In Follett v. Town of McCormick, 321 U.S. 573 (1944), the Supreme Court voted 6-3 to invalidate a tax of $1 a day or $15 a year imposed by the town of McCormick, S.C., on a resident Jehovah’s Witness selling religious publications door-to-door. In doing so, the Court used the First and 14th Amendments to extend earlier rulings in Jones v. City of Opelika (1943) and Murdock v. Pennsylvania (1943) that had also struck down license taxes on colporteurs.

City taxed Jehovah's Witnesses selling religious publications

South Carolina had attempted to distinguish Follett from the earlier decisions by arguing that they were limited to nonresident itinerant preachers and by arguing that the appellant’s sales were more commercial in nature, because they were his sole source of livelihood.

The Court, however, rejected both arguments.

Court said tax imposed regulations on religious speech

Justice William O. Douglas, writing for the majority, found that McCormick’s ordinance was an improper license tax and pointed out that whatever regulations towns might put on mere commercial speech, the books Follett was selling were clearly religious in nature. Douglas asserted that the religion clause protected the orthodox and the unorthodox, believers with lots of money and those without. The license tax in this case was as odious as the one that Louisiana had attempted to apply in Grosjean v. American Press (1936).

In a concurring opinion, Justice Stanley F. Reed noted that he had not agreed with the Court’s earlier decisions in this area, but thought they demanded a similar outcome.

In another concurrence, Justice Francis W. Murphy denied charges by dissenters that the decision extended a “subsidy” to religion.

Dissenters said law was nondiscriminatory

The dissenters, Justice Owen J. Roberts, joined by Justices Felix Frankfurter and Robert H. Jackson, portrayed the law as a nondiscriminatory revenue measure, which applied equally to all street vendors. To exempt Follett from such a tax was to subsidize him, they said. If exemptions were to be granted on the basis of religion, they would have to extend equally to other exercises of freedom of the speech and press.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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