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.
Squeeky … I am aware the link/feed was posted twice, here and on the cattle call thread. It is now missing on both. I didn’t put the comment link/feed up, it appeared as though you did and I believe DBQ on the other thread. Has someone hacked our computers or what? 🙂
Maybe I just need moar coffee. However I still find it hard to believe that a link/feed of remarks, many by me elsewhere, was just appearing coincidently…it was put up by someone. As I said, it offended me not one bit. On a scale of 1 to 10, it is at best an 0.5…so be it.
Paul C. Schulte
Max-1 – how many rapes end in a child?
= = =
I don’t know. Ask a Catholic Priest…
Max-1 – <blockquotePaul C. Schulte
Max-1 – how many rapes end in a child?
= = =
I don’t know. Ask a Catholic Priest …
Are we talking homosexual rape?
Dust Bunny Queen
Believe whatever nonsense you want to believe, just don’t try to impose it on others,
I suppose that also goes for forcing people to participate in and approve of gay marriage? Don’t impose your beliefs on others.
……crickets……
I thought not.
= = =
So I don’t have to support Newt Gingrich’s third marriage after all…
… Based on his SIN of serial adultery, and all.
PhillyT said …
If all things really were equal and power was shared equitably across the spectrum, none of this would really be a problem.
I get your point, and agree with much of it, but reality sort of steps on it.
1.) How about the pharmacist who refuses to fill a prescription by a highly regarded physician (in one instance he was the Chief of Infectious Disease Medicine at the major teaching hospital here, another time he was the Chief of Executive Medicine at the same hospital system) because the he or she pharmacist doesn’t think it is proper? This while they do have it in stock. I’ve been through that and now only shop at a hospital system pharmacy where no stranger gets to sharp shoot my doctors. I appreciate advice and counseling by pharmacists, but not out right refusal to serve me legitimately. They didn’t just answer a “what if” question, they flat out said, no I won’t act in accordance with your legal prescription…denial of service. Was I discriminated against?
2.) As far as the dinky pizza place and RFRA is concerned; did they actually refuse service to a gay couple or was it just a response to a “what if” question by a reporter? Whatever happened after that first reporter contact is beside the point. I’ve not bothered to keep up…it is that silly. Simple response, however unpleasant, is exercise of free speech. Did they ever actually deny service? [Not that I have found any record of to date…correct me if I missed it]
3.) The guy who went with camera crew and lights to several Arab Muslim bakeries near my house, and edited out all but two of them, expect them to answer “yes” to his “what if” question about a gay wedding cake…given they saw the cameras and knew they’d be a feature somewhere….a feature that would put off 95% of their regular day to day clientèle if they had answered “yes” to the gay cake question….on camera. I live where that guy did his shtick and know with certainty that most of the Arab Muslim bakers here would do a Bar Mitzwah cake on request, seriously, one on one, but not say so on camera. Money is money & business is business…until a reporter with camera crew shows up. Who was being discriminatory here? No one actually tried to order an actual gay wedding cake…just talked about it.
All this “conjecture” and “bait” reporting gets old fast IMO. My favorite Kosher Deli in the suburbs happily makes my Dinty Moore sandwich, even though it combines dairy with meat….and serves it to me with cheese blintzes to boot, with chocolate milk on the side. Bring along a camera and crew and I suspect they might demur….and I’d not blame them. What is the cause, real bigotry or fear of negative publicity for their primary clientèle? Which only coincidently includes me the Goy whom they serve willingly, even when it means a separate cleaning for utensils used to make the Goy’s sandwich.
If I, you, or anyone else answers honestly about something we’d prefer not to do when the question is merely a “what if” …is that a thought crime? Or what? Unacceptable speech? Who decides? Like I said, this type of “reporting” wearies me no end…it is pure BS.
@MikeA
OK, so you said that I “cheapened” arguments, and I wrote a very good response to you to illustrate the difference between “cheapening” an argument, and “clarifying” an argument, which is how I classify me.
But, it had one or two naughty words in it, and I just couldn’t get it through the filter, sooo—I did an article on it, and here is the link!
https://squeekyfrommgr.wordpress.com/2015/04/19/hail-to-the-cheap/
Squeeky Fromm
Girl reporter
@aridog
Oh, I figured it out for you!!! You put those comments on another thread, not this one! It is on the “Cattle Call” thread.
Squeeky Fromm
Girl Reporter
Christians (so-called)… looking for loopholes, in order to square “sodomy”, as some kind of noble, virtuous lifestyle, that should be endorsed, is like trying to nail jello to a walll…LOL!
Aridog- thanks for the anecdotes! The second one got a good couple of yuks.
I believe most of the people who argue against RFRA would also be in favor of the gun stores not selling to people who they feel are trouble/stupid/wild. Or am I mistaken, and absolutely gun stores should sell to every person who passes a NICS check, no questions asked, lest you be sued for violating rights?
@DBQ
You know, I just had a vision of a Parade of Horribles! You know, when bands audition for new guitarists or vocalists, they can just pick and choose whoever they want. Sooo, what if the band was like a Christian band, or maybe just homophobic??? OMG, they could just discriminate against gay people, and like gays wouldn’t ever be able to perform and sing and stuff!!! Oh, this possibility is just driving me into hysterics!!! But, just keep this to yourself because I don’t want all the gays trying to force non-discrimination laws on bands. 💡
Squeeky Fromm
Girl Reporter
http://www.vice.com/read/how-i-left-my-fundamentalist-upbringing-and-found-feminism-414
“I am a long way from my conservative roots, and yet, I find myself in good company. There’s a large group within Christianity nowadays who can effectively be called “post-Evangelicals.” We’re millennials, mostly, who grew up in the fundamentalist Evangelical churches of the 80s and 90s, and who have disengaged from those beliefs. There’s quite a few of us, considering as many as three in five young Christians leave the church by the time they turn 15, according to a recent national study by Barna, an Evangelical research group. We’ve found new ways of thinking and new ways of enacting our beliefs in God, usually resulting from the realization that gay people are, y’know, people, and that our former church is generally run by white, cisgender, straight men.”
**************************
Some grow up, start thinking for themselves and leave. Some don’t.
http://recoveringevangelical.com
Believe whatever nonsense you want to believe, just don’t try to impose it on others,
I suppose that also goes for forcing people to participate in and approve of gay marriage? Don’t impose your beliefs on others.
……crickets……
I thought not.
@Philly T
Gee, but you seem awfully obsessed with what people are baking in their ovens. And it is your side that wants to FORCE and COMPEL people to do your bidding. Sooo, like who is invading whose space here???
Squeeky Fromm
Girl Reporter
@aridog
I don’t know anything about it. It looks like the moderators sometimes delete stuff, but I am sure they have good reasons. There have been a couple of food fights that I was following, and then when I left and came back to them, “Poof!” the whole squabble was erased. But I guess they are just trying to keep us all on point when they do it, because back when they just gave warnings to some people, it didn’t seem to work.
Squeeky Fromm
Girl Reporter
Sorry DBQ but the way the RFRA currently operates, pharmacists ARE allowed to deny services to people (usually women seeking birth control or so-called morning after pills), and in many instances the pharmacist is no longer required to make arrangements for the person to get what they came for. They can simply refuse service. Most of these pharmacists do NOT own the pharmacy.
This concept applies to many types of employees and is not just about business owners.
While I understand that most people would rather not buy from someone who does not want to sell to them, we don’t always have a choice. If all things really were equal and power was shared equitably across the spectrum, none of this would really be a problem. But things are not that way and never have been, and so it becomes necessary to protect the access and rights of the less powerful and the minorities.
And “Cnidaria”: you seem AWFULLY obsessed with what other people are doing in their bedrooms. Your fascination with gay sex might be trying to tell you something. In the meantime, should you decide you really are not gay, you should just realize that if you don’t want to have sex with someone you don’t have to. Believe whatever nonsense you want to believe, just don’t try to impose it on others, EVEN IF YOU THINK THAT’S WHAT YOU”RE SUPPOSED TO DO! Because you’re not supposed to!
Gay people should be treated with respect, dignity and as much kindness bestowed to any other citizen. However, I do not feel they should be allowed to marry. Marry is between men and women…and the Church views procreation as “hopefully”, a by-product of this sacred union. Homosexual’s cannot create families from their union…”buggery” sadly creates two things which are deleterious to the males. Spiritual death for the soul and disease, which culminates in a horrific death. Virtue is not a by-product of this union, only disease and eternal hell-fire, for those who die unrepentant. I have known a gay couple who compound this sinful lifestyle by receiving the Eucharist while living in this “forbidden” union”!
Squeeky … looks like your post/feed/link has been removed. I really don’t get why, but this is not my blog, so I will go along with what the operator(s) choose to do. Though I am featured in that link/feed I was not offended by it in any way. Must be some other reason. So be it.
@ Philly T
All of your examples are of employees. If you are hired to do a job then you cannot refuse to do the job the you were hired to do or actively break the laws.
However, the choices that are being disputed are those of the business owner. If you own the pharmacy, you can chose not to have certain products in your business. Cigarettes, candy, certain brand names, liquor and yes, even contraceptive. There are plenty of other places to buy those things.
You can’t refuse to serve certain people….that WOULD be discriminatory. But you can decide not to carry certain things in your business.
As to the wedding cake issue. The baker makes donuts and has them in the store and they are available to everyone who walks in the door. To do otherwise IS discriminatory and illegal.
The wedding cake is a contract transaction separate from the daily work of the bakery and a project that isn’t generally available to the general public. It is a one off, special order arrangement. A contract is a voluntary agreement between two willing parties.
I ask the baker to make me a special cake for a special event and describe to the baker what I want to have done on the cake and how I want it to look. In exchange we negotiate a contract price for the delivery of the product. This is a CONTRACT. I, as the baker or any other contractor, have the right to refuse to be contracted. I can decline to be contracted for many reasons and I don’t have to tell you why.
A contract is not part of the public accommodation rules or part of a general business that is open to the public.
Steg … the range I belong to as a paid membership also has a firearms store. They regularly refuse to allow anyone who cannot demonstrate proficiency by history to take a course they offer on weekend mornings on gun handling and safety before they are allowed on the range itself. I agree totally. Albeit they have allowed me to be the trainer now and then when a newby wanted to learn to shoot so long as I was with them in their assigned shooting booth. True new guys or girls are easier to teach than the self anointed experts who have baggage to be dealt with regarding safety.
My worst instances with “new guys” was back in my cadre days at Camp A P Hill (now Fort A P Hill) where the newly minted doctors (Medical Corps Captains) and lawyers (Judge Advocates Lieutenants) were given 2 weeks fundamental military training…because they were bright and too curious…the “Forest Gumps” were much easier to handle. Shooting was the hardest thing to teach the Doctors and Lawyers, but Orienteering was the funniest as those guys got lost 80% of the time just using a simple compass. Then we had to go out in to some swamp to rescue them 🙂 …never mind that we also had to suggest they put out their doobies. We gave them a lot of leeway, quite simply because we all knew that one day we might need them ourselves…as I eventually did for the Doctors in an Evac hospital by and by.
Just wanted to add my thanks to the others. Very well-written piece. Thanks Mike.
I think the RFRA should be repealed. Flat out.
The Amish boy on rumspringa has no right to take a job at the DMV and refuse to issue licenses. The pharmacists’ job is to fill prescriptions and advise people about how to take the medications, and maybe keep track of possible drug interactions. If he/she doesn’t want to fill certain prescriptions for certain people, he/she should get a job doing something else.
IMHO
I thought of possibly another ‘refusal of conscience’ scenario which I don’t believe has popped up yet. Federal Firearms Licensees (Gun store owner)- these people are allowed to not sell anyone who walks into their establishment a weapon for any reason they feel. Like if they just suspect the person is off, they have a bad feeling, anything!
If we take this idea forward, we have the precedent that nobody can be refused service. Which will come back to be a big mess when the FFL is legally forbidden from NOT selling the gun to the person he believes is a future liability. That person then goes and commits one (or more?) of any number of horrific firearm crimes.
This is directly dealing with a codified right the people retain already, so it is that much more serious.
—
I don’t think this is a perfect analogy, in that a homosexual couple getting married is not going to take their marriage and shoot people with it.
I do think it works in that they are both perceived rights, and both related to a business owner’s conscience. While the gun store owner has their own as* and conscience to think about, they also bear a certain responsibility to the community to be discerning with their customers. The baker is not in the same situation with the product, but they also retain the right to have freedom of thought, of belief. If they believe what they are asked to do is wrong, they are free to not do it.
From the 98th post of the original RFRA Hath Wrought,
” Should the government forcibly coerce participation in an event which the private party does not wish to engage? No. Doesn’t matter if it’s little Lucy Brown’s tee ball game, the government cannot compel her neighbor to attend and cheer her on.”
That needs more. Her neighbor was also a professional game-watcher, has watched her practice in the park for fun, but declined her family’s offer to be paid to watch the game as the neighbor only does ‘Professional’ games.
I am sort of fumbling this a little, but my point is a much less eloquent version of Bob Stone’s- the freedom of conscience, of association.
I think that ultimately what it comes down to, is if the people pushing for religions to succumb to their new rules, that the religious folk will opt out of the larger society altogether. If you make the legal markets too much of a burden, and inconvenience, not worth the trade off of doing business legally- you grow the black market. Cost benefit analysis will show that at some point, it is better to go underground than wave a sign saying ‘attack me!’. OR we could see a huge push back as the religious folk overwhelmingly run for office and THE GREAT THEOLOGY ARRIVES!!! Look for folks to run underground then, too.
Then, as with most black market businesses- you must settle your disputes outside of our country’s legal arena.