What RFRA Hath Wrought-Part 2

By Mike Appleton, Weekend Contributor

“Those situations in which the Court may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area.”

-Sherbert v. Verner, 374 U.S. 398, 423 (1963) (Harlan, J., dissenting)

Were Maurice Bessinger still alive, he would undoubtedly be a strong supporter of the Religious Freedom Restoration Act. Had that law been available in 1964, history might well read differently.

Mr. Bessinger owned a small chain of barbecue restaurants in South Carolina known as “Piggie Park.” As a matter of company policy, African Americans were prohibited from consuming food on the premises of his restaurants and were required to place and pick up orders from the kitchen window.

When a class action was filed against Mr. Bessinger under the public accommodations provisions of the Civil Rights Act of 1964, among his defenses was the claim that the Act violated the First Amendment because “his religious beliefs compel him to oppose any integration of the races whatsoever.” Newman v. Piggy Park Enterprises, Inc., 256 F. Supp. 941 (1966). The court had no sympathy for his defense. “Undoubtedly,” it said, “defendant Bessinger has a constitutional right to espouse religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence and support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” 256 F. Supp. at 945.

Mr. Bessinger partially prevailed at the trial court on interstate commerce grounds, but lost on appeal and was assessed attorney’s fees for his trouble, the Fourth Circuit finding that in view of a prior Supreme Court ruling upholding the constitutionality of the Civil Rights Act of 1964, the assertion that he was not bound because the law “contravenes the will of God” and constituted interference with “the free exercise of the Defendant’s religion” was legally frivolous. Newman v. Piggy Park Enterprises, Inc., 377 F.2d 433 (4th Cir. 1967), aff’d, 390 U.S. 400 (1968).

Had the Religious Freedom Restoration Act been in effect when Mr. Bessinger was sued, might he have prevailed? Perhaps.

To place our discussion in proper context, a bit of Free Exercise history is in order. And the best place to start is with the first instance in which the Supreme Court was called upon to determine the parameters of freedom of religion, the case of Reynolds v. United States, 98 U.S. 145 (1878). The defendant was a Mormon, prosecuted for the offense of bigamy. His defense was that the doctrine of the Church of Jesus Christ of Latter Day Saints mandated the practice of polygamy as a religious duty, a duty of such consequence that its breach entailed “damnation in the life to come.” 98 U.S. at 161. It was undisputed that Mr. Reynolds had taken a second wife (while still married to his first) in strict accordance with the prescribed rituals of his faith.

The direct issue was whether religious expression could be alleged as a defense to a criminal indictment. However, the Court framed it rather more broadly. “Religious freedom is guaranteed throughout the United States, so far as congressional action is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.” 98 U.S. at 162.

The Court began its analysis by noting the absence of a definition of “religion” in the Constitution, and then proceeded to rule without providing one. Instead, it turned to the writings of James Madison and Thomas Jefferson, giving particular deference to the latter’s famous letter to the Danbury Baptist Association, in which he wrote, “Believing with you that religion is a matter which lies solely between man and his God; that he owes no account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, I contemplate with sovereign reverence the act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.” 98 U.S. at 164. The Court deemed Jefferson’s words “an authoritative declaration of the scope and effect of the amendment thus secured.” Congress could not legislate concerning matters of belief, but “was free to reach actions which were in violation of social duties or subversive of good order.” Id.

The Court next observed that polygamy had been forbidden in western society by both common and statutory law for centuries, punishable by death. And marriage, although a “sacred obligation,” was nevertheless “a civil contract, and usually regulated by law.” 98 U.S. at 165. Therefore, it concluded, “it is within the legitimate scope of the power of civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.” Id.

The Reynolds decision did not create a formula for adjudicating religious freedom claims, but it did lay down several important principles. First, freedom of religion is not absolute. Second, no precise definition of “religion” is necessary or desirable because neither belief nor unbelief can be legislated. Third, actions motivated by religious belief are subject to regulation when they conflict with duties imposed upon society as a whole. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinion, they may with practices,” the Court noted. 98 U.S at 166. In its view, to permit religious practices to trump laws regulating conduct would “permit every citizen to become a law unto himself.” 98 U.S. at 167. In short, religious freedom must sometimes be balanced against other compelling societal values.

It is true, of course, that the Reynolds court expressed a somewhat restricted vision of religious freedom. But the primary concerns of the Court were freedom of belief and freedom of worship. It should be remembered that the First Amendment was drafted from the perspective of a European history of religious warfare characterized by the burning of churches and the execution of religious dissenters. The Founders surely understood that a repetition of that history could only be avoided by a constitutional commitment to religious pluralism. Thus the Establishment Clause abandoned the notion that a central government had the power to define and enforce religious orthodoxy. The Free Exercise Clause recognized the primacy of the individual in matters of belief and unbelief and in the form and manner of worship. However, the First Amendment was not intended to abolish government’s ability to legislate limitations on human conduct which an actor has declared to be a form of protected religious expression.

Over the course of the following decades, and culminating with the opinion in Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court crafted various tests designed to achieve the balance suggested in Reynolds. The ebb and flow of that jurisprudence, and the ways in which RFRA changed all the rules, is another topic.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and displays of art are solely their decision and responsibility.


476 thoughts on “What RFRA Hath Wrought-Part 2”

  1. @Ingannie

    Gee, what is next??? Will you tell me, “Squeeky, you cannot engage in any discussion about a females right to an abortion without falling back on your obsession with dead babies, and sliced and diced baby parts.”

    Duh! The anal sex is extremely relevant to any discussion of LGBT “civil rights” Anal sex is NOT overly relevant to discussions about the nature of homosexuality as a psychological state, but when it comes to the issue of “rights” then it is—because that is the chief way that you identify the behavior which you seek to protect. Because, to my knowledge, there is no universally recognized “Gay Test” to determine who is gay. One is forced to fall back on conduct and behavior,

    But, as I have said before, even that conduct is an iffy determinate, because it is not a slam dunk that a male sodomite sodomizing another male sodomite means either of them is gay. Which leads to massive problems trying to identify the class which you wish to grant these special legal protections. Plus, since this particular behavior directly leads to massive health problems, we should be careful about giving it the old societal thumbs-up!

    Which concepts, are either over your head, or beyond the scope of your various talking points.

    Squeeky Fromm
    Girl Reporter

  2. Squeeky, you cannot engage in any discussion on LGBT people or issues without falling back on your obsession with poo poo and butt sex. Your “contributions” do not add to the discussion and as a matter of fact, always derail the discussion because people respond to your outlandish and vulgar comments, instead of discussing the topic of the thread.

  3. @Ingannie

    Well, in YOUR case, you will only take away what you came in with. Because you do not really and truly engage in discussions. (or even read your own links). You don’t even bother to answer direct questions. Therefore, you learn nothing new, and add little value to any discussion.

    Squeeky Fromm
    Girl Reporter

  4. The pejorative is fitting. There is no other commenter that applauds gays being flogged, imprisoned and even stoned. Every article that Professor Turley posts about such subjects, there is Squeeky applauding it. What could one take a way from that?

  5. Aridog
    It may appear to be uncivil and offensive when I tag that ‘pejorative’ and that would be correct. I will ask this simple question, why remain silent when Squeeky uses such language of elimination of LGBT people? Cui bono?

    I got your point; that it doesn’t strengthen my position. Correct.
    I hope you get mine… I’m not going to sit in silence when someone cries, kill the gays. Because silence equals complicity.

  6. For the record, Chuck Stanley cited his experience that is much like that of most of us vis a vis gay relatives or friends. It is sad when it doesn’t go that way, but his remark indicates that it doesn’t have to do so. In my college daze (the 60’s) none of us made even a tiny issue of those in group who were gay or straight or bi. We all stuck together, and defended those among us who did feel persecution, for any reason…and it those days there were many other reasons beside LGBT matters. What happened to those eloquent and civil days? I am truly at a loss to explain today.

  7. Max-1…its nice of you to apparently have stopped citing “Squeeky” with the pejorative (kill the gays). That was uncivil and offensive and you know it. If it was supposed to be “funny” …well, it wasn’t. Never mind that about 90% of this thread has little or nothing to do with RFRA and anything it “has wrought.” If it is so offensive, and I do understand how some might feel that way, where was all this outcry when President Clinton signed the original one?

  8. Max, I can only imagine how difficult that was for you. We have some LG people in our extended family, one of which had a sister who was married to a Fundamentalist Evangelical pastor and the parents were very conservative. That poor guy didn’t have contact with his family for about 10 years also. Finally the elderly parents woke up and reconciled with their son, despite the sister and her hubby.

    We have another a young woman who was a lesbian who was raised in a strict Catholic family. Despite her sexual orientation she married a man, was extremely unhappy living a lie and divorced a few years later, after meeting the love of her life. Her siblings wouldn’t even let their children say the word “gay” or mention their aunt, until recently when she and her partner came to Thanksgiving. All the children who were present handled it terrifically, too bad their parents were so unloving for several years. I just don’t understand not loving and accepting one’s child based on who they choose as a love interest.

  9. Max,
    Genuinely sorry about the trauma of coming out to your parents. My grandson had a truly different experience. We all figured out his orientation before he ever hit puberty, so we made doubly sure he knew that the whole family knew and didn’t care. He never had to make “the announcement.” It was just a matter of course.

    We have been much more concerned he meet his full intellectual and educational potential. No risk there, since he has a GPA that technically exceeds 4.0. We still don’t know what he is capable of, or if he even has a ceiling.

    That is far more important than whether he has a girlfriend or boyfriend.

  10. @Max-1

    No, Max, I don’t think that is how it is supposed to be at all. I don’t have the answers, but I suspect that homosexuality is probably co-morbid with several other problems. I don’t think that it all can be blamed on the stigma attached to being gay. The simple facts of life are, a gay person will always be the odd man out, because 98% of the guys are going in a different direction as it were.

    Sooo, what to do if you find yourself in that 2% group??? Again, I don’t have the answers, but I suspect the answers don’t include whooping it up, and pretending that nothing is wrong, and giving way to every impulse that comes down the road, and engaging in wild and dangerous practices. I also don’t think the answers include throwing stones at the 98%.

    Lots of people have to cope with different disabilities. My parents are unhappy with me. They think I am screwing up big time by not wanting to get married and have kids and not even dating anymore. They think I am depressed, but the truth is, I have never been happier. I don’t believe that I am “normal”, or that how I choose to go about my life is a good way for other people to live. Because it isn’t. My goodness, if too many people were like me, there wouldn’t even be a human race.

    Sooo, I lost all the defensiveness about it, and just tell my parents that I know that even though I am happy, I also realize that doesn’t mean that I am mentally healthy, the way I should be. Because let’s face it, what I am doing is abnormal. That recognition helps both them and me keep a more open mind about things. And, if I ever should meet somebody worth chaining myself to, I will be in a better mental state to accept it. Because I am admitting to myself, that would be a better way to live. Sooo, maybe you should try that way, too — instead of just being mad and resentful at people??? It kind of frees you in a way.

    Squeeky Fromm
    Girl Reporter

  11. Darren,
    You beat me to the punch with that kidnapping statistic. Chances are remote. Just as there is a chance one will be killed or injured by lightning or a tornado, the chances are remote. Obviously it does happen. However the very reason these cases make big news is the very fact of their infrequency. For example, there was a plane crash in Tennessee. Big whoop. Bad for the pilot and plane, but far less than auto accidents, including fatal ones. Statistics favor the status quo. However, some people, especially politicians and journalists. have a vested interest in peddling fear, to the detriment of the rest of us.

    Result? A term I never heard of five years ago. “Helicopter parents.”

    Robert A. Heinlein once wrote, “Don’t handicap your children by making their lives easy.” He was right. He also wrote that we should keep our children short on cash and long on hugs. An admirable sentiment.

    I have had repeated run-ins with CPS over the years. Quite often they have ruined people’s lives because at least some of them never met an accusation of abuse they didn’t like.

  12. Squeeky
    I came out to my parents at the age of 22… I lived in fear knowing that who I am was not acceptable in the home in which I was raised. I lived in fear of losing the only family I knew at the time, my own. And when I came out, that fear was realized and both of my parents didn’t speak to me, outside forced interventions like my oldest brother’s funeral, for almost a decade. We became strangers to each other… Is that how Love is supposed to be?

  13. Suicide Facts

    Suicide can be preventable through education. It is of the utmost importance that one is aware of the signs. If a young person shows any signs listed below, take them seriously. Talk to them, ask if they are thinking about suicide, and if they have a plan.

    Addressing this issue and seeking professional help could save a life.

    Facts About Gay and Lesbian Youth Suicide
    Suicide is the leading cause of death among Gay and Lesbian youth nationally.
    30% of Gay youth attempt suicide near the age of 15.
    Gays and Lesbians are two to six times more likely to suicide than Heterosexuals.
    Almost half of the Gay and Lesbian teens state they have attempted suicide more than once.
    It has been conservatively estimated the 1,500 Gay and Lesbian youth commit suicide every year.


    As someone who, at the age of 16 stood in the family livingroom with a butcher knife pressed to my abdomen, I know. I know the pain of knowing a deep secret that is killing you from inside while your parents say they love you but hate those gays… I know.

    Squeeky, have you stood in those shoes, before?

    1. Max-1 – sorry your coming out was such a mess. In my family it was no big deal. We all knew before my brother said anything. 🙂

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