Justice Reed and the First Amendment: The Religion Clauses

By F. William O'Brien | Go to book overview

II Patterns of division

Tax Laws and Book Salesmen

THE CASE of Jones v. Opelika,1 decided in June 1942, is notable for two reasons: first, it ushers in a decade of division within the Court on the question of religious liberty; second, it marks the first time that Justice Reed expressed his mind on the subject. The essential facts involved and the chief points of Reed's opinion for a 5 to 4 majority ruling against the Witnesses are as follows.

The city of Opelika, Alabama, required by ordinance that all agents, dealers, or distributors of books pay a fixed nondiscriminatory fee for a license. Rosco Jones, a minister of the Witness sect, declined to comply and was found guilty of selling religious literature on a city street without the required license. Since Jones did not protest that the license fee--ten dollars or less per annum--was excessive, Justice Reed assumed that it was not an unreasonable burden or "a substantial clog upon activities of the sort here involved."2 He therefore turned immediately to "the sole constitutional question considered . . . whether a nondiscriminatory license fee, presumably appropriate in amount, may be imposed upon these activities."3 In two

____________________
1
316 U.S. 584 ( 1942). The validity of like ordinances in other cities was decided at the same time in two other cases. The reason for the very strong minority in favor of the Witnesses in this case may be attributed in part to the almost universal editorial disagreement with the Minersville decision. There were 171 leading newspapers which condemned the Court for its judgment in this case, while only three or four approved. F. H. Heller, "A Turning Point for Religious Freedom," 29 Va. L. Rev. 440-459 ( 1943).
2
316 U.S. 584, 592.
3
Ibid., 593.

-20-

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Justice Reed and the First Amendment: The Religion Clauses
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • Part I- The "Free Exercise" Clause 11
  • I- Reed''s Position Undefined 13
  • II- Patterns of Division 20
  • III- Modest Victories 45
  • IV- Doubts Plague the Court 69
  • V- Emerging Leadership 80
  • Part II- The "Establishment" Clause 105
  • VI- The New Doctrine 107
  • VII- Reed and Incorporation 111
  • IX- An Evaluation of Reed''s Dissent 145
  • X- Life with Mccollum 154
  • Part III- Constitutional Principles of Justice Reed 195
  • XII- The Critics and Reed''s Liberalism 197
  • XIII- Reed and Pluralistic Democracy 208
  • XIV- Federalism and the Separation of Powers 221
  • XV- Reed and Judicial Restraint 232
  • Bibliography 243
  • Index 257
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