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On appeal to Federal Supreme Court from conviction in state court for furnishing infant with magazines knowing she
would sell them unlawfully and for permitting infant to work contrary to law on groun

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64 S.Ct. 438 Page 1
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

an offer to sell or was work within state statute was


not open to review. G.L.(Ter.Ed.) Mass. c. 149, s
Supreme Court of the United States 69, as amended by St.1939, c. 461, s 7; s 81;
PRINCE U.S.C.A.Const. Amends. 1, 14.
v.
COMMONWEALTH OF MASSACHUSETTS. [2] Child Custody 76D 22
No. 98.
76D Child Custody
Argued Dec. 14, 1943. 76DII Grounds and Factors in General
Decided Jan. 31, 1944. 76DII(A) In General
Rehearing Denied Mar. 27, 1944. See 321 U.S. 804, 76Dk22 k. Persons Entitled in General.
64 S.Ct. 784. Most Cited Cases
(Formerly 285k2(1))
Sarah Prince was convicted of furnishing an infant The custody, care, and nurture of the child resides
with magazines knowing she would sell them un- first in the parents, whose primary function and
lawfully on the street and of permitting such infant freedom include preparation for obligations the
to work contrary to law, 313 Mass. 223, 46 N.E.2d state can neither supply nor hinder.
755, and she appeals.
[3] Constitutional Law 92 1405
Affirmed.
92 Constitutional Law
Mr. Justice JACKSON, Mr. Justice ROBERTS, Mr. 92XIII Freedom of Religion and Conscience
Justice FRANKFURTER, and Mr. Justice 92XIII(B) Particular Issues and Applications
MURPHY, dissenting. 92k1404 Family Law
92k1405 k. In General. Most Cited
West Headnotes
Cases
[1] Federal Courts 170B 506 (Formerly 92k84.1, 92k84(1), 92k84)
The family is not beyond regulation in the public
170B Federal Courts interest as against a claim of religious liberty.
170BVII Supreme Court
170BVII(E) Review of Decisions of State [4] Constitutional Law 92 1290
Courts
92 Constitutional Law
170Bk504 Nature of Decisions or Ques-
92XIII Freedom of Religion and Conscience
tions Involved
92XIII(A) In General
170Bk506 k. Criminal Matters; Habeas
92k1290 k. In General. Most Cited Cases
Corpus. Most Cited Cases
(Formerly 92k84.1, 92k84(1), 92k84)
(Formerly 106k394(10))
On appeal to Federal Supreme Court from convic- Constitutional Law 92 1408
tion in state court for furnishing infant with
magazines knowing she would sell them unlawfully 92 Constitutional Law
and for permitting infant to work contrary to law on 92XIII Freedom of Religion and Conscience
ground that the statute abridged appellant's freedom 92XIII(B) Particular Issues and Applications
of religion and denied appellant equal protection of 92k1404 Family Law
the laws, whether what the infant did was a sale or 92k1408 k. Parental Rights in General.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


64 S.Ct. 438 Page 2
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

Most Cited Cases (Formerly 92k84.1, 92k84(1), 92k84)


(Formerly 92k84.1, 92k84(1), 92k84)
Parent and Child 285 1
Parent and Child 285 1
285 Parent and Child
285 Parent and Child 285k1 k. The Relation in General. Most Cited
285k1 k. The Relation in General. Most Cited Cases
Cases The state has a wide range of power for limiting
Neither rights of religion nor rights of parenthood parental freedom and authority in things affecting
are beyond limitation. the child's welfare, and such power includes to
some extent matters of conscience and religious
[5] Constitutional Law 92 1408 conviction.

92 Constitutional Law [8] Infants 211 11


92XIII Freedom of Religion and Conscience
92XIII(B) Particular Issues and Applications 211 Infants
92k1404 Family Law 211I Disabilities in General
92k1408 k. Parental Rights in General. 211k11 k. Removal of Disabilities. Most
Most Cited Cases Cited Cases
(Formerly 92k84.1, 92k84(1), 92k84) (Formerly 211k12)
The authority of the State as parens partriae is not The state's authority over children's activities is
nullified merely because the parent grounds his broader than over like actions of adults.
claim to control the child's course of conduct on re-
ligion or conscience. [9] Infants 211 13

[6] Constitutional Law 92 1395 211 Infants


211II Protection
92 Constitutional Law 211k13 k. Protection of Health and Morals.
92XIII Freedom of Religion and Conscience Most Cited Cases
92XIII(B) Particular Issues and Applications A democratic society rests for its continuance upon
92k1394 Health Care the healthy, well-rounded growth of young people
92k1395 k. In General. Most Cited into full maturity as citizens with all that implies,
Cases and state may secure it against impeding restraints
(Formerly 92k84.5(17), 92k84) and dangers within a broad range of selection.
The right to practice religion does not include
liberty to expose the community or the child to [10] Infants 211 65
communicable disease or the latter to ill health or
211 Infants
death.
211VI Crimes
[7] Constitutional Law 92 1408 211k65 k. Responsibility in General. Most
Cited Cases
92 Constitutional Law What may be wholly permissible for adults may not
92XIII Freedom of Religion and Conscience be so for children either with or without their par-
92XIII(B) Particular Issues and Applications ents' presence.
92k1404 Family Law
92k1408 k. Parental Rights in General. [11] Highways 200 165
Most Cited Cases

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64 S.Ct. 438 Page 3
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

200 Highways 92k3104 k. Juvenile Justice. Most


200IX Regulation and Use for Travel Cited Cases
200IX(B) Use of Highway and Law of the (Formerly 92k242.1(4), 92k238(1))
Road
200k165 k. Power to Control and Regu- Infants 211 12(6)
late. Most Cited Cases
211 Infants
Highways 200 167 211II Protection
211k12 Constitutional and Statutory Provi-
200 Highways sions
200IX Regulation and Use for Travel 211k12(3) Validity
200IX(B) Use of Highway and Law of the 211k12(6) k. Labor and Employment.
Road Most Cited Cases
200k167 k. Right to Use. Most Cited (Formerly 211k12)
Cases A state statute forbidding boys under 12 and girls
(Formerly 200k168) under 18 to sell magazines, etc., in street or public
Street preaching, whether oral or by handing out lit- places and penalizing the furnishing of such minors
erature, is not the primary use of the highway even magazines, etc., with knowledge of minor's intent
for adults, and, within reasonable limits, use of to sell them in street or public place, and penalizing
highway can be regulated in accommodation to the parent, custodian, etc., who permits such minors to
primary and other incidental uses. sell magazines, etc., in street or public place, is not
unconstitutional as denying or abridging “freedom
[12] Constitutional Law 92 1320 of religion” or denying “equal protection of the
laws” as applied to member of a religious sect who
92 Constitutional Law
furnished religious periodicals to minor girl who
92XIII Freedom of Religion and Conscience
was under custody of member, and permitted girl to
92XIII(B) Particular Issues and Applications
sell and distribute periodicals on the streets.
92k1319 Labor and Employment
G.L.(Ter.Ed.) Mass. c. 149, § 69 as amended by
92k1320 k. In General. Most Cited
St.1939, c. 461, § 7; §§ 80, 81; U.S.C.A.Const.
Cases
Amends. 1, 14.
(Formerly 92k84.5(12))
**438 *159 Appeal from the Superior Court of
Constitutional Law 92 1389
Massachusetts, Plymouth County.**439 Mr. Hay-
92 Constitutional Law den C. Covington, of Brooklyn, N.Y., for appellant.
92XIII Freedom of Religion and Conscience
Mr. R. T. Bushnell, of Boston, Mass., for appellee.
92XIII(B) Particular Issues and Applications
92k1389 k. Solicitation; Distribution of
Literature. Most Cited Cases Mr. Justice RUTLEDGE delivered the opinion of
(Formerly 92k84.5(12)) the Court.

Constitutional Law 92 3104 The case brings for review another episode in the
conflict between Jehovah's Witnesses and state au-
92 Constitutional Law thority. This time Sarah Prince appeals from con-
92XXVI Equal Protection victions for violating Massachusetts' child labor
92XXVI(B) Particular Classes laws, by acts said to be a rightful exercise of her re-
92XXVI(B)1 Age ligious convictions.

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64 S.Ct. 438 Page 4
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

When the offenses were committed she was the Sections 80 and 81 form parts of Massachusetts'
FN3
aunt and custodian of Betty M. Simmons, a girl comprehensive child labor law. They provide
nine years of age. Originally there were three separ- methods for enforcing the prohibitions of Section
ate complaints. They *160 were, shortly, for (1) re- 69, which is as follows:
fusal to disclose Betty's identity and age to a public
officer whose duty was to enforce the statutes; (2) FN3 Mass.Gen. Laws, Ter.Ed., c. 149, as
furnishing her with magazines, knowing she was to amended by Acts and Resolves of 1939, c.
sell them unlawfully, that is, on the street; and (3) 461.
as Betty's custodian, permitting her to work con-
‘No boy under twelve and no girl under eighteen
trary to law. The complaints were made, respect-
shall sell, expose or offer for sale any newspapers,
ively, pursuant to Sections 79, 80 and 81 of Chapter
magazines, periodicals or any other articles of mer-
149, Gen.Laws of Mass. (Ter.Ed.). The Supreme
chandise of any *161 description, or exercise the
Judicial Court reversed the conviction under the
FN1 trade of bootblack or scavenger, or any other trade,
first complaint on state grounds; but sustained
FN2 in any street or public place.’
the judgments founded on the other two. 313
Mass. 223, 46 N.E.2d 755. They present the only Section 80 and 81, so far as pertinent, read:
questions for our decision. These are whether Sec-
tions 80 and 81, as applied, contravene the Four- ‘Whoever furnishes or sells to any minor any article
teenth Amendment by denying or abridging appel- of any description with the knowledge that the
lant's freedom of religion and by denying to her the minor intends to sell such article in violation of any
equal protection of the laws. provision of sections sixty-nine to seventy-three,
inclusive, or after having received written notice to
FN1 The court found there was no evid- this effect from any officer charged with the en-
ence that appellant was asked Betty's age. forcement thereof, or knowingly procures or en-
It then held that conviction for refusal to courages any minor to violate any provisions of
disclose the child's name, based on the said sections, shall be punished by a fine of not less
charge under Section 79, would violate than ten nor more than two hundred dollars or by
Article 12 of the Declaration of Rights of imprisonment for not more than two months, or
the Commonwealth, which provides in both.’ (Section 80)
part: ‘No subject shall be held to answer
for any crimes or offence, until the same is ‘Any parent, guardian or custodian having a minor
fully and plainly, substantially and form- under his control who compels or permits such
ally, described to him; or be compelled to minor to work in violation of any provision of sec-
accuse, or furnish evidence against him- tions sixty to seventy-four, inclusive, * * * shall for
self.’ a first offence be punished by a fine of not less than
two nor more than ten dollars or by imprisonment
FN2 Appellant received moderate fines on for not more than **440 five days, or both; * * *.’ (
each complaint, first in the District Court Section 81)
of Brockton, then on pleas of not guilty by
trial de novo without a jury in the Superior The story told by the evidence has become familiar.
Court for Plymouth County. Motions to It hardly needs repeating, except to give setting to
dismiss and quash the complaints, for dir- the variations introduced through the part played by
ected findings, and for rulings, were made a child of tender years. Mrs. Prince, living in
seasonably and denied by the Superior Brockton, is the mother of two young sons. She
Court. also has legal custody of Betty Simmons who lives

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64 S.Ct. 438 Page 5
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

with them. The children too are Jehovah's Wit- stated the child attended the Shaw School. Mr. Per-
nesses and both Mrs. Prince and Betty testified they kins referred to his previous warnings and said he
were ordained ministers. The former was accus- would allow five minutes for them to get off the
tomed to go each week on the streets of Brockton to street. Mrs. Prince admitted she supplied Betty with
distribute ‘Watchtower’ and ‘Consolation,’ accord- the magazines and said, ‘(N)either you nor anybody
FN4
ing to the usual plan. She had permitted the else can stop me * * *. This child is exercising her
children to *162 engage in this activity previously, God-given right and her constitutional right to
and had been warned against doing so by the school preach the gospel, and no creature has a right to in-
attendance officer, Mr. Perkins. But, until Decem- terfere with God's commands.’ However, Mrs.
ber 18, 1941, she generally did not take them with Prince and Betty departed. She remarked as she
her at night. went, ‘I'm not going through this any more. We've
been through it time and time again. I'm going
FN4 Cf. the facts as set forth in Jamison v. home and put the little girl to bed.’ It may be added
Texas, 318 U.S. 413, 63 S.Ct. 669; Largent that testimony, by Betty, her aunt and others, was
v. Texas, 318 U.S. 418, 63 S.Ct. 667; Mur- offered at the trials, and was excluded,*163 to show
dock v. Pennsylvania, 319 U.S. 105, 63 that Betty believed it was her religious duty to per-
S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 82; form this work and failure would bring condemna-
Busey v. District of Columbia, 75 tion ‘to everlasting destruction at Armageddon.’
U.S.App.D.C. 352, 129 F.2d 24. A com-
mon feature is that specified small sums [1] As the case reaches us, the questions are no
are generally asked and received but the longer open whether what the child did was a ‘sale’
FN5
publications may be had without the pay- or an ‘offer to sell’ within Section 69 or was
ment if so desired. ‘work’ within Section 81. The state court's decision
has foreclosed them adversely to appellant as a
That evening, as Mrs. Prince was preparing to leave FN6
matter of state law. The only question **441
her home, the children asked to go. She at first re- remaining therefore is whether, as construed and
fused. Childlike, they resorted to tears and, mother- applied, the statute is valid. Upon this the court
like, she yielded. Arriving downtown, Mrs. Prince said: ‘We think that freedom of the press and of re-
permitted the children ‘to engage in the preaching ligion is subject to incidental regulation to the
work with her upon the sidewalks.’ That is, with slight degree involved in the prohibition of the
specific reference to Betty, she and Mrs. Prince selling of religious literature in streets and public
took positions about twenty feet apart near a street places by boys under twelve and girls under eight-
intersection. Betty held up in her hand, for pass- een and in the further statutory provisions herein
ersby to see, copies of ‘Watch Tower’ and considered, which have been adopted as a means of
‘Consolation.’ From her shoulder hung the usual enforcing *164 that prohibition.’ 313 Mass. 223,
canvas magazine bag, on which was printed 229, 46 N.E.2d 755, 758.
‘Watchtower and Consolation 5¢ per copy.’ No one
accepted a copy from Betty that evening and she re- FN5 In this respect the Massachusetts de-
ceived no money. Nor did her aunt. But on other cision is contrary to the trend in other
occasions, Betty had received funds and given out states. Compare State v. Mead, 230 Iowa
copies. 1217, 300 N.W. 523; State v. Meredith,
197 S.C. 351, 15 S.E.2d 678; State ex rel.
Mrs. Prince and Betty remained until 8:45 p.m. A Semansky v. Stark, 196 La. 307, 199 So.
few minutes before this Mr. Perkins approached 129; City of Shreveport v. Teague, 200 La.
Mrs. Prince. A discussion ensued. He inquired and 679, 8 So.2d 640; People v. Barber, 289
she refused to give Betty's name. However, she

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64 S.Ct. 438 Page 6
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

N.Y. 378, 46 N.E.2d 329; Thomas v. City thinks, guard alike herself and the child in what
of Atlanta, 59 Ga.App. 520, 1 S.E.2d 598; they have done. Thus, two claimed liberties are at
City of Cincinnati v. Mosier, 61 Ohio App. stake. One is the parent's, to bring up the child in
81, 22 N.E.2d 418. Contra: McSparran v. the way he should go, which for appellant means to
City of Portland (Circuit Court, Mult- teach him the tenets and the practices of their faith.
nomah County, Oregon, June 8, 1942), ap- The other freedom is the child's, to observe these;
peal dismissed, 169 Or. 377, 129 P.2d 65, and among them is ‘to preach the gospel * * * by
certiorari denied, 318 U.S. 768, 63 S.Ct. public distribution’ of ‘Watchtower’ and
759. ‘Consolation,’ in conformity with the scripture: ‘A
little child shall lead them.’
FN6 The court's opinion said: ‘The judge
could find that if a passerby should hand FN7 Appellant's brief says: ‘The purpose
over five cents in accordance with the sign of the legislation is to protect children
on the bag and should receive a magazine from economic exploitation and keep them
in return, a sale would be effected. The from the evils of such enterprises that con-
judge was not required to accept the de- tribute to the degradation of children.’ And
fendant's characterization of that transac- at the argument counsel stated the prohibi-
tion as a ‘contribution.’ He could believe tion would be valid as against a claim of
that selling the literature played a more freedom of the press as a nonreligious
prominent part in the enterprise than giv- activity.
ing it way. He could find that the defend-
ant furnished the magazines to Betty, FN8 The due process claim, as made and
knowing that the latter intended to sell perhaps necessarily, extends no further
them, if she could, in violation of section than that to freedom of religion, since in
69. * * * The judge could find that the de- the circumstances all that is comprehended
fendant permitted Betty to ‘work’ in viola- in the former is included in the latter.
tion of section 81. * * * (W)e cannot say
If by this position appellant seeks for freedom of
that the evils at which the statutes were
conscience a broader protection than for freedom of
directed attendant upon the selling by chil-
the mind, it may be doubted that any of the great
dren of newspapers, magazines, periodic-
liberties insured by the First Article can be given
als, and other merchandise in streets and
higher place than the others. All have preferred po-
public places do not exist where the pub-
sition in our basic scheme. Schneider v. State, 308
lications are of a religious nature.' 313
U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v.
Mass. 223, 227, 228, 46 N.E.2d 755, 757.
Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.
Appellant does not stand on freedom of the press. 1213, 128 A.L.R. 1352. All are interwoven there to-
Regarding it as secular, she concedes it may be re- gether. Differences there are, in them and in the
FN7 modes appropriate for their exercise. But they have
stricted as Massachusetts has done. Hence, she
rests squarely on freedom of religion under the First unity in the charter's prime place because they have
Amendment, applied by the Fourteenth to the unity in their human sources and *165 functionings.
states. She buttresses this foundation, however, Heart and mind are not identical. Intuitive faith and
with a claim of parental right as secured by the due reasoned judgment are not the same. Spirit is not al-
FN8 ways thought. But in the everyday business of liv-
process clause of the latter Amendment. Cf.
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 ing, secular or otherwise, these variant aspects of
L.Ed. 1042, 29 A.L.R. 1446. These guaranties, she personality find inseparable expression in a thou-
sand ways. They cannot be altogether parted in law

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64 S.Ct. 438 Page 7
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

more than in life. common tongue were guarded against the state's en-
croachment. It is cardinal with us that the custody,
To make accommodation between these freedoms care and nurture of the child reside first in the par-
and an exercise of state authority always is delicate. ents, whose primary function and freedom include
It hardly could be more so than in such a clash as preparation for obligations the state can neither
this case presents. On one side is the obviously supply nor hinder. Pierce v. Society of Sisters,
earnest claim for freedom of conscience and reli- supra. And it is in recognition of this that these de-
gious practice. With it is allied the parent's claim to cisions have respected the private realm of family
authority in her own household and in the rearing of life which the state cannot enter.
her children. The parent's conflict with the state
over control of the child and his training is serious [3][4][5][6][7] But the family itself is not beyond
enough when only secular matters are concerned. It regulation in the public interest, as against a claim
becomes the more so when an element of religious of religious liberty. Reynolds v. United States, 98
conviction enters. Against these sacred private in- U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S.
terests, basic in a democracy, stand the interests of 333, 10 S.Ct. 299, 33 L.Ed. 637. And neither rights
society to protect the welfare of children, and the of religion nor rights of parenthood are beyond lim-
state's assertion of authority to that end, made here itation. Acting to guard the general interest in
in a manner **442 conceded valid if only secular youth's well being, the state as parens patriae may
things were involved. The last is no mere corporate restrict the parent's control by requiring school at-
FN9
concern of official authority. It is the interest of tendance, regulating or prohibiting the child's
FN10 FN11
youth itself, and of the whole community, that chil- labor, and in many other ways. Its au-
dren be both safeguarded from abuses and given thority is not nullified merely because the parent
opportunities for growth into free and independent grounds his claim to control the child's course of
well-developed men and citizens. Between contrary conduct on religion or conscience. Thus, he cannot
pulls of such weight, the safest and most objective claim freedom from compulsory vaccination for the
recourse is to the lines already marked out, not pre- child more than for himself on religious grounds.
FN12
cisely but for guides, in narrowing the no man's The right to practice religion freely does not
land where this battle has gone on. include liberty to expose the community or the
child *167 to communicable disease or the latter to
[2] The rights of children to exercise their religion, ill health or death. People v. Pierson, 176 N.Y.
and of parents to give them religious training and to 201, 68 N.E. 243, 63 L.R.A. 187, 98 Am.St.Rep.
encourage them in the practice of religious belief, FN13
666. The catalogue need not be lengthened. It
as against preponderant sentiment and assertion of is sufficient to show what indeed appellant hardly
state power voicing it, have had recognition here, disputes, that the state has a wide range of power
most recently in *166West Virginia State Board of for limiting parental freedom and authority in
Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178. things affecting the child's welfare; and that this in-
Previously in Pierce v. Society of Sisters, 268 U.S. cludes, to some extent, matters of conscience and
510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468, religious conviction.
this Court had sustained the parent's authority to
provide religious with secular schooling, and the FN9 State v. Bailey, 157 Ind. 324, 61 N.E.
child's right to receive it, as against the state's re- 730, 59 L.R.A. 435; compare Meyer v.
quirement of attendance at public schools. And in Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; Pierce v. So-
L.Ed. 1042, 29 A.L.R. 1446, children's rights to re- ciety of Sisters, 268 U.S. 510, 45 S.Ct.
ceive teaching in languages other than the nation's 571, 69 L.Ed. 1070, 39 A.L.R. 468; West

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64 S.Ct. 438 Page 8
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(Cite as: 321 U.S. 158, 64 S.Ct. 438)

Virginia State Board of Education v. with Section 69, except that it is applicable to
Barnette, 319 U.S. 624, 63 S.Ct. 1178. adults or all persons generally, would be invalid.
Young v. California, 308 U.S. 147, 60 S.Ct. 146, 84
FN10 Sturges & Burn Mfg. Co. v. L.Ed. 155; Nichols v. Massachusetts, 308 U.S. 147,
Beauchamp, 231 U.S. 320, 34 S.Ct. 60, 58 60 S.Ct. 146, 84 L.Ed. 155; Jamison v. Texas, 318
L.Ed. 245, L.R.A.1915A, 1196; compare U.S. 413, 63 S.Ct. 669; Murdock v. Pennsylvania,
Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146
324, 52 L.Ed. 551, 13 Ann.Cas. 957. A.L.R. 82; Martin v. City of Struthers, 319 U.S.
FN14
141, 63 S.Ct. 862, 87 L.Ed. 1313. *168 But
FN11 Cf. People v. Ewer, 141 N.Y. 129,
the mere fact a state could not wholly prohibit this
36 N.E. 4, 25 L.R.A. 794, 38 Am.St.Rep.
form of adult activity, whether characterized locally
788.
as a ‘sale’ or otherwise, does not mean it cannot do
FN12 Jacobson v. Massachusetts, 197 U.S. so for children. Such a conclusion granted would
11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. mean that a state could impose no greater limitation
765. upon child labor than upon adult labor. Or, if an
adult were free to enter dance halls, saloons, and
FN13 See also State v. Chenoweth, 163 disreputable places generally, in order to discharge
Ind. 94, 71 N.E. 197; Owens v. State, 6 his conceived religious duty to admonish or dis-
Okl.Cr. 110, 116 P. 345, 36 L.R.A.,N.S., suade persons from frequenting such places, so
633, Ann.Cas.1913B, 1218. would be a child with similar convictions and ob-
jectives, if not alone then in the parent's company,
But it is said the state cannot do so here. This, first, against the state's command.
because when state action impinges upon a claimed
religious freedom, it must fall unless shown to be FN14 Pertinent also are the decisions in-
necessary for or conducive to the child's protection volving license features: Lovell v. City of
against some clear and present danger, cf. Schenck Griffin, 303 U.S. 444, 58 S.Ct. 666, 82
v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 949; Schneider v. State, 308 U.S.
L.Ed. 470; and, it is added, there was no such 147, 60 S.Ct. 146, 84 L.Ed. 155; Hague v.
showing here. The child's presence on the street, Committee for Industrial Organization,
with her **443 guardian, distributing or offering to 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.
distribute the magazines, it is urged, was in no way
harmful to her, nor in any event more so than the [8][9] The state's authority over children's activities
presence of many other children at the same time is broader than over like actions of adults. This is
and place, engaged in shopping and other activities peculiarly true of public activities and an matters of
not prohibited. Accordingly, in view of the pre- employment. A democratic society rests, for its
ferred position the freedoms of the First Article oc- continuance, upon the healthy, well-rounded
cupy, the statute in its present application must fall. growth of young people into full maturity as cit-
It cannot be sustained by any presumption of valid- izens, with all that implies. It may secure this
ity. Cf. Schneider v. State, 308 U.S. 147, 60 S.Ct. against impeding restraints and dangers, within a
146, 84 L.Ed. 155. And, finally, it is said, the stat- broad range of selection. Among evils most appro-
ute is, as to children, an absolute prohibition, not priate for such action are the crippling effects of
FN15
merely a reasonable regulation, of the denounced child employment, more especially in public
activity. places, and the possible harms arising from other
activities subject to all the diverse influences of the
FN16
Concededly a statute or ordinance identical in terms street. It is too late now to doubt *169 that le-

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gislation appropriately designed to reach such evils of the child's guardian puts a limit to the state's
is within the state's police power, whether against power. That fact may lessen the likelihood that
the parents claim to control of the child or one that some evils the legislation seeks to avert will occur.
religious scruples dictate contrary action. But it cannot forestall all of them. The zealous
though lawful exercise of the right to engage in
FN15 See, e.g., Volumes 1-4, 6-8, 14, 18, propagandizing the community, whether in reli-
Report on Condition of Woman and Child gious, political or other matters, may and at times
Wage Earners in the United States, Sen. does create situations*170 difficult enough for
Doc. No. 645, 61st Cong., 2d Sess.; The adults to cope with and wholly inappropriate for
Working Children of Boston, U.S. Dept. of children, especially of tender years, to face. Other
Labor, Children's Bureau Publication No. harmful possibilities could be stated, of emotional
89 (1922); Fuller, The Meaning of Child excitement and psychological or physical injury.
Labor (1922); Fuller and Strong, Child Parents may be free to become martyrs themselves.
Labor in Massachusetts (1926). But it does not follow they are free, in identical cir-
cumstances, to make martyrs of their children be-
FN16 See, e.g., Clopper, Child Labor in
fore they have reached the age of full and legal dis-
City Streets (1912); Children in Street
cretion when they can make that choice for them-
Work, U.S. Dept. of Labor, Children's Bur-
selves. Massachusetts has determined that an abso-
eau Publication No. 183 (1928); Children
lute prohibition, though one limited to streets and
Engaged in Newspaper and Magazine
public places and to the incidental uses proscribed,
Selling and Delivering, U.S. Dept. of
is necessary to accomplish its legitimate objectives.
Labor, Children's Bureau Publication No.
Its power to attain them is broad enough to reach
227 (1935).
these peripheral instances in which the parent's su-
[10] It is true children have rights, in common with pervision may reduce but cannot eliminate entirely
older people, in the primary use of highways. But the ill effects of the prohibited conduct. We think
even in such use streets afford dangers for them not that with reference to the public proclaiming of reli-
affecting adults. And in other uses, whether in work gion, upon the streets and in other similar public
or in other things, this difference may be magnified. places, the power of the state to control the conduct
This is so not only when children are unaccompan- of children reaches beyond the scope of its author-
ied but certainly to some extent when they are with ity over adults, as is true in the case of other
their parents. What may be wholly permissible for freedoms, and the rightful boundary of its power
adults therefore may not be so for children, either has not been crossed in this case.
with or without their parents' presence.
FN17 Cox v. New Hampshire, 312 U.S.
[11][12] Street preaching, whether oral or by hand- 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133
ing out literature, is not the primary use of the high- A.L.R. 1396; Chaplinsky v. New Hamp-
way, even for adults. **444 While for them it can- shire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed.
not be wholly prohibited, it can be regulated within 1031.
reasonable limits in accommodation to the primary
FN17 FN18 Although the argument points to the
and other incidental uses. But, for obvious
guardian's presence as showing the child's
reasons, notwithstanding appellant's contrary view,
FN18 activities here were not harmful, it is
the validity of such a prohibition applied to
nowhere conceded in the briefs that the
children not accompanied by an older person hardly
statute could be applied, consistently with
would seem open to question. The case reduces it-
the guaranty of religious freedom, if the
self therefore to the question whether the presence

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facts had been altered only by the guardi- Court holds that a state may apply child **445
an's absence. labor laws to restrict or prohibit an activity of
which, as recently as last term, it held: ‘This form
In so ruling we dispose also of appellant's argument of religious activity occupies the same high estate
founded upon denial of equal protection. It falls under the First Amendment as do worship in the
with that based on denial of religious freedom, churches and preaching from the pulpits. It has the
since in this instance the one is but another phras- same claim to protection as the more orthodox and
ing of the other. Shortly, the contention is that the conventional exercises of religion.’ ‘* * * the mere
street, for Jehovah's Witnesses and their children, is fact that the religious literature is ‘sold’ by itinerant
their church, since their conviction makes it so; and preachers rather than ‘donated’ does not transform
to deny them access to it for religious purposes as evangelism into a commercial enterprise. If it did,
was done here has the same effect as excluding al- then the passing of the collection plate in church
tar boys, youthful choristers, and other children would make the church service a commercial
from the edifices in which they practice their reli- project. The constitutional rights of those spreading
gious beliefs and worship. The argument hardly their religious beliefs through the spoken *177 and
needs more than statement, after what has been printed word are not to be gauged by standards gov-
said, to refute it. However Jehovah's Witnesses may erning retailers or wholesalers of books.' Murdock
conceive them, the public highways have not be- v. Pennsylvania, 319 U.S. 105, 109, 111, 63 S.Ct.
come their religious property*171 merely by their 870, 873, 874, 87 L.Ed. 1292, 146 A.L.R. 82.
assertion. And there is no denial of equal protection
in excluding their children from doing there what It is difficult for me to believe that going upon the
no other children may do. streets to accost the public is the same thing for ap-
plication of public law as withdrawing to a private
Our ruling does not extend beyond the facts the structure for religious worship. But if worship in
case presents. We neither lay the foundation ‘for the churches and the activity of Jehovah's Wit-
any (that is, every) state intervention in the indoc- nesses on the streets ‘occupy the same high estate’
trination and participation of children in religion’ and have the ‘same claim to protection’ it would
which may be done ‘in the name of their health and seem that child labor laws may be applied to both if
welfare’ nor give warrant for ‘every limitation on to either. If the Murdock doctrine stands along with
their religious training and activities.’ The religious today's decision, a foundation is laid for any state
training and indoctrination of children may be ac- intervention in the indoctrination and participation
complished in many ways, some of which, as we of children in religion, provided it is done in the
have noted, have received constitutional protection name of their health or welfare.
through decisions of this Court. These and all oth-
ers except the public proclaiming of religion on the This case brings to the surface the real basis of dis-
streets, if this may be taken as either training or in- agreement among members of this Court in previ-
doctrination of the proclaimer, remain unaffected ous Jehovah's Witness cases. Murdock v.
by the decision. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed.
1292, 146 A.L.R. 82; Martin v. Struthers, 319 U.S.
The judgment is affirmed. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Jones v. Opelika,
316 U.S. 584, 86 L.Ed. 1691, 141 A.L.R. 514; Id.,
Affirmed.
319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Douglas
Mr. Justice JACKSON. v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 882, 87
L.Ed. 1324. Our basic difference seems to be as to
*176 The novel feature of this decision is this: the the method of establishing limitations which of ne-

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cessity bound religious freedom. to practice her religion on the public streets cannot,
in my opinion, be sustained.
My own view may be shortly put: I think the limits
begin to operate whenever activities begin to affect The record makes clear the basic fact that Betty
or collide with liberties of others or of the public. Simmons, the nine-year old child in question, was
Religious activities which concern only members of engaged in a genuine religious, rather than com-
the faith are and ought to be free-as nearly abso- mercial, activity. **446 She was a member of Je-
lutely free as anything can be. But beyond these, hovah's Witnesses and had been taught the tenets of
many religious denominations or sects engage in that sect by her guardian, the appellant. Such tenets
collateral and secular activities intended to obtain included the duty of publicly distributing religious
means from unbelievers to sustain the worshippers tracts on the street and from door to door. Pursuant
and their leaders. They raise money, not merely by to this religious duty and in the company of the ap-
passing the plate to those who voluntarily attend pellant, Betty Simmons on the night of December
services or by contributions by their own people, 18, 1941, was standing on a public street corner and
but by solicitations and drives addressed to the pub- offering to distribute Jehovah's Witness literature to
lic by holding public dinners and entertainments, by passersby. There was no expectation of pecuniary
various kinds *178 of sales and Bingo games and profit to *172 herself or to appellant. It is undis-
lotteries. All such money-raising activities on a puted, furthermore, that she did this of her own de-
public scale are, I think, Caesar's affairs and may be sire and with appellant's consent. She testified that
regulated by the state so long as it does not discrim- she was motivated by her love of the Lord and that
inate against one because he is doing them for a re- He commanded her to distribute this literature; this
ligious purpose, and the regulation is not arbitrary was, she declared, her way of worshipping God.
and capricious, in violation of other provisions of She was occupied, in other words, in ‘an age-old
the Constitution. form of missionary evangelism’ with a purpose ‘as
evangelical as the revival meeting.’ Murdock v.
The Court in the Murdock case rejected this prin- Pennsylvania, 319 U.S. 105, 108, 109, 63 S.Ct. 870,
ciple of separating immune religious activities from 872, 873, 87 L.Ed. 1292, 146 A.L.R. 82.
secular ones in declaring the disabilities which the
Constitution imposed on local authorities. Instead, Religious training and activity, whether performed
the Court now draws a line based on age that cuts by adult or child, are protected by the Fourteenth
across both true exercise of religion and auxiliary Amendment against interference by state action, ex-
secular activities. I think this is not a correct prin- cept insofar as they violate reasonable regulations
ciple for defining the activities immune from regu- adopted for the protection of the public health, mor-
lation on grounds of religion, and Murdock over- als and welfare. Our problem here is whether a
rules the grounds on which I think affirmance state, under the guise of enforcing its child labor
should rest. I have no alternative but to dissent from laws, can lawfully prohibit girls under the age of
the grounds of affirmance of a judgment which I eighteen and boys under the age of twelve from
think was rightly decided, and upon right grounds, practicing their religious faith insofar as it involves
by the Supreme Judicial Court of Massachusetts. the distribution or sale of religious tracts on the
313 Mass. 223, 46 N.E.2d 755. public streets. No question of freedom of speech or
freedom of press is present and we are not called
Mr. Justice ROBERTS and Mr. Justice FRANK- upon to determine the permissible restraints on
FURTER join in this opinion. those rights. Nor are any truancy or curfew restric-
Mr. Justice MURPHY, dissenting. tions in issue. The statutes in question prohibit all
This attempt by the state of Massachusetts to pro- children within the specified age limits from selling
hibit a child from exercising her constitutional right

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or offering to sell ‘any newspapers, magazines, engaging in religious activity of the type involved
periodicals or any other articles of merchandise of in this case.
any description * * * in any street or public place.’
Criminal sanctions are imposed on the parents and The burden in this instance, however, is not met by
guardians who compel or permit minors in their vague references to the reasonableness underlying
control to engage in the prohibited transactions. child labor legislation in general. The great interest
The state court has construed these statutes to cover of the state in shielding minors from the evil vicis-
the activities here involved, cf. State v. Richardson, situdes of early life does not warrant every limita-
92 N.H. 178, 27 A.2d 94, thereby imposing an in- tion on their religious training and activities. The
direct restraint through the parents and guardians reasonableness that justifies the prohibition of the
on the free exercise by minors of their religious be- ordinary distribution of literature in the public
liefs. This indirect restraint is no less effective than streets by children is not necessarily the rea*174
a direct one. A square conflict between the consti- sonableness**447 that justifies such a drastic re-
tutional*173 guarantee of religious freedom and the striction when the distribution is part of their reli-
state's legitimate interest in protecting the welfare gious faith. Murdock v. Pennsylvania, supra, 319
of its children is thus presented. U.S. 111, 63 S.Ct. 874, 87 L.Ed. 1292, 146 A.L.R.
82. If the right of a child to practice its religion in
As the opinion of the Court demonstrates, the that manner is to be forbidden by constitutional
power of the state lawfully to control the religious means, there must be convincing proof that such a
and other activities of children is greater than its practice constitutes a grave and immediate danger
power over similar activities of adults. But that fact to the state or to the health, morals or welfare of the
is no more decisive of the issue posed by this case child. West Virginia State Board of Education v.
than is the obvious fact that the family itself is sub- Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186.
ject to reasonable regulation in the public interest. The vital freedom of religion, which is ‘of the very
We are concerned solely with the reasonableness of essence of a scheme of ordered liberty,’ Palko v.
this particular prohibition of religious activity by Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152,
children. 82 L.Ed. 288, cannot be erased by slender refer-
ences to the state's power to restrict the more secu-
In dealing with the validity of statutes which dir- lar activities of children.
ectly or indirectly infringe religious freedom and
the right of parents to encourage their children in The state, in my opinion, has completely failed to
the practice of a religious belief, we are not aided sustain its burden of proving the existence of any
by any strong presumption of the constitutionality grave or immediate danger to any interest which it
of such legislation. United States v. Carolene may lawfully protect. There is no proof that Betty
Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, Simmons' mode of worship constituted a serious
82 L.Ed. 1234, note 4. On the contrary, the human menace to the public. It was carried on in an or-
freedoms enumerated in the First Amendment and derly, lawful manner at a public street corner. And
carried over into the Fourteenth Amendment are to ‘one who is rightfully on a street which the state
be presumed to be invulnerable and any attempt to has left open to the public carries with him there as
sweep away those freedoms is prima facie invalid. elsewhere the constitutional right to express his
It follows that any restriction or prohibition must be views in an orderly fashion. This right extends to
justified by those who deny that the freedoms have the communication of ideas by handbills and literat-
been unlawfully invaded. The burden was therefore ure as well as by the spoken word.’ Jamison v.
on the state of Massachusetts to prove the reason- Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 672. The
ableness and necessity of prohibiting children from sidewalk, no less than the cathedral or the evangel-

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ist's tent, is a proper place, under the Constitution, excuse for prohibiting the exercise of that right.
for the orderly worship of God. Such use of the
streets is as necessary to the Jehovah's Witnesses, No chapter in human history has been so largely
the Salvation Army and others who practice reli- written in terms of persecution and intolerance as
gion without benefit of conventional shelters as is the one dealing with religious freedom. From an-
the use of the streets for purposes of passage. cient times to the present day, the ingenuity of man
has known no limits in its ability to forge weapons
It is claimed, however, that such activity was likely of oppression for use against those who dare to ex-
to affect adversely the health, morals and welfare of press or practice unorthodox religious beliefs. And
the child. Reference is made in the majority opinion the Jehovah's Witnesses are living proof of the fact
to ‘the crippling effects of child employment, more that even in this nation, conceived as it was in the
especially in public*175 places, and the possible ideals of freedom, the right to practice religion in
harms arising from other activities subject to all the unconventional ways is still far from secure. Theirs
diverse influences of the street.’ To the extent that is a militant and unpopular faith, pursued with a
they flow from participation in ordinary commer- fanatical zeal. They have suffered brutal beatings;
cial activities, these harms are irrelevant to this their property has been destroyed; they have been
case. And the bare possibility that such harms harassed at every turn by the resurrection and en-
might emanate from distribution of religious literat- forcement **448 of little used ordinances and stat-
ure is not, standing alone, sufficient justification for utes. See Mulder and Comisky, ‘Jehovah's Wit-
restricting freedom of conscience and religion. Nor nesses Mold Constitutional Law,’ 2 Bill of Rights
can parents or guardians be subjected to criminal li- Review, No. 4, p. 262. To them, along with other
ability because of vague possibilities that their reli- present-day religious minorities, befalls the burden
gious teachings might cause injury to the child. The of testing our devotion to the ideals and constitu-
evils must be grave, immediate, substantial. Cf. tional guarantees of religious freedom. We should
Bridges v. California, 314 U.S. 252, 262, 62 S.Ct. therefore hesitate before approving the application
190, 193, 86 L.Ed. 192. Yet there is not the slight- of a statute that might be used as another instru-
est indication in this record, or in sources subject to ment of oppression. Religious freedom is too sacred
judicial notice, that children engaged in distributing a right to be restricted or prohibited in any degree
literature pursuant to their religious beliefs have without convincing proof that a legitimate interest
been or are likely to be subject to any of the harm- of the state is in grave danger.
ful ‘diverse influences of the street.’ Indeed, if
probabilities are to be indulged in, the likelihood is U.S. 1944.
that children engaged in serious religious endeavor Prince v. Massachusetts
are immune from such influences. Gambling, tru- 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
ancy, irregular eating and sleeping habits, and the
END OF DOCUMENT
more serious vices are not consistent with the high
moral character ordinarily displayed by children
fulfilling religious obligations. Moreover, Jehovah's
Witness children invariably make their distributions
in groups subject at all times to adult or parental
control, as was done in this case. The dangers are
thus exceedingly remote, to say the least. And the
fact that the zealous exercise of the right to propa-
gandize the community may result in violent or dis-
orderly situations difficult for children to face is no

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.