366 U.S. 420 (1961), 8, McGowan v. Maryland

Docket Nº:Nos. 8, 11, 36, and 67.
Citation:366 U.S. 420, 81 S.Ct. 1153, 6 L.Ed.2d 393
Party Name:Margaret McGOWAN et al., Appellants, v. STATE of MARYLAND. GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, et al., Appellants, v. CROWN KOSHER SUPER MARKET of MASSACHUSETTS, INC., et al. TWO GUYS FROM HARRISON-ALLENTOWN, INC., Appellant, v. Paul A. McGINLEY, District Attorney, County of Lehigh, Pennsylvania, et al. Abraham BRA
Case Date:May 29, 1961
Court:United States Supreme Court

Page 420

366 U.S. 420 (1961)

81 S.Ct. 1153, 6 L.Ed.2d 393

Margaret McGOWAN et al., Appellants,



GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, et al., Appellants,





Paul A. McGINLEY, District Attorney, County of Lehigh, Pennsylvania, et al.

Abraham BRAUNFELD et al., Appellants,


Albert N. BROWN, Commissioner of Police of the City of Philadelphia, Pennsylvania, et al.

Nos. 8, 11, 36, and 67.

United States Supreme Court.

May 29, 1961

Separate opinion. For majority opinions see 81 S.Ct. 1101, 1122, 1135, 1144.


[81 S.Ct. 1153]

Page 459

Separate opinion of Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins. [d]

So deeply do the issues raied by these cases cut that it is not surprising that no one opinion can wholly express the views even of all the members of the Court who join in its result. Individual opinions in constitutional controversies have been the practice throughout the Court's history. [*] Such expression of differences in view or even in emphasis converging toward the same result makes for the clarity of candor and thereby enhances the authority of the judicial process.

For me considerations are determinative here which call for separate statement. The long history of Sunday legislation, so decisive if we are to view the statutes now

Page 460

attacked in a perspective wider than that which is furnished by our own necessarily limited outlook, cannot be conveyed by a partial recital of isolated instances or events. The importance of that history derives from its continuity and fullness--from the massive testimony which it bears to the evolution of statutes controlling Sunday labor and to the forces which have, during three hundred years of Anglo-American history at the least, changed those laws, transmuted them, made them the vehicle of mixed and complicated aspirations. Since I find in the history of these statutes insights controllingly relevant to the constitutional issues before us, I am constrained to set that history forth in detail. And I also deem it incumbent to state how I arrive at concurrence [81 S.Ct. 1154] with THE CHIEF JUSTICE'S principal conclusions without drawing on Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711.


Because the long colonial struggle for disestablishment--the struggle to free all men, whatever their theological views, from state-compelled obligation to acknowledge and support state-favored faiths--made indisputably fundamental to our American culture the principle that the enforcement of religious belief as such is no legitimate concern of civil government, this Court has held that the Fourteenth Amendment embodies and applies against the States freedoms that are loosely indicated by the not rigidly precise but revealing phrase 'separation of Church and State.' Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 466, 92 L.Ed. 648. The general principles of church-state separation were found to be included in the Amendment's Due Process Clause in view of the meaning which the presuppositions of our society infuse into the concept of 'liberty' protected by the clause. This is the source of the limitations imposed upon the States. To the extent that those limitations

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are akin to the restrictions which the First Amendment places upon the action of the central government, it is because--as with the freedom of thought and speech of which Mr. Justice Cardozo spoke in Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288--it is accurate to say concerning the principle that a government must neither establish nor suppress religious belief, that 'With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal.' Id., at page 327, 58 S.Ct. at page 152.

But the several opinions in Everson and McCollum, and in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, make sufficiently clear that 'separation' is not a self-defining concept. '(A)greement, in the abstract, that the First Amendment was designed to erect a 'wall of separation between Church and State,' does not preclude a clash of views as to what the wall separates.' Illinois ex rel. McCollum v. Board of Education, supra, 333 U.S. at page 213, 68 S.Ct. at page 466 (concurring opinion). By its nature, religion--in the comprehensive sense in which the Constitution uses that word--is an aspect of human thought and action which profoundly relates the life of man to the world in which he lives. Religious beliefs pervade, and religious institutions have traditionally regulated, virtually all human activity. It is a postulate of American life, reflected specifically in the First Amendment to the Constitution but not there alone, that those beliefs and institutions shall continue, as the needs and longings of the people shall inspire them, to exist, to function, to grow, to wither, and to exert with whatever innate strength they may contain their many influences upon men's conduct, free of the dictates and directions of the state. However, this freedom does not and cannot furnish the adherents of religious creeds entire insulation from every civic obligation. As the state's interest in the individual becomes more comprehensive, its concerns and the concerns of religion perforce overlap. State codes and the dictates of faith touch the same activities.

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Both aim at human good, and in their respective views of what is good for man they may concur or they may conflict. No constitutional command which leaves religion free can avoid this quality of interplay.

Innumerable civil regulations enforce conduct which harmonizes with religious canons. State prohibitions of murder, theft and adultery reinforce commands of the decalogue. Nor do such regulations, in their coincidence with tenets of faith, always support equally the beliefs of all religious sects: witness the civil laws forbidding usury and enforcing [81 S.Ct. 1155] monogamy. Because these laws serve ends which are within the appropriate scope of secular state interest, they may be enforced against those whose religious beliefs do not proscribe, and even sanction, the activity which the law condemns. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12.

This is not to say that governmental regulations which find support in their appropriateness to the achievement of secular, civil ends are invariably valid under the First or Fourteenth Amendment, whatever their effects in the sphere of religion. If the value to society of achieving the object of a particular regulation is demonstrably outweighed by the impediment to which the regulation subjects those whose religious practices are curtailed by it, or if the object sought by the regulation could with equal effect be achieved by alternative means which do not substantially impede those religious practices, the regulation cannot be sustained. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. This was the ground upon which the Court struck down municipal license taxes as applied to religious colporteurs in Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; Murdock v. State of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, and Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290. In each of those cases it was believed that the State's need for revenue, which could be

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satisfied by taxing any of a variety of sources, did not justify a levy imposed upon an activity which in the light of history could reasonably be viewed as sacramental. But see Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, in which the Court, balancing the public benefits secured by a regulatory measure against the degree of impairment of individual conduct expressive of religious faith which it entailed, sustained the prohibition of an activity similarly regarded by its practicants as sacramental. And see Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645.

Within the discriminating phraseology of the First Amendment, distinction has been drawn between cases raising 'establishment' and 'free exercise' questions. Any attempt to formulate a bright-line distinction is bound to founder. In view of the competition among religious creeds, whatever 'establishes' one sect disadvantages another, and vice versa. But it is possible historically, and therefore helpful analytically--no less for problems arising under the Fourteenth Amendment, illuminated as that Amendment is by our national experience, than for problems arising under the First--to isolate in general terms the two largely overlapping areas of concern reflected in the two constitutional phrases, 'establishment' and 'free exercise,'1 and which emerge more

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or less clearly from the background of events and impulses which gave those phrases birth.

In assuring the free exercise of religion, the Framers of the First Amendment were sensitive to the then recent history of those persecutions and impositions [81 S.Ct. 1156] of civil disability with which sectarian majorities in virtually all of the Colonies had visited deviation in the matter of conscience. 2 This protection of unpopular creeds, however, was not to be the full extent of the Amendment's guarantee of freedom from governmental intrusion in matters of faith. The battle in Virginia, hardly for years won, where James Madison had led the forces of disestablishment in successful opposition to Patrick Henry's proposed Assessment Bill levying a general tax for the support of...

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