Constitutional Law, Courts, Religion, Society, Supreme Court

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. What I think you Dems need to do is package this making businesses violate their religious beliefs vis a vis FORCING THEM to provide services @ gay weddings, something they believe sinful, w/ the whole War on Women meme as well. The War on Women worked very well last election, particularly in the state of Colorado. “Abortion on demand,” and “Bakers are bigots” should be your battle cries. I think it’s a dead bang winner for 2016. Hillary endorses both those battle cries. You will kick Republicans ass w/ that strategy. Lee Atwater came up w/ the Southern Strategy. We need a catchy title for this new Dem strategy. I will work on it.

  2. Yep, Borgies. LOL! And all those old gay couples, they are really secret swingers, borgies every weekend.

  3. @Jill

    You asked, “To be consistent, if religion trumps secular law on some issues, shouldn’t it be able to trump secular law on any issue of any believer’s choice? If not, why not?”

    No. Because if it did, then you could end up with bizarre results like you posited. That is why all laws (and rights) come with reasonable limitations. My goodness, there is a Federal RFRA law that has been in effect since the 90’s and nobody has successfully used it to commit murder that I know of. Pardon the word play, but reasonableness is baked into these kinds of laws.

    Here is some text from a version of Indiana’s RFRA law:

    Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

    Sooo, a Christian baker decides not to pay minimum wages, citing whatever. He will lose in court. The state will show a compelling interest, and that minimum wage laws are the least restrictive way to enforce that interest. Baker will end up paying back wages, and his legal bill, and probably a fine to boot.

    RFRA is not just an open ended, black and white, “Religion trumps everything else!” kind of a law, and the people who portray it that way, are just being disingenuous.

    Squeeky Fromm
    Girl Reporter

  6. Squeeky, you’ve never heard of heterosexual orgies? Should we discriminate against heterosexual horn dogs too, because of their “behavior”? What can’t handle the truth that human people are promiscuous? You really have a serious hang up with homosexual’s sexuality.

  7. Of course Squeeky, nothing like working in an AIDS hospice to sober one up to the realities of the human condition… kind of like the Germans having to bury the dead of those whom they wanted to disappear. NO?

  8. Squeeky,
    Imagine had the Nazi’s succeeded! No AIDS…. NO?
    So, what say you? No perversions, no AIDS, and of course, no buttsecks jokes from you…

  9. Squeeky
    Were the Nazi’s correct to include gays in their extermination plans?

  11. @Ingannie

    What’s the matter??? You can’t handle the sort of REAL problems going on in the gay community??? What, you just want to post Scott Lively videos, all about possible future SYMBOLIC deaths, and carry on about SYMBOLIC outrages, like un-baked gay wedding cakes, and ignore the REAL deaths???

    Here, read this link, too, about slammimg parties:

    Anecdotally, experts believe this is a key to a trend in rising HIV infection levels. Diagnoses among men who have sex with men continue to rise and reached an all-time high in 2012; 3,250 were recorded. London had the highest number of new diagnoses (1,450).

    “If you go to any heroin addict on the corner, they’ll know where to get clean needles from,” Mr Stuart said. “But if you ask a gay man at a sex party, he won’t know. Diseases can spread through careless injecting.”

    Jason (not his real name), a 37-year-old gay man from London, started using crystal meth four years ago, after his 11-year relationship ended. It improved his sex life and soon he started injecting it and going on three-day sex “benders”. Now he has hepatitis C and is HIV positive, which he blames on his drug use.

    http://www.independent.co.uk/news/uk/crime/experts-warn-of-rise-in-gay-slamming-9069571.html

    And since YOU brought up Nuremburg. . .You know, maybe Gen. Patton and others had the right idea in Europe. When they liberated a concentration camp, they made the Germans in the adjoining towns go visit the camps, and bury the dead bodies, and sweep up all the bones, and rotten flesh. That had quite a way of cutting through all the bullsh*t.

    Squeeky Fromm
    Girl Reporter

  12. DBQ,

    I was specifically asking the religious people to answer but I didn’t ignore your post. I’m sorry if I hurt you, it was not my intent.

    Squeeky,

    I don’t read the posts you referenced as answers to my question. I could be missing your meaning. To be specific: When a religion comes to power in a society and it allows the killing of other people who do not believe that way, I understand that you think this is wrong. But what makes it wrong? If a person can make a religious claim which sanctions some of their actions, why not all of them. The religious person is stating that they are acting from a higher morality than secular law. Since religion has many times given people the right to murder others in its name why should that crime be punished? Why doesn’t the religious exemption apply to murder?

    To be consistent, if religion trumps secular law on some issues, shouldn’t it be able to trump secular law on any issue of any believer’s choice? If not, why not?

    Like you, I also have seen the value of people’s religious beliefs in opposing oppression. In secular dictatorships that you mention, it has many times been religious people who have seen fit to protest that dictatorship and they have laid down there lives in opposition to it. It is equally true that secular people have opposed and laid down their lives opposing injustice in a secular dictatorship.

    This govt. certainly needs opposing. This means, in part, being willing to commit acts of civil disobedience. Still, the mechanism that is available to all citizens to resolve conflicts is the rule of law. However, our law is not above being questioned, Everything is open to question and opposition. For this, we have a powerful mechanism, peaceful protest and civil disobedience. These questions, these actions come out of people’s conscience–sometimes they may be religiously motivated or in other cases, ethically motivated without regard to religion of any kind.

  13. I usually don’t agree with Justice Antonin Scalia, however on this account in 1990, he was 100% correct.

  16. An easy way to avoid paying taxes… deeply held beliefs.
    Become a church unto yourself! Or, how to start a business and avoid paying taxes.

  18. Squeeky, can you try to not sink to posting graphic sexual scenarios? Do you think this enhances your argument that gays are not equally human and are deserving of discrimination? You have a very base way of arguing.

  19. @Max-1

    Your ASD is rubbed off??? Hmmm. I thought so!!! See, I tried to warn you about this kind of stuff, but nooooo! You listened to Ingannie, instead.

    People are often awake for days with no food or water, just fizzy drinks and Dunns River Nurishment [a nutritional milk supplement],” Tim told me. “But the stupid thing is that no one can ever [climax], because crystal meth stops you [climax]ing – as does Viagra – so it’s just never-ending sex. It’s painful. Most people end up with no skin on their dicks and some end up in hospital because of panic attacks brought on by too much crystal,” he continued.

    http://www.vice.com/en_uk/read/the-week-long-meth-fuelled-sex-parties-taking-over-londons-gay-scene

    Anyway, try some stuff called “silvadine” cream. It is kind of expensive, but it will help you heal up. And quit listening to all the bad influences around here!

    Squeeky Fromm
    Girl Reporter

  20. http://www.alternet.org/belief/our-coming-theocratic-hell-rights-religious-freedom-push-just-beginning

    Our coming Theocratic Hell.

    “Given that RFRAs don’t specify to which religion they pertain, if they do legalize discrimination, they will do so ecumenically, offering adherents of all denominations a chance to bully both rationalists and believers of other cults. Presumably followers of the Torah, say, could deny service to those who have performed any of thirty-nine types of activity forbidden on the Sabbath. If so, beware — these include some pretty improbable things, like putting out fires, writing one’s name and erasing it, flaying a goat and separating threads. Especial woe to gays performing these things on the wrong day of the week! Jews and Christians might wish to unite in denying service to Muslims, because, obviously, neither of their magic books recognizes the Islamic magic book. But such an inter-faith alliance would be short-lived. How long would it be before Christians revive the age-old charge of deicide against the Jews and halt all service to the “murderers of Christ?””

Comments are closed.