PART IV
THE FOLLOWING COURT CASES WERE CITED AS RELEVANT
Where an actual page number is caited withint the case I will provide the
taxt from that page. Where just the official cite of the case is given a
person will have to read the entire case to find its relevancy
See Reynolds v. United States, 98 U.S. 145 , 162 (1878)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=98&invol=145
PAGE 162
[98 U.S. 145, 162] charged-if he was married-in pursuance of and in
conformity with what he believed at the time to be a religious duty, that
the verdict must be 'not guilty." This request was refused, and the court
did charge 'that there must have been a criminal intent, but that if the
defendant, under the influence of a religious belief that it was
right,-under an inspiration, if you please, that it was right,-deliberately
married a second time, having a first wife living, the want of
consciousness of evil intent-the want of understanding on his part that he
was committing a crime-did not excuse him; but the law inexorably in such
case implies the criminal intent.'
Upon this charge and refusal to charge the question is raised, whether
religious belief can be accepted as a justification of an overt act made
criminal by the law of the land. The inquiry is not as to the power of
Congress to prescribe criminal laws for the Territories, but as to the
guilt of one who knowingly violates a law which has been properly enacted,
if he entertains a religious belief that the law is wrong.
Congress cannot pass a law for the government of the Territories which
shall prohibit the free exercise of religion. The first amendment to the
Constitution expressly forbids such legislation. Religious freedom is
guaranteed everywhere throughout the United States, so far as congressional
interference is concerned. The question to be determined is, whether the
law now under consideration comes within this prohibition.
The word 'religion' is not defined in the Constitution. We must go
elsewhere, therefore, to ascertain its meaning, and nowhere more
appropriately, we think, than to the history of the times in the midst of
which the provision was adopted. The precise point of the inquiry is, what
is the religious freedom which has been guaranteed.
Before the adoption of the Constitution, attempts were made in some of the
colonies and States to legislate not only in respect to the establishment
of religion, but in respect to its doctrines and precepts as well. The
people were taxed, against their will, for the support of religion, and
sometimes for the support of particular sects to whose tenets they could
not and did not subscribe. Punishments were prescribed for a failure to
attend upon public worship, and sometimes for entertaining [98 U.S. 145,
163]
--------------------------------------------------------------------------------------
cf. Knowlton v. Moore, 178 U.S. 41, 89 , 106 S., 20 S.Ct. 747, 766, 772.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=178&invol=41#89
PAGE 89
[178 U.S. 41, 89] Constitution in all countries in the levy of such
taxes would have to be abandoned in this country, and, therefore, whilst
nominally having the authority to impose taxes of this character, the power
to do so would be virtually denied to Congress.
Now, that the requirement that direct taxes should be apportioned among the
several states, contemplated the protection of the states, to prevent their
being called upon to contribute more than was deemed their due share of the
burden, is clear. Giving to the term uniformity as applied to duties,
imposts, and excises a geographical significance, likewise causes that
provision to look to the forbidding of discrimination as between the
states, by the levying of duties, imposts, or excises upon a particular
subject in one state and a different duty, impost, or excise on the same
subject in another; and therefore, as far as may be, is a restriction in
the same direction and in harmony with the requirement of apportionment of
direct taxes. And the conclusion that the possible discrimination against
one or more states was the only thing intended to be provided for by the
rule which uniformity imposed upon the power to levy duties, imposts, and
excises, is greatly strengthened by considering the state of the law in the
mother country and in the colonies, and the practice of taxation which
obtained at or about the time of the adoption of the Constitution.
In England, nowhere had the conception of a limitation on the power to levy
duties, imposts, and excises by an intrinsic rule of uniformity found
utterance, and the practice which had obtained, it may be said, was
commonly to the contrary. Passing without special notice the system of
customs (import and export) duties existing in England from a time long
prior to the Revolution, which was replete with examples of taxation not
fulfilling the requirement of intrinsic equality and uniformity, we briefly
refer to a few examples of the same nature afforded by statutes imposing
internal taxation in the mother country.
Internal taxation, in the form of excises, was introduced into England by a
Parliamentary resolution passed on March 28, 1643, and carried into effect
by an ordinance of the same date. 2 Dowell, History of Taxation, 9. Many of
these excises were imposed with reference to the supposed ability of the
[178 U.S. 41, 90]
PAGE 106
[178 U.S. 41, 106] other is a part of the first clause of section 8 of
article 1. By the result, then, of an analysis of the history of the
adoption of the Constitution it becomes plain that the words 'uniform
throughout the United States' do not signify an intrinsic but simply a
geographical uniformity. And it also results that the assertion to which we
at the outset referred, that the decision in the Head Money Cases, holding
that the word 'uniform' must be interpreted in a geographical sense, was
not authoritative, because that case in reality solely involved the clause
of the Constitution forbidding preferences between ports, is shown to be
unsound, since the preference clause of the Constitution and the uniformity
clause were, in effect, in framing the Constitution, treated, as respected
their operation, as one and the same thing, and embodied the same
conception.
We add that those who opposed the ratification of the Constitution clearly
understood that the uniformity clause as to taxation imported but a
geographical uniformity, and made that fact a distinct ground of complaint.
Thus, in the report made to the legislature of Maryland by Luther Martin,
attorney general of the state, detailing and commenting upon the
proceedings of the convention of 1787, of which convention Mr. Martin was a
delegate, in the course of comments upon the tax clause of the Constitution
Mr. Martin said (1 Elliot, Debates, p. 369):
'Though there is a provision that all duties, imposts, and excises
shall be uniform-that is, to be laid to the same amount on the same
articles in each state-yet this will not prevent Congress from having it in
their power to cause them to fall very unequally and much heavier on some
states than on others, because these duties may be laid on articles but
little or not at all used in some other states, and of absolute necessity
for the use and consumption of others; in which case, the first would pay
little or no part of the revenue arising therefrom, while the whole or
nearly the whole of it would be paid by the last, to wit, the states which
use and consume the articles on which imposts and excises are laid.'
Having disposed of the question of uniformity, we are next brought to
consider certain contentions which relate to that subject. It is argued
that even although it be conceded that [178 U.S. 41, 107]
**************************************************
See Reynolds v. United States, 98 U.S. 145 , 164 (1878)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=98&invol=145
PAGE 164
[98 U.S. 145, 164] 1 Jeff. Works, 79. Five of the States, while adopting
the Constitution, proposed amendments. Three-New Hampshire, New York, and
Virginia-included in one form or another a declaration of religious freedom
in the changes they desired to have made, as did also North Carolina, where
the convention at first declined to ratify the Constitution until the
proposed amendments were acted upon. Accordingly, at the first session of
the first Congress the amendment now under consideration was proposed with
others by Mr. Madison. It met the views of the advocates of religious
freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address
to him by a committee of the Danbury Baptist Association (8 id. 113), took
occasion to say: 'Believing with you that religion is a matter which lies
solely between man and his God; that he owes account to none other for his
faith or his worship; that the legislative powers of the government reach
actions only, and not opinions,-I contemplate with sovereign reverence that
act of the whole American people which declared that their legislature
should 'make no law respecting an establishment of religion or prohibiting
the free exercise thereof,' thus building a wall of separation between
church and State. Adhering to this expression of the supreme will of the
nation in behalf of the rights of conscience, I shall see with sincere
satisfaction the progress of those sentiments which tend to restore man to
all his natural rights, convinced he has no natural right in opposition to
his social duties.' Coming as this does from an acknowledged leader of the
advocates of the measure, it may be accepted almost as an authoritative
declaration of the scope and effect of the amendment thus secured. Congress
was deprived of all legislative power over mere opinion, but was left free
to reach actions which were in violation of social duties or subversive of
good order.
Polygamy has always been odious among the northern and western nations of
Europe, and, until the establishment of the Mormon Church, was almost
exclusively a feature of the life of Asiatic and of African people. At
common law, the second marriage was always void (2 Kent, Com. 79), and from
the earliest history of England polygamy has been treated as an offence
against society. After the establishment of the ecclesiastical [98 U.S.
145, 165]
*****************************************************
See also Town of Pawlet v. Clark, 9 Cranch 292. (1815)
http://www.justia.us/us/13/292/
http://www.justia.us/us/13/292/case.html
Terrett v. Taylor, 9 Cranch 43 (1815)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=13&invol=43
Watson v. Jones, 13 Wall. 679 (1871)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=80&invol=679
Davis v. Beason, 133 U.S. 333 , 10 S.Ct. 299 (1890)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=133&invol=333
Reuben Quick Bear v. Leupp, 210 U.S. 50 , 28 S.Ct. 690 (1908)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=210&invol=50
Permoli v. Municipality No. 1 of City of New Orleans, 3 How. 589. (1845)
http://www.justia.us/us/44/589/
http://www.justia.us/us/44/589/case.html
Cf. Barron, for Use of Tiernan v. Mayor and City Council of City of
Baltimore, 7 Pet. 243 (1833)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=32&invol=243
Cantwell v. State of Conn., 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352
(1940)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=310&invol=296
Jamison v. State of Texas, 318 U.S. 413 , 63 S.Ct. 669 (1943
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=318&invol=413
Largent v. State of Texas, 318 U.S. 418 , 63 S.Ct. 667 (1943)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=318&invol=418
West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct.
1178, 147 A.L.R. 674 (1943)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=319&invol=624
Follett v. Town of McCormick, 321 U.S. 573 , 64 S.Ct. 717, 152 A.L.R. 317
(1944)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=321&invol=573
Marsh v. State of Alabama, 326 U.S. 501 , 66 S.Ct. 276 (1946)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=326&invol=501
Cf. Bradfield v. Roberts, 175 U.S. 291 , 20 S.Ct. 121. (1899)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=175&invol=291
Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870,
872, 146 A.L.R. 81, (1943)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=319&invol=105
PAGE 108
[319 U.S. 105, 108] The First Amendment, which the Fourteenth makes
applicable to the states, declares that '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 ....' It could
hardly be denied that a tax laid specifically on the exercise of those
freedoms would be unconstitutional. Yet the license tax imposed by this
ordinance is in substance just that.
Petitioners spread their interpretations of the Bible and their religious
beliefs largely through the hand distribution of literature by full or part
time workers. 4 They claim to follow the example of Paul, teaching
'publickly, and from house to house.' Acts 20:20. They take literally the
mandate of the Scriptures, 'Go ye into all the world, and preach the gospel
to every creature.' Mark 16:15. In doing so they believe that they are
obeying a commandment of God.
The hand distribution of religious tracts is an age-old form of missionary
evangelism-as old as the history of printing presses. 5 It has been a
potent force in various religious movements down through the years. 6 This
form of evangelism is utilized today on a large scale by various religious
sects whose colporteurs carry the Gospel to thou- [319 U.S. 105, 109]
*********************************************************
Not cited by Everson, but could have been was
JONES v. CITY OF OPELIKA, 316 U.S. 584, 593-594, 595, 597 (1942)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=316&invol=584
PAGE 593-94
We turn to the constitutional problem squarely presented by these
ordinances. There are ethical principles of greater value to mankind
than the guarantees of the Constitution, personal liberties which are
beyond the power of government to impair. These principles and
liberties belong to the mental and spiritual realm where the
judgments and decrees of mundane courts are ineffective to direct the
course of man. The rights of which our Constitution speaks have a
more earthy quality. They are not absolutes10 to be exercised
independently of other cherished privileges, protected by the same
organic instrument. Conflicts in the exercise of rights arise and the
conflicting forces seek adjustments in the courts, as do these
parties, claiming on the one side the freedom of religion, speech and
the press, guaranteed by the Fourteenth Amendment,11 and on the other
the right to employ the sovereign power explicitly reserved to the
State by the Tenth Amendment to ensure orderly living without which
constitutional guarantees of civil liberties would be a mockery. 12
Courts, no more than Constitutions, can intrude into the consciences
of men or compel them to believe contrary to their faith or think
contrary to their convictions, but courts are
competent to adjudge the acts men do under color of a constitutional
right, such as that of freedom of speech or of the press or the free
exercise of religion and to determine whether the claimed right is
limited by other recognized powers, equally precious to mankind. 13
So the mind and spirit of man remain forever free, while his actions
rest subject to necessary accommodation to the competing needs of his
fellows.
PAGE 595
Upon the courts falls the duty of determining the validity of such
enactments as may be challenged as unconstitutional by litigants.
PAGE 597.
The freedoms claimed by those seeking relief here are guaranteed
against abridgement by the Fourteenth Amendment. Its commands protect
their rights. The legislative power of municipalities must yield when
abridgement is shown.
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Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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