Murdock v Pennsylvania and the Free Exercise Clause

In Murdock v Pennsylvania, 319 U.S. 105 (1943), the U.S. Supreme Court struck down a municipal ordinance that taxed the door-to-door sale of religious merchandise. According to the divided Court, such a tax violated the First Amendment’s Free Exercise Clause.

Facts of Murdock v Pennsylvania

The case involved an ordinance enacted by the City of Jeannette, Pennsylvania. It provided, in relevant part:

That all persons canvassing for or soliciting within said Borough, orders for goods, paintings, pictures, wares, or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited, shall be required to procure from the Burgess a license to transact said business and shall pay to the Treasurer of said Borough therefore the following sums according to the time for which said license shall be granted.

For one day $1.50, for one week seven dollars ($7.00), for two weeks twelve dollars ($12.00), for three weeks twenty dollars ($20.00), provided that the provisions of this ordinance shall not apply to persons selling by sample to manufacturers or licensed merchants or dealers doing business in said Borough of Jeannette.

The Petitioners were “Jehovah’s Witnesses” who went door to door in the City of Jeannette distributing literature and soliciting people to “purchase” certain religious books and pamphlets. The “price” of the books was twenty-five cents each, the “price” of the pamphlets five cents each. In connection with these activities, petitioners used a phonograph on which they played a record expounding certain aspects of their views on religion.

None of the Petitioners obtained a license under the ordinance. Before they were arrested, each had made “sales” of books. Petitioners were convicted and fined for violation of the ordinance. Their judgments of conviction were sustained by the Superior Court of Pennsylvania, which rejected the argument that the ordinance deprived them of the freedom of speech, press, and religion guaranteed by the First Amendment. Petitions for leave to appeal to the Supreme Court of Pennsylvania were denied. 

Majority Decision in Murdock v Pennsylvania

By a vote of 5-4, the Court held the ordinance was unconstitutional as applied to religious activities. Justice William O. Douglas wrote on behalf of the Court.

In reaching its decision, the majority noted that religions are not entirely free from facing financial burdens from the government. Justice Douglas wrote:

We do not mean to say that religious groups and the press are free from all financial burdens of government. We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. 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. The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment

According to the majority, the ordinance was unconstitutional because a State may not impose a charge for the enjoyment of a right granted by the Federal Constitution. “The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down,” Justice Douglas wrote.

The majority further held that the fact that the ordinance was “nondiscriminatory” was immaterial. “The protection afforded by the First Amendment is not so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers, and treats them all alike,” Justice Douglas explained. “Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in a preferred position.”

Dissent in Murdock v Pennsylvania

Justice Reed authored a dissent, in which Justices Frankfurter, Jackson, and Roberts joined. Justice Reed argued that religious groups should not be exempted. “This late withdrawal of the power of taxation over the distribution activities of those covered by the First Amendment fixes what seems to us an unfortunate principle of tax exemption, capable of indefinite extension,” he argued. “We had thought that such an exemption required a clear and certain grant. This we do not find in the language of the First and Fourteenth Amendments.”