Amicus Curiae Brief — Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton

NOV 29 200 6)

No. 00-1737

IN THE

Supreme Court of the United States

WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW

YORK, INC., and WELLSVILLE, OHIO, CONGREGATION

OF JEHOVAH’S WITNESSES, INC.,

Petitioners,

v.

VILLAGE OF STRATTON, OHIO, and JOHN M. ABDALLA,

Mayor of the Village of Stratton, Ohio, in his official capacity,

Respondents.

On Wait oF CERTIORARI TO THE

Unttep States Court OF APPEALS FOR THE SIXTH CIRCUIT

MOTION OF THE CHURCH OF JESUS CHRIST OF

LATTER-DAY SAINTS FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF PETITIONERS AND

BRIEF AMICUS CURIAE

Von G KEETCH

Counsel of Record

ALEXANDER DUSHKU

Kirton & McConkiE

Attorneys for Amicus Curiae

1800 Eagle Gate Tower

60 East South Temple

Salt Lake City, Utah 84111

(801) 328-3600

170883 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Church of Jesus Christ of Latter-day Saints (“the

Church”) hereby moves, pursuant to Rule 37.2(b), for leave

to file a brief amicus curiae in support of petitioners. Amicus

is filing this motion because Respondents have withheld their

consent.* A copy of the proposed brief is attached.

As more fully explained at page 1 of the attached brief

under “Interest of the Amicus Curiae”, the Church conducts

perhaps the largest, full-time missionary program in the

United States. The decision of the Court regarding the

constitutionality of the solicitation ordinance at issue in this

case will significantly impact the Church’s missionary work.

Church missionaries are routinely burdened by similar

ordinances as they attempt to share their religious message

through door-to-door proselyting.

The Church believes that its brief will assist this Court

in adjudicating the question on which certiorari was granted

because it is uniquely positioned to inform the Court about

(1) the practical impact on religious speech of municipal

ordinances limiting religious solicitation; (2) similar

ordinances across the nation that impose onerous and

arbitrary burdens on religious speech; and (3) the need to

clarify certain aspects of First Amendment law that

government officials consistently invoke to justify laws that

unconstitutionally burden religious proselyting.

* In response to a request for consent to file an amicus curiae

brief, counsel for Respondents replied by letter dated November 26,

2001 that the Church should make application to the Court for leave

to file such a brief. Petitioners’ letter of consent is on file with the

Clerk of the Court.

Accordingly, the Church respectfully requests that the

Court grant leave to file the attached brief amicus curiae.

Respectfully submitted,

Von G KEeTcu

Counsel of Record

ALEXANDER DusHKU

Kirton & McConkie

Attorneys for Amicus Curiae

1800 Eagle Gate Tower

60 East South Temple

Salt Lake City, Utah 84111

(801) 328-3600

i

TABLE OF CONTENTS

Table of Cited Authorities ..................65.

Interest of the Amicus Curiae .............6065.

Summary of the Argument ..............60055:

The Free Speech Clause Protects The Right

Of Religious Expression, Including Religious

PUES, coccccccccccccceccscescces

The Doctrine Of The Church Of Jesus Christ

Of Latter-day Saints Obligates Every

Member Of The Church To Participate In

DTU eucccacenccccecoceses

. Municipalities Are Increasingly Regulating

Door-To-Door Proselyting, Often In Ways

That Place Significant Burdens On Religious

BEES ccddnccccncecncccceeseesces

. Significant Confusion Exists In The Lower

Courts And Among Municipal Lawmakers

Regarding The Scope Of Employment

Division v. Smith; The Court Should Clarify

That The Rule Announced In Smith Has No

Bearing In Cases Involving Freedom Of

Expression, Including Religious Expression.

ll

15

TABLE OF CITED AUTHORITIES

Page

Cases:

Board of Ed. of Westside Community Schools (Dist.

66) v. Mergens, 496 U.S. 226 (1990) .......... 5, 6

Cantwell v. Connecticut, 310 U.S. 296 (1940) ....

senguacescbededudesesocoeeeenans 5, 7, 20, 21, 23

Capitol Square Review and Advisory Board v.

Pinette, $15 U.S. 7$3 (1995) ..........eeees 5, 6, 19

Conlon v. City of North Kansas City, 530 F. Supp.

985 (W.D. Missouri 1981) .................. 10

Employment Division v. Smith, 494 U.S. 872 (1990)

paGecendcosonecthecssonbseatedote 3, 20, 21, 22, 23

Erskine v. West Palm Beach, 473 F. Supp. 48 (S.D.

DUD, BOC 6 ccccteccenccdaseecsouénbinneuan 10

Follett v. Town of McCormick, 321 U.S. 573 (1944)

senbocecnqsanedsedeedseduabaosusendianes 10

Heffron v. International Soc. for Krishna

Consciousness, Inc., 452 U.S. 640 (1981) ..... 6

Holy Spirit Ass'n for the Unification of World

Christianity v. Hodge, 582 F. Supp. 592 (N.D.

CEE CHE cucvccsseconvbecéanssedessan 10

ili

Cited Authorities

Page

International Society for Krishna Consciousness,

Inc. v. Conlisk, 374 F. Supp. 1010 (N.D. Ill. 1973)

ET ee eee ee ET Teer TTT Ty 10

Kissinger v. Board of Trustees, 5 F.3d 177 (6th Cir.

DEED: pabacéscacodévesontasducesesaesesuces 22

Lamb's Chapel v. Center Moriches Union Free

School Dist., 508 U.S. 384 (1993) ............ 5,6

Lee v. International Society for Krishna

Consciousness, 505 U.S. 830 (1992) ..... a 6

Love v. Mayor, City of Cheyenne, 448 F. Supp. 128

ek Se CEE ncancceeueducesésouesocesees 10

Lovell v. City of Griffin, 303 U.S. 444 (1938) .....

SebSedeucedeceaseseetceseseceses 6, 7, 20, 21, 23

Martin v. City of Struthers, 319 U.S. 141 (1943) ... 8,9, 10

McCready v. Hoffius, 459 Mich. 1235, 593 N.W.2d

SPE ebddddedcdcancedoodecetedeteoses 22

Mcintyre v. Ohio Elections Commission, 514 U.S.

DE ee cdbcotdnsocssesteotdavenseces 23

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ...

paseccesesonscccaverccoesvese 7, 8, 15, 20, 21, 23

iv

Cited Authorities

Page

New York State Employment Relations Board v.

Christ the King Regional High School, 90 N.Y.2d

244, 682 N.E.2d 960, 660 N.Y.S.2d 359 (1997) .. 22

Petersen v. Talisman Sugar Corporation, 478 F.2d

FOGG TEED ccccccccecsvcssccescsoses 10

Schneider v. New Jersey, 308 U.S. 147 (1939) .... 10

United States v. Grace, 461 U.S. 171 (1983) ..... 16

Weissman v. City of Alamogordo, 472 F. Supp. 425

GR COVED 6 ccenscccccdedcscéovedeveses 10

Widmar v. Vincent, 454 U.S. 263 (1981) ......... 5, 6

United States Constitution:

Pe 6 ciccvcccccctevccecscocse cs passim

Other Authorities

DOTE GDS BIS ccccccccvescececeecedeces 18

PEN GUND 6 osc evccccccsoccowastecedenteioes 4

BRD CEREMED cvcccccccccscccvanbevedoscesss 12

Vv

Cited Authorities

Page

Dallin H. Oaks & Lance B. Wickman, The

Missionary Work of The Church of Jesus Christ

of Latter-day Saints, in SHARING THE Book:

RELIGIOUS PERSPECTIVES ON THE RIGHTS AND WRONGS

OF ProseLytism (John Witte Jr. & Richard C.

DME svéendchovuedeeedetscese 12, 13

Village of Mundelein, Ordinance 93-4-14 ........ 16, 17

Village of Round Lake Beach, Title III, Chapter 6,

DD ddncavéedesencetchese’eedes 18

l

INTEREST OF THE AMICUS CURIAE

The Church of Jesus Christ of Latter-day Saints is a

worldwide religious association with more than eleven

million members.' More than five million of those members

live in the United States. The doctrine of the Church enjoins

its members to share the gospel of Jesus Christ with the world.

To that end, the Church operates perhaps the largest full-

time program of religious proselyting in the nation. In the

United States alone, over 17,000 full-time missionaries serve

in more than one hundred missions covering every state in

the Union. These dedicated men and women — the vast

majority between the ages of nineteen and twenty-five —

make tremendous personal sacrifices to share their faith.

Leaving behind their homes, families, and educational

pursuits for up to two years, and at their own expense, Church

missionaries work long hours each day teaching others about

the Church’s beliefs. Much of this occurs in the context of

door-to-door proselyting.

As a result, the Church has extensive experience with

local laws, such as the one at issue here, that restrict religious

evangelism. Church missionaries have encountered such laws

numerous times, especially in recent years. The Court’s

decision in this case will potentially have far-reaching

impacts on the Church’s missionary program.

1. Pursuant to Supreme Court Rule 37.6, counsel for amicus

state that they authored this brief in whole, and that no person or

entity, other than amicus, made a monetary contribution to the

preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

The right to express religious beliefs to others is

fundamental to the American tradition of liberty. Under the First

Amendment, religious expression enjoys the highest

constitutional protections. Accordingly, this Court has long

afforded vigorous protections to the right to engage in religious

proselyting, including the venerable practice of door-to-door

evangelism. While government may impose appropriate time,

place, and manner restrictions on proselyting, this Court’s

decisions make clear that such restrictions must withstand

exacting judicial scrutiny to ensure that they do not unduly

burden or limit religious expression.

As mandated by its doctrine and out of concern for the

spiritual welfare of all people, The Church of Jesus Christ of

Latter-day Saints conducts a vast missionary program with tens

of thousands of missionaries and hundreds of missions.

The purpose of this work is literally to share the restored gospel

of Jesus Christ with all the world. One of the principal means

the Church uses to accomplish this end is door-to-door

contacting by dedicated missionaries. Missionaries are assigned

to geographically defined missions for the duration of their

service. Within a mission, missionaries work in pairs in assigned

areas, as directed by Church autuorities. Such assignments often

change according to the spiritual needs of the mission, allowing

a missionary to evangelize in many different locales and with

many different companions over a period of eighteen to twenty-

four months. Consequently, in order for the Church to carry out

its religious mission, it is critical that missionaries be able to

proselyte in many different municipalities, as directed by

ecclesiastical leaders or divine guidance, without first having

to comply with burdensome regulations that impose prior

restraints on religious expression.

3

For many years, the Church experienced few attempts by

municipalities to restrict the door-to-door evangelism of its

missionaries. This Court’s religious solicitation cases were

widely understood to provide broad protections against

regulations limiting proselyting. However, the last decade has

witnessed a dramatic surge in the number and severity of anti-

solicitation laws that are being applied to religious proselyting.

Many of these laws contain onerous registration requirements

that are nothing more than prior restraints on speech, imposing

lengthy waiting periods and severely limiting the hours when

religious contacting can occur, often excluding Sundays,

holidays, and times when people are generally home from work.

Because of such laws, a number of which are reviewed in greater

detail below, the Church’s missionary efforts have frequently

and increasingly been hindered. ;

In interacting with officials from many municipalities, the

Church has learned that a pervasive misunderstanding exists as

to whether the rule announced in Employment Division v. Smith,

494 U.S. 872 (1990) — that the Free Exercise Clause does not

require strict scrutiny of neutral laws of general application that

incidentally burden religious excercise — applies in cases

involving religious speech. Many municipal officials think that

Smith essentially eliminated First Amendment protections for

religious proselyting, despite the fact that Smith itself reaffirmed

the strong First Amendment protections announced in the

Court’s religious solicitation cases. A number of lower courts

have engaged in their own variation of this mistaken application.

The result is that municipal officials increasingly believe there

are few if any constraints on their ability to severely limit door-

to-door evangelism in their jurisdictions. This case presents an

excellent opportunity for the Court to end this confusion and

clarify that the deferential rule in Smith has no application in

cases involving religious expression.

4

ARGUMENT

I. THE FREE SPEECH CLAUSE PROTECTS THE

RIGHT OF RELIGIOUS EXPRESSION, INCLUDING

RELIGIOUS PROSELYTING

No right is more fundamental — nor dearer to the heart

of the believer — than the right to express oneself on matters

of religion. Religious expression, be it speech or some other

form, is inextricably bound up with religious exercise and

belief. Each week, in tens of thousands of churches,

synagogues, mosques, and other places of worship,

Americans offer prayers, read holy texts, expound religious

doctrines, discuss the great questions of life, and share and

reaffirm sacred experiences and narratives. Perhaps in most

religions, and certainly in the monotheistic faiths that are

most prominent in the United States, the word of God is a

core focus of religious life. It is preached, explicated, shared,

discussed, debated, ritualized, dramatized, sung, and chanted.

Religious expression takes many other forms, even silence.

Because religion addresses intractable and inescapable

questions — including the nature of good and evil, and the

meaning of life, death, and suffering — the need to express

oneself on religious topics (even if only to dismiss them) is

deeply embedded in the human conscience.

For many religions, knowledge of God or the truth entails

a solemn obligation to share that knowledge with others.

Religious expression serves not only to deepen and enrich

the faith of the converted, but also as a means of bringing

new adherents into the fold. In the Christian tradition, for

instance, the Great Commission enjoins believers to take to

all the world the good news that salvation is through Jesus

Christ. Matthew 28:19; Mark 16:15. Evangelism has always

5

been a constant and defining feature of Christianity and what

it means to be a Christian. So weighty has been the injunction

to spread the gospel that thousands have risked and ultimately

given their lives to carry it out. Tens of thousands more have

been persecuted and suffered great hardships while preaching

Christianity. Faithful adherents of many other religious

traditions have made (and are now making) the same types

of personal sacrifices as they share their beliefs with others.

The imperative to share religious beliefs has been one of the

most powerful, undeniable, and consequential forces in

human history, and it remains so. Denial of the right to freely

engage in religious expression is a hallmark of tyranny that

tends to have revolutionary consequences, as this nation’s

own founding and many other conflicts attest.

Freedom of religious expression is as core to the First

Amendment as political speech, and thus is afforded the

highest constitutional protections. More than sixty years ago,

in striking down specific constraints on religious expression,

this Court concluded: “The fundamental law declares the

interest of the United States that the free exercise of religion

be not prohibited and that freedom to communicate

information and opinion be not abridged.” Cantwell v.

Connecticut, 310 U.S. 296, 307 (1940). It is axiomatic that

“religious worship and discussion” are “forms of speech and

association protected by the First Amendment.” Widmar v.

Vincent, 454 U.S. 263, 269 (1981). Accordingly, this Court’s

“precedent establishes that private religious speech, far from

being a First Amendment orphan, is as fully protected under

the Free Speech Clause as secular private expression.”

Capitol Square Review and Advisory Board v. Pinette, 515

U.S. 753, 760 (1995) (plurality opinion) (citing Lamb's

Chapel v. Center Moriches Union Free School Dist., 508 U.S.

384 (1993); Board of Ed. of Westside Community Schools

6

(Dist. 66) v. Mergens, 496 U.S. 226 (1990); Widmar, supra,

454 U.S. 263; Heffron v. International Soc. for Krishna

Consciousness, Inc., 452 U.S. 640 (1981)). “Indeed, in Anglo-

American history, at least, government suppression of speech

has so commonly been directed precisely at religious speech

that a free-speech clause without religion would be Hamlet

without the prince.” Pinette, 515 U.S. at 760 (emphasis in

original). Perhaps for that very reason “religious speech [is

not] simply as protected by the Constitution as other forms

of private speech” Jd. at 767 (emphasis in original). “[P]rivate

religious expression receives preferential treatment” under

the First Amendment. Jd. (emphasis in original).

The First Amendment protects more than just religious

expression that occurs within the confines of homes,

churches, synagogues, or other sanctuaries. It also protects

religious expression in far more public settings, such as

traditional public forums, Pinette, 515 U.S. 753, university

facilities generally open for use by student groups, Widmar,

454 U.S. 268-71, school facilities open after hours, Lamb's

Chapel, 508 U.S. 393-97, and to some extent even nonpublic

forums such as airports, Lee v. International Society for

Krishna Consciousness, 505 U.S. 830 (1992) (invalidating

ban on distribution of religious literature in airport).

Of particular relevance here, the Court has long afforded

generous First Amendment protections to religious

evangelism, including leafleting and door-to-door

proselyting. In Lovell v. City of Griffin, 303 U.S. 444 (1938),

a woman was sentenced to imprisonment for fifty days for

distributing religious tracts without prior city approval. This

Court invalidated the ordinance, holding that the First

Amendment protects the “essential liberty” to publish and

7

distribute “every sort of publication” — including religious

publications — “which affords a vehicle of information and

opinion.” Jd. at 452.

Similarly, in Cantwell this Court struck down a

Connecticut law banning solicitation of money for religious

causes without prior governmental approval. Applying strict

judicial scrutiny, the Court held that the statute was not

“narrowly drawn to define and punish specific conduct as

constituting a clear and present danger to a substantial interest

of the State.” 310 U.S. at 311. The state’s licensing scheme

for “the solicitation of aid for the perpetuation of religious

views or systems” placed “a forbidden burden upon the

exercise of liberty protected by the Constitution.” Jd. at 307.

Likewise, in Murdock v. Pennsylvania, 319 U.S. 105

(1943), several Jehovah’s Witnesses brought a First

Amendment challenge to an ordinance that made it a crime

to distribute religious literature or solicit people to purchase

religious books and pamphlets without a license. /d. at 106-

07. Voiding the ordinance, this Court held “that spreading

one’s religious beliefs or preaching the Gospel through

distribution of religious literature and through personal

visitations is an age-old type of evangelism with as high a

claim to constitutional protection as more orthodox types.”

Id. at 110. This Court equated the right to engage in

proselyting with the fundamental right to worship in a church

or preach a sermon: “This form of religious activity occupies

the same high estate under the First Amendment as do

worship in the churches and preaching from the pulpits. . . .

It also has the same claim as the others to the guarantees of

freedom of speech and freedom of the press.” Jd. at 109.

It is noteworthy that this Court in Murdock flatly rejected

any suggestion that the general applicability of a law constraining

religious proselyting suffices to satisfy the First Amendment.

“The fact that the ordinance is ‘nondiscriminatory’ is

immaterial,” this Court held. Jd. at 115. A statute “does not

acquire constitutional validity because it classifies the privileges

protected by the First Amendment with the wares and

merchandise of hucksters and peddlers and treats them all alike.

Such equality in treatment does not save the ordinance.” Jd.

That is because “[t]he constitutional rights of those spreading

their religious beliefs through the spoken and printed word are

not to be gauged by standards governing retailers or wholesalers

of books. The right to use the press for expressing one’s

views is not to be measured by the protections afforded

commercial handbills.” Jd. at 111. In brief, “[f]reedom of press,

freedom of speech, freedom of religion are in a preferred

position.” Jd. at 115.

This Court reached the same conclusion in Martin v.

City of Struthers, 319 U.S. 141 (1943), where a door to

door evangelist was convicted of violating an ordinance

prohibiting the distribution of “ ‘handbills, circulars or other

advertisements.’ ” Jd. at 142. This Court acknowledged that the

dissemination of “novel and unconventional ideas might disturb

the complacent” or create a “minor nuisance.” Jd. at 143.

Nevertheless, the First Amendment protects the venerable

practice of distributing literature, including religious literature,

door to door:

While door to door distributers of literature may

be either a nuisance or a blind for criminal activities,

they may also be useful members of society engaged

in the dissemination of ideas in accordance with the

best tradition of free discussion. The widespread

9

use of this method of communication by many

groups espousing various causes attests its major

importance. ... Many of our most widely

established religious organizations have used this

method of disseminating their doctrines. . . .

Id. at 145. Invalidating the ordinance, this Court held that

the “[f]reedom to distribute information to every citizen

wherever he desires to receive it is so clearly vital to the

preservation of a free society that, putting aside reasonable

police and health regulations of time and manner of

distribution, it must be fully preserved.” Jd. at 146-47.

In addition to protecting the rights of the religious

speaker, these decisions also protect the rights of the

prospective listener. They reflect the deeply rooted liberty

of Americans to decide for themselves, free from

governmental constraint, whether to entertain a person who

has come to their door seeking to share a message.

For centuries it has been a common practice

in this and other countries for persons not

specifically invited to go from home to home and

knock on doors or ring doorbells to communicate

ideas to the occupants or to invite them to

political, religious, or other kinds of public

meetings. Whether such visiting shall be permitted

has in general been deemed to depend upon the

will of the individual master of each household,

and not upon the determination of the community.

Id. at 143; see also id. at 148 (“[W)hether distributers of

literature may lawfully call at a home” properly “belongs

. with the homeowner himself,” not the government.).

10

Because the “dangers of distribution [of literature] can so

easily be controlled by traditional legal methods” (such as

the law of trespass) which allow “each householder the full

right to decide whether he will receive strangers as visitors,”

stringent prohibitions on door-to-door distribution of

literature “can serve no purpose but that forbidden by the

Constitution, the naked restriction of the dissemination of

ideas.” Id. at 147.

These and many other federal court decisions have firmly

established that the First Amendment protects religious

expression, including the right of proselyters to go door to

door distributing religious literature and providing a religious

message.” If homeowners do not wish to receive the message

offered, they have every right to ask the person to leave, or

even to post a sign informing proselyters that they do not

wish to be disturbed in the first place. That is clearly the

homeowner’s choice, and the law can justly punish the

proselyter who fails to respect it. The First Amendment,

however, denies the government the authority to make that

choice for the homeowner, thereby precluding the homeowner

from hearing what may be a desired religious message and

2. See, e.g., Follett v. Town of McCormick, 321 U.S. 573, 578

(1944) (evangelist distributing books cannot “be required to pay a

tax for the exercise of that which the First Amendment has made a

high constitutional privilege”); Schneider v. New Jersey, 308 U.S.

147, 162 (1939); Petersen v. Talisman Sugar Corporation, 478 F.2d

73, 83 (Sth Cir. 1973); Holy Spirit Ass'n for the Unification of World

Christianity v. Hodge, 582 F. Supp. 592, 604 (N.D. Texas, 1984);

Conlon v. City of North Kansas City, 530 F. Supp. 985, 989-90 (W.D.

Missouri 1981); Erskine v. West Palm Beach, 473 F. Supp. 48, 50-51

(S.D. Fla. 1979); Weissman v. City of Alamogordo, 472 F. Supp. 425,

429-31 (D.N.M. 1979); Love v. Mayor, City of Cheyenne, 448 F. Supp.

128, 133 (D. Wyo. 1978); International Society for Krishna

Consciousness, Inc. v. Conlisk, 374 F. Supp. 1010 (N.D. Ill. 1973).

11

preemipting the believer from expressing his religious views.

Mitigating whatever minor inconveniences or risks arguably

might arise because of door-to-door proselyting is not a

sufficient justification for prior restraint of religious speech.

Il. THE DOCTRINE OF THE CHURCH OF JESUS

CHRIST OF LATTER-DAY SAINTS OBLIGATES

EVERY MEMBER OF THE CHURCH TO

PARTICIPATE IN MISSIONARY WORK.

No church values the First Amendment right to proselyte

more than The Church of Jesus Christ of Latter-day Saints.

The most fundamental doctrine of the Church is that Jesus is

the Christ, the Savior of the world, and that only by and

through Him can mankind be saved. The Church also teaches

that all persons are children of a loving God, and thus are

part of a spiritual family. The confluence of these two

doctrines gives impetus to the fundamental purpose of the

Church: to bring souls to Christ. Latter-day Saints believe

that they are under a solemn obligation — a duty born of

love and covenants with God — to share the saving truths of

the gospel of Jesus Christ with every one of their spiritual

brothers and sisters. Thus, a principal and defining mission

of the Church is literally to preach the gospel to every person

on the earth.

These beliefs are rooted in the teachings of biblical

Christianity. The Bible teaches that at the end of his earthly

ministry, the Lord Jesus Christ commanded his disciples,

“Go ye therefore, and teach all nations.” Matthew 28:19 (King

James). The Gospel of Mark reports this as a command to go

“into all the world, and preach the Gospel to every creature,”

and promises that “[h]e that believeth and is baptized shall

be saved; but he that believeth not shall be damned.”

12

Mark 16:15-16. To Latter-day Saints, “this Great Commission

is obligatory. . . . It imposes a sacred duty to witness ‘among

all nations, kindreds, tongues, and people’ (Doctrine and

Covenants 112:1).” Dallin H. Oaks & Lance B. Wickman,

The Missionary Work of The Church of Jesus Christ of Latter-

day Saints, in SHARING THE Book: RELIGIOUS PERSPECTIVES ON

THE RIGHTS AND WRONGS OF PROSELYTISM 247, 248 (John Witte

Jr. & Richard C. Martin, eds., 1999).’

Church doctrine holds that these ancient biblical

injunctions have been reaffirmed in latter times through

modern revelation.

One of the Church’s teachings is that those who

are desirous to come into the fold of God have

the duty “to stand as witnesses of God at all times,

and in all things, and in all places that ye may be

in, even until death” (Book of Mormon, Mosiah

18:9).

Id. at 249. Missionary work is therefore a defining attribute

of a Latter-day Saint:

For Latter-day Saints, who believe that God

has restored vital additional knowledge and power

to bless the lives of all his children and who

believe that they have a duty to share these

3. Dallin H. Oaks is a member of the Quorum of the Twelve

Apostles of The Church of Jesus Christ of Latter-day Saints, the

second highest governing body in the Church. Lance B. Wickman is

a member of the First Quorum of the Seventy, another of the Church’s

governing bodies. The Doctrine and Covenants is a book of Church

13

treasures with all humankind, the command to

witness is fundamental to all their belief and practice.

It is a vital part of what it means to be a Latter-day

Saint. 7o all who hold these convictions, the duty to

witness and to share is a fundamental matter of

conscience.

Id. at 250 (emphasis added).

To carry out the Great Commission, young men and women

of the Church (usually between the ages of nineteen and twenty-

five) are encouraged to serve as unpaid missionaries for eighteen

to twenty-four months. Retired adult couples and singles may

also serve. These dedicated individuals are “more than

volunteers”; under Church doctrine, they are “called to service

by a prophet [the president of the Church], and the place and

duration of their labors [are] given to them by that same

authority.” Jd. at 253. Typically paying their own way, they

devote themselves full time to sharing the gospel of Jesus Christ,

completely abstaining from such things as dating, movies, and

even popular music. /d. at 263-64. In the United States, the

Church currently has 17,239 full-time missionaries serving in

over one hundred missions.‘

As in biblical times, going two-by-two, door to door, is

one important way to spread the gospel. When someone

expresses interest in learning more, the missionaries meet with

him or her for a series of discussions to present the basic

doctrines of the Church. This door-to-door evangelism is a vital

aspect of the Church’s missionary program, with Church

missionaries in their dark suits and white shirts an easily

identifiable symbol of the Church throughout the world.

4. Worldwide, the Church has over 60,000 missionaries serving

in 333 missions.

14

To understand the impact of restrictive ordinances on the

Church’s missionary program, it is important to understand the

basic organization and operation of missionary work.

Missionaries are assigned to specific geographical regions

known #s “missions” and are supervised by a mission president

who provides spiritual and temporal direction for their actions.

Each missionary is in turn assigned to a specific area within the

mission as well as to a specific companion with whom he or

she will live and work for a time. Periodically, the mission

president will transfer a missionary to a new locale or assign

him or her a new companion.

Sometimes a missionary’s area of service is a single large

city; other times a missionary is assigned to proselyte in several

small towns. A missionary will serve with a particular companion

anywhere from a few weeks to many months. From time to

time missionaries trade companions for a day or two so that

more senior missionaries can provide training, or to allow a

particular missionary with special skills or insight to teach a

particular potential convert, or sometimes just for a change of

pace. Thus, the freedom of missionaries to preach and teach

without first having to comply with municipal registration or

permit schemes in each new town or borough they enter is vital

to the Church’s missionary program. Given how often

missionaries move around, and the fact that missions often

encompass scores of municipalities, such schemes can be

extremely disruptive to the Church’s missionary work, tying up

its missionaries in bureaucratic red tape in town after town when

they should be free to preach the gospel. Moreover, missionaries

are taught to go where they are led by the Holy Spirit. The prior

restraint these laws impose on religious expression often

prevents missionaries from following a spiritual prompting to

pioselyte door to door on a particular day in a particular town.

15

In short, Church missionaries are ministers of the gospel

who, in fulfillment of the Great Commission and at great

personal sacrifice, are engaged in religious expression that

is entitled to the highest degree of protection under the First

Amendment. These missionaries are not mere “hucksters and

peddlers” of “wares and merchandise,” 319 U.S. at 115, and

under the First Amendment, municipalities cannot licence

and regulate them as if they were. Yet, as seen next, increasing

numbers of cities and towns have enacted ordinances that

attempt to do just that.

Ill, MUNICIPALITIES ARE INCREASINGLY

REGULATING DOOR-TO-DOOR PROSELYTING,

OFTEN IN WAYS THAT PLACE SIGNIFICANT

BURDENS ON RELIGIOUS EXPRESSION.

The Church has absolutely no objection to appropriate

time, place, and manner restrictions on religious proselyting.

The Church has never maintained that its missionaries have

the right to make nuisances of themselves while preaching

the gospel, or winerwise to ignore fair restrictions adopted

by local government to protect its citizenry. Indeed, to

disregard these reasonable restrictions is to act contrary to

Church teachings. Missionaries are taught to show respect

for the laws, customs, and sensibilities of those they seek to

teach, including leaving the premises promptly at the request

of a homeowner. The Church’s doctrine of respect for moral

agency, as well as common human decency, require no less.

However, time, place, and manner restrictions can go

too far. They can be used to create a tangled web of ostensibly

innocuous requirements that individually or collectively

make vital forms of religious expression practically

impossible. The Constitution forbids government from using

16

time, place, and manner restrictions as a surreptitious means

of suppressing expression. Time, place, and manner

restrictions pass First Amendment muster only when they

“are content-neutral, are narrowly tailored to serve a

significant government interest, and leave open ample

alternative channels of communication.” United States v.

Grace, 461 U.S. 171, 177 (1983) (citation and quotation

marks omitted).

In the last decade, the Church has witnessed a substantial

increase in both the number of laws regulating proselyting

and in the burden such laws impose on religious expression.

Municipal officials in particular frequently conclude that so

long as an ordinance is neutral and generally applicable with

respect to all those going door to door, government may

regulate the bearers of religious messages in the same way it

regulates “hucksters and peddlers.” Accordingly, many

municipalities are imposing burdensome registration schemes

and fees on proselyters, as well as limiting door-to-door

contacting to hours that often preclude effective evangelism.

Church missionaries are frequently and increasingly hindered

by such constraints. A few of many possible examples

illustrate the problem.

Mundelein, Illinois. In the Village of Mundelein, Illinois

(a suburb of Chicago), Ordinance 93-4-14, which has been

interpreted to apply to Church missionaries, requires that a

proselyter submit an application to engage in door-to-door

ministry. This application must be submitted thirty days in

advance of the intended proselyting, and it must be

accompanied by a $10 processing fee. Among other

information, the application — made “under oath” — must

contain a “statement of the purpose of the applicant”; the

“most recent financial statement of the applicant, indicating

17

the disbursement of the gross and net proceeds of its

solicitations”; and the “period of time and area of solicitation

within the Village of Mundelein, which shall be not more than

seven (7) days (including one weekend) in any year.” Village of

Mundelein, Ordinance 93-4-14, § 6.A. The application must

also include the “[n]ame, present residence address, telephone

number, social security number, and driver’s license number”

of each applicant; the address of his or her past residences during

the last three years; two photographs taken in the last sixty days;

and the names and addresses of at least two references “in Illinois

who can give accurate information as to the applicant’s

reputation for moral character, honesty, and integrity.” Jd.

If the Village decides to approve the permit application, it

issues the missionary what is essentially a license to preach,

consisting of “a certificate of registration bearing his name,

address, and dates covered by such registration.” Jd. § 7.D.

The registration card contains a photo of the applicant. Jd.

However, as noted, the permit is valid for “not more than seven

(7) days (including one weekend).” Jd. § 7.B. And even for

missionaries with the necessary government papers, door-to-

door proselyting can occur only between the hours of 9:00 a.m.

and 8:00 p.m. or sunset, whichever comes first, with two

exceptions. On Sundays, the hours are further restricted to the

time period of noon to 6:00 p.m. or sunset, whichever comes

first. On national holidays, when Americans celebrate the

blessings of living in a free land, religious proselyting is totally

forbidden. Jd. § 15.

Watervliet, New York. The City of Watervliet, New York

has a solicitation ordinance that applies to door-to-door

evangelism. It requires that missionaries apply for a license to

proselyte that is valid for only two-months, at which time it

must be renewed. The license is not transferable and thus cannot

be used by a fellow missionary in town just for the day.

18

Missionaries must give prior notice to the police department of

the location in which proselyting will occur. The “hours of

operation” are limited to Monday through Friday, 9:00 a.m. .c

7:00 p.m. Religious contacting on Saturdays and Sundays is

prohibited.

Dover, New Jersey. Church missionaries in the Town of

Dover, New Jersey have been required to obtain a “solicitor

permit” before engaging in door-to-door proselyting. See Dover

Cede § 273-1. Obtaining such a license costs $25 and can

take up to ten days after filling out and submitting a

detailed application, complete with fingerprints. Jd. § 273-3,

-4, -6. The license is not transferable from one missionary to

another, it must be carried while proselyting, and contacting is

permitted only between the hours of 10:00 a.m. and 5:00 p.m.,

when most people are away at work, except on Sundays or

holidays, when contacting is banned entirely unless specially

authorized by the Mayor and Board of Aldermen. Jd. § 273-7.5

Round Lake Beach, Illinois. Police in the Village of Round

Lake Beach, Illinois have informed Church missionaries that

under the Village’s code (Title III, Chapter 6, § 3-6.13-1 et seq.)

they need a permit to conduct door-to-door evangelism. As part

of the application for the permit, the missionary applicant must

provide information on fifteen different topics, including all

addresses and employers during the last three years and “[a]ny

additional information as deemed necessary by the chief of

police or his representative. . . .” Jd. § 3-6.13-12. The fee for

processing each application is $25. The permit must be renewed

every ninety days.

5. The code provides that a religious organization can apply

for a special permit to solicit donations or to _ tribute literature

for which a fee is charged, but other than waiver of the $25 license

acts - to be no substantive advantage to a special permit.

19

The above ordinances are examples of a much larger

problem. In the Church’s experience, these are not isolated

incidents; rather, they are representative of a pattern which

is developing across the country in which numerous other

municipalities are seeking to severely curtail all forms of

door-to-door contacting, including religious proselyting.°

Extremely burdensome regulations — ranging from lengthy

advance notice requirements, to costly and time-consuming

application procedures, to strict time-of-day and day-of-week

limitations on when proselyting may occur — all substantially

infringe on the sacred duty of Church missionaries to contact

residents door to door and invite them to listen to the Church’s

religious message. These restrictions treat those who wish

to engage in pure religious expression — expression which

is entitled to “preferential treatment” under the First

Amendment, Pinette, 515 U.S. at 767 (plurality opinion)

(emphasis in original) — no better than the door-to-door

salesman of vacuums and brushes, no better than the solicitor

seeking to sell household cleaning supplies, and no better

than the traveling peddler of trinkets and baubles.

6. In conversations with Church counsel, Church mission

presidents report encountering such ordinances on scores of

occasions. For example, just in the mission covering upstate New

York, there are twelve different restrictive door-to-door ordinances

currently being enforced against Church missionaries.

20

IV. SIGNIFICANT CONFUSION EXISTS IN THE

LOWER COURTS AND AMONG MUNICIPAL

LAWMAKERS REGARDING THE SCOPE OF

EMPLOYMENT DIVISION v. SMITH; THE

COURT SHOULD CLARIFY THAT THE RULE

ANNOUNCED IN SMITH HAS NO BEARING IN

CASES INVOLVING FREEDOM OF EXPRESSION,

INCLUDING RELIGIOUS EXPRESSION.

For many decades, this Court’s decisions in cases like

Lovell, Cantwell, and Murdock seemed to have settled the

issue of whether a municipality could constitutionally ban

or severely restrict religious proselyting. In the past, at least

in the Church’s experience, cities and towns generally had

few if any restrictions on evangelism; or if they did, such

restrictions were generally not enforced.

However, in the last decade things have changed

dramatically. Since this Court’s decision in Employment

Division v. Smith, 494 U.S. 872 (1990), municipalities have

been emboldened to impose ever-more onerous restrictions

on proselyting. Many municipal officials now believe that

Smith essentially overruled, or at least drastically curtailed,

this Court’s earlier religious solicitation cases and replaced

them with the blanket rule that the First Amendment does

not shield religious expression from “generally applicable”

or “neutral” regulations. This misreading of Smith is, to say

the least, baffling given the express limitations in the decision

itself. But it is nonetheless pervasive, especially at the local

level.

This Court in Smith held that the Free Exercise Clause

standing alone does not require strict scrutiny of religiously

neutral laws of general application that have the incidental

21

effect of burdening religious exercise. Jd. at 880-85. But this

holding provides absolutely no support for the now-prevalent

misconception that municipalities can bar or severely limit

religious proselyting by a generally applicable or neutral

ordinance banning or severely restricting all types of soliciting.

Indeed, this Court’s analysis in Smith is precisely to the contrary.

That analysis specifically singled out the religious solicitation

cases discussed above as examples of where “the First

Amendment bars application of a neutral, generally applicable

law to religiously motivated action . . . .” /d. at 881. This Court

explained that in such cases free exercise norms “in conjunction

with other constitutional protections, such as freedom of speech

and of the press,” combined to protect the religious activity from

government suppression. Jd. The holding in Smith itself was

limited to an entirely different set of facts which did “not present

such a hybrid situation, but a free exercise claim unconnected

with any communicative activity. .. .” Jd. at 882. Smith’s own

limitation on its “generally applicable and neutral” analysis could

not have been more clear: when “communicative activity” is

involved, like the religious expression in the Lovell-Cantwell-

Murdock line of cases, Smith’s relaxed standard of judicial

review simply does not apply. /d.

It follows that any reliance on the rule in Smith to uphold

municipal ordinances of the sort described above is plainly

erroneous. Unfortunately, this misreading of Smith has

nevertheless become widespread. Municipalities now routinely

invoke Smith’s general applicability rule in response to any

suggestion that a restriction involving a church might violate

First Amendment freedoms. Under this increasingly common

misconception, the rule in Smith has not only swallowed all of

free exercise jurisprudence (a gross over reading in itself), it

also threatens to consume much of free speech and free press

law, at least where religious expression is involved.

22

For their part, the lower courts have often adopted their

own variations on this mistaken reading of Smith. The court

below, for instance, labeled as mere dicta this Court’s own

articulation of the limitations of the Smith rule on religiously

motivated conduct when the constitutionally protected areas

of speech or press are also in play. 240 F.3d at 561 (“That

language was dicta and therefore not binding.”). Other lower

courts have expressed similar views, adopting in full force

Smith’s relaxed form of judicial scrutiny, while ignoring or

minimizing the analysis contained in Smith on the limited

application of that relaxed form of scrutiny.’

This case presents the Court with an excellent

opportunity to eliminate the confusion that exists over the

7. See, e.g., New York State Employment Relations Board v. Christ

the King Regional High School, 90 N.Y.2d 244, 249, 682 N.E.2d 960,

964, 660 N.Y.S.2d 359, 363 (1997) (“as we analyze the matter, the

Supreme Court in Smith did not intend its hybrid exception to turn back

on itself in circumstances such as this singularly generic First Amendment

setting and circumstance”); McCready v. Hoffius, 459 Mich. 1235, 593

N.W.2d 545 (1999) (“However, there is a clear split in the circuits

regarding how courts should follow the dicta contained in the Smith

decision.”) (Cavanagh, J. dissenting) (Table); See also Kissinger v. Board

of Trustees, 5 F.3d 177, 180 (6th Cir. 1993): —

We do not see how a state regulation would violate the

Free Exercise Clause if it implicates other constitutional

rights but would not violate the Free Exercise Clause if it

at least until the Supreme Court hold that legal standards

under the Free Exercise Clause vary depending on whether

other constitutional rights are implicated, we will not use a

stricter legal standard than that used in Smith to evaluate

generally applicable, exceptionless state regulations under

the Free Exercise Clause.

23

application of Smith’s general applicability rule. The limited

scope of the question upon which this Court granted

certiorari makes clear that this case will be decided under

free speech and/or free press norms, not free exercise

principles. The First Amendment right to engage in religious

solicitation or evangelism is governed by the Lovell-

Cantwell-Murdock line of cases as supplemented by free

speech decisions like McIntyre v. Ohio Elections Commission,

514 U.S. 334 (1995). Smith itself specifically excepted this

line of cases from its holding, stating that they were different

because they involved “communicative activity”. 494 U.S.

at 882. That difference means everything when it comes to

preserving the right to proselyte religiously door to door.

If the “generally applicable and neutral” rule of Smith controls

in such a situation, then by definition personal religious

expression can be subjected to the same rules and regulations

as sales pitches made by commercial salesmen and peddlers.

Religious expression will not retain its preferred status under

the First Amendment; to the contrary, it will become routinely

subjected to the lowest common denominator of regulations,

with door-to-door proselyting treated and regulated just like

every other form of commercial soliciting and sales.

The Church respectfully submits that this Court should

put an end to the confusion and misapplication that surrounds

the Smith rule in the area of religious speech and expression.

As it did over a decade ago when it clearly set out the

limitations of Smith, this Court should reaffirm that Smith’s

general applicability rule has no place in the adjudication of

rules regulating door to door proselyting, and that instead

the time-tested rules set out in the Lovell-Cantwell-Murdock

line of cases continue to govern.

24

CONCLUSION

For the reasons stated herein, and those contained in the

brief of Petitioners, the decision below should be reversed.

Respectfully submitted,

Von G KEeEtTCuH

Counsel of Record

ALEXANDER DUSHKU

Kirton & McConkiz

Attorneys for Amicus Curiae

1800 Eagle Gate Tower

60 East South Temple

Salt Lake City, Utah 84111

(801) 328-3600