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. New Orleans convention bureau comes out against Louisiana religious freedom bill

    The head of the New Orleans Convention and Visitors Bureau worries that a religious freedom bill filed in the Louisiana Legislature last week could threaten the city’s thriving tourism industry and economy.

    “The adoption of certain types of overreaching, problematic and divisive legislation in Louisiana has the possibility of threatening our state’s third largest industry and creating economic losses pushing past a billion dollars a year and costing us tens of thousands of jobs,” said Stephen Perry, president of the organization in a written statement.

  2. http://lgbtweekly.com/2015/04/16/how-an-extreme-anti-lgbt-legal-powerhouse-is-working-to-enact-religious-freedom-laws/

    Just WHO are these people and what do they really want?

    “A $39 million non-profit Christian legal group, ADF bills itself as an organization that works for the “right of people to freely live out their faith.” The group has laid the groundwork for “religious freedom” laws across the country, using their legal work to peddle the myth that Christians are under attack by the “homosexual agenda.” But behind this religious freedom rhetoric, the group promotes an extreme anti-LGBT agenda, namely working internationally to criminalize gay sex.”

  3. http://lgbtweekly.com/2015/04/16/how-an-extreme-anti-lgbt-legal-powerhouse-is-working-to-enact-religious-freedom-laws/

    Just WHO are these people? And what do they really want?

    “A $39 million non-profit Christian legal group, ADF bills itself as an organization that works for the “right of people to freely live out their faith.” The group has laid the groundwork for “religious freedom” laws across the country, using their legal work to peddle the myth that Christians are under attack by the “homosexual agenda.” But behind this religious freedom rhetoric, the group promotes an extreme anti-LGBT agenda, namely working internationally to criminalize gay sex.”

    Alliance Defending Freedom is a legal organization that works with 2,400 allied attorneys nationally on a $39 million (as of 2013) annual budget. ADF was founded in 1994 by several of the country’s largest national evangelical Christian ministries to “press the case for religious liberty issues in the nation’s courts” and “fend-off growing efforts by groups such as the American Civil Liberties Union (ACLU), which seek to immobilize Christians.” Today, it has become the country’s best-funded and most powerful right-wing Christian group working against what the organization calls the “myth of the so-called ‘separation of church and state.’”

  4. Three amicus briefs filed in Florida to halt SSM…
    … As contained in the announcement by Liberty Counsel.


    Liberty Counsel filed three briefs to stop Florida clerks in Osceola County, Orange County, and Manatee County from ignoring the rule of law and providing marriage licenses to same-sex couples.

    Each county clerk has its own brief hotlinked at the main announcement.

    Orlando Fl. is the home of Liberty Counsel.
    Has anyone informed them the law passed months ago?

  5. Well, about pedophilia, here is a fascinating study. It presents as an anti-(anti-gay) piece, sooo Max and Ingannie will love it. I am not sure whether I agree or disagree with its conclusions. But, it also discusses many of the problems inherent in defining “homosexuality.”


    FWIW, I have presented something like this before:

    You enter a public restroom, and encounter two men. One man is standing, and the other man is kneeling before him, providing what we will call, “oral pleasures.” Based on the observed conduct, which of the following statements can you reliably make concerning who is “gay”:

    (1) Both men are gay;
    (2) Only the kneeling man is gay;
    (3) Only the standing man is gay;
    (4) Neither man is gay;
    (5) There is no way to know, based on the information given.

    Squeeky Fromm
    Girl Reporter

  6. Because the Tweet is blocked here… too many links involved.

    “Being gay is not a disorder. Being transgender is not a malady that requires a cure. Had I been Leelah Alcorn’s physician, I would have told her exactly that. And that’s the message I want other doctors, nurses, health professionals, and public health leaders to help get out to parents and children who may be confronting these issues.” – Surgeon General Vivek Murthy

    More here… http://whitehouse.tumblr.com/page/2

  7. Pat Buchanan on SSM

    And the process has been steadily proceeding for generations. First comes a call for tolerance for those who believe and behave differently. Then comes a plea for acceptance. Next comes a demand for codifying in law a right to engage in actions formerly regarded as debased or criminal. Finally comes a demand to punish any and all who persist in their public conduct or their private business in defying the new moral order.

    He makes it sound like the Romans hunting Christians so as to throw them to the lions… accept he’s not discussing Rome. Rather how gays are seeking equality and tolerance in society. The irony is in his description, that the struggle for Christians in the Roman era was similar… The moral order, the legalness (or lack there of), and of course punishment for those caught.

  8. Max, buttercream frosting is my specialty, maybe I should open a bakery, lol.

  9. Paul, I have never quoted anyone or any excerpt from any article without a citation to the source. As an educator you don’t seem to know what plagiarism means. You are nothing more than an unprincipled contrarian and I’ve wasted enough time indulging you.

    1. Inga – I was charging you with plagiarizing contrarian from Max-1.

  10. Annie
    You should like this Bill Maher clip about “Fundamentalists”
    … Or GoFundMentalists as I call ’em.

  11. Paul, I do not know, nor do I care, however your “gay friends” might care, as they might care that you equate gays with pedophiles. I hope they don’t read this blog.

  12. Ingannie
    Max, I predict they will go bat poop nuts.
    = = =
    Poop nuts
    Those words will summon Squeeky back from her break in 3… 2… 1…

  13. Annie,
    At least Paul C. hasn’t called you unqualified to make such an assessment, YET!

    1. Max-1 – Inga has not assessed anyone yet, but if she does she will be unqualified.

  14. Paul C. Schulte
    Inga – we have the new word of the week. Contrarian. Saul Alinsky strikes again.
    = = =
    Strikes again?
    Why, you’ve been with us all along Paul. This isn’t the first time I’ve called you out on your contrarian nature…

    1. Max-1 – Inga has a word of the week she tries to use as much as possible in her comments. She is not above plagiarizing.

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