The Right to Witness

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service.  If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m88

The Supreme Court has repeatedly affirmed the right of persons to solicit religious contributions, sell religious books and merchandise, and disseminate religious doctrine on a “door--to--door” basis.¹ Municipal ordinances that condition the exercise of such a right upon the prior acquisition of a permit or license or upon the payment of a “tax” or fee generally have been found to be unconstitutional. Illustratively, the Supreme Court has struck down a city licensing scheme used by city officials to ban Jehovah's Witnesses from going door--to--door in heavily Catholic neighborhoods and playing a phonograph record that attacked the Roman Catholic Church as an “enemy” and the church of the devil.² Similarly, the Court has invalidated a municipal “license tax” that was imposed upon the door--to--door solicitation and evangelistic activities of Jehovah's Witnesses.³ The Court observed: “Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation.”⁴ Finally, the Court has invalidated a municipal ordinance that prohibited anyone engaged in distributing literature to summon the occupants of a home to the door.⁵

The Court has noted that a city may protect its citizens from fraud, as by requiring strangers in the community to establish their identity and demonstrate their authority to represent the cause they espouse. Cities also may limit door--to--door proselytizing and solicitation where necessary to preserve public safety, health, order, and convenience. Strict safeguards, however, must attend any such limitations.

Numerous lower federal court decisions likewise have protected the rights of persons to engage in door--to--door religious activities.⁶

The Supreme Court has zealously protected the right to disseminate religious doctrine in public places. The Court has struck down a city ordinance that prohibited the distribution of handbills on city streets as applied to Jehovah's Witnesses who distributed religious handbills to pedestrians in a downtown area.⁷ The Court also has invalidated a city ordinance under which a Baptist minister was convicted for holding a religious meeting on city streets without a permit.⁸ In striking down the ordinance, the Court held that no ordinance that gives city officials discretionary authority, in advance, to allow or refuse individuals the right to speak publicly on religious matters could ever be constitutionally valid. The Court did emphasize, however, that a carefully worded ordinance that conditions the right to hold public religious meetings in public places on the prior receipt of a municipal permit or license could be constitutionally valid if it (1) removed all discretion on the part of city officials by listing the specific preconditions for issuance of a license, and (2) the specified preconditions were constitutionally permissible, such as the preservation of public peace and order. In another decision,⁹ the Court upheld the conviction of five Jehovah's Witnesses who paraded through a city carrying a sign stating “Religion is a Snare and a Racket” in violation of an ordinance prohibiting “a parade or procession” on a city street without a license. The Court observed that the city officials had no discretion to grant or deny a license since the prerequisites for obtaining a license were specifically and clearly set forth in the ordinance. Also, the stated purpose of the ordinance and its various preconditions were permissible: preserving the public safety, convenience, peace, and order by preventing conflicts in scheduling; controlling the time, place, and manner of each use of the public streets; and enabling the police to oversee each use and thus minimize the risk of disorder.

In conclusion, the following principles should be noted:

1. No law or regulation that gives government officials unbridled discretion to permit or disallow a religious meeting or service or any other religious activity on public property can be consistent with the first amendment guarantee of free exercise of religion.

2. A law or regulation that requires a license or permit before a religious meeting or activity may be held on public property can be constitutionally valid if

a. specific guidelines exist for determining whether to grant or disallow a license or permit, and the guidelines remove all discretion from those officials who must evaluate applications

b. guidelines only ensure public order, peace, health, safety, or convenience

c. no less restrictive public remedies to protect the peace and order of the community are appropriate or available

3. A permit or licensing scheme is unconstitutional unless it (a) provides for a ruling on an application within a specified brief period of time, (b) places the burden on the government of showing that the law's guidelines are not satisfied, and (c) makes available prompt, final, judicial resolution of the issue.¹⁰

Numerous lower federal court decisions similarly have protected the rights of persons to engage in religious activities on public property.¹¹

Prayer on Public Property

Display of Religious Symbols on Public Property

Use of Public Property for Religious Purposes

Sunday Closing Laws

The Right to Refuse Medical Treatment

Definition of “Religion” and “Religious”