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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Help please! At 2:53 PM, wordpress ate a post that I had edited from an earlier blocked comment, to try to get past the filter. If you could please release the second one, I would appreciate it.
Thank you!
Squeeky Fromm
Girl Reporter
Metaphor’s are used to illustrate a point…Simon Barjona was now called Peter…Cephas…the Rock!…St. Peter was the Rock, and only he was given the Keys of the Kingdom of Heaven…no other Apostle save Peter.
Cnidaria – and after St. Peter was crucified by the Romans who had the keys to the kingdom??
Cnidaria
Christian means to be Christ-like. Who did Jesus say we should refuse service to? Who did Jesus say we should judge? Who did Jesus say we should stone?
MATT 25:40 And the King will say, ‘I tell you the truth, when you did it to one of the least of these my brothers and sisters, you were doing it to me!
So, refuse to serve Jesus and call yourself a Christian?
Max,
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…
—————-
Actually, there are efforts to prevent these groups from fully participating in society in spite of the law. Women’s bodies are under attack in many states by legislators practicing medicine without a license and by the federal government restricting any form of assistance for needed abortions for poor women. The rights of Blacks are under attack: voting is under attack by requiring IDs that are hard to get, too few voting booths in mostly Black neighborhoods, caging, jerry-mandering of districts; freedom of movement due to profiling, and unfair incarceration to name just a few. The elderly are under attack due to repeated attempts to lessen their safety nets of Social Security and Medicare. The disabled aren’t protected by international standards since Congress refused to approve it.
imo, the RFRA laws are designed to protect a “grassroots” movement of fundamentalists to hasten the process.
bettykath – there is a big difference between ‘need abortions’ and ‘want abortions’. So, how many poor woman actually NEED abortions?
read your whole post max…now go out and live those same admonitions…
if you say so grannie
Cnidaria
As a former Roman Catholic, I’m reminded that the Vatican is built upon whited sepulchers filled with dead men’s bones. Just visit St. Peter’s Cathedral… under the alter. Jesus was clear…
MATT 23: 24 Ye blind guides, which strain at a gnat, and swallow a camel.
25 Woe unto you, scribes and Pharisees, hypocrites! for ye make clean the outside of the cup and of the platter, but within they are full of extortion and excess.
26 Thou blind Pharisee, cleanse first that which is within the cup and platter, that the outside of them may be clean also.
27 Woe unto you, scribes and Pharisees, hypocrites! for ye are like unto whited sepulchres, which indeed appear beautiful outward, but are within full of dead men’s bones, and of all uncleanness.
28 Even so ye also outwardly appear righteous unto men, but within ye are full of hypocrisy and iniquity.
29 Woe unto you, scribes and Pharisees, hypocrites! because ye build the tombs of the prophets, and garnish the sepulchres of the righteous,
30 And say, If we had been in the days of our fathers, we would not have been partakers with them in the blood of the prophets.
31 Wherefore ye be witnesses unto yourselves, that ye are the children of them which killed the prophets.
32 Fill ye up then the measure of your fathers.
33 Ye serpents, ye generation of vipers, how can ye escape the damnation of hell?
Jesus commissioned his Apostles to go out and Preach to all nations and peoples…that includes all of Judea, and the WHOLE world, not just the far flung areas of the Roman Empire, which stretched from Lusitania to India. The Catholic Church is the UNIVERSAL Church. Catholic means universal
Cnidaria – actually there was a big fight within the apostles about preaching to and accepting Gentiles. Remember, at first Christianity was a sect of Judaism, so Gentiles had to convert and males had to be circumsized. Can we all say Ouch!!!
Cnotdaria,
You sure are representing whatever religion you belong to in a way that would keep away seekers, so I guess you aren’t doing your church or your “Christianity” any favors. And you could pass for a fundamentalist, easily.
the problem with that whole upon this rock thingie is that no one know where the rock is.
I was under the impression that Peter was the rock, in a metaphorical way. Just like the song lyric….”you are the wind beneath my wings”. It wasn’t meant to be literal.
Correct, St. Peter preached in Rome and was martyred in Rome…the Church still exists, has been in existence since our Lord created it and vouchsafed it for all-time…St. Peter was/is the Rock…
David Barton Assures Glenn Beck That The Government Can Outlaw Homosexuality
sorry grannie, not a fundie…just a traditional Roman Catholic layperson…
“Cnidaria”, sure gives a good ‘testament’ to Fundamentlist Christianity. I’m glad she decided to ‘show up’.
Jesus did start a Church…”thou art Peter, Upon this Rock I build My Church…the Church is still in existence as ‘our Lord said, “the gates of hell will not prevail against it”…go back and read the Gospel of St. Matthew. Spend some time in reflection. Simon Barjona’s name was changed to Cephas…which in Aramaic means ROCK!…Peter became a new fisherman…a “fisher of men”
Cnidaria – the problem with that whole upon this rock thingie is that no one know where the rock is. Oh, and Peter moved to Rome, a place that Jesus had never been.
Jesus told the woman in adultery to “sin no more”…He never told her to remain steeped in this lifestyle…claiming Christians are pharisees, because they do not advocate sodomy, or same sex marriage, is beyond ridiculous…max would have us believe he is tolerant, a sound voice of Christian reason…he is not, I have my doubts he is even a Christian, based upon his statements…I do believe he is sly and rather duplicitous, based on his incongruent positions…he flails around so much, it’s hard to follow his ramblings…Jesus is clear when he said that those who were “drunkards, fornicators, revelers, murderers, sorcerers and the like”, would not inherit the Kingdom of Heaven. If one practices sodomy, fornication, and any other form of sexual prohibition, he will most assuredly be judged, if he dies unrepentant, living this lifestyle…these are mortal sins, which bring death to the life of the soul…which is immortal.
I guess “Cnidaria” doesn’t like older people either. Sounds very much like someone.
lol Max @ your photo
I guess that would be up to the business owner and the type of establishment. They ARE all wearing shoes and have shirts on.
Generally, that unshod and undressed rule is for restaurants to keep people from tracking in foot diseases (fungal diseases, viruses such as human papilloma virus) that are protected from the environment by wearing shoes or at least sandals. As to the no shirt thing. Please GOD we are all trying to eat here!
http://www.beliefnet.com/columnists/palabrasquefortalecen/files/2012/02/Depositphotos_5590549_S.jpg
DBQ,
“I’m assuming you mean IF you are gay you don’t get service is discriminatory…………..Of course it is.”
= = =
Sometimes you say things much better than I can. Yes, it is!!!
Did Jesus celebrate Easter or Passover?
Did Jesus celebrate Christmas or Hanukah?