Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Court’s first encounter with free exercise claims occurred in a series of cases in which the Federal Government and the territories moved against members of the Church of Jesus Christ of Latter-Day Saints because of their practice of polygamy. Actual prosecutions and convictions for bigamy presented little problem for the Court, as it could distinguish between beliefs and acts. 1 But the presence of large numbers of Latter-Day Saints in some of the territories made convictions for bigamy difficult to obtain, and in 1882 Congress enacted a statute that barred
any person cohabiting with more than one woman from voting or serving on juries. The Court sustained the law, even as applied to persons entering the state prior to enactment of the original law prohibiting bigamy and to persons as to whom the statute of limitations had run. 2 Subsequently, an act of a territorial legislature that required a prospective voter not only to swear that he was not a bigamist or polygamist but also that
I am not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees or any other person to commit the crime of bigamy or polygamy . . . or which practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization; that I do not and will not, publicly or privately, or in any manner whatever teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy . . . , was upheld in an opinion that condemned plural marriage and its advocacy as equal evils. 3 And, finally, the Court sustained the revocation of the charter of the Church and confiscation of all church property not actually used for religious worship or for burial. 4
In a number of cases involving Jehovah's Witnesses, the Court confirmed rights of religious proselytizers and other advocates to use the streets and parks to broadcast their ideas, though some of the decisions may be based more squarely on the speech clause than on the Free Exercise Clause. The leading case is Cantwell v. Connecticut. 5 Three Jehovah’s Witnesses were convicted under a statute that forbade the unlicensed soliciting of funds for religious or charitable purposes, and also under a general charge of breach of the peace. The solicitation count was voided as an infringement on religion because the issuing officer was authorized to inquire whether the applicant's cause was
a religious one and to decline to issue a license if he determined that it was not. 6 Such power amounted to a prior restraint upon the exercise of religion and was invalid, the Court held. 7 The breach of the peace count arose when the three Jehovah's Witnesses—a man with his two sons—stopped two Catholic men and, with their permission, played them a phonograph record which attacked the Catholic Church. The Court voided the breach-of-the-peace conviction under the clear-and-present danger test, finding that the interest sought to be upheld by the state did not justify the suppression of religious views that simply annoyed listeners. 8
A series of sometimes-conflicting decisions followed. At first, the Court sustained the application of a non-discriminatory license fee to vendors of religious books and pamphlets, 9 but eleven months later it vacated the decision and struck down such fees. 10 A city ordinance making it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature was held to violate the First Amendment when applied to distributors of leaflets advertising a religious meeting. 11 A state child labor law, however, was held to be validly applied to punish the guardian of a nine-year old child who permitted her to engage in
preaching work and the sale of religious publications after hours. 12 The Court decided a number of cases involving meetings and rallies in public parks and other public places by upholding licensing and permit requirements which were premised on nondiscriminatory
times, places, and manners terms and which did not seek to regulate the content of the religious message to be communicated. 13 In 2002, the Court struck down on free speech grounds a town ordinance requiring door-to-door solicitors, including persons seeking to proselytize about their faith, to register with the town and obtain a solicitation permit. 14 The Court stated that the requirement was
offensive . . . to the very notion of a free society.
In early cases the Court sustained the power of a state to exclude from its schools children who because of their religious beliefs would not participate in the salute to the flag, 15 only within a short time to reverse itself and condemn such exclusions, but on speech grounds rather than religious grounds. 16 Also, the Court seemed to be clearly of the view that government could compel those persons religiously opposed to bearing arms to take an oath to do so or to receive training to do so, 17 only in later cases to cast doubt on this resolution by statutory interpretation, 18 and still more recently to leave the whole matter in some doubt. 19