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.
*Nuremberg*
The Hoosier Nuerembrg Laws. Rabbi Sandy Sasso compares them to RFRA.
“Of course, you will have every right to sue the paramedic in court for damages seeing that he refused to treat you because of the pro-gay marriage logo on your tee-shirt. Or the Muslim headscarf on your head.
In court, however, said paramedic will be able now to invoke RFRA in his defense. And the burden of proving in a court of law a “compelling governmental interest” of the paramedic providing treatment will be on you, a burden likely to be substantial both in monetary and opportunity cost. You might have some luck crossing the Red Sea, as it were, in front of a sympathetic, rational-minded judge. Just don’t wind up dead first.”
http://www.nuvo.net/NewsBlog/archives/2015/03/26/the-hoosier-nuremberg-laws?utm_content=buffer72d12&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer
@Jill
I think I have answered the questions, many times. See 2:37 AM, and 3:03 AM above, for egs. If you think that I am still not answering, please rephrase the specific question that you want me to answer, and I will.
As far as slippery slopes, and the idea that “Freedom of Religion-y” stuff can run amok—then yes, it can. It has happened in the past with many religions, like Christianity, and whatever faith system the Mayans had, and is still occurring with certain Muslims. However, I think that the refusal to bake a gay wedding cake or photograph a gay wedding ceremony are a pretty far shot from say, cutting out the beating heart of a sacrificial victim to the Winged Serpent God.
I think you should also consider what happens, in a very practical way, what happens, and what slopes there are, to prohibiting people from acting according to their religious consciences. Like maybe, Nazi Germany, or North Korea, China, the Soviet Union, Cambodia, many places in the Middle East, etc. etc.
Do you really think all of the people who did, participated in, and continue to do all the butchering and punishing of dissidents in some of these places had no religious convictions that it was wrong??? But, they were not permitted to say, “Uh, Papa Joe, I really don’t want to shoot these Kulaks and whoever else! It don’t seem Christian some how. Can I opt out???
That is also a far cry from compulsory cake baking and flower arranging, but those things didn’t happen back in the 15th century, but like within living memory. And currently.
Squeeky Fromm
Girl Reporter
Not one religious person has yet to grapple with what Mike A’s post is trying to point out.
Well, Jill. I answered your question and quoted a couple of passages from Mike A’s post. But, since I’m not especially religious, I don’t count in your eyes. /shrug.
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.
I assume that this is the fundamental question you have in mind?
A religion or religious scruples as in your ridiculous example of a religion that murders is obviously not going to be allowed. Murder in society is criminal. The compelling social value of not having people running around and murdering others is going to trump religion every time.
I agree that gross discrimination is not to be permitted. A religious scruple against serving gays or blacks or whatever, does not trump general law when it comes to public establishments or businesses. In other words….you can’t use your religion to refuse to make a hamburger or sell a dress or change the oil in a car or rent a room in your motel. If that is your problem, then you shouldn’t be in a public business. Compelling societal value requires that all be treated equally in the public square and the public market place. Public.
However, the compelling societal value doesn’t demand that I be forced into a private contract to be compelled to do work for you…..for any reason. I can refuse to be contracted and not have to give you my reason. If that reason is religious and because it is not in the public arena, that is my right. I may just not like you for all sorts of reasons that are not religious. Maybe I’ve heard that you are a dead beat. Maybe you are just a giant a-hole. Whatever. You can’t force me into a private contract. You can’t force me to associate with you …OUTSIDE of the public business that I may have and certainly not in my private non business capacity.
Explain what the compelling societal value of placing a person into an involuntary servitude capacity might be.
sorry Squeey, my keyboard id a bit used… my ASD is rubbed off.
Aqueeky
The original is so much better…
Nick
What of the financial effects of forcing women to bear their unwanted children who become wards of the State. Will you be willing to pay for their keep? You know, welfare…
Alternatively, if Mr. Bessinger relied on RFRA as his defense perhaps the Supreme Court would have used his case to strike RFRA. Still hoping.
It is amusing that these “religious freedom” laws are being used to deny gays services… and yet when I look at the demographics of the State Legislatures that pass said laws, I don’t see anything but a plurality of Christians doing this and who mainly belong to a political Party that still has an anti-gay platform on it’s National agenda. Now, these same people/candidates will hold up Islam as an example who they need to fight, and say that Islam encourages death to gays, and it is Islam that restricts women’s choices, and that it is Islam that… blah, blah, blah. YET, the plurality of these restrictions toward women in America and pro-gay hate is found in one political belief, Christian Conservatives of the GOP. NOT Islam.
Back on topic.
“Had the Religious Freedom Restoration Act been in effect when Mr. Bessinger was sued, might he have prevailed? Perhaps.”
However, I would hope that the RFRA would have undergone scrutiny in a prior case and been struck down precisely because it allows individuals in their businesses to discriminate. Perhaps the question raised by Mr. Bessinger’s case would have been settled by a challenge to RFRA and Mr. Bessinger’s case would have been definitively settled in a lower court by referencing the Supreme Court decision on RFRA. One can hope.
I give facts. And what do we get back, emotion. The polls don’t lie. The science does not lie. I’m just stating what Dem pols are realizing, their lemmings haven’t gotten the memo yet.
Cnidaria,
You still won’t answer my question. Not one religious person has yet to grapple with what Mike A’s post is trying to point out.
Squeeky. I’m not trying to trap Cnidaria or anyone else. I could start this church. However, I also mention the well known history of the Christian Church slaughter. If you need to start from examples of things which have happened and are happening now, the knowledge of one church or another murdering others for failing to believe the way they did/do is readily available.
I am not telling you to stop speaking your mind about gay people and I am not asking Cnidaria to stop speaking against abortion. I am asking Cnidaria or any other believer to answer the fundamental question posed by Mike A’s post. The fact that not one of you is willing to take on that fundamental question speaks volumes to me. Honestly, you should be able to grapple with this reality and this question, yet none of you will do so.
In the very generic pro abortion/pro life polling done by Gallup, 20 years ago pro abortion led 56-33. Currently it is 47-46. Science has changed the debate. We can see the baby in utero. They are viable much earlier in life.
@Max-1
If you want to believe that Jesus smiles whenever some gay guy services a stranger in the city park, after dark, then go ahead! You should have your own personal Jesus!
https://www.youtube.com/watch?v=-bXcey_GVK0
Squeeky Fromm
Girl Reporter
Another example of the compassion of zealots:
http://www.alternet.org/labor/scott-walkers-new-budget-so-brutal-even-republicans-are-afraid-it
“The budget hacks away at some of Wisconsin’s most important programs for seniors. Walker is looking to cut $15 million from SeniorCare, a prescription drug assistance program for residents who are 65 and older.”
“Walker is also taking aim at a Wisconsin program called IRIS, which is an option for Wisconsin residents with long-term needs that allows the disabled to select their own caregivers and provides them with a budget for support services. Walker wants to cut $19 million from the program, which according to a story in the Wisconsin Gazette, adds up to about one million fewer hours of personal care.”
Nick,
Are you ready to take in the unwanted children anti-abortion laws foist upon society? Are you willing to bury the dead women who, through desperation, die in home abortions?
gotta love the relleno and arroz c;mon guys cant i eat in peace, max, you are trying to hard, methinks you sound like a clanging cymbal, who are you trying to convince, me or you
Cnidaria
p.s.
John 8:7 They kept demanding an answer, so he stood up again and said, “All right, but let the one who has never sinned throw the first stone!”
Since we’re all sinners… why clutch stones, anyway?
We should encourage people like bettykath to profess “Abortion on demand” as much as they wish. It is a recipe for failure. Her ilk simply do not see it.
Squeeky (kill the gays)
Why don’t you just deal with reality??? The Church says that homosexuality is wrong
= = =
What did Jesus say about gays?
We know what the “church” says…
… But what of their Christ?