Editor's note: Henry Bornstein, a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective, uses letters in response to previous commentaries as a foil to help explain the place of religion in the U.S. Constitution. This is part 8.
The 14th Amendment was introduced to the states on June 13, 1866, and ratified on July 9, 1868. Section 1 is the key section. Its significance and importance are equal to or possibly greater than that of the 1st Amendment. For those who have never read it, it states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
This section introduces three principles that expressly apply to the states: privileges or immunities; due process of law; equal protection of the laws.
Over the years, starting in the mid-1920s, the U.S Supreme Court began to apply, sometimes too subtly, some of the Bill of Rights-amendments limitations on the federal government to actions of the states.
Here, we are only concerned with “free exercise and establishment” clauses of the 1st Amendment. I will briefly discuss three landmark cases.
Cantwell vs. Connecticut, 310 U.S. 296 (1940): “Newton Cantwell and his two sons were members of a group known as Jehovah's Witnesses. They were arrested in New Haven, CT, and charged with five counts, including statutory violations and the common law offense of inciting a breach of the peace. On the day of their arrest, the appellants were engaged in going from house to house on Cassius Street with a bag containing books and pamphlets on religious subjects, a portable phonograph and a set of records, which when played, introduced, a description of one of the books. They solicited purchases and/or contributions.”
“Cassius Street is in a thickly populated neighborhood where about 90 percent of the residents were Roman Catholics. A phonograph record describing a book entitled “Enemies” included an attack on the Catholic religion. None of the persons solicited were members of Jehovah's Witnesses.”
“The statute under which the appellants were charged provided: “No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the state of secretary of the public welfare council.”
Justice Roberts delivered the opinion of the court: “We hold that the statute ... deprives them of their liberty without due process of law in contravention of the 14 Amendment. The fundamental concept of liberty embodied in that amendment embraces the liberties guaranteed by the 1st Amendment. (Footnote 3) The 1st Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The 14th Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. (Footnote 4)” (P.303-304)
Footnote 3 refers to the application of the 14th Amendment to the states with respect to freedom of speech and press: “The freedom of speech and of the press secured by the 1st Amendment against abridgment by the United States is similarly secured to all persons by the 14th Amendment against abridgment by a State.” Schneider v. State, 308 U.S. 147 (1939) Footnote 4 refers to Reynolds v. United States, 98 U.S. 145, (1879).
McCollum vs. Board of Education 333 U. S. 203 (1948) and Everson v. Board of Education Township Ewing et al, 330 U.S. 1 (1947). That is, these cases applied the “establishment” portion of the 1st Amendment limitations without equivocation to the states.
Everson: “The New Jersey statute is challenged as a ‘law respecting an establishment of religion.' The 1st Amendment, as made applicable to the states by the 14th, Murdock v. Pennsylvania, 319 U.S. 105, commands that a state ‘shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...' ” (P.8)
“The establishment of religion clause of the 1st Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious ... groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.” Reynolds v. United States, supra at 164. (PP15-16)
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