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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if i were to seek the law of the land and it’s interpretation, i appeal to the constitution, if i seek clarification on how to live a moral existence i appeal to the ultimate authority on “morality” as well…THE CHURCH!…not the secular laws of the this or any other land…when those secular laws conflict with the moral laws of “holy mother church”, i follow the teaching of the church first, the law of the land second…comprende?
all you’ve done “maxwell smart” is prove my point…we often have to appeal to a higher law, especially if it comes to faith and morals, you can’t have your cake and eat it too, at least not in this instance senor…
Cnidaria,
In case you haven’t noticed, we don’t live in a theocracy.
Yet, we didn’t leave God out of the underlying equation:
“God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience.”
“Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.”
“As usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
— J. Locke
Translation: God says keep your opinions about what’s “proper sex” to yourself — since any attempt to legislate “proper sexual conduct” among consenting adults is an “exercise of power beyond right, which no body can have a right to.”
Cnidaria
Yes, Law made the extermination possible… Thank you for your support to protect those who history has forgotten. 🙂
Cnidaria
That liquidation also targeted gays. Thus the birth of the Pink Triangle.
It was a Nazi inspired assigned symbol to be worn by gays… a tragedy turned into a triumph by the LGBT community. Never Again!
“…those who champion it, or advocate this repugnant act are also doing the bidding of “the dark one”……”
It’s DARK SIDED!
http://youtu.be/lORCuR84-_8
@happypappies
The effect of anti-discrimination laws is to grant special rights to a group through the granting of special protected status. This means that gay people would be granted special rights right to sue someone. To have standing in court, a plaintiff would have to state in one of the paragraphs of his Complaint something that says, in effect:
On a theoretical level, a law prohibiting discrimination on account of one’s sexual orientation would also protect heterosexuals from a hypothetical gay baker who dislikes mixed-sex couples and does not wish to bake them a cake. Just like a white person can sue for racial discrimination if he or she is treated differently from black employees or customers. On a practical level, however, the “arrow of discrimination” is just like Hawking’s ” arrow of time” and only runs in one direction. Hence, when a white person sues, we think it somewhat weird and instead of just calling it “discrimination” we call it “reverse discrimination.”
Now, the facts of life are that only about 2%-3% of the population is LGBTQ, and most sexual orientation suits would come from them. I think the majority of such suits would have nothing to do with wedding cakes, and instead end up being bullsh*t frivolous lawsuits based over alleged and contrived hetero-normative practices.
Squeeky Fromm
Girl Reporter
Cnidaria
I’ll buy you a lobster dinner just so you can explain to me why my sins are worse than your’s… How about a nice bowl of clam chowder, instead? Oysters on the half shell, perhaps? Or bacon wrapped chicken breast? Just please, reassure us that you have sold your daughter into slavery… you know, Leviticus.
Citizens in nazi Germany who turned a blind eye to the holocaust and the liquidation of the jewish peoples, were also following “the law of the land”…sometimes laws aren’t good, right, or reasonable
sodomy is a sin that “cries to heaven for vengeance”…so gravely disordered, this shameful act mocks procreation, between man and woman…it is a sexual aberration, that is sought as an outlet for lust, and lust alone, as nothing but disease and eternal death come from the very act itself…those who champion it, or advocate this repugnant act are also doing the bidding of “the dark one”, never was a person’s anus to be used as an avenue for pleasure, it is an anatomical region used for evacuation of waste, not an insertion site for pleasure…
Thanks for this article, Mike A. I apologize for my impatience at the previous thread, and look forward to the next installment. This was a good thread read, too.
That said, I think Bob Stone really nailed it.
What is wrong with these stances:
It is against my deeply held beliefs to hold a business license.
It is against my deeply held beliefs to follow the law of the land.
It is against my deeply held beliefs to serve all who enter.
Fiver, the “lady” certainly is putting on a good show too.
The only destruction of marriage is divorce… Outlaw that if you seek to preserve marriages.
fiver
That’s like making an argument that women are to blame for abortions… afterall, “If they weren’t the ones getting pregnant and all, there wouldn’t be no need fer aborsions…”
Sultan Knish:
“
The lady doth protest too much, methinks.
Cnidaria
So incest is best?
Yet, family values?
Bob,
You need to answer my question… was that wait staff at Woolworths held in servitude ONLY when they served black patrons? AND, what debt would the photographer be paying off that the State would be forcing them into servitude for?
Instead of accusing me of hanging a sign around my neck, you could just prove me wrong, instead…
at least they made babies…they didn’t spread aids, or the eternal death sentence one receives from buggery senor