What Cantwell Achieved

David Sehat (The Myth of American Religious Freedom, 222-3) observes that Cantwell v. Connecticut (1940) was the first Supreme Court decision to incorporate the religion clause of the First Amendment to the States. In the case, Jehovah’s Witnesses were denied a license to proselytize. The Court struck down the decision, arguing that the State had violated the Witnesses’ free-exercise rights.

Sehat suggests that Cantwell “began to to dismantle the moral establishment in several ways at once.” For starters, “it weakened the distinction between belief and action. . . . The First Amendment’s guarantee of free religious exercise entailed both the freedom to believe and the freedom to act, the Court now claimed. The first was absolute. The second was not. But the freedom to act could not be infringed without a compelling reason.”

Besides, the Court began “backing away from the idea that the state could define religion.” It assumed that pluralism was the normative state. The Connecticut system gave the state the final determination as to what constituted a religious cause, in effect giving the state the ability to define religion” and so violating the establishment clause. Earlier, in the polygamy case (Reynolds) the Court upheld the states’ ability to determine that a supposed religion (Mormonism) was in fact irreligion, and thus not protected by the Constitution. With Cantwell, the Court backed away from that logic.

Finally, the “Court began to limit the police power of the state as established by common law. The judgment of what constituted a breach of the peace or the general welfare, which guided police power, rested upon powers ‘of the most general and undefined nature,’ the Court claimed.” Religion posed no “clear and present danger” to public safety. In order to maintain a democracy, diversity should be tolerated, left to flower. Religious liberty must allow “many types of life, character, opinion and belief [to] develop unmolested and unobstructed” (223).

A month later, though, this general religious liberty was curtailed, as the Court determined (in Minersville School District v. Gobitis) that the school district did have the right to require Jehovah’s Witnesses to salute the American flag. It was necessary, the Court said, to “safeguard the nation’s fellowship,” and the salute necessary to perpetuate “the binding tie of cohesive sentiment” (224). Religions were free to operate, so long as they all conformed to the norms of American civil religion.

The decision in Gobitis didn’t last long. In another Jehovah’s Witnesses case, the court determined that “Witnesses could not be made to salute the flag” (225). This sealed the formation of a consensus position: “unity could be found,” Sehat says, “only by a shared commitment to protecting the individual freedom and righteous that acknowledged American diversity” (224). Now the only form of religious expression that cannot be tolerated is the one that wishes to put limits on American diversity.