1. A state statute provides that no minor (boy under 12 or girl
under 18) shall sell, or offer for sale, upon the streets or in
other public places, any newspapers, magazines, periodicals, or
other articles of merchandise. The statute makes it unlawful for
any person to furnish to a minor any article which he knows the
minor intends to sell in violation of the law, and for any parent
or guardian to permit a minor to work in violation of the law.
Held -- as applied
Page 321 U. S. 159
to a guardian who furnished a minor ward with religious
literature and permitted the minor to distribute the same on the
streets, although the guardian accompanied the minor and both were
-- acting in accord with their religious beliefs -- not violative
of freedom of religion, nor a denial of the equal protection of the
laws, under the Fourteenth Amendment of the Federal Constitution.
P.
321 U. S.
167.
2. Whether there was a "sale" or "offer to sell," and whether
what the minor was doing was "work," within the meaning of the
State statute, were question of local law upon which, on this
record, the decision of the state court is binding here. P.
321 U. S.
163.
3. With respect to the public proclaiming of religion in streets
and other public place, as in the case of other freedoms, the power
of the State to control the conduct of children is broader than its
power over adults. P.
321 U. S.
170.
4. There is no denial of equal protection of the laws in
excluding children of a particular sect from such use of the
streets as is barred also to all other children. P.
321 U. S.
170.
313 Mass. 223, 46 N.E.2d 755, affirmed.
APPEAL from a judgment entered on a rescript from the highest
court of the State, which sustained convictions on two of three
complaints for violations of a state statute.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
The case brings for review another episode in the conflict
between Jehovah's Witnesses and state authority. This time Sarah
Prince appeals from convictions for violating Massachusetts' child
labor laws, by acts said to be a rightful exercise of her religious
convictions. When the offenses were committed, she was the aunt and
custodian of Betty M. Simmons, a girl nine years of age.
Originally, there were three separate complaints. They
Page 321 U. S. 160
were, shortly, for (1) refusal to disclose Betty's identity and
age to a public officer whose duty was to enforce the statutes; (2)
furnishing her with magazines, knowing she was to sell them
unlawfully, that is, on the street, and (3) as Betty's custodian,
permitting her to work contrary to law. The complaints were made,
respectively, pursuant to §§ 79, 80 and 81 of Chapter 149, Gen.Laws
of Mass. (Ter. Ed.). The Supreme Judicial Court reversed the
conviction under the first complaint on state grounds, [
Footnote 1] but sustained the judgments
founded on the other two. [
Footnote
2] 313 Mass. 223, 46 N.E.2d 755. They present the only
questions for our decision. These are whether §§ 80 and 81, as
applied, contravene the Fourteenth Amendment by denying or
abridging appellant's freedom of religion and by denying to her the
equal protection of the laws.
Sections 80 and 81 form parts of Massachusetts' comprehensive
child labor law. [
Footnote 3]
They provide methods for enforcing the prohibitions of § 69, which
is as follows:
"No boy under twelve and no girl under eighteen shall sell,
expose or offer for sale any newspapers, magazines, periodicals or
any other articles of merchandise of any
Page 321 U. S. 161
description, or exercise the trade of bootblack or scavenger, or
any other trade, in any street or public place."
Sections 80 and 81, so far as pertinent, read:
"Whoever furnishes or sells to any minor any article of any
description with the knowledge that the minor intends to sell such
article in violation of any provision of sections sixty-nine to
seventy-three, inclusive, or after having received written notice
to this effect from any officer charged with the enforcement
thereof, or knowingly procures or encourages any minor to violate
any provisions of said sections, shall be punished by a fine of not
less than ten nor more than two hundred dollars or by imprisonment
for not more than two months, or both."
§ 80.
"Any parent, guardian or custodian having a minor under his
control who compels or permits such minor to work in violation of
any provision of sections sixty to seventy-four, inclusive, . . .
shall for a first offense be punished by a fine of not less than
two nor more than ten dollars or by imprisonment for not more than
five days, or both; . . ."
§ 81.
The story told by the evidence has become familiar. It hardly
needs repeating, except to give setting to the variations
introduced through the part played by a child of tender years. Mrs.
Prince, living in Brockton, is the mother of two young sons. She
also has legal custody of Betty Simmons, who lives with them. The
children, too, are Jehovah's Witnesses, and both Mrs. Prince and
Betty testified they were ordained ministers. The former was
accustomed to go each week on the streets of Brockton to distribute
"Watchtower" and "Consolation," according to the usual plan.
[
Footnote 4] She had permitted
the children to
Page 321 U. S. 162
engage in this activity previously, and had been warned against
doing so by the school attendance officer, Mr. Perkins. But, until
December 18, 1941, she generally did not take them with her at
night.
That evening, as Mrs. Prince was preparing to leave her home,
the children asked to go. She at first refused. Child-like, they
resorted to tears; and, mother-like, she yielded. Arriving
downtown, Mrs. Prince permitted the children "to engage in the
preaching work with her upon the sidewalks." That is, with specific
reference to Betty, she and Mrs. Prince took positions about twenty
feet apart near a street intersection. Betty held up in her hand,
for passers-by to see, copies of "Watch Tower" and "Consolation."
From her shoulder hung the usual canvas magazine bag, on which was
printed: "Watchtower and Consolation 5� per copy." No one accepted
a copy from Betty that evening, and she received no money. Nor did
her aunt. But on other occasions, Betty had received funds and
given out copies.
Mrs. Prince and Betty remained until 8:45 p.m. A few minutes
before this, Mr. Perkins approached Mrs. Prince. A discussion
ensued. He inquired, and she refused to give Betty's name. However,
she stated the child attended the Shaw School. Mr. Perkins referred
to his previous warnings, and said he would allow five minutes for
them to get off the street. Mrs. Prince admitted she supplied Betty
with the magazines, and said,
"[N]either you nor anybody else can stop me . . . This child is
exercising her God-given right and her constitutional right to
preach the gospel, and no creature has a right to interfere with
God's commands."
However, Mrs. Prince and Betty departed. She remarked as she
went, "I'm not going through this any more. We've been through it
time and time again. I'm going home and put the little girl to
bed." It may be added that testimony, by Betty, her aunt, and
others was offered at the trials, and was excluded,
Page 321 U. S. 163
to show that Betty believed it was her religious duty to perform
this work, and failure would bring condemnation "to everlasting
destruction at Armageddon."
As the case reaches us, the questions are no longer open whether
what the child did was a "sale" or an "offer to sell" within § 69
[
Footnote 5] or was "work"
within § 81. The state court's decision has foreclosed them
adversely to appellant as a matter of state law. [
Footnote 6] The only question remaining
therefore is whether, as constituted and applied, the statute is
valid. Upon this, the court said:
"We think that freedom of the press and of religion is subject
to incidental regulation to the slight degree involved in the
prohibition of the selling of religious literature in streets and
public places by boys under twelve and girls under eighteen, and in
the further statutory provisions herein considered, which have been
adopted as means of enforcing
Page 321 U. S. 164
that prohibition."
313 Mas. 223, 229, 46 N.E.2d 755, 758.
Appellant does not stand on freedom of the press. Regarding it
as secular, she concedes it may be restricted as Massachusetts has
done. [
Footnote 7] Hence, she
rests squarely on freedom of religion under the First Amendment,
applied by the Fourteenth to the states. She buttresses this
foundation, however, with a claim of parental right as secured by
the due process clause of the latter Amendment. [
Footnote 8]
Cf. Meyer v. Nebraska,
262 U. S. 390.
These guaranties, she thinks, guard alike herself and the child in
what they have done. Thus, two claimed liberties are at stake. One
is the parent's, to bring up the child in the way he should go,
which, for appellant, means to teach him the tenets and the
practices of their faith. The other freedom is the child's, to
observe these, and among them is "to preach the gospel . . . by
public distribution" of "Watchtower" and "Consolation," in
conformity with the scripture: "A little child shall lead
them."
If, by this position, appellant seeks for freedom of conscience
a broader protection than for freedom of the mind, it may be
doubted that any of the great liberties insured by the First
Article can be given higher place than the others. All have
preferred position in our basic scheme.
Schneider v.
State, 308 U. S. 147;
Cantwell v. Connecticut, 310 U. S. 296. All
are interwoven there together. Differences there are, in them and
in the modes appropriate for their exercise. But they have unity in
the charter's prime place because they have unity in their human
sources and
Page 321 U. S. 165
functionings. Heart and mind are not identical. Intuitive faith
and reasoned judgment are not the same. Spirit is not always
thought. But, in the everyday business of living, secular or
otherwise, these variant aspects of personality find inseparable
expression in a thousand ways. They cannot be altogether parted in
law more than in life.
To make accommodation between these freedoms and an exercise of
state authority always is delicate. It hardly could be more so than
in such a clash as this case presents. On one side is the obviously
earnest claim for freedom of conscience and religious practice.
With it is allied the parent's claim to authority in her own
household and in the rearing of her children. The parent's conflict
with the state over control of the child and his training is
serious enough when only secular matters are concerned. It becomes
the more so when an element of religious conviction enters. Against
these sacred private interests, basic in a democracy, stand the
interests of society to protect the welfare of children, and the
state's assertion of authority to that end, made here in a manner
conceded valid if only secular things were involved. The last is no
mere corporate concern of official authority. It is the interest of
youth itself, and of the whole community, that children be both
safeguarded from abuses and given opportunities for growth into
free and independent well developed men and citizens. Between
contrary pulls of such weight, the safest and most objective
recourse is to the lines already marked out, not precisely but for
guides, in narrowing the no man's land where this battle has gone
on.
The rights of children to exercise their religion, and of
parents to give them religious training and to encourage them in
the practice of religious belief, as against preponderant sentiment
and assertion of state power voicing it, have had recognition here,
most recently in
West Virginia State Board of
Education v. Barnette, 319 U.S.
Page 321 U. S. 166
624. Previously, in
Pierce v. Society of Sisters,
268 U. S. 510,
this Court had sustained the parent's authority to provide
religious with secular schooling, and the child's right to receive
it, as against the state's requirement of attendance at public
schools. And in
Meyer v. Nebraska, 262 U.
S. 390, children's rights to receive teaching in
languages other than the nation's common tongue were guarded
against the state's encroachment. It is cardinal with us that the
custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.
Pierce v.
Society of Sisters, supra. And it is in recognition of this
that these decisions have respected the private realm of family
life which the state cannot enter.
But the family itself is not beyond regulation in the public
interest, as against a claim of religious liberty.
Reynolds v.
United States, 98 U. S. 145;
Davis v. Beason, 133 U. S. 333. And
neither rights of religion nor rights of parenthood are beyond
limitation. Acting to guard the general interest in youth's
wellbeing, the state, as
parens patriae, may restrict the
parent's control by requiring school attendance, [
Footnote 9] regulating or prohibiting the
child's labor [
Footnote 10]
and in many other ways. [
Footnote 11] Its authority is not nullified merely
because the parent grounds his claim to control the child's course
of conduct on religion or conscience. Thus, he cannot claim freedom
from compulsory vaccination for the child more than for himself on
religious grounds. [
Footnote
12] The right to practice religion freely does not include
liberty to expose the community or the child
Page 321 U. S. 167
to communicable disease or the latter to ill health or death.
People v. Pierson, 176 N.Y. 201, 68 N.E. 243. [
Footnote 13] The catalogue need not
be lengthened. It is sufficient to show what indeed appellant
hardly disputes, that the state has a wide range of power for
limiting parental freedom and authority in things affecting the
child's welfare, and that this includes, to some extent, matters of
conscience and religious conviction.
But it is said the state cannot do so here. This, first, because
when state action impinges upon a claimed religious freedom, it
must fall unless shown to be necessary for or conducive to the
child's protection against some clear and present danger,
cf.
Schenck v. United States, 249 U. S. 47; and,
it is added, there was no such showing here. The child's presence
on the street, with her guardian, distributing or offering to
distribute the magazines, it is urged, was in no way harmful to
her, nor, in any event, more so than the presence of many other
children at the same time and place, engaged in shopping and other
activities not prohibited. Accordingly, in view of the preferred
position the freedoms of the First Article occupy, the statute in
its present application must fall. It cannot be sustained by any
presumption of validity.
Cf. Schneider v. State,
308 U. S. 147.
And, finally, it is said, the statute is, as to children, an
absolute prohibition, not merely a reasonable regulation, of the
denounced activity.
Concededly a statute or ordinance identical in terms with § 69,
except that it is applicable to adults or all persons generally,
would be invalid.
Young v. California, 308 U.
S. 147;
Nichols v. Massachusetts, 308 U.
S. 147;
Jamison v. Texas, 318 U.
S. 413;
Murdock v. Pennsylvania, 319 U.
S. 105;
Martin v. City of Struthers,
319 U. S. 141.
[
Footnote 14]
Page 321 U. S. 168
But the mere fact a state could not wholly prohibit this form of
adult activity, whether characterized locally as a "sale" or
otherwise, does not mean it cannot do so for children. Such a
conclusion granted would mean that a state could impose no greater
limitation upon child labor than upon adult labor. Or, if an adult
were free to enter dance halls, saloons, and disreputable places
generally, in order to discharge his conceived religious duty to
admonish or dissuade persons from frequenting such places, so would
be a child with similar convictions and objectives, if not alone,
then in the parent's company, against the state's command.
The state's authority over children's activities is broader than
over like actions of adults. This is peculiarly true of public
activities and in matters of employment. A democratic society
rests, for its continuance, upon the healthy, well rounded growth
of young people into full maturity as citizens, with all that
implies. It may secure this against impeding restraints and dangers
within a broad range of selection. Among evils most appropriate for
such action are the crippling effects of child employment,
[
Footnote 15] more
especially in public places, and the possible harms arising from
other activities subject to all the diverse influences of the
street. [
Footnote 16] It is
too late now to doubt
Page 321 U. S. 169
that legislation appropriately designed to reach such evils is
within the state's police power, whether against the parent's claim
to control of the child or one that religious scruples dictate
contrary action.
It is true children have rights, in common with older people, in
the primary use of highways. But even in such use, streets afford
dangers for them not affecting adults. And in other uses, whether
in work or in other things, this difference may be magnified. This
is so not only when children are unaccompanied, but certainly to
some extent when they are with their parents. What may be wholly
permissible for adults therefore may not be so for children, either
with or without their parents' presence.
Street preaching, whether oral or by handing out literature, is
not the primary use of the highway, even for adults. While for them
it cannot be wholly prohibited, it can be regulated within
reasonable limits in accommodation to the primary and other
incidental uses. [
Footnote
17] But, for obvious reasons, notwithstanding appellant's
contrary view, [
Footnote 18]
the validity of such a prohibition applied to children not
accompanied by an older person hardly would seem on to question.
The case reduces itself therefore to the question whether the
presence of the child's guardian puts a limit to the state's power.
That fact may lessen the likelihood that some evils the legislation
seeks to avert will occur. But it cannot forestall all of them. The
zealous though lawful exercise of the right to engage in
propagandizing the community, whether in religious, political or
other matters, may, and at times does, create situations
Page 321 U. S. 170
difficult enough for adults to cope with and wholly
inappropriate for children, especially of tender years, to face.
Other harmful possibilities could be stated, of emotional
excitement and psychological or physical injury. Parents may be
free to become martyrs themselves. But it does not follow they are
free, in identical circumstances, to make martyrs of their children
before they have reached the age of full and legal discretion when
they can make that choice for themselves. Massachusetts has
determined that an absolute prohibition, though one limited to
streets and public places and to the incidental uses proscribed, is
necessary to accomplish its legitimate objectives. Its power to
attain them is broad enough to reach these peripheral instances in
which the parent's supervision may reduce, but cannot eliminate
entirely, the ill effects of the prohibited conduct. We think that,
with reference to the public proclaiming of religion, upon the
streets and in other similar public places, the power of the state
to control the conduct of children reaches beyond the scope of its
authority over adults, as is true in the case of other freedoms,
and the rightful boundary of its power has not been crossed in this
case.
In so ruling, we dispose also of appellant's argument founded
upon denial of equal protection. It falls with that based on denial
of religious freedom, since, in this instance, the one is but
another phrasing of the other. Shortly, the contention is that the
street, for Jehovah's Witnesses and their children, is their
church, since their conviction makes it so, and to deny them access
to it for religious purposes, as was done here, has the same effect
as excluding altar boys, youthful choristers, and other children
from the edifices in which they practice their religious beliefs
and worship. The argument hardly needs more than statement, after
what has been said, to refute it. However Jehovah's Witnesses may
conceive them, the public highways have not become their religious
property
Page 321 U. S. 171
merely by their assertion. And there is no denial of equal
protection in excluding their children from doing there what no
other children may do.
Our ruling does not extend beyond the facts the case presents.
We neither lay the foundation "for any [that is, every] state
intervention in the indoctrination and participation of children in
religion" which may be done "in the name of their health and
welfare" nor give warrant for "every limitation on their religious
training and activities." The religious training and indoctrination
of children may be accomplished in many ways, some of which, as we
have noted, have received constitutional protection through
decisions of this Court. These and all others except the public
proclaiming of religion on the streets, if this may be taken as
either training or indoctrination of the proclaimer, remain
unaffected by the decision.
The judgment is
Affirmed.
[
Footnote 1]
The court found there was no evidence that appellant was asked
Betty's age. It then held that conviction for refusal to disclose
the child's name, based on the charge under § 79, would violate
Article 12 of the Declaration of Rights of the Commonwealth, which
provides in part:
"No subject shall be held to answer for any crimes or offence,
until the same is fully and plainly, substantially and formally,
described to him; or be compelled to accuse, or furnish evidence
against himself."
[
Footnote 2]
Appellant received moderate fines on each complaint, first in
the District Court of Brockton, then on pleas of not guilty by
trial
de novo without a jury in the Superior Court for
Plymouth County. Motions to dismiss and quash the complaints, for
directed findings, and for rulings, were made seasonably and denied
by the Superior Court.
[
Footnote 3]
Mass.Gen.Laws (Ter. Ed.) c. 149, as amended by Acts and Resolves
of 1939, c. 461.
[
Footnote 4]
Cf. the facts as set forth in
Jamison v.
Texas, 318 U. S. 413;
Largent v. Texas, 318 U. S. 418;
Murdock v. Pennsylvania, 319 U. S. 105;
Busey v. District of Columbia, 75 U.S.App.D.C. 352, 129
F.2d 24. A common feature is that specified small sums are
generally asked and received, but the publications may be had
without the payment if so desired.
[
Footnote 5]
In this respect, the Massachusetts decision is contrary to the
trend in other states.
Compare State v. Mead, 230 Iowa
1217, 300 N.W. 523;
State v. Meredith, 197 S.C. 351, 15
S.E.2d 678;
State ex rel. Semansky v. Stark, 196 La. 307,
199 So. 129;
Shreveport v. Teague, 200 La. 679, 8 So. 2d
640;
People v. Barber, 289 N.Y. 378, 46 N.E.2d 329;
Thomas v. Atlanta, 59 Ga.App. 520, 1 S.E.2d 598;
Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d 418.
Contra: McSparran v. Portland (Circuit Court, Multnomah
County, Oregon, June 8, 1942),
cert. denied, 318 U.S.
768.
[
Footnote 6]
The court's opinion said:
"The judge could find that, if a passer-by should hand over five
cents in accordance with the sign on the bag and should receive a
magazine in return, a sale would be effected. The judge was not
required to accept the defendant's characterization of that
transaction as a 'contribution.' He could believe that selling the
literature played a more prominent part in the enterprise than
giving it away. He could find that the defendant furnished the
magazines to Betty, knowing that the latter intended to sell them,
if she could, in violation of § 69. . . . The judge could find that
the defendant permitted Betty to 'work' in violation of § 81. . . .
[W]e cannot say that the evils at which the statutes were directed
attendant upon the selling by children of newspapers, magazines,
periodicals, and other merchandise in streets and public places do
not exist where the publications are of a religious nature."
313 Mass. 223, 227-228.
[
Footnote 7]
Appellant's brief says:
"The purpose of the legislation is to protect children from
economic exploitation and keep them from the evils of such
enterprises that contribute to the degradation of children."
And at the argument counsel stated the prohibition would be
valid as against a claim of freedom of the press as a nonreligious
activity.
[
Footnote 8]
The due process claim, as made and perhaps necessarily, extends
no further than that to freedom of religion, since, in the
circumstances, all that is comprehended in the former is included
in the latter.
[
Footnote 9]
State v. Bailey, 157 Ind. 324, 61 N.E. 730;
compare
Meyer v. Nebraska, 262 U. S. 390;
Pierce v. Society of Sisters, 268 U.
S. 510;
West Virginia State Board of Education v.
Barnette, 319 U. S. 624.
[
Footnote 10]
Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.
S. 320;
compare Muller v. Oregon, 208 U.
S. 412.
[
Footnote 11]
Cf. People v. Ewer, 141 N.Y. 129, 36 N.E. 4.
[
Footnote 12]
Jacobson v. Massachusetts, 197 U. S.
11.
[
Footnote 13]
See also State v. Chenoweth, 163 Ind. 94, 71 N.E. 197;
Owens v. State, 6 Okla.Cr. 110, 116 P. 345.
[
Footnote 14]
Pertinent also are the decisions involving license features:
Lovell v. City of Griffin, 303 U.
S. 444;
Schneider v. State, 308 U.
S. 147;
Hague v. Committee for Industrial
Organization, 307 U. S. 496.
[
Footnote 15]
See, e.g., Volumes 1-4, 6-8, 14, 18, Report on
Condition of Women and Child Wage Earners in the United States,
Sen.Doc. No. 645, 61st Cong., 2d Sess.; The Working Children of
Boston, U.S. Dept. of Labor, Children's Bureau Publication No. 89
(1922); Fuller, The Meaning of Child Labor (1922); Fuller and
Strong, Child Labor in Massachusetts (1926).
[
Footnote 16]
See, e.g., Clopper, Child Labor in City Streets (1912);
Children in Street Work, U.S. Dept. of Labor, Children's Bureau
Publication No. 183 (1928); Children Engaged in Newspaper and
Magazine Selling and Delivering, U.S. Dept. of Labor, Children's
Bureau Publication No. 227 (1935).
[
Footnote 17]
Cox v. New Hampshire, 312 U. S. 569;
Chaplinsky v. New Hampshire, 315 U.
S. 568.
[
Footnote 18]
Although the argument points to the guardian's presence as
showing the child's activities here were not harmful, it is nowhere
conceded in the briefs that the statute could be applied,
consistently with the guaranty of religious freedom, if the facts
had been altered only by the guardian's absence.
MR. JUSTICE MURPHY, dissenting:
This attempt by the state of Massachusetts to prohibit a child
from exercising her constitutional right to practice her religion
on the public streets cannot, in my opinion, be sustained.
The record makes clear the basic fact that Betty Simmons, the
nine-year old child in question, was engaged in a genuine
religious, rather than commercial, activity. She was a member of
Jehovah's Witnesses, and had been taught the tenets of that sect by
her guardian, the appellant. Such tenets included the duty of
publicly distributing religious tracts on the street and from door
to door. Pursuant to this religious duty and in the company of the
appellant, Betty Simmons on the night of December 18, 1941, was
standing on a public street corner and offering to distribute
Jehovah's Witness literature to passersby. There was no expectation
of pecuniary profit to
Page 321 U. S. 172
herself or to appellant. It is undisputed, furthermore, that she
did this of her own desire, and with appellant's consent. She
testified that she was motivated by her love of the Lord, and that
He commanded her to distribute this literature; this was, she
declared, her way of worshipping God. She was occupied, in other
words, in "an age-old form of missionary evangelism" with a purpose
"as evangelical as the revival meeting."
Murdock v.
Pennsylvania, 319 U. S. 105,
319 U. S. 108,
109.
Religious training and activity, whether performed by adult or
child, are protected by the Fourteenth Amendment against
interference by state action, except insofar as they violate
reasonable regulations adopted for the protection of the public
health, morals and welfare. Our problem here is whether a state,
under the guise of enforcing its child labor laws, can lawfully
prohibit girls under the age of eighteen and boys under the age of
twelve from practicing their religious faith insofar as it involves
the distribution or sale of religious tracts on the public streets.
No question of freedom of speech or freedom of press is present,
and we are not called upon to determine the permissible restraints
on those rights. Nor are any truancy or curfew restrictions in
issue. The statutes in question prohibit all children within the
specified age limits from selling or offering to sell "any
newspapers, magazines, periodicals or any other articles of
merchandise of any description . . . in any street or public
place." Criminal sanctions are imposed on the parents and guardians
who compel or permit minors in their control to engage in the
prohibited transactions. The state court has construed these
statutes to cover the activities here involved,
cf. State v.
Richardson, 92 N.H. 178, 27 A.2d 94, thereby imposing an
indirect restraint through the parents and guardians on the free
exercise by minors of their religious beliefs. This indirect
restraint is no less effective than a direct one. A square conflict
between the constitutional
Page 321 U. S. 173
guarantee of religious freedom and the state's legitimate
interest in protecting the welfare of its children is thus
presented.
As the opinion of the Court demonstrates, the power of the state
lawfully to control the religious and other activities of children
is greater than its power over similar activities of adults. But
that fact is no more decisive of the issue posed by this case than
is the obvious fact that the family itself is subject to reasonable
regulation in the public interest. We are concerned solely with the
reasonableness of this particular prohibition of religious activity
by children.
In dealing with the validity of statutes which directly or
indirectly infringe religious freedom and the right of parents to
encourage their children in the practice of a religious belief, we
are not aided by any strong presumption of the constitutionality of
such legislation.
United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S. 152,
note 4. On the contrary, the human freedoms enumerated in the First
Amendment and carried over into the Fourteenth Amendment are to be
presumed to be invulnerable, and any attempt to sweep away those
freedoms is
prima facie invalid. It follows that any
restriction or prohibition must be justified by those who deny that
the freedoms have been unlawfully invaded. The burden was therefore
on the state of Massachusetts to prove the reasonableness and
necessity of prohibiting children from engaging in religious
activity of the type involved in this case.
The burden in this instance, however, is not met by vague
references to the reasonableness underlying child labor legislation
in general. The great interest of the state in shielding minors
from the evil vicissitudes of early life does not warrant every
limitation on their religious training and activities. The
reasonableness that justifies the prohibition of the ordinary
distribution of literature in the public streets by children is not
necessarily the reasonableness
Page 321 U. S. 174
that justifies such a drastic restriction when the distribution
is part of their religious faith.
Murdock v. Pennsylvania,
supra, 319 U. S. 111.
If the right of a child to practice its religion in that manner is
to be forbidden by constitutional means, there must be convincing
proof that such a practice constitutes a grave and immediate danger
to the state or to the health, morals or welfare of the child.
West Virginia State Board of Education v. Barnette,
319 U. S. 624,
319 U. S. 639.
The vital freedom of religion, which is "of the very essence of a
scheme of ordered liberty,"
Palko v. Connecticut,
302 U. S. 319,
302 U. S. 325,
cannot be erased by slender references to the state's power to
restrict the more secular activities of children.
The state, in my opinion, has completely failed to sustain its
burden of proving the existence of any grave or immediate danger to
any interest which it may lawfully protect. There is no proof that
Betty Simmons' mode of worship constituted a serious menace to the
public. It was carried on in an orderly, lawful manner at a public
street corner. And
"one who is rightfully on a street which the state has left open
to the public carries with him there as elsewhere the
constitutional right to express his views in an orderly fashion.
This right extends to the communication of ideas by handbills and
literature as well as by the spoken word."
Jamison v. Texas, 318 U. S. 413,
318 U. S. 416.
The sidewalk, no less than the cathedral or the evangelist's tent,
is a proper place, under the Constitution, for the orderly worship
of God. Such use of the streets is as necessary to the Jehovah's
Witnesses, the Salvation Army and others who practice religion
without benefit of conventional shelters as is the use of the
streets for purposes of passage.
It is claimed, however, that such activity was likely to affect
adversely the health, morals and welfare of the child. Reference is
made in the majority opinion to "the crippling effects of child
employment, more especially in public
Page 321 U. S. 175
places, and the possible harms arising from other activities
subject to all the diverse influences of the street." To the extent
that they flow from participation in ordinary commercial
activities, these harms are irrelevant to this case. And the bare
possibility that such harms might emanate from distribution of
religious literature is not, standing alone, sufficient
justification for restricting freedom of conscience and religion.
Nor can parents or guardians be subjected to criminal liability
because of vague possibilities that their religious teachings might
cause injury to the child. The evils must be grave, immediate,
substantial.
Cf. Bridges v. California, 314 U.
S. 252,
314 U. S. 262.
Yet there is not the slightest indication in this record, or in
sources subject to judicial notice, that children engaged in
distributing literature pursuant to their religious beliefs have
been or are likely to be subject to any of the harmful "diverse
influences of the street." Indeed, if probabilities are to be
indulged in, the likelihood is that children engaged in serious
religious endeavor are immune from such influences. Gambling,
truancy, irregular eating and sleeping habits, and the more serious
vices are not consistent with the high moral character ordinarily
displayed by children fulfilling religious obligations. Moreover,
Jehovah's Witness children invariably make their distributions in
groups subject at all times to adult or parental control, as was
done in this case. The dangers are thus exceedingly remote, to say
the least. And the fact that the zealous exercise of the right to
propagandize the community may result in violent or disorderly
situations difficult for children to face is no excuse for
prohibiting the exercise of that right.
No chapter in human history has been so largely written in terms
of persecution and intolerance as the one dealing with religious
freedom. 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
Page 321 U. S. 176
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.
See Mulder and Comisky, "Jehovah's Witnesses
Mold Constitutional Law," 2 Bill of Rights Review, No. 4, p. 262.
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. We should therefore hesitate
before approving the application of a statute that might be used as
another instrument of oppression. Religious freedom is too sacred a
right to be restricted or prohibited in any degree without
convincing proof that a legitimate interest of the state is in
grave danger.
MR. JUSTICE JACKSON:
The novel feature of this decision is this: the Court holds that
a state may apply child labor laws to restrict or prohibit an
activity of which, as recently as last term, it held:
"This form of religious activity occupies the same high estate
under the First Amendment as do worship in the churches and
preaching from the pulpits. It has the same claim to protection as
the more orthodox and conventional exercises of religion."
". . . the mere fact that the religious literature is 'sold' by
itinerant preachers, rather than 'donated.' does not transform
evangelism into a commercial enterprise. If it did, then the
passing of the collection plate in church would make the church
service a commercial project. The constitutional right of those
spreading their religious beliefs through the spoken
Page 321 U. S. 177
and printed word are not to be gauged by standards governing
retailers or wholesalers of books."
Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 109,
111.
It is difficult for me to believe that going upon the streets to
accost the public is the same thing for application of public law
as withdrawing to a private structure for religious worship. But if
worship in the churches and the activity of Jehovah's Witnesses on
the streets "occupy the same high estate" and have the "same claim
to protection," it would seem that child labor laws may be applied
to both if to either. If the
Murdock doctrine stands along
with today's decision, a foundation is laid for any state
intervention in the indoctrination and participation of children in
religion, provided it is done in the name of their health or
welfare.
This case brings to the surface the real basis of disagreement
among members of this Court in previous Jehovah's Witness cases.
Murdock v. Pennsylvania, 319 U. S. 105;
Martin v. Struthers, 319 U. S. 141;
Jones v. Opelika, 316 U. S. 584,
316 U. S. 319
U.S. 103;
Douglas v. Jeannette, 319 U.
S. 157. Our basic difference seems to be as to the
method of establishing limitations which of necessity bound
religious freedom.
My own view may be shortly put: I think the limits begin to
operate whenever activities begin to affect or collide with
liberties of others or of the public. Religious activities which
concern only members of the faith are and ought to be free -- as
nearly absolutely free as anything can be. But beyond these, many
religious denominations or sects engage in collateral and secular
activities intended to obtain means from unbelievers to sustain the
worshippers and their leaders. They raise money not merely by
passing the plate to those who voluntarily attend services or by
contributions by their own people, but by solicitations and drives
addressed to the public by holding public dinners and
entertainments, by various kinds
Page 321 U. S. 178
of sales and Bingo games and lotteries. All such money-raising
activities on a public scale are, I think, Caesar's affairs, and
may be regulated by the state so long as it does not discriminate
against one because he is doing them for a religious purpose and
the regulation is not arbitrary and capricious, in violation of
other provisions of the Constitution.
The Court in the
Murdock case rejected this principle
of separating immune religious activities from secular ones in
declaring the disabilities which the Constitution imposed on local
authorities. Instead, the Court now draws a line based on age that
cuts across both true exercise of religion and auxiliary secular
activities. I think this is not a correct principle for defining
the activities immune from regulation on grounds of religion, and
Murdock overrules the grounds on which I think affirmance
should rest. I have no alternative but to dissent from the grounds
of affirmance of a judgment which I think was rightly decided, and
upon right grounds, by the Supreme Judicial Court of Massachusetts.
313 Mass. 223.
MR. JUSTICE ROBERTS and MR. JUSTICE FRANKFURTER join in this
opinion.