Inveterate litigators who have been involved in hundreds of criminal and civil cases over the past century, the Jehovah’s Witnesses have prompted courts to establish or reinforce judicial safeguards shielding a number of core freedoms, including religious liberty. Their formidable contributions in this realm have aided Americans of all faiths.
The Jehovah’s Witnesses, whose faith was founded late in the nineteenth century, are millennialists who believe that the temporal world will soon end with a climatic battle pitting Satan against Jehovah God. After the forces of evil are vanquished in this clash, according to Witness doctrine, a kingdom of heaven will exist on earth for most of those who have maintained fidelity to the teachings of the Scriptures. A select group of others will ascend into heaven and sit at the right hand of God.
Among the Witnesses’ more controversial beliefs is their conviction that saluting the American flag amounts to idolatry. Members of the faith traditionally have refrained from participating in flag-salute exercises, because they believe that such ceremonies clearly violate Scriptural prohibitions on worshipping any ‘‘graven image.’’
The Jehovah’s Witnesses controversial position on flag saluting helped to spark perhaps the worst outbreak of religious persecution seen in the United States in the twentieth century. Throughout the early and mid-1940s, Witnesses throughout the United States were pummeled in everything from riots involving hundreds of people to scuffles among a handful of men. Witnesses were so widely abused during the World War II era that many observers compared their plight to the persecution of religious minorities in Nazi Germany.
The U.S. Supreme Court’s controversial ruling in Minersville School District v. Gobitis, 310 U.S. 586 (1940), contributed to the anti-Witness violence of the period. In an opinion written by Justice Felix Frankfurter, the court denied a claim that the enforcement of a public school district’s compulsory flag-salute regulation violated the Witnesses’ religious liberty. The perceived anti-Witness tenor of Frankfurter’s opinion (combined with the nation’s wartime anxieties) proved to be an incendiary combination for the Witnesses. In the months immediately after the Gobitis ruling was handed down, anti-Witness rioting was reported in all but four states.
The Witnesses’ persecution went beyond vigilante attacks. Authorities many states and communities enacted new laws or applied existing ones to suppress their constitutional freedoms. Employers and coworkers often discriminated against Witnesses in their workplaces. Expulsions of Witness pupils from public schools became so widespread that members of the faith in dozens of communities were forced to operate their own makeshift schools. Witness parents were charged with neglect or disorderly conduct after the flag-salute expulsions of their children.
In response to this onslaught of intolerance, the Witnesses pursued judicial recognition of their rights, mounting a sustained legal counterattack against all forms of religious discrimination. The Witnesses’ legal efforts resulted in hundreds of favorable rulings in municipal, state, and lower federal courts. A group of Witness attorneys worked tirelessly in courtrooms throughout the country to combat the manifestations of religious bigotry that plagued members of their faith. Although their many lower court victories were significant both practically and symbolically, the Witnesses’ most noteworthy accomplishments came before the final arbiter of American constitutional rights, the U.S. Supreme Court. From 1938–1946, the high court handed down twenty-three opinions covering a total of thirty-nine Witness-related cases. Among the most significant of these were West Virginia v. Barnette, 319 U.S. 624 (1943) (in which the Supreme Court reversed its unfortunate decision in the Gobitis flag-salute case) and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (in which the justices established the ‘‘fighting words’’ doctrine in free speech cases). Such decisions profoundly affected the evolution of constitutional law by helping to bring minority and individual rights into the forefront of constitutional jurisprudence. Barnette in particular was a watershed for American civil liberties. Justice Robert Jackson’s majority opinion, in which he eloquently defended the Witnesses’ First Amendment liberties, has been cited in numerous subsequent cases involving state encroachment on individual freedoms.
Cantwell v. Connecticut, 310 U.S. 296 (1940), was a particularly significant Witness case of the World War II era. Before Cantwell, the U.S. Supreme Court’s opinion in Reynolds v. United States, 98 U.S. 145 (1878), controlled its religious liberty jurisprudence. Under Reynolds, religious beliefs were inviolable, but religious conduct could be subject to state regulation. This doctrine essentially removed religious conduct from the purview of the First Amendment. Impeded by the Reynolds precedent, litigants pursuing safeguards for religious conduct were forced to seek shelter under other constitutional protections.
The Jehovah’s Witnesses were particularly successful in evading the strictures of Reynolds and gaining judicial protections for their religious conduct. When the members of the U.S. Supreme Court shielded the religious conduct of the Jehovah’s Witnesses, they typically cited the protections afforded by the First Amendment to speech, press, and assembly rights. In Cantwell, however, the Court more directly addressed a religious liberty claim brought by a Witness.
Police in New Haven, Connecticut, arrested Witness Newton Cantwell and his sons Jesse and Russell in 1938 for disturbing the peace and soliciting money for a charitable cause without having first received approval of the state’s public welfare council. They were convicted on both charges in local court, and Connecticut’s highest court upheld all of their convictions on the permit requirement charge. (It dismissed the disturbing the pace charges against Newton and Russell Cantwell but upheld Jessie’s conviction on that count.)
Witness attorney Hayden Covington appealed the Cantwells’ convictions to the U.S. Supreme Court. In two previous cases involving Witness appellants— Lovell v. Griffin, 303 U.S. 444(1938) and Schneider v. New Jersey, 308 U.S. 147 (1939)—the Court had continued its piecemeal incorporation of First Amendment freedoms into the due process clause of the Fourteenth Amendment. The First Amendment applied only to actions by the federal government, but the absorption of some of its protections into the Fourteenth Amendment meant that they now applied to actions by the states as well. Those cases, however, had involved speech and press freedoms; the right to free exercise of religion had not yet incorporated.
In Cantwell, the Supreme Court continued the process of incorporation and barred states from abridging the right to free exercise of religion. Justice Owen Roberts’s majority opinion in Cantwell by no means indicated that the Supreme Court was totally abandoning its reasoning in Reynolds. Roberts echoed Chief Justice Waite’s opinion in that earlier religious liberty case by writing that the free exercise clause encompassed ‘‘two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.’’ In short, the state might exercise control over some forms of conduct even though they were motivated by an individual’s religious beliefs. In the context of the Witnesses proselytizing, this regulation might involve the nondiscriminatory regulation of the time, place, and manner of their public solicitation.
Cantwell differed from Reynolds in the level of scrutiny applied to the actions taken by the state to limit religious conduct. In the Jehovah’s Witness case, the Supreme Court viewed the state’s regulation under heightened judicial scrutiny. Using this more rigorous standard, the Court determined that the application of the permit requirements to the Cantwells’ religious conduct represented an unconstitutional infringement on their religious liberty. Although the Connecticut permit law at issue was neutral on it face, Justice Roberts wrote for the Court, it was so broadly drawn that public officials had wide latitude to take actions infringing on religious liberty.
Cantwell marked a turning point for religious liberty. Never before had the Supreme Court recognized constitutional protections for religious conduct. But Cantwell did not signal that the justices were enthusiastic about claims made strictly under the free exercise clause. In subsequent Jehovah’s Witness cases, the Court seemed willing to strike down generally applicable laws only if they were challenged as infringements of multiple First Amendment freedoms.
A handful of Jehovah’s Witness cases reached the U.S. Supreme Court in the late 1940s and early 1950s, including Poulos v. NewHampshire, 345U.S 395 (1953), but their collective impact on constitutional jurisprudence was relatively modest. A smattering of cases followed in the late twentieth century, including, most recently, Stratton v. Watchtower, 536 U.S. 150 (2002). In that case, the U.S. Supreme Court struck down on free speech grounds an Ohio municipality’s efforts to regulate the Witnesses’ religious proselytizing.
The many cases litigated by the Jehovah’s Witnesses have had a formidable impact on the expansion of judicial protections for civil liberties. Many of the seeds of the ‘‘rights revolution’’ of the 1960s were sown as they repeatedly tested the boundaries of the Bill of Rights during the World War II era. By making it more difficult for states and municipalities to regulate religious conduct and speech, the law they helped to create benefited members of all religious faiths.
SHAWN FRANCIS PETERS
References and Further Reading
Cases and Statutes Cited