Martin v. City of Struthers/Concurrence Murphy

by Frank Murphy

United States Supreme Court

319 U.S. 141

Martin  v.  City of Struthers

 Argued: March 11, 1943. --- Decided: May 3, 1943

Mr. Justice MURPHY, concurring.

I join in the opinion of the Court, but the importance of this and the other cases involving Jehovah's Witnesses decided today, moves me to add this brief statement.

I believe that nothing enjoys a higher estate in our society than the right given by the First and Fourteenth Amendments freely to practice and proclaim one's religious convictions. Cf. Jones v. Opelika, 316 U.S. 584, at page 621, 62 S.Ct. 1231, 1250, 86 L.Ed. 1691, 141 A.L.R. 514. The right extends to the aggressive and disputatious as well as to the meek and acquiescent. The lesson of experience is that-with the passage of time and the interchange of ideas-organizations, once turbulent, perfervid and intolerant in their origin, mellow into tolerance and acceptance by the community, or else sink into oblivion. Religious differences are often sharp and pleaders at times resort 'to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.' Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352. If a religious brlief has substance, it can survive criticism, heated and abusive though it may be, with the aid of truth and reason alone. By the same method those who follow false prophets are exposed. Repression has no place in this country. It is our proud achievement to have demonstrated that unity and strength are best accomplished, not by enforced orthodoxy of views, but by diversity of opinion through the fullest possible measure of freedom of conscience and thought.

Also, few, if any, believe more strongly in the maxim, 'a man's home is his castle', than I. Cf. Goldman v. United States, 316 U.S. 129, at page 136, 62 S.Ct. 993, 996, 86 L.Ed. 1322. If this principle approaches a collision with religious freedom, there should be an accommodation, if at all possible, which gives appropriate recognition to both. That is, if regulation should be necessary to protect the safety and privacy of the home, an effort should be made at the same time to preserve the substance of religious freedom.

There can be no question but that appellant was engaged in a religious activity when she was going from house to house in the City of Struthers distributing circulars advertising a meeting of those of her belief. Distribution of such circulars on the streets cannot be prohibited. Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. --. Nor can their distribution on the streets or from house to house be conditioned upon obtaining a license which is subject to the uncontrolled discretion of municipal officials, Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. --, or upon payment of a license tax for the privilege of so doing. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. --; Jones v. Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. --, decided today. Preaching from house to house is an ageold method of proselyting, and it must be remembered that 'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.' Schneider v. State, supra, 308 U.S. page 163, 60 S.Ct. page 151, 84 L.Ed. 155.

No doubt there may be relevant considerations which justify considerable regulation of door to door canvassing even for religious purposes,-regulation as to time, number and identification of canvassers, etc., which will protect the privacy and safety of the home and yet preserve the substance of religious freedom. And, if a householder does not desire visits from religious canvassers, he can make his wishes known in a suitable fashion. The fact that some regulation may be permissible, however, does not mean that the First Amendment may be abrogated. We are not dealing here with a statute 'narrowly drawn to cover the precise situation' that calls for remedial action, Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 746, 84 L.Ed. 1093; Cantwell v. Connecticut, supra, 310 U.S. at page 311, 60 S.Ct. at page 906, 84 L.Ed. 1213, 128 A.L.R. 1352. As construed by the state courts and applied to the case at bar, the Struthers ordinance prohibits door to door canvassing of any kind, no matter what its character and purpose may be, if attended by the distribution of written or printed matter in the form of a circular or pamphlet. I do not believe that this outright prohibition is warranted. As I understand it, the distribution of circulars and pamphlets is a relatively minor aspect of the problem. The primary concern is with the act of canvassing as a source of inconvenience and annoyance to householders. But if the city can prohibit canvassing for the purpose of distributing religious pamphlets, it can also outlaw the door to door solicitations of religious charities, or the activities of the holy mendicant who begs alms from house to house to serve the material wants of his fellowmen and thus obtain spiritual comfort for his own soul.

Prohibition may be more convenient to the law maker, and easier to fashion than a regulatory measure which adequately protects the peace and privacy of the home without suppressing legitimate religious activities. But that does not justify a repressive enactment like the one now before us. Cf. Schneider v. State, supra, 308 U.S. page 164, 60 S.Ct. page 152, 84 L.Ed. 155. Freedom of religion has a higher dignity under the Constitution than municipal or personal convenience. In these days free men have no loftier responsibility than the preservation of that freedom. A nation dedicated to that ideal will not suffer but will prosper in its observance.

Mr. Justice DOUGLAS and Mr. Justice RUTLEDGE join in this opinion.

Notes