Murdock v. Commonwealth of Pennsylvania (1943)
Religious Tax Exemptions: Licensing & Taxing Religion
Should people who earn their living by selling or distributing religious materials be required to pay the same licensing fees and taxes as are expected of those who sell or distribute non-religious materials? Does "freedom of religion" also mean "freedom from having to pay government fees" like everyone else?
Background Information
The borough of Jeanette, Pennsylvania had passed an ordinance requiring all solicitors to purchase a license from the borough.
Murdock was a Jehovah's Witness who asked for contributions in exchange for books and pamphlets, but the city claimed that this meant that they were actually being sold and, hence, a license was required. At issue was whether the licensing requirement constituted a tax on Murdock's religious exercise. Murdock claimed it was and that his religious freedom was being infringed upon - so he sued the borough.
Court Decision
Voting 5-4, the Court found that the Jeanette ordinance was an unconstitutional tax on the Jehovah's Witnesses' right to freely exercise their religion.
The petitioners used the distribution of pamphlets and brochures as a form of missionary activity with an evangelical purpose, but of course not all behavior could be allowed by claiming that it was a religious activity:
We do not mean to say that religious groups and the press are free from all financial burdens of government. ...We only hold that spreading one's religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types.
If the activity were done in order to raise money, it would be commercial and could be taxed - in this case, however, the activity served a specifically religious function.
It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon.
If the exercise can be taxed then the government is capable of making it prohibitively expensive and could only be done by the wealthy - the power to tax is the power to control and ultimately to prohibit, and such power must be applied very carefully to constitutionally protected rights like speech and religion.
The state claimed that this argument was unimportant because the tax was not expensive in practice, but the court found that the fact that the ordinance was imposed indiscriminately and inexpensively cannot save it from being unconstitutional:
It is not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question. ...It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax.
Justices Reed, Roberts, Frankfurter, and Jackson all dissented, arguing that exemptions from taxation may be constitutional, but those exemptions are creations of state legislatures and not required by the Constitution. Justice Frankfurter wrote:
It cannot be said that the petitioners are constitutionally exempt from taxation merely because they may be engaged in religious activities or because such activities may constitute an exercise of a constitutional right. It will hardly be contended, for example, that a tax upon the income of a clergyman would violate the Bill of Rights, even though the tax is ultimately borne by the members of his church. ... Nor can a tax be invalidated merely because it falls upon activities which constitute an exercise of a constitutional right.
It is certainly true that the protection afforded the freedom of the press by the First Amendment does not include exemption from all taxation. A tax upon newspaper publishing is not invalid simply because it falls upon the exercise of a constitutional right. Such a tax might be invalid if it invidiously singled out newspaper publishing for bearing the burdens of taxation or imposed upon them in such ways as to encroach on the essential scope of a free press.
Significance
This Supreme Court decision stated that a neutral imposition of the tax on solicitation performed by a religious group did not make it constitutionally acceptable. A difference was drawn between a commercial activity and a religious activity that involves the selling of religious literature.
Murdock was later cited in Jimmy Swaggart Ministries v. California Bd. of Equalization, in which the Court found that Murdock applied "only where a flat license fee operates as a prior restraint"; upheld in Swaggart was application of a general sales and use tax to sales of religious publications. It is unclear, however, why absolutely any license fee of any size automatically constitutes "prior restraint" whereas sales taxes are automatically acceptable.
An important aspect of this case which should be noted is that the Supreme Court created a link between the Free Exercise provision of the guarantee of religious freedom and the constitutional guarantee of Free Expression - both contained in the First Amendment. In essence, a violation of a person's right to Free Exercise of religion can be identified when that person's right to Free Expression of religious ideas is also occurring. On the other hand, when no restriction of the Free Expression of religious ideas occurs, then no restriction on the Free Exercise of religion has occurred.
On the one hand, this seems to subordinate the Free Exercise Clause to the Free Expression Clause - if the right to exercise one's religion is simply a function of one's right to express their views (or other constitutionally guaranteed rights), then what is the point of the Free Exercise Clause anyway? On the other hand, this linking can make it easier to determine if any genuine violations have occurred without forcing the government to get involved with detailed analyses of the religious beliefs in question. Moreover, it can help ensure that religious speech is not protected more than non-religious speech.
