Home » Articles » Case » Licensing Requirements » In re. Frazer (Mich. S.C., 1886)

Written by John R. Vile, published on April 30, 2024 , last updated on April 30, 2024

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In 1886, the Michigan Supreme Court overturned the conviction of a Salvation Army member who was found to violate a Grand Rapids ordinance that prohibited parading on public streets with banners and musical instruments while singing and shouting "without having first obtained the consent of the mayor or common council." The judge said the local council went too far in regulating assemblages and giving the mayor and council authority to decide what was appropriate. (The Salvation Army often employed drums and noisemakers in public places to attract attention to helping the poor.) (iStock illustration of a group of women of the Salvation Army walking on a street singing for God, beating the hand drums)

Although it is common to associate worship with churches, religious experiences often spill out of such establishments into the public square. Revival meetings that led to the Great Awakenings and that stirred revivals on the American frontier were often raucous affairs, the latter often held out of doors, and sometimes featuring simultaneous speakers. Even today, preachers sometimes bellow loudly from the corners of busy streets. 

Origins of Salvation Army

In 1865, William Booth founded the Salvation Army, which has roots in the Wesleyan-Holiness movement, in London to minister to lower class members who were unlikely to attend, or even be welcome, in many traditional churches. The Salvation Army, which expanded into the U.S., often employed loud drums and other noisemakers in public places to attract attention and draw people to their message. This sometimes led to complaints by those who considered such actions to be disturbances of the peace.

Salvation Army member convicted for parading without city consent

One of the most noteworthy results of such concerns resulted in a decision by the Supreme Court of Michigan known as Frazer’s Case. In this case, the court overturned the conviction of a Salvation Army member accused of violating an ordinance regulating the public streets of Grand Rapids. 

The first section of the law prohibited a person or organization to “march, parade, ride, or drive, in or upon or through the public streets of the city of Grand Rapids, with musical instruments, banners, flags, torches, flambeaux, or while singing or shouting, without having first obtained the consent of the mayor or common council,” with exemptions for “funeral and military processions,” which were still subject to some control. The law further provided fines up to $500 for violations.

Michigan Court: City can’t ban parading, assembly altogether

Writing at a time before courts had applied the provisions of the First Amendment (including free exercise of religion, freedom of speech, and freedom of assembly) to the states, Chief Justice James Valentine Campbell wrote the Michigan court decision invalidating Frazer’s conviction largely on due process grounds. 

He argued that it was absurd to think that “the legislature of the state had the power to subject the people of cities to the uncontrolled and arbitrary will of a common council.” Individuals deserved “the enjoyment of equal privileges under the law.” Although local government had the right to protect individuals from dangers and to suppress nuisances, they had “no grant of absolute discretion to suppress lawful action,” and there was a distinct difference between “regulation” and “prohibition.”  

Justice Campbell observed that “It has been customary, from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds.”

Acknowledging that there were “times and occasions” when such assemblages could become “riotous mobs,” or create a public nuisance, the government was limited to dealing with those that “threaten some tangible public or private mischief.” He added that “It is lawful to provide for dealing with the mischief, but it is not lawful to go beyond reasonable measures and precautions in anticipating it.”

Court: City can confine “noisy doings” to certain hours

Drawing a distinction that the U.S. Supreme Court had articulated in upholding laws against bigamy in Reynolds v. United States (1879), Justice Campbell observed that “We cannot accede to the suggestion that religious liberty includes the right to introduce and carry out every scheme or purpose which persons see fit to claim as part of their religious system. There is no legal authority to constrain belief, but no one can lawfully stretch his own liberty of action so as to interfere with that of his neighbors, or violate peace and good order.” 

Any laws “must be impartial and general, or it is no law,” and although “it is not unusual to confine noisy doings to such hours of the day and night as will not grossly disturb the quiet rest of sleep,” the law at issue vested discretionary authority in local officials both as to whether an offense occurred and what the penalty should be. 

Courts allow 'time, place and manner' limits, but not content discrimination

Other state courts largely followed suit, generally treating sounds and gatherings on behalf of religion along with other secular activities (Weiner 2004, 87). The modern court accepts  reasonable time, place and manner restrictions on speeches and assemblages and invalidates those based upon content discrimination.

As the Salvation Army began to adopt more traditional patterns of ministry, often contained within their own facilities, Jehovah’s Witnesses became more frequent targets of licensing and other requirements for door-to-door solicitations and street preaching. The U.S. Supreme Court often applied similar principles to those articulated in this case, with particular concern for laws that imposed “prior restraints” or that vested what they considered to be undue discretion in the hands of governmental officials.

John R. Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University.

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