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. @Max-1

    Hurray! You finally asked a legitimate question! 🆒

    Squeeky (kill the gays)
    Is there a difference between selling a product to the general public equitably…
    … And forcing a customer to believe in your faith so as to sell them a product?

    Here is my OPINION. 99.9999% of the time, NO—there is no difference. On a few things, forcing somebody to make a product, or provide or a service can infringe upon their faith, and by doing that, make them “believe and act in furtherance of your faith (or belief system) ” as opposed to their own.

    The best example is weddings, where a few very devout Christians believe that sodomy is an abomination, and that a “gay wedding” makes God sad. Personally, I just think it makes him snicker at silly humans who can’t even get sex right. Kind of like when your pet is chasing their tail. Hmmm. There is something about that analogy. . . 🙄

    Squeeky Fromm
    Girl Reporter

  2. Cnidaria,
    Using your logic of zero to nowhere fast, then:
    A 30 year old man who rapes a 12 year old girl is purly acting on his heterosexual impulses… YES?

    1. Max-1 –

      A 30 year old man who rapes a 12 year old girl is purly acting on his heterosexual impulses… YES?

      No, he could be heterosexual or homosexual with no other outlet. Situational.

  3. Cnidaria,
    Way more “straights” commit pedophilia and are arrested for it annually.
    So, why target the LGBT community as ‘THE PERPETRATORS’?

    Again, Catholic Priests that engaged in pedophilia are pedophiles…
    Pure and simple. No ‘homo’ about it because there was no consent.

    Oh, there’s that magic word, consent rearing it’s ugly little head…
    … As IF “two consenting adults” is a scary proposition for the GOP.

  5. Cnidaria
    The difference between you and me is that I don’t blame you or the straight community for this…
    … Because I and others can disassociate our disgust from their sexuality and hold them individually responsible for their acts.

    Concord male nanny charged with child molestation
    http://www.contracostatimes.com/breaking-news/ci_27927042/concord-male-nanny-charged-child-molestation

    2 men indicted on child molestation charges
    http://www.timesdaily.com/news/crime/men-indicted-on-child-molestation-charges/article_77d75f8c-3ee4-532b-81c5-7618a93a818e.html

  7. Homosexuality is rampant in many religious communities of sisters/brothers, ie monks, as well as diocesan clergy. This is a fact without equivocation. The Archdiocese of Los Angeles paid out a staggering 600 million dollar out of court settlement, to silence the voice of the molested and to allow predatory homosexual priests to go free. Many Bishops are gay, and for years did not mind ordaining men into the ministerial priesthood, because these “queens” were on the same team! I am a devout Catholic who feels strongly that all “gays” should be outed from the seminaries and “all” religious communities, due to the grave scandal and sin that they commit, under the guise of a religious vocation.

  8. Cnidaria
    Instead of crucifying me at your altar, try asking me my opinion about the Roman Catholic Priest pedophilia and child rape cases for a change.

    1. Max-1 –

      Cnidaria
      Instead of crucifying me at your altar, try asking me my opinion about the Roman Catholic Priest pedophilia and child rape cases for a change.

      Max, I am kinda hoping your are not for them.

  9. Cnidaria
    you already misrepresented my comment above. Care to try again or do you regularly bear false witness?

  10. Max brought up a point…though invalid and completely distorted…allow me to puts things into focus, greater clarity…extinguish all ambiguity. Max mentioned “boys” who are raped, allegedly by Catholic Priests. These priests he is referring to are blatant and admitted homosexuals…yes folks, HOMOSEXUALS…the demographic that turns on the “hot” button is under age males, usually those who have just entered puberty, but some younger. Over 90% of all sexual molestation of minors in the Church is due to ‘flaming” homosexuals, who were admitted into the seminary, when their superiors knew they were “gay”, and many were even having openly gay relationships, whilst in seminary. Since Vatican II, the Church has ordained in staggering numbers, overflow in fact, a clergy that was gay, is gay and remains gay…they seek out underage males to have clandestine romance, as they believe it is safe, not caring for an instant that they destroy the psyche of the child and bring grave scandal upon the Church, not to mention committing horrific sacrilege, compounded due to the sacred office these men hold!

  11. James Dobson, founder of both Focus on the Family and the Family Research Council, invited a number of high-profile anti-gay activists onto his radio show this past week in a discussion about the Supreme Court’s upcoming cases on the constitutionality of state bans on same-sex marriage.

    Joined by Liberty Council’s Mat Staver, nutty pastor Rick Scarborough, and American Family Association President Tim Wildmon, the hate panel discussed why marriage “is not a state’s rights issue” as well as what next steps anti-gay activists must take should the Supreme Court uphold the right for states to deny marriage to gay couples.

    “This is such a fundamental issue, it is not a state’s rights issues any more than life is a state’s rights issue or slavery is a state’s rights issue,” Staver declared. “Those issues are so fundamental they transcend geography.”
    [soundcloud url="https://api.soundcloud.com/tracks/201098907" params="color=ff0000" width="100%" height="166" iframe="true" /]

  12. Max, the right seems to be in panic mode over gay rights. They see the handwriting on the wall indicating that the SC is probably going to rule in favor of gay marriage.

  13. Annie,
    People of all walks of life often band together with like minded individuals.
    I’ll only question why belong to a Party where you aren’t wanted, respected, or valued? Answer: stockholm syndrome

  16. Annie,
    It’s really just a puptent… Sheldon Adelson provided the red paint for the stripes.

  18. Squeeky (kill the gays)
    Is there a difference between selling a product to the general public equitably…
    … And forcing a customer to believe in your faith so as to sell them a product?

  20. BarkinDog
    Does anyone out there remember the groups in each state called The Log Cabin Republicans? What was their agenda?
    = = =
    Their purpose serves the GOP as a punching bag of self hate…
    … Notice that the LCR keep getting kept out of that “big tent”.

    They tend to be attracted to a political Party that enjoys making a platform position to keep LGBT people FROM equal Rights… Their motto goes like this:
    “I hate myself and I support others who seek to keep me down.”

    e.g.
    Conservative Group Bars Log Cabin Republicans From Event
    Organizers for the Western Conservative Summit returned a $250 registration fee because the group advocates for gay marriage.
    http://www.usnews.com/news/articles/2015/04/16/conservative-group-bars-log-cabin-republicans-from-event

    The Western Conservative Summit is scheduled for June in Denver, where thousands of conservative activists will gather to hear Republican presidential hopefuls like Wisconsin Gov. Scott Walker and former Pennsylvania Sen Rick Santorum speak. The event is organized by The Centennial Institute, a think tank affiliated with Colorado Christian University.

    On Wednesday, the president of the Centennial Institute, John Andrews, said his group had returned a $250 registration fee that the Log Cabin Republicans had sent in to secure a booth at the three-day summit. Because the group advocates for gay marriage, it cannot have an official presence at an event that promotes traditional family structure, he said.

    “We’d love to have them attend the summit and be in the discussion. But we have to draw the line at a formal relationship between two organizations with diametrically opposed policy beliefs,” Andrews said.
    (continued)

    And from Feb. 2015
    Log Cabin Republicans battle with CPAC organizers
    http://www.politico.com/story/2015/02/log-cabin-republicans-cpac-115336.html

    “Make no mistake: LCR is actively being prohibited from sponsoring CPAC,” the group’s national Executive Director Gregory T. Angelo said in a statement Thursday.

    The organizers of the annual conference, which begins Feb. 25, hotly deny that and say they are dedicated to creating an inclusive event.

    This is the third consecutive year that the Log Cabin Republicans — a group representing gay conservatives — have alleged that they have been blocked from sponsoring CPAC. Before 2013, when Angelo became executive director, the Log Cabin Republicans sponsored CPAC-related events (such as a “Scotch and Cigars” reception in 2012) but did not sponsor the main conference itself.

    Angelo said that The American Conservative Union — the group that organizes CPAC —“has the right to invite or not invite whoever they want to [CPAC], but they should be honest about the reasons why.”
    (continued)

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