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.
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There’s a lot of fuss over a piece of cake and a picture. I’ve tried to look at this issue from both the minority couple’s (MC) view and the religious business person’s (RBP)view.
MC wants a wedding cake, which is against the RBP religion to accommodate the customers request. As a minority person, I have the right to go to another baker or have a private person bake the cake for me, or I can bake it myself. I have other choices! I wouldn’t want the RBP cake anyway, because now I cannot trust the quality of cake.
As an RBP, I have vowed to follow my religious beliefs, one of which is to honor all people, but to still live true to my religion. I would happily sell cookies, two layered cakes, and crumpets to ALL people–there is no religious implication that goes again the gain of my personal religious beliefs. However, if I bake a wedding cake for a gay couple, I am condoning an act that I do not believe is in balance to my religious beliefs.
Now what does this have to do with civil rights? As a baker I will sell any of my wares for consumption to anyone who is willing to pay for them, but a wedding cake is different. People who believe in the age old traditional marriage between a man and a woman have the right to not bake the wedding cake, just as invited guest have the right not to attend said wedding. The minister has the right to refuse to marry the gay couple. They too have civil rights.
The argument that Southern Black civil rights and gay rights are quite different, in fact are at opposite ends of the pole. Blacks were not given options and choices. They could not go to ANY lunch counter or order a wedding cake in the south, whereas the gays have other options.
Gays are not a race Blacks are a race
Gays can walk into any front entrance Blacks could not
Gays can buy anything they want Blacks had limitations
Gays can walk on any side of the street Blacks could not
Gays can get work according to their skills Blacks could not
Gays can get quality education Blacks could not
Etcetera and so on
There is little to no comparison!
Some of the legal types with extra time on their hands may find this interesting. It concerns lawyers, and their ability to pick and choose their clients vis a vis the rights of protected classes.
http://www.albanylaw.edu/media/user/faculty/begg/lawyerslicensetodiscriminaterevoked.pdf
It’s 73 pages, but most of it is footnotes.
Squeeky Fromm
Girl Reporter
I always see the terms: “liberal dems” on this blog. Often they are supposedly the proponents of gay rights. Does anyone out there remember the groups in each state called The Log Cabin Republicans? What was their agenda?
Guess I missed a lot on this thread, had problems today trying to help a good friend and her failed attempt to rescue and domesticate a feral animal. She is crushed it didn’t work out (more of a disaster) and I had to tell her that we all have a failure at this effort now then…me included. She had 7 months invested in money and effort, so the failure hurt a lot.
Anyway I see Squeeky managed to post the “feed” of comments that include me and “anneinpt” once again. I am always happy for any exposure “Anne’s Opinions” gets…Anne is a friend as I’ve said and does a great blog on Israeli affairs and the Middle East in general. Hope it stays up…it surely does not offend me in any way.
Whew….thank goodness. Finally……..It seems that Max and Inga have passed out on their keyboards. Hope they don’t get keyboard face.
https://agileirony.files.wordpress.com/2012/07/face-keyboard-sleep.jpg
thanks Cnidaria II, but my latina wife has other plans for my “guero” behind
http://www.cyberpsychos.netonecom.net/cnidaria/index.html
Join us.
I really enjoy Scarface, with Pacino…love it when Mr. Sosa is addressing Tony at his palatial estate in Paraguay. “Tony, Do you remember my associate Alberto?…He’s an expert in the disposal business, but he speaks only Spanish, needs a little help in the States…Tony responds, ( in a tone dripping with sarcasm), “Oh yeah Alex, how my gonna forget him”…the camera pans to Alberto, his head titled, with a blank /flat affect, looking very much like a mindless sociopath, content to do Sosa’a bidding, no matter how diabolical and shocking. Scarface is another cinematic masterpiece…a tour de force for Al. Love the motel scene at the Sun-ray Motel…”a bunch of whacked out Indians”…LOL!
Squeeky, you seem like a very good sort and refined to boot…what a rare treat, especially on the internet! As a double feature I’m going to watch “Rolling Thunder”, with William Devane, courtesy of aplantage
Squeeky, I have it on DVD, I am afraid to loan it out, as it is out of print and difficult to acquire. To bad you’re not local you could come over to East LA and watch it with me and the hommies! my wife is latina, and it is her favorite movie…no joke!
@Cnidaria
Is that movie coming on TV??? If so, what channel, and I will DVR it. Tonight, the 3rd season of Orphan Black comes on, and also the new episode of Outlander.
Squeeky Fromm
Girl Reporter
this blog has become civil and graciousness abounds…beautiful, a metanoia has occured
google the scene where Sgt. Troy bedazzles Julie Christie ( Bathsheba Everdene) with his sword play…the scene is electric and the music and lighting are cinematic gold. I’ve watched it innumerable times, it’s like “turkish delight”, only better.
Tonight I am going to watch, far “From the Madding Crowd,” one of the greatest films ever made, Thomas Hardy’s masterpiece. Terrence Stamp knocked the Sgt. Troy character out of the ball-park.
Jill you have no authority to start any Church, nor does anyone else…why?…because it was started in Jerusalem 2,000 years ago, that’s why. All peoples are bound to become it’s members, not start anything NEW. Your question does not warrant a response…I’m still unclear precisely what you keep asking…better still answer my question, how can you support a political party that endorses ABORTION on demand? The liberals are becoming a tragic anachronism that nobody supports save you and few tragic bleeding hearts…I’m a registered democrat, who has consistently voted Republican in recent years, due to the abominable politicians who are representing a once excellent party. AIDS is a major outgrowth of men buggering each other, it’s a statistical fact, accept it, you will sleep better at night…remember my friend, “the truth is a sobering reality”…true dat!
@Max-1
I always loved the lumberjack scene. I uncovered this a while back trying to find a Shanghai Lil video on youtube. Which was in an old Busby Berkeley production from 1934 called Foot Light Parade starring James Cagney and Ruby Keeler among others. I just finally bought the whole movie on DVD last week. Anyway, here is a fun version of the song. It starts about 1 minute and 25 seconds in:
https://www.youtube.com/watch?v=z6W-2z5_5dU
If you are curious about the original film, it is on daily motion, here:
http://www.dailymotion.com/video/xjzpoy_footlight-parade-shanghai-lil-1933_music
Squeeky Fromm
Girl Reporter
Squeeky
@Max-1
You said,
Well, you must have a bad case of wax in your ears. What I have said is that if you had a lick of sense, you would quit worrying about Christians not baking you a stupid cake, or some Christian in Uganda preaching that gays are the spawn of Satan, and start worrying about the thing that is actually killing large numbers of you.
IMHO, gay men need more stigma attached to what they do, not less. Less stigma, and more tolerance, is killing the crap out of you. I have posted links to that before, but I doubt you ever read it, Paradoxically, the countries where gays are arrested, and jailed, or stoned, or thrown from high places, are probably saving many more gay lives than they are taking. Because the fear of defenestration tends to reduce the number of hookups, and thus reduces the chance of getting HIV/AIDS. Particularly in countries like Uganda where there is already a lot of disease, malnutrition, and immune system compromise.
That is a very sad comment to have to make.
Squeeky Fromm
Girl Reporter
@bettykath and Max-1
Eau Contraire! (which is the parfum I wear) – here is what the CDC says about HIV/AIDS in the United States, where most of us live! I have posted this many times before, sooo there is really no excuse for the continued ignorance:
http://www.cdc.gov/hiv/images/web/statistics_basics_HIV-Infections-2010_550x237.jpg
http://www.cdc.gov/hiv/statistics/basics/ataglance.html
Sooo, it’s mostly men who have sex with men who get infected now, There were some early cases where people got it from tainted gay blood. Which is why Gays can’t donate or sell blood, still. Let’s do some back of the envelope math. 320 million people in the country. Assume half of them are women which is 160 million. Assume 98% of those women are straight, is 156,800,000. 7,800 of all women got HIV last year, mostly black (5,300). which represents, 7800/156,800,000 =.00005 of us. Which is a pretty small number. BTW, heterosexual men don’t even show up on the chart.
So no, HIV/AIDs is pretty much a gay problem in this country. Women can get it, and nobody is safe, but the risk is primarily on gay men. I mean, do the math. 7800 women go it, and about 30,000 men who have sex with men.
Squeeky Fromm
Girl Reporter
Well, speaking of gay stuff, I am watching The Girl of the Golden West that I DVR’ed from TCM earlier. Sooo, here comes Nelson Eddy on horseback singing Soldiers of Fortune, of which I can not find a video of, but I’m thinking to myself, I have seen this before…all the horses, and him leading them,and singing and stuff. Like in the Mountie song my father used to sing in the car. Sooo, sure enough, I found this one with three of the same sort of songs! Including the my favorite Mountie song, from Rose Marie.
https://www.youtube.com/watch?v=Gxa6uZcQ4hU
Squeeky Fromm
Girl Reporter