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.
Cnidaria
To ignore that which your Lord has commanded is the epitome of hating one’s religion… Who did Jesus say we should judge? Who did Jesus say we should refuse service to? Who did Jesus say to render our taxes to? Who did Jesus say we should stone?
A cup, polished on the outside, filled with inequities…
Max…you seem to have a willing acolyte in Jill…peace be to you both
@ Mike Appleton
I was hoping that you might reappear and this topic would come up. I have an actual LEGAL question regarding the right to refuse to do business in certain circumstances. My question has nothing to do with homosexuality, Christianity or any of the other rabbit holes that others want to obsessively go down into.
First. Let me say that I am opposed to discrimination in the day to day business operations. For instance refusing to serve in your restaurant, in your mechanic shop, in your hotel establishment…. or really any business that serves the general public. You can’t refuse to serve people just because they are a certain status….race, religion, sexual orientation. That IS against the law and is against what is morally right (imo)
That being said you do have the right to refuse to serve for other reasons. For example, the no shirt, no shoes, no service reason in a restaurant. Those are health and safety related. You don’t have to serve abusive or destructive people who are damaging your establishment. As a financial advisor, I could refuse to take on a particular client as long as the reasons were NOT for the discriminatory ones listed above. I often would decline clients. My husband is a contractor and he often will refuse or decline to take on a job.
Second: I think that there is a big difference between serving the general public and making a person to person contract. In one case you are serving everyone. In the second case you are making a specialized contract to provide a service exclusively for that person.
So….to my question and it is about CONTRACT LAW……. In the case of the bakery or florist or pizza parlor where they routinely serve everyone without distinction or discrimination. Selling goods to all who come in the door, is a part of the daily business.
However, when their customer asks for a special cake or floral arrangement for ANY reason…..they are asking to enter a binding contract that binds both parties. The provider should have the right to refuse to be contracted for ANY reason. I don’t think that they should need to say why the are refusing be contracted.
QUESTIONS:
Do you think that there is a difference between selling generic donuts in a bakery and being contracted to create a special product for a specific customer for a specific purpose?
Do you think that the Government can legally force a business or a professional to enter into a contract against their will?
Do you think the Government can legally fine or even jail the provider who doesn’t want to be contracted to provide a service, make a cake or whatever?
I think that forcing a provider of a service to enter into a contract against their will, providing a service that is NOT in the ordinary day to day workings of their business, amounts to forced servitude. Yes. You get paid, but you did NOT want to do the work.
What do you think?
Jill…thou shall not kill…the fifth commandment….Jill, your stab at logic is beyond the pale of a reasonable response…you must hate Christianity, and those who follow it…sad
Jill,
It’s never Sharia Law when it’s Christian inspired Sharia Law… Don’tcha knows?
Ingannie
Seeing as we are not yet a Theocracy, the GoFundMentalist evangelicals can stomp their feet and hav…
= = =
Fixed it for ya. 😉
Cnidaria, You write:
“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?”
If you have a moment, would you be willing to answer my question written earlier in the thread. I’ll put it here. I would truly like to hear your
response.
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?
thanks to the teaching of Holy Mother Church, man has the road map to get to Heaven…man was put on earth “to know God, love God, serve God, all the day’s of his life”…
Women wouldn’t need “special protections” had they NOT been restricted from fully participating in society…
Blacks wouldn’t need “special protections” had they NOT been restricted from fully participating in society…
Elderly wouldn’t need “special protections” had they NOT been restricted from fully participating in society…
The disabled wouldn’t need “special protections” had they NOT been restricted from fully participating in society…
Squeeky (kill the gays),
Shouldn’t you be arguing to repeal those “special protections” as well?
It takes a mighty effort to dehumanize those who don’t fit into the traditional culture. Nazi’s did it with gays, gypsies, Jews, Jehovah Witnesses, mentally ill. They were so thoroughly dehumanized that they were exterminated by the millions.
Squeeky, did it ever occur to you that gay people are someone’s child too?
Seeing as we are not yet a Theocracy, the fundamentalist evangelicals can stomp their feet and have a temper tantrum, won’t do any good. This is a nation of secular laws. We separate church and state in this country, thanks to our Founders.
Fifty Years Ago… yesterday.
http://3.bp.blogspot.com/-fXJjtu93vBE/VTF9Kv-gUWI/AAAAAAADW8w/WmyEGhkUwZg/s1600/1965.jpg
What It Was Like at the First Gay Rights Demonstration Outside White House 50 Years Ago
http://abcnews.go.com/Politics/gay-rights-demonstration-white-house-50-years-ago/story?id=30379792
@Pogo
Agreed. Like I keep telling Ingannie, she is out there helping to create a world that is going to bite her progeny in the ass as time goes on. But, it seems to be a cyclical thing with societies, and the U.S isn’t the first country to self destruct from within, and it won’t be the last. Hoard your ammunition!
🙁
Squeeky Fromm
Girl Reporter
Mr. Appleton
Thank you for this post. As always, it confirms your reputation and reminds us of what the Turley blog turned out on a regular basis.
I am dismayed and perplexed by these RFRA laws and eagerly await your additional analysis.
Whereas some people prefer equal treatment under the law…
… Others prefer preferential treatment beyond the law.
Religious freedoms seek preferential treatment beyond the scope of the law so as to discriminate against others protected by the law. Ego, America needs a Federal protections clause that includes LGBT citizens from religiously based discrimination in the home and workplace.
max…max…earth to max…if i were a secular humanist, fine…if i hope to follow the teaching of Holy Mother Church, I would be at variance with your position…we get it sport, gotcha… if I were an atheist, or a modernist, I would think like you, maybe even have your twisted value system…thankfully I don’t…why?…because i choose to follow the teaching of Holy Mother Church, on matters of faith and morals…comprende senor?
Annie
Ugandan Christian Fundamentalism, coming to America, well actually came from America to begin with.
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As Malcolm X once said,
America’s chickens have come home to roost…
@Max-1
Hmmm. Sooo, you don’t think that anti-discrimination statutes grant special rights??? And everybody ought to have the same rights. . .Hmmm. Ponder. Ponder. Deem. Ponder. Eureka! Lights bulbs! OK, well then let’s try this!
There! That would grant everybody the same rights! I sure can’t see any problems that might arise. Who could be against this??? . 😮
Squeeky Fromm
Girl Reporter
on 1, April 18, 2015 at 1:35 pmMax-1
pearls before swine…
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Exactly Max.