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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Well, I wrote an Irish Poem for when SCOTUS (Supreme Court of the United States) erroneously finds there is a “civil right” to engage in sodomy.
The Deadly SCOTUS Blossom???
An Irish Poem by Squeeky Fromm
Oh, the gays celebrated the ruling!
‘Cause SCOTUS is perfect! No fooling!
And they’re never shortsighted!
(See: Citizens United. . .???)
Say, is that Ginsburg who’s sleeping and drooling???
Squeeky Fromm
Girl Reporter
Notus: For those un-mythological people, who don’t get the word play in the title, the LOTUS tree is, as wiki notes:
Paul C.
I’m rather concerned for your “gay friends”…
Max-1 – why would you be concerned with my gay friends as opposed to my straight friends.
argued for their arrest and imprisonment?…I didn’t have to senor!…they were busted and put in JAIL, where they belong…because they molested MALES, they also admitted they were GAY!…is any of this sinkin’ in yet maxie?
“Cnidaria”, as I said yesterday, if you are a representative of Christ’s teachings, you have failed big time. Your over the top homophobia is repulsive to most normal human beings.
See Paul C. , Cnidaria , Squeeky (kill the gays)
It’s never when hetersexuals priests comit rape…
Max-1 – I am no happier with priests who seduce young girls than I am with priests who seduce young boys.
Damn heterosexuals…
… NEVER leave them alone with little girls.
The Forgotten Victims Of Priest Sexual Abuse: Girls
http://jezebel.com/5518672/the-forgotten-victims-of-priest-sexual-abuse-girls
grannie is now clinging to “undiscovered” genes…LOL!…let me know how that works out…LMAO!
http://www.livescience.com/50058-being-gay-not-a-choice.html
“No studies have found specific “gay genes” that reliably make someone gay. But some genes may make being gay likelier. For instance, a 2014 study in the journal Psychological Medicine showed that a gene on the X chromosome (one of the sex chromosomes) called Xq28 and a gene on chromosome 8 seem to be found in higher prevalence in men who are gay. That study, involving more than 400 pairs of gay brothers, followed the 1993 report by geneticist Dean Hamer suggesting the existence of a “gay gene.” Other research has found that being gay or lesbian tends to run in families. It’s also more likely for two identical twins, who share all of their genes, to both be gay than it is for two fraternal twins, who share just half of their genes, to both be homosexual. Those studies also suggest that genes seemed to have a greater influence on the sexual orientation of male versus female identical twins.
A 2012 study proposed that epigenetic changes, or alterations in marks on DNA that turn certain genes on and off, may play a role in homosexuality. This type of gene regulation isn’t as stable as DNA, and can be switched on and off by environmental factors or conditions in the womb during prenatal development. But this so-called epigenome can also be passed on from generation to generation, which would explain why being gay seems to run in families, even when a single gene can’t be pinpointed.”
Ir’s the same crowd that argues, “It’s not rape when the man said yes.”
Much can be said about a person who can not distinguish between illegal non-consensual acts and legal consensual acts… NO?
And to keep doubling down…
Cnidaria
So you “know” pedophiles?
Have you argued for their arrest and imprisonment, yet?
Paul C.
Funny that you too, confuse pedophilia with homosexuality.
Make sure you spell that out with your “gay friends”.
Max-1 – a pedophile can be either male or female and target either males or females.
max…i have known 2-3 priests who were busted and placed on bishop accountability.org…these slime were pedophiles, actually pederasts and admitted HOMOSEXUALS!…yes maxie, they admitted while under oath, that they were GAY!…this was after they were busted for MOLESTATION of an underage MALE!
Cnidaria,
Religion is a “choice” and how you believe is a “choice” and what church you attend is a “choice” and what priest you follow is a “choice” and what people you congregate with is a “choice” and what Bible you read is a “choice”. I can respect those “choices” as long as they don’t infringe upon my Liberties.
Now, if you want to open shop and foist your Faith upon me and hold me accountable for not following your faith… What “choice” have you left for me?
Such garbage. There are genes that have not yet been discovered. Also there are occurances in development of the fetus that may determine a humans sexual identity.
Squeeky,
The best way for the RCC to fill the pews is to welcome all who enter and deny none… Just like their Christ. Yet, the Pope insists on holding tight to the Keys to the Kingdom.
max…i can only hope when your head stops spinning it is to the front again senor…you try to play both sides against the middle…you are not even lukewarm, and those who are lukewarm will get vomited out…remember that biblical admonition my friend…I love my catholic faith, but abhor sin and am especially disgusted when an ordained priest, puts on a roman collar and proceeds to use it as a means to seduce and corrupt the innocent…all men are sinners, but some are held to a higher standard due to the office they hold and no office on this earth is more meaningful and powerful, that that of the catholic priest, which is why I am so vociferously opposed to those modernist Bishops who continue to poison the laity and Church with preaching this idiocy of tolerance of “gays”!…being gay is nothing more than a temptation, their is no gay gene or chromosome, it is often formed when the child is exposed to dolls, dresses, and only little girls to play with… at which point the boy is now a fruit and MUST resist the temptation to act out like a little “chick”, by wanting to do the deed on other dudes…comprende senor? Being Gay is a TEMPTATION, which must be resisted…a wonderful Psychotherapist I know personally, is Dr. Nicolosi, who has done wonderful things, by assisting gay men to reject this sinful ideation and renounce it, the same way Catholics renounce and denounce the occult and pornography, abortion and a whole host of other sinful behavior that can lead to perdition’s flame unless one repents of it and becomes reconciled to Holy Mother Church….you savvy?
@Max-1
Uh, you asked. . .
Hmmm. 💡 “Bla… Blas… de Blasio???
Squeeky Fromm
Girl Reporter
Because, you are probably right Max.
Both employ the same tactic… shame and blame.
Both employ the same irrational, What does consent mean?