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Jehovah's Witnesses In The Divine Purpose

CHAPTER 28

Writing the Good News into the Law of the Land

TOM: Were there any legal developments for Jehovah's witnesses in the United States in 1942?

JOHN: Yes, there were, but more particularly in 1943. First, though, perhaps we should have a brief review of the cases we've already discussed. Maria, do you have your notes on these cases?

MARIA:. Yes, I do, and I have a few additional notes too. In the spring of 1938, on March 28, the U. S. Supreme Court established the legal principle that an ordinance of Griffin, Georgia, was invalid on its face. "The liberty of the press," said the Chief Justice, "became initially a right to publish 'without a license what formerly could be published only with one.' " a This was in the Lovell case. b

In the fall of 1939, on November 22, in the Schneider case, c the Supreme Court declared that an ordinance providing that solicitors provide certain information to the police and obtain a permit from the chief of police was an abridgment of freedom of the press contrary to the First Amendment to the Constitution.

The Cantwell case, d decided May 20, 1940, involved a conviction for violating a statute prohibiting the solicitation of money for a religious cause without obtaining approval from a local official. The statute as applied in the case "was held by a unanimous court to violate the religious freedom guaranteed by the due process clause of the 14th Amendment against infringement by the state." e

TOM: Wasn't it in 1940 that you lost the case on the flag-salute issue?

MARIA: Yes, that was the decision in the Gobitis case. f That was decided in June, 1940, wasn't it, John?

JOHN: Yes, on June 3. It was that decision that set off such a wave of persecution. Then in 1942 we lost another important case. That was the case of Jones v. Opelika, g decided by the United States Supreme Court June 8, 1942. This case involved street work, which by this time had become an important feature of the service of Jehovah's witnesses. It was argued in the Supreme Court along with two other cases, one from Arkansas and one from Arizona. The Jones case raised the question as to whether this witness of Jehovah was prop-

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erly found guilty of violating an ordinance of the city of Opelika, Alabama, for "selling books" without having obtained a license and payment of the occupation tax.:

Jehovah's witnesses lost this case by a five-to-four decision. The constitutional question considered was whether a non-discriminatory license tax, presumably appropriate in amount, may be imposed upon the activities of Jehovah's witnesses. The Court held the tax was constitutional. Chief Justice Stone concluded his dissenting opinion with the statement


In its potency as a prior restraint on publication, the flat license tax falls short only of outright censorship or suppression. The more humble and needy the cause, the more effective is the suppression.


Justice Murphy presented a supplementary dissenting opinion and, among other things, stated:


But whatever the amount, the taxes are in reality taxes upon the dissemination of religious ideas, a dissemination carried on by the distribution of religious literature for religious reasons alone and not for personal profit. As such they place a burden on freedom of speech, freedom of the press, and the exercise of religion, even if the question of amount is laid aside. Liberty of circulation is the very life-blood of a free press. . . .

... If this Court is to err in evaluating claims that freedom of speech, freedom of the press, and freedom of religion have been invaded, far better that it err in being overprotective of these precious rights. h

TAKING ANOTHER VIEW OF THE GOBITIS DECISION

It was in this same case, the Jones case, that a very interesting development occurred. In addition to their dissenting opinion Justices Black, Douglas and Murphy of their own free will added this significant and unprecedented statement recanting their votes in the flag-salute case of 1940:


The opinion of the Court sanctions a device which in our opinion suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis . . . took against the same religious minority and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that. i


You remember how conditions had become extreme throughout the entire United States. Jehovah's witnesses were being persecuted on all sides, mob violence being experienced in every part of the country. Also, as compulsory flag-salute ceremonies in school increased, more and more children were being expelled, making it necessary for the Society to assist the brothers in providing education for their children. This was done as early as 1936 by opening private schools called "Kingdom Schools" manned by qualified teachers from among Jehovah's witnesses who volunteered their time. j Legal cases of all types were coming up by the thousands, with correspondence coming into the legal office at the Society's headquarters so fast that it was impossible for them to keep up with this vast tide of legal affairs.

But when this totally unexpected and encouraging position on the flag-salute issue was taken by Justices Black, Douglas and Murphy in the case of Jones v. Opelika, the Society's lawyer determined to reopen the flag-salute issue and quickly get it into the Supreme Court. So he immediately went to Charleston, West Virginia, and filed an injunction suit in the District

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Court for the Southern District of West Virginia against the State of West Virginia to restrain the enforcement of the compulsory flag-salute statute. It was not expected that this case would necessarily be decided in favor of Jehovah's witnesses in the lower court. This suit called for a three-judge court. The purpose of getting a three-judge court was to enable Jehovah's witnesses to take any unfavorable decision directly to the Supreme Court of the United States and have the matter quickly settled.

After the Society's lawyer had argued our case the Attorney General of West Virginia stated to the court: "It is not necessary for me to answer Mr. Covington in this case. I'm standing on the unreversed decision of Gobitis v. Minersville School District." Judge Parker from the Court of Appeals, who was presiding with Judges Moore and Watkins, stated: "Mr. Attorney General, if you are relying on that opinion you'd better argue this case." Taken completely by surprise the Attorney General made a feeble argument, read the opinion in the Gobitis case and sat down. Then, in an unprecedented decision, the three-judge court unanimously refused to follow the higher mandate of the Supreme Court of the United States on identical facts and decided in favor of Jehovah's witnesses.

Meanwhile, before this case came on to the Supreme Court on appeal by the West Virginia State Board of Education, several other cases involving Jehovah's witnesses were considered by the Court, including the two cases, Jamison v. Texas k and Largent v. Texas, l decided March 8, 1943.

The first of these two, the Jamison case, involved a Dallas, Texas, ordinance prohibiting the scattering of leaflets, the holding of advertisement and the throwing of handbills upon the streets. Mere distribution of handbills by a Witness was held to be a violation of this ordinance. The Supreme Court, however, held that the enforcement of this ordinance against the Witness abridged his liberty of press contrary to the First Amendment.

The other case, Largent v. Texas, involved an ordinance of Paris, Texas, requiring a permit from the mayor after his investigation and approval in order to canvass or sell in the residential area. The conviction under this ordinance was set aside by the U. S. Supreme Court because it provided for prior censorship of press in violation of the First Amendment.

A "FIELD DAY" FOR JEHOVAH'S WITNESSES

Both May and June of 1943 were months for rejoicing among Jehovah's witnesses because of the bulwark of precedent established in the Supreme Court. May 3, 1943, has been called a "field day" for Jehovah's witnesses because of the twelve out of thirteen cases decided in their favor. m Particularly outstanding was the case of Murdoch v. Pennsylvania, which was a license tax case. This decision was a reversal of the Supreme Court's own position in the case of Jones v. City of Opelika:


It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant if it does not do so. But that is to disregard the nature of this tax. It is a license tax—a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution. . . . The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down. . . .

The judgment in Jones v. Opelika has this day been vacated. Freed from that controlling precedent, we can restore to their high, constitutional position the liberties of itinerant evangelists who disseminate their religious be-

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liefs and the tenets of their faith through distribution of literature.


One comment made by the Court in rendering this decision is particularly revealing in demonstrating the animosity prompting arrest and conviction under such ordinances:


Considerable emphasis is placed on the kind of literature which petitioners were distributing —its provocative, and ill-mannered character and the assault which it makes on our established churches and the cherished faiths of many of us. ... But those considerations are no justification for the license tax which the ordinance imposes. Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful. If that device were ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minority cherishes but which does not happen to be in favor. That would be a complete repudiation of the philosophy of the Bill of Rights. n


Another case decided the same day as the Murdock case involved an ordinance making unlawful the ringing of doorbells to aid in the door-to-door distribution of handbills and other advertising matter. This was held by the Court to be an abridgment of the right to freedom of the press. This principle was laid down by the Court:


While door to door distributors of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests its major importance... .

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. o


Another important case decided that day was the case of Douglas v. Jeannette. p The Court held that Jehovah's witnesses did not have the right to enjoin the enforcement of the penal provisions of the Jeannette, Pennsylvania, license tax law. The Court stated that, since Jehovah's witnesses could show the unconstitutionality of the ordinance in defense to the criminal charges, as was done in the Murdock case, they were adequately protected.

You see, before the Supreme Court of the United States handed down its broad and sweeping decisions during May and June, 1943, which resulted in stopping the nationwide landslide of persecution, Jehovah's witnesses were making use effectively of the Civil Rights Act by bringing injunction actions in the federal courts against local officials responsible for abridging rights guaranteed by the First Amendment. These federal court injunctions were a tremendous dam in the flooding stream of prosecutions at the time.

Then the Supreme Court came along in the case of Douglas v. Jeannette and "dynamited" the dam. But in the companion favorable decision in the Murdock case it did away with the floods as far as the license tax cases were concerned. As a result, beginning in the summer of the year 1943 there was a marked decline in the number of cases brought against Jehovah's witnesses. Simultaneously there was a tremendous increase in the number of prosecutions that were dismissed. All the hundreds of test cases that had been decided were climaxed by these outstanding decisions by the Supreme Court of the United States during the months of May and June, 1943. This year proved to be a real turning point, legally, in favor of Jehovah's witnesses.

THE SUPREME COURT AGAIN REVERSES ITSELF

Flag Day, June 14, 1943, was in many respects as remarkable as May 3, for on that historic day the Supreme Court again

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reversed itself, thereby vindicating the legal position of Jehovah's witnesses. One of the cases decided that day involved another false charge being brought against Jehovah's witnesses at that time, the charge of sedition. In Mississippi in June, 1942, three of Jehovah's witnesses had been arrested and falsely indicted for encouraging disloyalty to the government of the United States and of the State of Mississippi and for teaching and distributing literature calculated to encourage disloyalty to the government of the United States. They were convicted in the lower courts for sedition and each sentenced to imprisonment for the duration of the war, but not to exceed ten years. This was a serious charge and attached a stigma to the name of Jehovah's witnesses. Final decision on Flag Day was unanimous in favor of Jehovah's witnesses. In its opinion the Court said:


The statute as construed in these cases makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the future of our own and other nations. As applied to the appellants it punishes them although what they communicated is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our government. What these appellants communicated were their beliefs and opinions concerning domestic measures and trends in national and world affairs.

Under our decisions criminal sanction cannot be imposed for such communication. q


On this same historic day, with the background of violence and mob action against Jehovah's witnesses pointing a reproachful finger at the unfortunate Gobitis decision, the Supreme Court of the United States reversed its position in that case by its holding in the famous case of West Virginia State Board of Education v. Barnette. It held that the school board did not have the right to expel from school and deny education to children of Jehovah's witnesses who refused to salute the flag. In that case the Court said:


... 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 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. .. .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. ...

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control. r


This decision completely overruled the holding of the Court in the Gobitis case. Now the temporary Kingdom Schools were no longer needed and for the first time in eight years the children of Jehovah's witnesses were free to return to the public schools.

TOM: The circumstances and their consequences in this issue remind me of the comment made by the noted modern historian Arnold J. Toynbee:


One of the reasons why our times are dangerous is that we have all been taught to worship our nation, our flag, our own past history. Man may safely worship only God. s


JOHN: In 1944 the Court reaffirmed its position in the Jones and Murdock deci-

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sions by holding that the Constitution protects an itinerant minister as much as it does a local minister in door-to-door preaching and distributing of literature and added that earning a livelihood from the ministry did not justify the imposition of the license tax law. t

MOLDERS OF CONSTITUTIONAL LAW

All these legal actions have built up a monumental record that can be read by all men. As Mr. Justice Murphy of the United States Supreme Court put it:


. . . From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against those who dare to express or practice unorthodox religious beliefs. And the Jehovah's Witnesses are living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure. Theirs is a militant and unpopular faith, pursued with a fanatical zeal. They have suffered brutal beatings; their property has been destroyed; they have been harassed at every turn by the resurrection and enforcement of little used ordinances and statutes. ... To them, along with other present-day religious minorities, befalls the burden of testing our devotion to the ideals and constitutional guarantees of religious freedom. u


Many legal analysts and modern historians also have had much to say about the battle in the courts waged by Jehovah's witnesses throughout this entire period.


Seldom, if ever, in the past, has one individual or group been able to shape the course, over a period of time, of any phase of our vast body of constitutional law. But it can happen, and it has happened, here. The group is Jehovah's Witnesses. Through almost constant litigation this organization has made possible an ever-increasing list of precedents concerning the application of the Fourteenth Amendment to freedom of speech and religion. . . .

. . . More recently, the same test has been applied to state legislation under the Fourteenth Amendment. And so, a body of precedent crystallizing rules regarding the limits of encroachments by the States has been developing. To this development Jehovah's Witnesses have contributed the most, both in quantity and in significance. v

. . . Whatever may be said about the Witnesses, they have the courage of martyrs. And they have money to hire lawyers and fight cases through the courts. As a result in recent days they have made more contributions to the development of the constitutional law of religious liberty than any other cult or group. Believe me, they are making it fast. Sometimes they win and sometimes they lose. w

It is plain that present constitutional guaranties of personal liberty, as authoritatively interpreted by the United States Supreme Court, are far broader than they were before the spring of 1938; and that most of this enlargement is to be found in the thirty-one Jehovah's Witnesses cases (sixteen deciding opinions) of which Lovell v. City of Griffin was the first. If "the blood of the martyrs is the seed of the Church," what is the debt of Constitutional Law to the militant persistency—or perhaps I should say devotion—of this strange group? x

Jehovah's Witnesses have literally covered the earth with their witnessing. . . . No modern Christians make a more constant use of scripture, or memorize it in greater quantities than the Witnesses. To argue successfully with them on scriptural grounds, one must know his scriptures better than most members of even the fundamentalist churches do today. . . .

Against every sort of opposition they press ahead. They fight by every legal means for their civil rights, the right of public assembly —sometimes denied them—the right to distribute their literature, the right of conscience to put God above every other loyalty. They have performed a signal service to democracy by their fight to preserve their civil rights, for in their struggle they have done much to secure those rights for every minority group in America. When the civil rights of any one group are invaded, the rights of no other group are safe. They have therefore made a definite contribution to the preservation of some of the most precious things in our democracy. y


LOIS: I would almost say "Amen" to that. Those are certainly worth-while tributes to the theocratic purpose of Jehovah's witnesses.



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