Hopkins v. State
| Decision Date | 09 November 1949 |
| Docket Number | No. 1,1 |
| Citation | 193 Md. 489,69 A.2d 456 |
| Parties | HOPKINS v. STATE. |
| Court | Maryland Court of Appeals |
Louis S. Ashman, Baltimore, Edward D. E. Rollins, Elkton, for appellant.
Harrison L. Winter, Asst. Atty. General and Kenneth C. Proctor, Asst. Atty. General (Hall Hammond, Atty. General, and Henry L. Constable, State's Atty. Cecil Co., and Gifford Scarborough, Asst. State's Atty. Cecil Co., both of Elkton, on the brief), for appellee.
Before MARBURY, C. J. and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This appeal was taken by the Rev. William F. Hopkins, of Elkton, from the judgment of conviction entered upon the verdict of a jury in the Circuit Court for Cecil County for violation of the statute making it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages. Laws of 1943, ch. 532, Code Supp. 1947, art. 27, sec. 444A.
The State charged that on September 1, 1947, defendant maintained a sign at the entrance to his home at 148 East Main Street in Elkton, and also a sign along a highway leading into the town, to aid in the solicitation and performance of marriages. Four photographs were admitted in evidence. One photograph, taken on an afternoon in September, 1947, shows the sign in Elkton containing the name 'Rev. W. F. Hopkins.' Another, taken at night shows the same sign illuminated at night by electricity. The third shows the other sign along the highway containing the words, 'W. F. Hopkins, Notary Public, Information.' The fourth shows this sign illuminated at night.
The State showed that during the month of August, 1947, thirty ministers performed 1,267 marriages in Cecil County, and of this number defendant performed 286, only three of which were ceremonies in which the parties were residents of Cecil County.
Defendant did not testify. Several witnesses, however, testified that, though he has been residing in Elkton, he has been serving as the pastor of a church with about 40 members in Middletown, Delaware, known as the First Home Missionary Church.
First. Defendant contended that his conviction by the Court below deprives him of the free exercise of religion guaranteed by the First Amendment of the Federal Constitution. The Act of 1943, now under consideration, was passed by the Legislature of Maryland to curb the thriving businesses which unethical ministers had built up as a result of the tremendous increase in the number of couples coming into the State to be married following the passage of stringent marriage laws in nearby States. The first measure passed by the Legislature to suppress these unethical practices was the Act of 1922 making it unlawful for any minister to give or offer to give any money, present or reward to any hotel porter, railroad porter, or any other person as an inducement to direct to said minister any person contemplating matrimony. Laws of 1922, ch. 110, Code 1939, art. 27, sec. 444. In 1937 the Legislature directed that no marriage license shall be delivered by the Clerk of the Court until after the expiration of 48 hours from the time the application is made therefor, provided that any Judge, for good and sufficient cause, may authorize the Clerk to deliver such license at any time after the application. Laws of 1937, ch. 91, Code, art. 62, sec. 5. The Legislature subsequently directed that no such order shall be signed by the Judge unless one or both of the contracting parties are bona fide residents of Maryland, except where one of the contracting parties is a member of the armed forces of the United States. Laws of 1941, ch. 529, Laws of 1943, ch. 718, Code Supp. 1947, art. 62, sec. 5.
After the passage of these restrictive Acts, there were still signs in Elkton and along the highways offering information to couples contemplating matrimony. Accordingly in 1943 the Legislature passed the Act, which is now before us, to prohibit billboards, signs, posters or display advertising of any kind, or information booths, intended to aid in the solicitation or performance of marriages. In 1944 this Court in State v. Clay, 182 Md 639, 35 A.2d 821, held that the Act was a proper exercise of legislative power.
Defendant, however, contended that the Court of Appeals considered only the question whether the Act violated the Fourteenth Amendment of the Federal Constitution, and did not specifically decide whether the Act violated the First Amendment. It is established that freedom of religion, secured by the First Amendment against abridgment by the United States, is also secured to all persons by the Fourteenth Amendment against abridgment by a State. The due process clause has rendered the Legislatures of the States as incompetent as Congress to enact any laws respecting an establishment of religion, or prohibiting the free exercise thereof. Gitlow v. New York, 268 U. S. 652, 45 S.Ct. 625, 630, 69 L. Ed. 1138; Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357; Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L. Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 128 A. L. R. 1352; Baltimore Radio Show v. State, Md., 67 A.2d 497, 507. But the First Amendment embraces two concepts, freedom to believe and freedom to act. On one hand, it prevents compulsion by law of the acceptance of any creed or the practice of any form of worship. On the other hand, it safeguards the free exercise of the chosen form of religion. Freedom to believe is absolute, but freedom to act is not. Conduct is subject to regulation for the protection of society. While the power to regulate must be so exercised in every case as not to infringe the protected freedom, the State, by general and nondiscriminatory legislation, may safeguard the peace, good order and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment. It is well known that marriage, while from its very nature a sacred obligation, is nevertheless a civil contract and is regulated by law. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244, 250. And, as we said in State v. Clay, 182 Md. 639, 643, 35 A.2d 821, the unethical practice adopted by some ministers of erecting large signs near the courthouse and along the highways to aid in the solicitation of marriages was not compatible with the ministerial calling and not practiced by any respectable minister. It has been held that prohibition of polygamy is not unconstitutional as against those who profess a religious belief in polygamy. Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; Cleveland v. United States 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12. Whether defendant or someone else shall perform a marriage is not a religious question at all, except to those whose religion does not permit them to be married by defendant. The Act is constitutional.
It was insisted by defendant that the jury deprived him of the right to the free exercise of religion by a manifestly improper and unfair verdict. He argued that there was no reason to believe that any marriage was solicited by the sign at the entrance to his home merely because the title 'Rev.' appeared on the sign. He argued that the jury cannot constitutionally take from him, as the pastor of a church, the right to put his name at the entrance to his home. He maintained that the fact that he had performed a large proportion of the marriages in Elkton was no proof of solicitation, especially since his home is near the courthouse. He urged that it was perfectly clear that the jury had misapplied the statute by deciding that a sign of moderate size containing only his name and the title 'Rev.' was intended to aid in the solicitation of marriages.
We have held in Slansky v. State, Md., 63 A.2d 599, that Article 15, Section 5, of the Constitution of Maryland, providing that in the trial of all criminal cases the jury shall be the judges of law, as well as of fact does not conflict with the due process clause of the Fourteenth Amendment of the Constitution of the United States. The provision of our State Constitution has been interpreted so as to give to the accused every reasonable consideration possible without trespassing upon the rules of...
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