Baptist Church that they could not continue their activity without a permit. The author was asked to handle the case. He called the Westlake Hills city administrator, researched the law (the city ordinance being relied on by the police officer and relevant Constitutional law), and drafted a letter to the city attorney. EN22 is a copy of the letter sent by the author sent to the city administrator. As a result, the city administrator agreed with this author and notified the police department that the activity was constitutionally protected.

In 2002, the United States Supreme Court again dealt with the issue of door-to-door evangelism in Watchtower Bible and Tract Society of New York v. Village of Stratton. EN5.  Stratton reaffirms the right of every citizen to engage in face-to-face conversation with his neighbors.  The Court reminds us that the American people do not require the government’s protection from speech, recognizing that the proper response to the unwelcome door-to-door canvasser is not government regulation but the homeowner’s absolute right to shut the door.  Government lacks the authority to stop us from talking to each other–even if we don’t want to.  Liberty ensures us the right to speak to our neighbors even when our speech annoys them.

Although one can evangelize door-to-door without a permit and without being punished by the state, a homeowner can tell anyone to leave his property and not come back. If one does not leave after being told to leave or comes back after being told not to come back, he can be punished under the law of criminal trespass.  To go onto another’s property marked by a “no-trespassing” sign is also punishable under the criminal law. Also, other criminal laws such as laws regarding “disorderly conduct” still apply to one’s activities.

SUMMARY OF STRATTON

The following is from 153 L.Ed. 205 and is a good summary of Stratton:

SYLLABUS: Respondent Village of Stratton (Village) promulgated an ordinance that, inter alia, prohibits ‘canvassers’ from ‘going in and upon’ private residential property to promote any ‘cause’ without first obtaining a permit from the mayor’s office by completing and signing a registration form. Petitioners, a society and a congregation of Jehovah’s Witnesses that publish and distribute religious materials, brought this action for injunctive relief, alleging that the ordinance violates their First Amendment rights to the free exercise of religion, free speech, and freedom of the press. The District Court upheld most provisions of the ordinance as valid, content-neutral regulations, although it did require the Village to accept narrowing constructions of several provisions. The Sixth Circuit affirmed. Among its rulings, that court held that the ordinance was content neutral and of general applicability and therefore subject to intermediate scrutiny; rejected petitioners’ argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that was recognized in McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 131 L. Ed. 2d 426, 115 S. Ct. 1511; concluded that the Village’s interests in protecting its residents from fraud and undue annoyance and its desire to prevent criminals from posing as canvassers in order to defraud its residents were sufficient bases on which to justify the regulation; and distinguished this Court’s earlier cases protecting the Jehovah’s Witnesses ministry.

Held: The ordinance’s provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills.

a)     “For over 50 years, this Court has invalidated on First Amendment grounds restrictions on door-to-door canvassing and pamphleteering by Jehovah’s Witnesses. See, e.g.,   Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292, 63 S. Ct. 870, 891. Although those cases do not directly control the question at issue, they yield several themes that guide the Court. Among other things, those cases emphasize that the hand distribution of religious tracts is ages old and has the same claim as more orthodox practices to the guarantees of freedom of religion, speech, and press, e.g., id., at 109; discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas, e.g., Schneider v. State (Town of Irvington), 308 U.S. 147, 164, 84 L. Ed. 155, 60 S. Ct. 146, but recognize the legitimate interests a town may have in some form of regulation, particularly when the solicitation of money is involved, e.g.,   Cantwell v. Connecticut, 310 U.S. 296, 306, 84 L. Ed. 1213, 60 S. Ct. 900, or the prevention of burglary is a legitimate concern, Martin v. City of Struthers, 319 U.S. 141, 144, 87 L. Ed. 1313, 63 S. Ct. 862; make clear that there must be a balance between such interests and the effect of the regulations on First Amendment rights; e.g., ibid.; and demonstrate that the Jehovah’s Witnesses have not struggled for their rights alone, but for those many who are poorly financed and rely extensively upon this method of communication, see, e.g.,   id., at 144-146, including nonreligious groups and individuals, see, e.g.,   Thomas v. Collins, 323 U.S. 516, 539-540, 89 L. Ed. 430, 65 S. Ct. 315.

b)     “The Court need not resolve the parties’ dispute as to what standard of review to use here because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Sixth Circuit erred in upholding it. There is no doubt that the interests the ordinance assertedly serves — the prevention of fraud and crime and the protection of residents’ privacy — are important and that the Village may seek to safeguard them through some form of regulation of solicitation activity. However, the amount of speech covered by the ordinance raises serious concerns. Had its provisions been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village’s interest in protecting its residents’ privacy and preventing fraud. Yet, the Village’s administration of its ordinance unquestionably demonstrates that it applies to a significant number of noncommercial “canvassers” promoting a wide variety of ‘causes.’ The pernicious effect of the permit requirement is illustrated by, e.g., the requirement that a canvasser be identified in a permit application filed in the mayor’s office and made available for public inspection, which necessarily results in a surrender of the anonymity this Court has protected. Also central to the Court’s conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village’s stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village’s argument that the ordinance is nonetheless valid because it serves the two additional interests of protecting residents’ privacy and the prevention of crime is unpersuasive. As to the former, an unchallenged ordinance section authorizing residents to post ‘No Solicitation’ signs, coupled with their unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for unwilling listeners. As to the latter, it seems unlikely that the lack of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance, and, in any event, there is no evidence in the record of a special crime problem related to door-to-door solicitation.

“240 F.3d 553, reversed and remanded.”

OBSERVATIONS ABOUT THE CONTENT OF STRATTON

Some aspects of Stratton are of special interest to the Christian.  For example, a section of the ordinance that was not challenged provided that should a resident file a “No Solicitation Registration Form” with the mayor, and post a “No Solicitation” sign on his property, no uninvited canvassers could enter his property, unless they are specifically authorized to do so in the “No Solicitation Registration Form” itself. EN6.  Each of the forms in the record contained a list of 19 suggested exceptions. EN7.  Those listed on the form included “Jehovah’s Witnesses” “Little League,” “Police,” “Campaigners,” “Camp Fire Girls,” and “Political Candidates.” EN8.  Not included in the suggested exceptions were “Christians,” “Baptists,” “Fundamental Baptists,” nor members of any other “Christian” denomination.  Apparently, it never entered the minds of the authors of the bill that members of any of those groups would be going door-to-door to spread the Gospel. Or perhaps the lawmakers were Baptists who did not understand the biblical principles concerning soul liberty.

The Jehovah’s Witnesses “explained at trial that they did not apply for a permit because they derive their authority to preach from Scripture. ‘For us to seek a permit from a municipality to preach we feel would almost be an insult to God.’”EN9.  “Specifically”, they said, “from the Book of Matthew chapter 28, verses 19 and 20, which we take as our commission to preach. . . . So Jesus, by example, instituted a house-to-house search for people so as to preach the good news to them. And that’s the activity that Jehovah’s Witnesses engage in, even as Christ’s apostles did after his resurrection to heaven.” EN10.

The Court commented on prior law dealing with religiously motivated action:

  • “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S. at 304-307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292, 63 S. Ct. 870 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U.S. 573, 88 L. Ed. 938, 64 S. Ct. 717 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).” Smith, 494 U.S. at 881 (footnote omitted by Court).” EN11.
  • “For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering. (footnote with citations omitted by me). It is more than historical accident that most of these cases involved First Amendment challenges brought by Jehovah’s Witnesses, because door-to-door canvassing is mandated by their religion. As we noted in Murdock v. Pennsylvania, 319 U.S. 105, 108, 87 L. Ed. 1292, 63 S. Ct. 870 (1943), the Jehovah’s Witnesses ‘claim to follow the example of Paul, teaching ‘publicly, and from house to house.’ Acts 20:20. They take literally the mandate of the Scriptures, ‘Go ye into all the world, and preach the gospel to every creature.’ Mark 16:15. In doing so they believe that they are obeying a commandment of God.’ Moreover, because they lack significant financial resources, the ability of the Witnesses to proselytize is seriously diminished by regulations that burden their efforts to canvass door-to-door.” EN12.
  • “From [our past cases involving Jehovah‘s Witnesses], several themes emerge that guide our consideration of the ordinance at issue here.
  • ‘First, the cases emphasize the value of the speech involved.  For example, in Murdock v. Pennsylvania, the Court noted that ‘hand distribution of religious tracts is an age-old form of missionary evangelism — as old as the history of printing presses. It has been a potent force in various religious movements down through the years . . . . 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. It has the same claim to protection as the more orthodox and conventional exercises of religion.  It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press.’ 319 U.S. at 109.
  • ‘In addition, the cases discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas. In Schneider v. State (Town of Irvington), 308 U.S. 147, 84 L. Ed. 155, 60 S. Ct. 146 (1939), the petitioner was a Jehovah’s Witness who had been convicted of canvassing without a permit based on evidence that she had gone from house to house offering to leave books or booklets. Writing for the Court, Justice Roberts stated that ‘pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.’” Id., at 164 (emphasis added). EN13.
  • ‘Finally, the cases demonstrate that efforts of the Jehovah’s Witnesses to resist speech regulation have not been a struggle for their rights alone. In Martin, after cataloging the many groups that rely extensively upon this method of communication, the Court summarized that ‘door-to-door distribution of circulars is essential to the poorly financed causes of little people.’ 319 U.S. at 144-146.’” EN14.
  • “If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment. (citations omitted).” EN15.
  • “The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious effect of such a permit requirement.” EN16.
  • “First, as our cases involving distribution of unsigned handbills demonstrate, there are a significant number of persons who support causes anonymously.  “The decision to favor anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.” McIntyre v. Ohio Elections Comm’n, 514 U.S. at 341-342. The requirement that a canvasser must be identified in a permit application filed in the mayor’s office and available for public inspection necessarily results in a surrender of that anonymity.” EN17.
  • “Second, requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding religious or patriotic views. As our World War II-era cases dramatically demonstrate, there are a significant number of persons whose religious scruples will prevent them from applying for such a license. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official.” EN18.
  • “Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance. A person who made a decision on a holiday or a weekend to take an active part in a political campaign could not begin to pass out handbills until after he or she obtained the required permit. Even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor’s permission.  In this respect, the regulation is analogous to the circulation licensing tax the Court invalidated in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660, 56 S. Ct. 444 (1936). In Grosjean, while discussing the history of the Free Press Clause of the First Amendment, the Court stated that “‘the evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.’ (citations omitted by me).” EN19.

CONCLUSION

It is surprising that Americans still have the right to communicate freely.  The government still cannot punish us for communicating the Gospel door-to-door. “For most of modern American history, we’ve worked very hard to legislate, regulate and agitate to get the true believers out of sight and out of mind. We’ve tried to license them out of existence, put them in jail, limit them to certain public places, forbid them from all public places.” EN20.

A secular law journal note states: “The strongest challenge to individual liberty in this nation may not be dramatic displays of force, similar to terrorism or totalitarianism, but instead, the intolerance of some Americans for day-to-day annoyances and unorthodox forms of self-expression. As the Stratton ordinance demonstrates, the character of this nation is defined not just in the legislative chamber and in the courtroom but also on the doorstep.” EN21.  Christians should be even more concerned than a secular writer about their ability to freely communicate without persecution.  What are Christians in this free society doing to define the nature of this nation on the doorsteps of their neighbors?  How do their efforts compare with those of the early Christians who suffered persecution and death for their obedience to God’s directions?

Thank God that, due to the efforts of the JWs, Christians can go to all doors, including those of JWs, and offer them the whole truth.

Endnotes

EN1 The reader can get the point in the first three paragraphs.  Those who want to delve deeper into the subject may read further into the paper and go to other sources such as cases and law review articles.  I have not eliminated legal citations or legalese in parts of the paper–e.g., in the summary from Lawyer’s Edition.  This allows the more serious student to examine the issues to whatever depth he desires.

EN2 Acts 5:29, KJV.  I am not unaware that one can find a verse of scripture taken by itself to support about anything.  However, this scripture, when taken in context of the entire book of Acts and the entire Bible, definitely supports the principle that God lays out the guidelines for the Christian walk.  When God tells Christians to do something, then it is legal for them to do it.  For example, notice the verses preceding and following Acts 5:29.  The disciples were commanded not to teach in the name of Jesus.  Their response was “We ought to obey God rather than men” and immediately did what they had just been told by man not to do–that is, they immediately preached Jesus [and the Gospel, by implication] to those who had just told them not to do so.  “When [the officials] heard that, they were cut to the heart, and took counsel to slay them.” Acts 5:33.  It is interesting to note that the people to whom they spoke were offended, yet they spoke the truth nonetheless.  Another example of the fact that the Word of God is up to date: in these verses we see, if we have obeyed God and presented the Gospel to others outside the settings of our church buildings, that the attitudes and actions of the religious crowd in response to the preaching of the Gospel has not changed.   Of note also is the fact that the apostles were commanded not to teach in the name of Jesus.  Today churches line up at the door of the government to get incorporations and 501(c)(3) tax exemptions so that they can preach in the name of the government, to be told what they can and cannot preach by the government.  If the government allows a church to preach in the name of Jesus, the issue is still “by whose authority do you do this?”  Of course, it is by the authority of the state and not by the authority of Jesus.

EN3 Dr. Gerald Sutek is a great man of God who has been a leader in “public ministry” for many years.  He has preached and evangelized on the street and in pulpits all over the world and has published several biblically based books on the subject of “public ministry.”

EN4 I speak satirically at times.  To paraphrase Hank Hanagraph, “It’s too bad Christians won’t do for the truth what the cults do for a lie.”  Of course, cults sometimes are correct about some principles while wrong about others.

EN5 536 U.S. 150 (2002).

EN6 Stratton at 156.

EN7 Id. at 157.

EN8 Id.

EN9 Id. at 157-158.

EN10 Id. at 158 fn 7.

EN11 Id. at 159 fn 8.

EN12 Id. at 160-161.

EN13 Id. at 161-162.

EN14 Id. at 163.

EN15 Id. at 164.

EN16 Id. at 165-166.

EN 17 Id. at 166.

EN18 Id. at 167.

EN19 Id. at 167-168.

EN20 Laurence D. Cohen, Editorial, With God (and the Supreme Court) on Their Side, Hartford Courant, July 11, 2002, at A9 cited in Proselytizers, Pamphleteers, Pests, and Other First Amendment Champions: Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton , 18 BYU J. Pub. L. 229, 233-234 (2003).

EN21 Id. at 234.

EN22 Letter sent to the Westlake Hills city attorney:

Jerald c. Finney
Attorney at Law
P.O. Box 1346
Austin, Texas 78767
Phone: (512)385-0761
Fax: (512)385-0761

[Name of Westlake Hills City Administrator]
City Administrator
911 Westlake Drive
Westlake Hills, Texas 78746

RE:  Door to door communication of the Gospel..

Dear Mr. []:

            I am writing this letter pursuant to our telephone conversation on November 22, 2000. I apologize for not getting back with you sooner, but I needed to copy and study your City Ordinance concerning the licensing of solicitation, and the applicable caselaw.

            As you know, some people from Capitol City Baptist Church were going door to door communicating the Gospel of the Lord Jesus Christ to residents of Westlake Hills. They were informed by a West Lake Hills police officer that they could not continue without a permit. Of course, the police officer was just doing his job as he understood the law.

            I was contacted by one of the men from that church concerning the legality of their activity. They are waiting for a resolution between the City of Westlake Hills and me, their attorney, before resuming their door to door communications.

            After reading your statute, I find no division of the Code of Ordinances of the City of Westlake Hills, Texas that requires people involved in door to door communication of the Gospel to ask the City of Westlake Hills for a permit. Section 58-32 states:

“The regulations contained in this division shall apply to all solicitors, peddlers, and other persons conducting solicitations and whose activities are governed under division 2, 3, 4, or 5 of this article.”

            Division 2 requires a permit for “Commercial Solicitations by Peddlers and Itinerant Merchants.” Division 3 requires a permit for doing “Charitable Solicitations.” Division 4 requires a permit for “Political Advocacy Solicitations.” Division 5 requires a permit for “Mobile Food Peddlers.” None of these divisions govern communication of the Gospel. It might seem that the people involved are soliciting for charity, but that is not the case. They request nothing from any resident of the City of Westlake Hills. They knock on a door, politely explain their purpose, perhaps offer a Gospel tract and engage in verbal communication concerning the Gospel if the inmate of the house is receptive. If not, they go to the next door. They are not abusive or discourteous. They honor the desires of the inmates to whom they come in contact. They never ask for money or anything else. They merely make known, to those who wish to communicate, the Gospel of the Lord Jesus Christ.

            As you know, there are many criminal laws on the books that protect people from intrusion onto their property—for example, criminal trespass, disorderly conduct, criminal mischief, obstructing a passageway or highway and many others. If a resident tells someone to leave their property and that person refuses, the person can be cited for criminal trespass, not a minor offense.

            Allowing freedom of speech and religion produces positive consequences for a governmental entity. The courts have acknowledged this by recognizing the importance of freedom of speech and religion. The United States Supreme Court has dealt with the issue of door to door communication by religious people in numerous cases. In the following cases, legislation regulating canvassing and soliciting, as applied to the noncommercial activities by members of the Society of Jehovah’s Witnesses, was held to violate the First Amendment guaranties of free speech and press, and freedom of religion.

  1. Schneider v. State, 308 U.S. 147, 146 S. Ct. 146, 84 L. Ed. 155 (1939).
  2. Caldwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).
  3. Largent v. Texas, 318 U.S. 418, 63 S. Ct. 667, 87 L. Ed. 873 (1943).
  4. Martin v. Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943).

As I recall, those cases are fairly succinct and answer many questions one may have concerning this issue. As the Supreme Court has recognized, the freedom of religion and freedom of communication are pillars of our nation. Noncommercial speech, especially religious speech, is given more protection than other types of speech.

            Our early leaders recognized the importance of religion to a nation. George Washington said, “It is impossible to rightly govern the world without God and the Bible.” In his Farewell Speech on September 19, 1776, he said:

“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports….  In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens.”

            The law of our land still protects the freedom of those who, for nothing in return, give of their time and labor to communicate the Gospel in a peaceful manner. To hinder those involved in such activity is prohibited by the Constitution of the United States.

            My clients wish to resolve this issue as expeditiously as possible. I will contact you in a day or two to see if you agree with their position. If you do, I would appreciate your notifying the West Lake Hills Police Department that their activities are not governed by the Solicitation Ordinance of the City of West Lake Hills.

            The people involved are peaceful law abiding citizens and are willing to cooperate in any reasonable manner to address any concerns you may have. They have a high regard for the police department and for government officials and appreciate the job they do. They would be glad to give you their identities and any other information you desire. However, they cannot, according to their beliefs, ask for a permit, nor is a permit required under your present statute as I understand it.

            Please do not hesitate to contact me for any reason.

Very truly yours,

Jerald C. Finney

jcf