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Religious Liberty v. Police Power: Jehovah's Witnesses

Published online by Cambridge University Press:  01 August 2014

Hollis W. Barber
Hollis W. Barber*
Affiliation:
Tulane University
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Extract

It is stressing the obvious to observe that the state must often resolve conflicts between certain of its constitutional powers and certain equally constitutional private rights. Such is the age-old controversy of liberty versus authority, familiar to every social scientist. Such is the contemporary controversy between “Bible-dizzy but patently sincere” zealots of the Watch Tower Bible and Tract Society, more widely known as Jehovah's Witnesses, on the one hand, and the police power on the other. There is nothing novel about a quarrel between religion and the police power, as witness the Mormons; but a new twist is now given by the personalities of Jehovah's Witnesses and their unique ways of practicing their faith.

Much of their attitude is reflected in their slogans, “Religion is a Racket,” “Religion is a Snare,” and “Millions Now Living Will Never Die.” With a fine neutrality, they consign to the leaping flames all existing religious beliefs other than their own, although they are especially antagonistic to Roman Catholicism. Followers of “Pastor” Charles Taze Russell and “Judge” Joseph Frederick Rutherford, they are serene in their belief that the second coming of Christ is due momentarily, that there is no time to build churches, and that the “witness work” must be carried on by the direct method of calling on people in their homes, distributing pamphlets and playing records on portable phonographs describing their publications and beliefs for the edification of whomsoever will listen.

Type
Research Article
Information
American Political Science Review , Volume 41 , Issue 2 , April 1947 , pp. 226 - 247
Copyright
Copyright © American Political Science Association 1947

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References

1 Time, June 24, 1940, p. 54Google Scholar.

2 Russell was never formally ordained a minister, and Rutherford's judicial experience was apparently limited to a short term as a Missouri circuit judge. The “Judge” entered the movement as Russell's legal adviser, and took over the leadership upon the latter's death in 1916; he retained it until his own death in 1941. He is said to have spent some time in Atlanta as a conscientious objector in World War I. In 1930, he reportedly deeded a California house, garage, and two automobiles in perpetuity to await the earthly reappearance of King David, Gideon, Barak, Samson, and kindred figures. But whatever his foibles, it is beyond doubt that his organizational and administrative talents were largely responsible for the Society's present prosperous status. Cf. Time, July 29, 1940, pp. 40–41Google Scholar; Literary Digest, May 2, 1936, p. 18Google Scholar.

3 The refusal to take out a permit is a matter of principle, regardless of whether any fee is charged.

4 Vol. 36, No. 6 (Dec., 1942), pp. 1053–1068.

5 302 U.S. 656, decided Dec. 13, 1937.

6 293 U.S. 245 (1934).

7 Time, Aug. 12, 1940, p. 20Google Scholar.

8 303 U.S. 444, decided Mar. 28, 1938. Justice Cardozo did not participate.

9 In coming to its decision, the Court relied upon Gitlow v. New York, 268 U.S. 652 (1925); Near v. Minnesota, 283 U.S. 697 (1931); Grosjean v. American Press Co., 297 U.S. 233 (1936); and DeJonge v. Oregon, 299 U.S. 353 (1937).

10 308 U.S. 147, decided Nov. 22, 1939. The vote was seven to one. Justice Butler had died only six days before, and Justice McReynolds dissented without opinion.

11 Cantwell v. Connecticut, 310 U.S. 296, decided May 20, 1940. A second charge against the Cantwells was the common law offense of inciting to breach of the peace. This conviction was summarily disposed of by the Supreme Court on the ground that testimony disclosed angry words spoken by and to the Cantwells, but no actual breach of the peace. Furthermore, said the Court, this conviction rested only on “… a common law concept of the most general and undefined nature,…” and the facts did not show any “… clear and present danger of riot, disorder, … or other immediate threat to public safety, peace, or order.”

12 310 U.S. 586. The Court split eight to one in this case. For criticism of the decision as coming close to evidencing war hysteria, see The New Republic, June 24, 1940, p. 843Google Scholar; The Christian Century, July 3, 1940, pp. 845–846Google Scholar.

13 310 U.S. 598. A propos this statement, The Christian Century posed the pointed editorial question: “If the legislative branch enacts laws which encroach upon the liberties of the people, whose business is it, if not that of the courts, to render the prevailing decision as to what a wise adjustment requires?” July 3, 1940, p. 845.

14 297 U.S. 1, 78 (1936).

15 Arver v. United States, 245 U.S. 366 (1918).

16 Hamilton v. Regents of the University of California, 293 U.S. 245 (1934).

17 Davis v. Beason, 133 U.S. 333 (1890).

18 310 U.S. 602. Justice Stone further recalled the fact that a state can compel education of its citizens, but cannot prohibit parochial schools (Pierce v. Society of Sisters, 268 U.S. 510, 1925); that it can control the use of its streets, but not in such a way as to violate freedom of speech (Hague v. C.I.O., 307 U.S. 496, 1939); and that it may prohibit littering the streets with handbills, but not in such a way as to suppress the communication of ideas (Schneider v. State, 308 U.S. 147, 1939).

19 The Christian Century, June 19, 1940, p. 791Google Scholar. The argument that the human mind cannot be coerced into belief, and that an enforced oath is unproductive of the desired end, is well presented, with illustrations, in the brief of the American Bar Association's Committee on the Bill of Rights, filed as amicus curiae in the Gobitis case. See especially pp. 40–41.

20 312 U.S. 569, decided Mar. 31, 1941. The Court voted eight to none, one vacancy existing because of the retirement, two months previously, of Justice McReynolds.

21 Six weeks previously, on February 17, 1941, the First Circuit Court of Appeals had reached a similar decision in the case of City of Manchester v. Leiby, in which the Witnesses had ignored a city ordinance requiring the issuance of a revocable badge to anyone selling literature on the streets. Said the circuit court: “This reasonable police regulation, in our opinion, imposes no substantial burden upon the freedom of the press or the free exercise of religion.” 117 Fed. 2d. 661, 666.

22 315 U.S. 568, decided Mar. 9, 1942.

23 315 U.S. 568, 571.

24 316 U.S. 584. The other two cases, decided simultaneously and similarly, were Bowden et al. v. Fort Smith (Ark.) and Jobin v. Arizona.

25 318 U.S. 413 and 318 U.S. 418, respectively. Justice Rutledge did not participate in either case; otherwise in both the Court was unanimous.

26 The result was similar in the Largent case, Justice Reed citing the Lovell, Schneider, Cantwell, and Chaplinsky cases as authority for invalidating an ordinance of Paris, Texas, requiring solicitors of orders for books or other merchandise to secure a permit from the mayor. Neither of these cases would seem to require any comment, or even notice, had it not been for the Jones v. Opelika decision.

27 319 U.S. 103. Rehearing had been granted in Mar., 1943.

28 319 U.S. 105.

29 319 U.S. 141. The Court divided six to three.

30 319 U.S. 157. Chief Justice Stone delivered the opinion.

31 Cf. 319 U.S. 166–182.

32 319 U.S. 624.

33 56 Stat. 1074; 36 U.S.C. (1942 Supp.), sec. 172.

34 319 U.S. 579.

35 319 U.S. 583.

36 The Mississippi legislature inserted the militarily pessimistic proviso that imprisonment should not in any case exceed ten years.

37 321 U.S. 158, decided Jan. 31, 1944.

38 321 U.S. 158, 177–178. Justice Murphy entered a separate dissent.

39 321 U.S. 573, decided Mar. 27, 1944.

40 Citing Grosjean v. American Press Co., 297 U.S. 233, 245–248.

41 Lest the author be accused of being unduly influenced by baseball techniques, let him state here his realization that a box score does not in all cases indicate which team is better, nor certainly does it show up subtle mutations of thought and opinion within a court. But it is useful for the purposes of such a survey-analysis as is here attempted.

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