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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Bob, Sticking w/ your analysis, the Constitution does not consider all contents of your container/cup equally. Political speech and religious freedom are two of the most precious contents of that metaphorical cup. We do agree that the integrity of the cup, keeping the contents safe, is the core issue.
Nick,
Do any of those distinctions remain relevant when discussing the state’s power to compel specific performance on contracts not made in the form of speech?
No.
Cnidaria
Ah… Sodom and Gomorrah where Lot was spared because he pimped out his two daughters to the cities? Or the story of Sodom and Gomorrah where Lot and his two daughters hunkered down in a cave and fornicated and had babies?
Max,
Are you aware that you attempt to engage people in argument with a sign around your neck that says:
“Your side of the argument is categorically wrong and I’m ignoring it.”
Annie,
Interesting interview. The young man says his impulse to hate is ‘natural’. i.e. he was born that way… Yet, my impulse to love is somehow isn’t natural. Odd.
death knell max?…the death knell is givin’ in spades for who delight in buggery, yes buggery lad! Sodom and Gomorrah were destroyed due to those sodomites who indulged in this perversion. Two cities in the Old testament razed to the ground, because “all” were steeped in this perversion. Butt sex, between men, is the primary vector for aids senor… ain’t no upside to buggery and the sodomites who delight in it are in for a surprise if they die unrepentant. The pain and misery of aids will seem like a minor head cold compared with the horrors of hell…
Nick,
It’s the difference between analyzing a container — ensuring it works properly–and arguing over the merits of what’s held by the container.
If your cup is leaking, the idea is to fix the cup; not stand there and argue whether it’s worth saving grape juice v. wine.
MikeA, I’ve been to that casino in the Bahamas. It is pretty hoity toity, so your experience was not typical. Although I like gambling on the strip, I am always attracted to the Binion’s, Golden Nuggets, etc. in downtown Vegas. My kinda people.
Unfortunately, it looks like your thread is being taken over. They may agree w/ you, but it’s the way they do it!! Good luck. You have a righteous warrior in Bob Stone making the opposing view civilly and logically. But, the emotion is certainly on your side, as it were.
Annie
They are now called…
… GoFundMentalists.
Bob Stone
The “right to be left alone” should mean, the “right to not be in business if you seek to discriminate against your customer”. In other words, it is quite rediculous to hand a sign in your front window that says “open for business” and one that says “leave me alone”. Is it not?
Say, is the Woolworths waitress placed into servitude when waiting on black customers and not white?
Oh, but wait… As the LBGT say, IT GET’S BETTER!!!
He has no business licences to begin with…
Anti-gay auto shop owner fights attempt to license business, claims government intrusion
http://www.mlive.com/news/grand-rapids/index.ssf/2015/04/no_business_license_for_auto_s.html
Bob, Belief in god may be irrelevant to your analysis. And, I have no clue as to your belief system. I believe in God but have disdain for organized religion. If one is to look @ the driving force in this “movement” it is clearly negative. I call it anti religion. You perceive it as anti “freedom of mind.” Six of one, half dozen of another. Pro gay is clearly not the primary motivating factor.
And so out of compassion this happened…
http://mapesbankruptcyattorneys.com/dear-dieseltec/
http://youtu.be/urSz-6GASCk
This guy is the poster boy for the part of America who cannot deal with the growing empowerment of minority groups. It has to do with the shrinking numbers of white men in positions of power and it uses religion to give bigotry a false face, but it’s still bigotry. Most rational people, secular or moderatly religious recognize what’s happening in this country and are pushing back.
Then this happened…
… Until it didn’t happen.
http://i.huffpost.com/gen/2844378/thumbs/o-GOFUNDME-570.jpg
More details here…
http://www.democraticunderground.com/10026519217
I’m asking this from the religious people who believe their religion allows them to engage in any behavior that their religion justifies. I’m not asking it sarcastically. It is a genuine question.
Suppose I start a religion which specifically mandates that I may kill any person who is not a member of my religion. I am allowed legally to form this religion because, at least until I act on my beliefs, those beliefs are protected under free speech and the establishment clause.
I then go about living my religion by the commission of murder. Fully believing in the justness of my cause, I take out one person after another who refuses to profess my religion. I am arrested for murder but claim I cannot be lawfully held to account for these murders as I was following the dictates of my religion.
Mike A. alludes to the sorry history of churches who actually engaged in this behavior, killing others who refused to profess their chosen religion. My question isn’t just a theoretical exercise. This type of murder for refusing to hold the “correct” religious beliefs has happened and it actually still does occur in current times.
How do you feel about someone claiming that God and their church has mandated that one religion wipe out all those who do not believe in that religion? Would it be a valid legal defense to claim that God and my church told me it was my bound duty to murder those who would not convert? Would it worry you that another religion might exhort its followers to kill you for not believing in their religion? Would it concern you if they killed one of the people you loved and argued that murder was of no consequence because they were following the dictates of their religion?
As these things have and do occur in the world, do you feel that religion gives one the right to murder others no matter that murder is illegal under current secular law? If not, how do you distinguish between a religious claim that one may commit murder if following the dictates of one’s religion, and other claims that religion overrides civil law? Is murder going too far while other illegal actions are O.K.? If so, how do you come to your conclusion?
e.g.
First this happened…
Shop owner will deny ‘openly gay’ customers
http://woodtv.com/2015/04/15/shop-owner-will-deny-openly-gay-customers/
Nick,
I’m talking about the “right to let alone” and the right to retain one’s “individual freedom of mind.”
While reliance on first amendment precedent might help clarify a legal position, belief in God or a flying spaghetti monster is irrelevant to the analysis.
Nick
As a Christian myself, I’d argue that these religious freedom arguments made by religious groups are the death nails to their own argument that Christ is about love and compassion for where is their love and compassion for their brother when they’re against Christ’s word of non-judgment, so willing to deny their brother service?
The closely held beliefs of Jesus, as professed in the New Testament, was to serve ALL who enter. IF they can’t be ‘like’ their Christ, how is it they can serve two masters? They claim it’s their faith… yet their master, Christ, is ignored so as to cater service by the State. Now, what did Jesus say about this?
Cnidaria
Man was made for woman. We had Adam and Eve, not Adam and Steve…
= = =
Then Cain meet his wife… after he killed his brother.
So, where did he find his wife? Family values…
A) his sister? (incest)
B) a primate? (beastiality)
C) harvested her from a tree/bush?
D) he formed her out of his rib in his own likeness?
E) none of the above because Genesis is a fable.
Bob Stone is a reasoned person who does not hate religion. His comments are logical, reasoned, and met w/ mostly emotion. This campaign is not pro gay, it is anti religion. And, non ideological people see that quite clearly.
People who support the suppression of religious freedom here are ignoring the fact that black folks despise the co-opting of laws to protect them, and comparisons of their journey to equality w/ that of gay people. Oh, there are a few black leaders who say the right things. But talk to regular black folk and read the polling. Many black people despise gays, and make no efforts to hide their derision. Anyone listen to rap lyrics regarding gay people???