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.
Abortion is becoming a losing issue for Dems. Ideologues don’t see it, but it is quite real. With technology improving exponentially since Roe v Wade, we see how viable babies in the second trimester can be, much less the 3rd trimester. As the great US Senator Patrick Moynihan stated, 3rd trimester abortions are tantamount to infanticide, and he said that decades ago. Twenty years ago, Gallup polls showed 34% of people agreed w/ abortion under any circumstances. That % has dropped steadily and is now @ 28%. The tables have turned on abortion. And, if this vitriol from religion haters on gay marriage does not abate quickly, there will be a huge backlash for Dems on this issue as well. You read it here on 4/18/15.
Cnidaria
Jesus told the woman in adultery to “sin no more”…He never told her to remain steeped in this lifestyle…
= = =
I will continue to defend Jesus by asking, what of the men who sought to murder her? What of their sin? Remember, he turned to her and said, “Go, sin no more” while dismissing the men. So, if she stayed with Jesus, why would he tell her to “go”? IMO, after Jesus wrote in the sand, he admonished the men in his company, turning away from them, dismissing them while saying, “go, sin no more”. Remember, as a women circa 2000 years ago, women were under the protection of men. How’s protection was this woman under? I’ll always ask, which of these men pimped her out and which of these men had already “known” her?
@Jill
I think that you are being grossly unfair with Cnidaria. You have created a brand new religion with murder at its heart, aka a strawman, and then jump on her for not, jumping to demolish your strawman.
Why don’t you just deal with reality??? The Church says that homosexuality is wrong, and will hurt the person doing it, and other people, to boot. Is that true or false??? Hmmm. 20% HIV rate among other things. Looks to me like the Church has some realistic basis for their belief. But, why don’t I return your favor!
Gee, Jill, you think that people shouldn’t be allowed to advertise cigarettes on television. But what if that power is misused, and one day, somebody finds a cure for cancer, and they won’t let them advertise it on TV??? How in the world can you support such a ban on advertising cigarettes!
That’s the same thing that you are doing to Cnidaria.
Squeeky Fromm
Girl Reporter
jill…our government allows wholesale murder of infants in utero…all in the name of justice and freedom…does this square with your understanding of a democratic, civilized, free society?…methinks your stab at logic is really a pathetic stab at sounding clever…now let me enjoy my victuals
bettykath
Because ‘Small Government’ is always about how much of it rules over your womb…
Paul, Women who want abortions need them. It’s a decision for her alone, in consultation with her doctor and whomever else she chooses to discuss her need. Neither you nor I, in fact, anyone else, should be sitting in judgement. Wealthy women have always been able to get abortions, even before Roe vs Wade. It’s always been about controlling poor women. Maybe if she weren’t restricted from so many forms of contraceptives, she wouldn’t get pregnant.
bettykath – I WANT a brand new Ferrari, but I don’t NEED one. The women want an abortion, they don’t need an abortion.
No sombrero, no service… Say Cnidaria, how’s them nachos and margaritas?
Jill
Because it’s never bearing false witness against your neighbor (ninth commandment) when one is cloaked in Christ while bearing false witness against one’s neighbor…
Cnidaria, I asked you a sincere question. Do you not have the courage to respond in a forthright manner? You are correct that “Do not kill is the fifth commandment”. I understand that. Surely you must acknowledge that throughout history, many of the major branches of Christianity have killed those who did not believe like them, thus breaking that commandment. I ask you why stating a verifiable truth is considered evidence of hate. How is it unreasonable to discuss something that has happened in history and is happening in current times? Please explain.
I hope you will be a honest enough person to grapple with the question I ask you again below:
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?
And then there’s this…
Using “RELIGIOUS FREEDOM” to fight secular laws…
Chef ticketed, facing $2,000 fine for feeding homeless in San Antonio
http://www.mysanantonio.com/news/local/article/Chef-ticketed-facing-2-000-fine-for-feeding-6198766.php
… But no GoFundMe? Not a real Christian, then. YES?
“Oh, what a tangled web we weave…when first we practice to deceive.”
― Walter Scott, Marmion
There is no legal basis to parse or otherwise re-litigate the Preamble, Constitution and Bill of Rights. The founding documents cannot be overturned by corrupt courts as “settled” or “case law” constituting “legislating from the bench,” executive branches in “overreach” mode or aggressively counter-ideological legislative branches. This is the lesson of Lincoln. To reiterate, Chief Justice Taney effectively told Lincoln he was committing “high crimes and misdemeanors” by ignoring, controverting and nullifying the Constitution.
***
LINCOLN’S ABUSE OF POWER DURING THE AMERICAN CIVIL WAR
By Brian Pulito
“Lincoln removed a great deal of power from the legislative branch with this proclamation. He was not empowered under the Constitution to make such a declaration. In fact, that right belonged to Congress alone. Roger Taney, Supreme Court Chief Justice, contended that Article I of the Constitution declares: “a state of rebellion is the only time when Congress could declare the writ removed.” He also believed: “This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive branch.”
The entire Lincoln “Reign of Terror,” including amendments coerced under duress and without a quorum, was unconstitutional and declared such by Chief Justice Taney.
***
Groucho Marx –
“Who are you going to believe, me or your own eyes.”
The Founders wrote in clear English, understandable to both common folks and intellectual elitists. Among many others, Americans have the right to private property and religious freedom. The Founders didn’t say that private property was optional or that religious freedom could be modified. To posit otherwise is not statesmanship but “high crimes and misdemeanors.”
The Supreme Court exists not to “interpret” but to assure that actions comport with law; to “check and balance” sinister forces that attempt to controvert the founding documents. Understanding that Lincoln imposed compulsory
“change” as a despot, according to Chief Justice Taney, the tools for truly desired “change” exist as the “blessings of liberty,” or freedom and free enterprise, in the private sector, two examples of which are boycotts and charities. Obviating and nullifying the founding documents and war, as in Lincoln’s case, are not necessary.
That you believe the Founders wrote the Preamble, not as the essential American context but to be ignored, is telling. That you disagree with the founding documents and American thesis of severely limited government, individual freedom and free enterprise without government interference does not bear. That you ignore the evidence of actual American legal, civic and political life after 1789 does not bear. That you choose not to adapt to the consequences of freedom does not bear.
This is a frivolous prosecution.
P.S. Perhaps we should take a run down to the Physics Department and get the opinion of some smart guys. What do the founding documents ACTUALLY say? This “overreach” as persistent and progressive arbitrary usurpation is compelling America to a constitutional “tipping point.”
Pope St. Linus was given the Keys, after St. Peter’s Martyrdom, which are a symbol of Papal Authority. enjoy
Cnidaria – the successor to Peter was probably either Linus or Clement depending on the sources.
Cnidaria
Upon the return of Christ, will he be found preaching in the Temple to his Father or the Crystal Palace unto himself?
Cnidaria
This I Believe: Created in God’s Image
https://thejesuitpost.org/2015/04/this-i-believe
The whole, “Love the sinner hate the sin” is about defining a person by their sins thus refusing to see the greatness and goodness within…
Oops.. meant Matt 23…
I have posted this, before. FWIW:
http://www.catholicworldreport.com/Item/3813/from_sfs_gay_mecca_to_healing_in_christ.aspx
Squeeky Fromm
Girl Reporter
Cnidaria
What did Jesus say about closing the Gates to the Kingdom?
Would he support a religion built upon his word yet refusing to honor his word at the same time claiming that their religion is suffering because of secular law?
MATT 34: 12 And whosoever shall exalt himself shall be abased; and he that shall humble himself shall be exalted.
13 But woe unto you, scribes and Pharisees, hypocrites! for ye shut up the kingdom of heaven against men: for ye neither go in yourselves, neither suffer ye them that are entering to go in.
14 Woe unto you, scribes and Pharisees, hypocrites! for ye devour widows’ houses, and for a pretence make long prayer: therefore ye shall receive the greater damnation.
15 Woe unto you, scribes and Pharisees, hypocrites! for ye compass sea and land to make one proselyte, and when he is made, ye make him twofold more the child of hell than yourselves.
gotta go, having lunch at El torito…be thinkin’ about you over a tall blended margarita and a chile relleno
Behold the “Christian”. Can’t represent his faith adequately. His testimony is one of hate, it’s a perversion of Christianity and the message of love. I suggest he seeks repentance.
bettykath
Precisely! It is certain religious extremists that seek protection FROM the law so as to be able to discriminate freely… ISIS would so love them.