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The Error Multiplied
Jones versus Opelika.
Another case cited by Abdul Qadeer J is Jones versus Opelika. The Jones versus Opelika was one of the series of cases, which led to the crystallization of the law on the subject. The case related to license fee upon the sale of literature. The license fee included religious literature as well. The question in Jones was whether a non-discriminatory license fee could be imposed. The statute was validated because it was neutral and non-discriminatory. Like Zaheer-ud-Din it was a case of divided opinion. Mr. Justice Reed delivered the opinion of the court. Dealing with the subject he observed:
“We have before us the question of the Constitutionality of various City Ordinances imposing the license taxes upon the sale of printed matterr” 19
The Jones court observed:
“We turn to the Constitutional problem squarely presented by these ordinances. There are ethical principles of greater value to mankind than the guarantees of the Constitution to the personal liberty.
which are beyond the power of government to impair. These principles and liberties belong to the mental and spiritual realm where decision and decrees of mundane courts are ineffective to direct the course of man. The rights of which our Constitution speaks have a more earthly quality. They are not absolute to be exercised independently to other cherished privileges protected by the same organic instrument“ 20
“Court no more than a Constitution can intrude into the consciences of men and compel them to believe contrary to their faith or think contrary to their convictions, but courts are competent to adjudge the acts men do under colour of Constitutional rights, such as that of freedom of speech or of the press or free exercise of religion and to determine whether the claimed right is limited by other recognized powers, equally precious to mankind. So the mind and the spirit of man remain free while the actions rest subject to necessary accommodation of the competing needs of his fellows” 21
Thereafter the whole argument of Jones case relates to regulations of the conduct. The court made it clear that:
“There is to be noted too, a distinction between non-discriminatory regulations of operations which are incidental to the exercise of religion from the freedom of speech or the press and those which are imposed upon the religious right itself of unmixed dissemination of information”. 22
“If we were to assume, as is here argued, that the licensed activities involve religious rites, a different question would be presented. These are not taxes on free will offerings. But it is because we view these sales as partaking more of commercial than religious or educational transactions that we find the ordinances, as here presented, valid. 23
Jones principle cannot be made applicable in Zaheer-ud-Din, wherein Constitutional validity of Ordinance XX had been challenged which was clearly discriminatory and directly hit the exercise of religion. It was a case of complete denial as distinguished from regulation of religious practices. The most significant aspect of Jones however is that it paved the way for reversal of an earlier decision of Gobitis, in a subsequent case of Barnette.
Mr. Justice Murphy, with whom the Chief Justice, Mr. Justice Black, and Mr. Justice Douglas concurred, dissenting, observed:
“Ordinances that may operate to restrict the circulation or dissemination of ideas on religious or other subjects should be framed with fastidious care and precise language to avoid undue encroachment on these fundamental liberties. And the protection of the Constitution must be extended to all, not only to those whose views accord with prevailing thought but also to dissident minorities who energetically spread their beliefs”. 24
“Liberty of conscience is too full of meaning for the individuals in this nation to permit taxation to prohibit or substantially impair the spread of religious, ideas, even though they are controversial and run counter to the established notions of a community. If this Court is to err in evaluating claims that freedom of speech, freedom of the press, and freedom of religion have been invaded, far better that it err in being overprotective of these precious rights.” 25
The judges then went on to say:
“Since we joined in the opinion in the Gobitis Case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be.” 26
To put the things in proper perspective it needs to be mentioned here that in 1940 the court in Gobitis, had held that:
“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious belief.” 27
Gobitis was the subject of unprecedented scholarly and editorial criticism when it was issued and was expressly overruled in three short years in West Virginia State Board of Educ. v. Barnette, one of the most celebrated Constitutional decisions in American history.
In Barnette, Justice Jackson eloquently wrote:
“The very purpose of a Bill of Rights was to withdraw certain subject from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” 28
Jones paved the way and Barnette overturned the Gobitis in a matter of three years, because the civil Liberties Union and the enlightened public opinion in the US strongly reacted to Gobitis. In Pakistan enlightened public opinion and Human Rights Commission have also condemned Ordinance XX. One can only hope that experience of Jones versus Opelika & Barnette Versus Board of Education, will be repeated in Pakistan and some future judges will follow the spirit of Jones and think it proper to state that Zaheer ud Din was wrongly decided.