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Cantwell
v. Connecticut
310
U.S. 296 (1940)
The
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
During
the 1930s and 1940s several First Amendment cases involving
Jehovah's Witnesses reached the Supreme Court. In Cantwell
v. Connecticut, the Court reversed the state's conviction
of three Jehovah's Witnesses, on grounds of religious liberty.
Never before had the Court invalidated the action of a state
for this reason. For such a decision even to be possible,
the religion clause had to be understood as applying to
the states, and Cantwell's chief importance lies
in the fact that it stands for this proposition. "The Fourteenth
Amendment," the Court maintained, "has rendered the legislatures
of the states as incompetent as Congress to enact such laws,"
i.e., laws "respecting an establishment of religion or prohibiting
the free exercise thereof."
Cantwell
opened the door to federal litigation over religion-clause
claims against the states, and most of the religion-clause
cases decided by the Supreme Court since 1940 have involved
such claims. By contrast, all of the few religion-clause
cases the Court decided during its first 150 years involved
claims against the federal government.
The
facts in Cantwell were as follows. On the day of
their arrest Newton Cantwell and his two sons, members of
Jehovah's Witnesses, were spreading their faith by going
from house to house in a New Haven, Connecticut, neighborhood
heavily populated by Catholics. The Cantwells sought permission
to play, on a portable phonograph, records describing the
contents of books they carried with them. When someone granted
permission, they played a record and then asked the person
to buy the book it described. If they were turned down,
they asked for a contribution to defray costs of their publications.
Having
stopped two men in the street, one of the sons, Jesse Cantwell,
asked and got permission to play a record describing a book
entitled Enemies, which included an attack on Catholicism.
Both men were Catholics, and they testified that they felt
like hitting Cantwell or throwing him off the street. Cantwell
left without argument.
Newton
Cantwell and his sons were charged and then convicted in
Connecticut courts under (1) a state law forbidding the
unlicensed soliciting of funds on the representation that
they were for religious or charitable purposes, and (2)
the common law for inciting a breach of the peace. They
appealed their convictions to the U.S. Supreme Court on
First Amendment grounds, and the Court unanimously sided
with them. Cantwell stands out as one of the few
religion-clause cases since 1940 in which the Court has
been of one mind, expressed in one opinion.
While
the Court did hold that both provisions of the religion
clause apply to the states, the Cantwells based their appeal
on the free-exercise provision, and the case is usually
understood in those terms. The Court's reasoning and the
cases it cited in footnotes suggest that the Court also
saw the case in terms of the First Amendment guarantee of
freedom of speech.
Participating
in Cantwell v. Connecticut, decided May 30, 1940,
were Chief Justice Charles E. Hughes and Associate Justices
Hugo L. Black, William O. Douglas, Felix Frankfurter, James
C. McReynolds, Frank Murphy, Stanley F. Reed, Owen J. Roberts,
and Harlan F. Stone.
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