Pastor, Church & Law

§ 13.01

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Key point 13-01. The courts have affirmed the right of persons to disseminate religious literature and doctrine on a door-to-door basis, and in public places. This right may be limited in order to preserve public safety, health, order, and convenience. Strict safeguards, however, must attend any limitations.

1. Door-to-Door Witnessing

The Supreme Court repeatedly has affirmed the right of persons to solicit religious contributions, sell religious books and merchandise, and disseminate religious doctrine on a "door-to-door" basis.[1] See, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943); Largent v. Texas, 318 U.S. 418 (1943); Jamison v. Texas, 318 U.S. 413 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940). Municipal ordinances that condition the exercise of such a right upon the acquisition of a permit or license or upon the payment of a "tax" or fee generally have been found to be unconstitutional.

To illustrate, the Supreme Court struck down a city licensing scheme used by city officials to ban Jehovah's Witnesses from going door-to-door in heavily Catholic neighborhoods playing a phonograph record that attacked the Roman Catholic Church as an "enemy" and the church of the devil.[2] Cantwell v. Connecticut, 310 U.S. 296 (1940). Similarly, the Court invalidated a municipal "license tax" that was imposed upon the door-to-door solicitation and evangelistic activities of Jehovah's Witnesses.[3] Murdock v. Pennsylvania, 319 U.S. 105 (1943). The Court observed: "Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation."[4] Id. at 112. The Supreme Court also struck down a municipal ordinance that prohibited anyone engaged in distributing literature to summon the occupants of a home to the door.[ 5] Martin v. City of Struthers, 319 U.S. 141 (1943).

The Supreme Court has acknowledged that a city may protect its citizens from fraud by requiring strangers in the community to establish their identity and demonstrate their authority to represent the cause they espouse. Cities also may limit door-to-door proselytizing and solicitation where necessary to preserve public safety, health, order, and convenience. Strict safeguards, however, must attend any such limitations.[6] See the discussion of witnessing in public places later in this section.

Many lower federal court decisions have protected the rights of persons to engage in door-to-cdoor religious activities.[7] See, e.g., Troyer v. Town of Babylon, 483 F. Supp. 1135 (E.D.N.Y. 1980), aff'd, 628 F.2d 1346 (2nd Cir. 1980), aff'd, 449 U.S. 988 (1980) ("[r]equiring consent of householders before approaching their homes constitutes, in effect, an indirect unconstitutional imposition of a licensing fee; it generates costs which burden the exercise of First Amendment rights in direct proportion to the number of persons the speaker wants to reach"); Weissman v. City of Alamogordo, 472 F. Supp. 425 (D.N.M. 1979); McMurdie v. Doutt, 468 F. Supp. 766 (N.D. Ohio 1979); Levers v. City of Tullahoma, 446 F. Supp. 884 (D. Tenn. 1978); Murdock v. City of Jacksonville, 361 F. Supp. 1083 (M.D. Fla. 1973).

Example

The United States Supreme Court ruled that a city ordinance requiring Jehovah's Witnesses and other persons to obtain and display a permit before engaging in door-to-door witnessing violated the First Amendment. A city ordinance prohibited "canvassers" and others from "going in and upon" private residential property for the purpose of promoting any "cause" without first having obtained a "solicitation permit." Residents may prohibit solicitation even by holders of permits by posting a "No Solicitation" sign on their property. The Court concluded that the city ordinance, as applied to the Jehovah's Witnesses, violated the First Amendment guaranty of free speech. The city claimed that the permit requirement was justified by the legitimate interests of preventing fraud and crime, and protecting residents' privacy. The Court conceded that cities have a legitimate interest in protecting these interests, but in this case they went too far. It observed: "Central to our conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the city'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 [church members], to political campaigns, or to enlisting support for unpopular causes. The city, however, argues that the ordinance is nonetheless valid because it serves the two additional interests of protecting the privacy of the resident and the prevention of crime. With respect to the former, it seems clear that the ordinance, which provides for the posting of 'No Solicitation' signs … coupled with the resident's unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for the unwilling listener. … With respect to the latter, it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance." The Court concluded: "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. … A law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition."[8] Watchtower Bible and Tract Society v. Village of Stratton, 536 U.S. 150 (2002).

2. Witnessing In Public Places

The Supreme Court has zealously protected the right to disseminate religious doctrine in public places. The Court has struck down a city ordinance that prohibited the distribution of handbills on city streets as applied to Jehovah's Witnesses who distributed religious handbills to pedestrians in a downtown area.[ 9] Jamison v. Texas, 318 U.S. 413 (1943). The Court also has invalidated a city ordinance under which a Baptist minister was convicted for holding a religious meeting on city streets without a permit.[10] Kunz v. New York, 340 U.S. 290 (1951). In striking down the ordinance, the Court held that no ordinance that gives city officials discretionary authority, in advance, to allow or refuse individuals the right to speak publicly on religious matters could ever be constitutionally valid. The Court did emphasize, however, that a carefully worded ordinance that conditions the right to hold public religious meetings in public places on the prior receipt of a municipal permit or license could be constitutionally valid if it (1) removed all discretion on the part of city officials by listing the specific preconditions for issuance of a license, and (2) the specified preconditions were constitutionally permissible, such as the preservation of public peace and order.

In another decision,[11] Cox v. New Hampshire, 312 U.S. 569 (1941). the Court upheld the conviction of five Jehovah's Witnesses who paraded through a city carrying a sign stating "Religion is a Snare and a Racket" in violation of an ordinance prohibiting "a parade or procession" on a city street without a license. The Court observed that the city officials had no discretion to grant or deny a license since the conditions for obtaining a license were specifically and clearly set forth in the ordinance. Also, the stated purpose of the ordinance and its various conditions were permissible: preserving the public safety, convenience, peace, and order by preventing conflicts in scheduling; controlling the time, place, and manner of each use of the public streets; and enabling the police to oversee each use and thus minimize the risk of disorder.

In conclusion, the following principles should be noted:

a. specific guidelines exist for determining whether to grant or disallow a license or permit, and the guidelines remove all discretion from those officials who must evaluate applications

b. guidelines only ensure public order, peace, health, safety, or convenience

c. no less restrictive public remedies to protect the peace and order of the community are appropriate or available

1. No law or regulation that gives government officials unbridled discretion to permit or disallow a religious meeting or service or any other religious activity on public property can be consistent with the First Amendment guarantee of free exercise of religion.
2. A law or regulation that requires a license or permit before a religious meeting or activity may be held on public property can be constitutionally valid if
3. A permit or licensing scheme is unconstitutional unless it (a) provides for a ruling on an application within a specified brief period of time, (b) places the burden on the government of showing that the law's guidelines are not satisfied, and (c) makes available prompt, final, judicial resolution of the issue.[12] Freedman v. Maryland, 432 U.S. 43 (1977); Walker v. Wegner, 477 F. Supp. 648 (D.S.D. 1979).

Numerous lower federal court decisions have protected the rights of persons to engage in religious activities on public property.[13] See, e.g., Edwards v. Maryland State Fair and Agricultural Society, Inc., 628 F.2d 282 (4th Cir. 1980); International Society for Krishna Consciousness, Inc. v. Bowen, 600 F.2d 667 (7th Cir. 1979); Bacon v. Bradley-Bourbonnais High School District, 707 F. Supp. 1005 (N.D. Ill. 1989); International Society for Krishna Consciousness, Inc. v. City of New York, 501 F. Supp. 684 (S.D.N.Y. 1980); International Society for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir. 1979); International Society for Krishna Consciousness v. Bowen, 600 F.2d 667 (7th Cir. 1979); International Society for Krishna Consciousness v. Rochford, 585 F.2d 263 (7th Cir. 1978).