Why Jehovah's Witnesses' victory is a win for all of us
Inside the First Amendment
By Charles Haynes
Senior scholar, First Amendment Center
The Jehovah’s Witnesses have done it again.
This week they chalked up their 48th Supreme Court victory – an extraordinary line of cases that have significantly expanded First Amendment protections for all Americans.
Something about proselytizing by the Witnesses inspires state and local governments to keep passing laws aimed at shutting them up. If you’re not a Witness, you may not be too concerned about how “they” are treated. (Maybe you’re even a bit irritated by all of those knocks on your door.)
But remember this: If the government can restrict the freedom of one faith, it has the power to restrict the freedom of any faith – or all faiths.
As long ago as 1940 Jehovah’s Witnesses successfully challenged a Connecticut law that required them to get a license “to solicit” before distributing their literature and asking for donations on public streets. In striking down that law, the Supreme Court applied the First Amendment’s free-exercise clause to the states for the first time.
But the battle was far from over. More than 60 years (and many lawsuits) later, the Witnesses were still in court – this time fighting a Stratton, Ohio, ordinance requiring all door-to-door “canvassers” to get a permit from the mayor.
The lower courts sided with the town, ruling that the ordinance was a valid “content-neutral” regulation that didn’t interfere with anyone’s First Amendment rights.
But in an opinion handed down on June 17, the U.S. Supreme Court saw it very differently. In a rare display of agreement, eight of the nine justices voted to strike down the Stratton law as an unconstitutional limitation on free speech. As Justice John Paul Stevens explained in the majority opinion:
“It is offensive – not only to the values protected by the First Amendment, but to the very notion of a free society – that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”
Note what this ruling doesn’t mean. Cities and towns may still regulate commercial activities and solicitation of funds by people going door-to-door.
But Stratton’s law went much further. Requiring a permit to canvass for any “cause” would make anonymous political speech impossible – and would surely have a chilling effect on people advocating unpopular causes or minority religions.
Of course, people have a right not to listen – and to close the door. But the government shouldn’t have the authority to decide who gets to knock on the door.
So two cheers for the Supreme Court.
The third cheer is reserved for the day (probably in the distant future) when the Supreme Court restores full protection for religious liberty.
Yes, the ruling in this case protects the speech rights of Jehovah’s Witnesses and anyone else going door-to-door for a variety of causes. But the Court continues the pattern of the last decade of treating religious expression like other forms of speech.
“Free exercise” has become the stepchild of the First Amendment. The Court appears to be saying: We’ll protect your right to practice your faith, but only if you frame it as freedom of speech or – in the case of distribution of religious tracts – freedom of the press.
Perhaps this was not the case for the Supreme Court to restore stronger free-exercise protection. Since the ordinance in Stratton covered so much speech, the Court could easily strike it down without revisiting the debate about the special status of religious expression under the First Amendment.
But the Court can’t duck the question forever. Religious practice and expression is much more than a question of free speech or press.
Consider the Witnesses. They don’t go door-to-door because they think it’s a good way to spread their message (or because they enjoy all of the nasty comments they get). They do it because they’re convinced that God commands them to preach the “good news” from “house to house.”
That’s why Jehovah’s Witnesses keep fighting these laws (and also why they successfully fought for the right to opt out of the salute to the flag in public schools). They are exercising their freedom of conscience – the freedom to do what they believe they must do out of obedience to God.
True, in the majority opinion Justice Stevens mentions that “it is more than historical accident” that so many of these cases are brought by Jehovah’s Witnesses, because “door-to-door canvassing is mandated by their religion.”
But the justices don’t reaffirm the freedom to follow the dictates of conscience – as our nation’s founders put it – as an inalienable right protected by the free-exercise clause of the First Amendment. And they neglect to say that the city of Stratton or any other government may not limit that right without a compelling reason to do so.
The weakening of “free exercise” protections by the Supreme Court over the past decade is a disturbing trend. But who’s paying attention? Until it hits home (and it rarely does for members of large and powerful religions), most people don’t think much about the First Amendment.
That’s why we all owe the Jehovah’s Witnesses a debt of gratitude. No matter how many times they’re insulted, run out of town, or even physically attacked, they keep on fighting for their (and thus our) freedom of religion. And when they win, we all win.
Your questions and comments are welcome. Write to:
The Freedom Forum First Amendment Center
1101 Wilson Blvd.
Arlington, VA 22209
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