Evening star., 1943-02-25
The Supreme Court
Takes Another Look
Change Of Heart Seen in
Decision to Reheur
Religious Case
BIZ ]. A Enr.

A broadened judicial concept OF the
constitutional guarantees of freedom Of
| religion, speech and press may come out
of the action Of the Supreme Court in
| ordering rehearing of three cases in
which municipal ordinances taxing the
| distribution of religious publications
| were upheld last year. Rehearings are
granted infrequently, and, should the
court reverse itself a distinct possibility,
| the celebrated f1ag-salute decision of 1910
no doubt will fall also for the issues have
become intertwined, and four members OF
the court already are on record against
the eight-to-one ruling which held that
the school authorities of Minersville. Pa.
could require two grade-school pupils to
participate in the flag observance despite
religious scruples.
The litigation, which has attracted
national attention, stems from the
practices and doctrines of Jehovahs
witnesses, a sect which in recent years
has run afoul of authorities all over the
country because of its unorthodox evan
gellStlc methods. AS it happens. the
deciding vote in the Supreme Court
presumably will be cast by the newest
member, Justice Wiley Rutledge, and it
is coincidence that less than a year
ago he expressed himself forcefully in
dissenting when the United States Court
Of Appeals upheld the conviction of two
men who were fined in Police Court here
for selling Witness literature without
complying with the District licensing law.
Asserting his belief that the prohibition
In the law against the sale of ANY article
Of merchandise or anything whatever"
was not intended to encompass religious
activities, Justice Rutledge said:
Not every activity which involves
monetary incident is merchandising.
Neither religion nor politics can be run
without money. Nor can missionary
effort, religious or political"
And further, with seeming reference to
the Minersville case:
"Jehovahs Witnesses have had to
choose between their consciences and
public education for their children. In
my Judgment they should not have to
give up also the right to disseminate their
religious views in an orderly manner on
the public streets, exercise it at the whim
Of public officials or to be taxed for doing
SO without their license"
These views square with those ex-
pressed by Chief Justice Stone and
Justices Black, Douglas and Murphy, who
dlSsented when the court, in a sweeping
opinion by Justice Reed, upheld by a
flve-to-four vote local ordinances in
Alabama, Arkansas and Arizona taxing
Witness pamphleteers
Joining the Chief Justice in the dissent,
which characterized the ordinances as an
Invasion Of the freedoms" guaranteed by
the first and fourteenth amendments, the
three associate justices also took occasion
to renounce the doctrine of the flag
salute case In which Chief Justice Stone
had been the lone dissenter, and urged
the court to void the earlier ruling as an
infringement on religion. Now this same
question is recurring in flag cases dock
eted from Arizona and West Virginia,
and Justice Rutledge sits in the place Of
former Justice Byrnes, one of the ma
jority of year ago, which included, in
addition to Justice Reed. Justices Frank
furter (who wrote the Minersville deci-
sion), Roberts and Jackson.
While the court, in deciding the Harry
Bridges and Los Angeles Times contempt
cases in 1941, declared by five-to- four
! vote that the constitutional guarantee of
free press must be given the "broadest"
ell To-
Reeds opinion in the licensing cases
raised doubts as to Just how far the ma
jority believed the State could go in
prescribing terms for the circulation or
dissemination Of ideas on religious or
other subjects. Justice Reed laid en-
phasis on the non-discriminatory"
nature Of the prescribed license fees, and
said the court could see in this taxing
principle nothing which abridges the
freedoms of worship speech or press"
To this, however, Chief Justice Stone
retorted that lin its potency as a prior
restraint on publication, the fiat license
tax falls short only of outright censorship
or suppression"
The Importance the minority attached
10 the decision was evidenced by the fact
that three separate dissents were filed,
while the outside interest Is indicated by
the appearance in the litigation of the
American Newspaper Publishers Asso-
| citation and the Civil Liberties Union
Reversal of the flag salute decision
probably would have further repercus-
sions, because of the influence the ruling
already has had in the lower courts. To
| cite one example, the Court OF Appeals
here, in a decision in which Justice
| Rutledge took part, reluctantly upheld
decree denying citizenship to a woman
who said she would not bear arms for the
Nation, explaining It's course was dictated
by the Minersville case The same thing