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.
Bob Stone
I’m confused. What debt, in you hypothetical, is the photographer being forced to pay off by the State?
I dont care if people pray. I get tired of it when I hear it in public. I get sick of all the yak about Jesus. Other religions are just as bad or worse. Dumb humans need to educate themselves and if they had a mommy and daddy who took them to church and preached all this apCray then they need to say Whoa. Human beings believed all sorts of apCray since they evolved from toads or whatever and there is no need to think that mommy and daddy had it right about the Cat O Lic or Baptist Church teachings. Think for yourselves out there and scrutinize teachings that are not based on facts that are proven. Oh, I know, Johnboy was sick and you prayed and he got well. Think beyond that.
Think!
All the segregation policies in America were based on a strong faith in Jesus and the Holy Spirit and all that. Humans have an inclination to think their itShay don’t stink. It gets worse with the rich and religious nitwits. I was a plumber in a prior life. Believe me when I say that the itShay don’t stink beliefs are grounded in religion and manure. And I don’t dis people and say that they are full of horse itShay. If they are full of it then they are full of human itShay. No sense denigrating horses.
Mike Appleton,
You cannot balance the equities by completely ignoring one side of a conflict. You cannot focus on the rights and feelings of one side of a conflict while completely dismissing those of the other side.
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. U.S., J. Brandeis dissenting.
You’re not going to find a business seeking the right to treat LBGT’s as a class of customers existing apart from the average everyday fungible ones.
What you do have are LBGT’s going to court to compel certain businesses to engage in speech that goes against their conscience by forcing them to specifically perform on contracts not executed.
Accordingly, these “legal” actions have created a class of people desirous of defending themselves against those who would deny them the right to follow the dictates of their own conscience by forcing them participate in, facilitate or otherwise bear witness to a particular practice or ceremony.
Refusal to participate in, facilitate or otherwise bear witness to a particular practice or ceremony does not equal discrimination against an entire class of people.
To clarify the distinction between “a discriminating taste as a matter of discretion and conscience” and “the wholesale discrimination against a class of people” consider this:
A fashion photographer, who also does wedding photography, is asked by two of his gay models to photograph their wedding. The photographer politely declines — saying that it would offend his new and very religious wife as well as conflict with his own obligations acquired since converting to his wife’s religion. Immediately thereafter he tells his two models that he’ll see them bright and early Monday morning for the next shoot.
Is the the photographer discriminating against LBGT’s?
No.
He’s discriminating against a particular practice or ceremony. He’s exercising his “right to let alone” and his right to retain his “individual freedom of mind.”
http://volokh.com/2012/11/02/amicus-brief-in-elane-photography-v-willock-the-new-mexico-wedding-photography-case/
How then may the state claim the power to compel a photographer to photograph a wedding that he deems objectionable? Since when may the state, by a virtual system of peonage, compel the photographer to specifically perform on a contract not executed and engage in speech that goes against his conscience?
“The state may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt.”
Bailey v. Alabama, 219 U.S. 219 (1911)
“Instead of moral and mental differentiation of the individual, you have public welfare and the raising of the living standard. The goal and meaning of individual life (which is the only real life) no longer lie in individual development but in the policy of the State, which is thrust upon the individual from outside and consists in the execution of an abstract idea which ultimately tends to attract all life to itself. The individual is increasingly deprived of the moral decision as to how he should live his own life, and instead is ruled, fed, clothed and educated as a social unit, accommodated in the appropriate housing unit, and amused in accordance with the standards that give pleasure and satisfaction to the masses.” — C.G. Jung
Man was made for woman. We had Adam and Eve, not Adam and Steve…
Next thing we’ll be debating is farmers marrying barn-yard oinkers, marine biologist’s attempting to marry mollusca, and geologists seeking union with preserved specimens of the smilodon…the next controversial subject will be those pursuing sexual union with cats, dogs and a bevy of assorted bestiary.
I am forced to add that all of this moral relativism that compares the civil rights movements of the 60’s to LGBT issues today are grossly exaggerating. It may be convenient, but it is also BS. It really does disgust me on a visceral level…there is NO valid comparisons on how black Americans were treated in the 50’s and early 60’s (and prior during post reconstruction) to LGBT people today. The LGBT issues of today are not even close. Just show me where LGBT folk are forced to step off a sidewalk, below the curb, when straights pass by…do that and I’ll reconsider. BTW…that was de rigueur in Memphis circa 1961…I saw it with my own lying eyes, right. And THAT was the least of the horrors…of all those I witnessed.
Those of you all who weren’t actually “there” in the 50’s and 60’s or before that can be excused because you never actually saw the horrible problems of Jim Crow, where every single black person was discriminated against, everywhere for anything, versus the comparably few LGBT who face anything near as grotesque,…it is merely a meme you get from books or where ever. You find me a black guy or woman, short of the usual pecuniary “baiters” of today, who disagrees with me on this and I’ll recant.
When I can find common ground, even occasional agreement, with Mike Appleton (thank you for posting), Squeeky, Issac, Rafflaw, Chuck Stanley (whom I agree with more often than not) as well as the irregular commenters on both sides, I know I must be going to hell.
RFRA is a minor issue, with distinct boundaries, ….IMO, so I just cannot abide the comparison to the Civil Rights issues of my youth and college days. The hullabaloo over RFRA is a media contrivance, nothing more. Why else does anyone think an obscure rinky dink pizza place was made an example? Total BS and critique of thought and speech, by “gotchas” tactics, and I’ve yet to read or hear of that dinky place actually refusing anyone in reality. Thought and speech are protected by the 1st Amendment, actual actions to discriminate are violations of local and federal law. When the Indiana nonsense began there was no “action” to be explained, only a “What If” question instead of “Why Did You?”
Gays getting married…NOW THAT CALLS FOR AN EXORCISM…LMAO!
Reynolds v. United States – a ruling disavowing homosocial behavior that Utah’s anti-cohabitation law reinforced. A law aimed at reaffirming heterosocial behavior [one man one woman] now unconstitutional as apparently homosocial behavior has usurped the norm of nature. Now that the homosocial behaviour, male-female-female is given imprimatur by the state, no rationale exist to deny the children of, the same legal recognition as would the children of any other relationship . .
Lets cut to the chase here boys and girls. What did the Klan members carry when they came by at night to lynch you or burn your house or shoot your dog? A big Cross! I recall that vividly in a prior life in Southern Illinois when I shot back. Religion is for users and abusers. Chumps go to church and pay out money when the pass the plate.
Squeeky, refusal of service is not the “same rights” the rest of us have, marriage inequality isn’t the “same rights”. The notion that one can base a discriminatory act on their religious belief isn’t going to fly with the majority of the U.S. We saw this in Indiana And Arkansas.
Great article. Very thoughtful analysis, as usual Mike. I always look forward to reading your posts.
Holmes
You hit the nail on the head. The US is a secular society ruled by laws. The laws are hard come by and often times perverted by our elected representatives as well as others. However they are not protected by some divine origin and authority that makes them impossible to review. The laws, for the most part apply to rational and common sense with the best interests of all in mind and a continuing reference to the origins of this country.
The laws protect some fringe elements of society that do no harm to others, such as gays. The laws protect all from fringe elements such as bigots, racists, and homophobes, that seek to cause harm to anyone because of their bigotry, racism, and various phobias, whether religiously inspired or otherwise.
The history of the US illustrates a society moving away from harmful religious perceptions as to how everyone should be to a direction where all are considered when a law is created, amended, or struck.
More important than the freedom of religion is the freedom from religion. History does not lie. If one is reluctant to spend some time studying the escapades of the Christian religion, Jewish religion, and all other religions when they have gotten out of control having been usurped from their original purpose and been used to procure power, wealth, and obedience, one only has to look at the carnage and disgusting behavior in the Middle East. We’ve been there, done that, but hopefully evolved.
Mike,
As I said earlier, this is an excellent, and timely, post. A couple of thoughts about commerce in the “information age.” The Internet is a game changer with regard to what used to be called “locally owned and operated” businesses.
The government has a vested interest in regulating commerce, and has been doing so for slightly more than two hundred years. Going back to Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964), the Court ruled the Federal government did indeed have the power to regulate discriminatory practices of a local business because they served some customers who traveled interstate. Of course, subsequent rulings have both expanded and fine-tuned that ruling.
My observation is that when a business sets themselves up to serve the general public, it means just that. When I set up a web page or Facebook page, I am reaching out to potential customers, not just across state lines, but to the entire globe.
Does a business have to provide services they don’t ordinarily provide? Not at all.
For example, the bogus order for a cake with hate speech on it. That baker does not provide that service to anyone. Period. I think it was Gene Howington who pointed out that you don’t go to the local car dealer insisting they sell you a horse.
By the way, thanks Mike. You discussion was very good and useful An objective discussion of these issues is very important.
Religious privilege is not only being used to claim the right not serve gays it is being used to refuse medications to women as well as medical services. Religious privilege has been argued, unsuccessfully thank goodness, as a defense for bombings and murders. Once you allow individuals to use their religious beliefs to excuse their failure to follow the law whatever that law may be you are setting up each person as his or their own legislature. Its wrong and its dangerous.
‘. . .or prohibiting the free exercise thereof’ can be said that the artistic talents required to create a cake, arrange flowers or take photographs supporting the celebration of Man Woman marriage comes from ‘He Who Is’ [God]. Every practical art considers both the end and the means. For the Art of the Baker that celebrates the union of Male and Female does indeed consider the end, as that which it effects; and the means, as that which it commands. On the other hand, the bakers Art considers the means as that which it effects; but it considers that which is the end as that to which it refers what it effects. And again in every practical art there is an end proper to it and the means that belong properly to that Art.
It is enough that they belief their artistic talents are gifts from God, as such so long as less restrictive means are available, their creative works cannot be commandeered by the state to serve an event outside the end referred by the means of the creation. The talent has a gifted interest towards the end, the procreated, as well as a gifted interest in the means, procreation, under the umbrella, marriage . . .
@Ingannie
You said, “You keep trying to make the case that because of the way they have sex they are not deserving of the same civil rights everyone else is. They deserve the same rights as the rest of us.”
They already have the same rights as the rest of us. The whole point of “gay civil rights” is to expand beyond everybody else’s civil rights and get a whole new set of rights and protections all based on their sexual behavior.
Sooo, I am an employer and John lets it slip that he and his wife had anal sex. I could fire John just because he grossed me out. But, if John was gay, and reported that he had anal sex with Bob, then I could not fire John, because of his protected status.
Squeeky Fromm
Girl Reporter
@Mike Appleton
You stated:
I have answered this before. Let me state it again. For purposes of keeping the discussion simple, let’s use the term “public accommodation” [PA] and let it include all commercial transactions.
I believe that in an absolute cosmic sense, all PA laws are morally wrong because they force a person to do things that they may not wish to do. They may be black restaurant owners who do not wish to serve white customers, for example. I also believe that regulation of business is a proper government concern, and that in the real world sense, PA laws are a very practical necessity for a smoothly functioning society. If you hang up your shingle, then you basically serve whoever walks in, with some exceptions for reasonably objectionable conduct inside the establishment, such as not wearing shoes and a shirt, or not wearing a jacket and tie at a fancy restaurant.
Therefore, no Christian or Muslim should refuse to sell a hammer or a can of pork and beans to a gay person. I do believe in those transactions which have a SRT (significant religious overtone) and based on a “reasonable person” standard (that is, could a reasonable person believe the transaction has a significant religious overtone to the merchant), that a merchant should be allowed to refuse service. About the only religious transactions I can think of are weddings, because to some, weddings and marriage are a sacrament. This particular exemption is easy to legislate and easy to justify.
However, there is a separate problem outside of SRTs, and they involve transactions that are personally objectionable and not religiously objectionable. For example, the Jewish bakery that is asked to bake a cake celebrating Hitler’s upcoming birthday! Or the gay atheist printer who is asked to make posters saying “God Hates Fags!” for the Westboro Baptists.. But you were only talking about religious issues, and not these…
Squeeky Fromm
Girl Reporter
You keep trying to make the case that because of the way they have sex they are not deserving of the same civil rights everyone else is. They deserve the same rights as the rest of us. And if people continue to push for laws that exclude or discriminate, then they will probably get federal protected class status. What “behavior” is so egregious that they should be denied their civil rights?
In the US you can “believe” what you want but once you step out Into the world and engage with the public your religion must take a private back seat to the rights of others. In my opinion, “the times at which the Court may require special treatment on account of religion” should not just be rare, in the US they should be nonexistent! There should be no religious privileges in the US.
Those legislatures and judges who have provided those special privileges and expanded them to include the tender sensibilities of corporations are more than wrong; their actions violate the very oaths they took to defend the Constitution.
Religious privilege is like cancer it will grow and fester and each religion will want its own and soon ones religious privilege will offend the others and so we go into a religious war. Dramatic, perhaps; impossible, no.
As to the question posed, I think the outcome would be very different. What was once thought as frivolous and unconstitutional is now the law thanks to our homegrown theocrats.