Denial of Equal Rights to Religious Minorities and Non-Believers in The United States
B. H. HARTOGENSIS
Yale Law Journal, vol. 39, pp. 659-681 (1930)
| An introduction to "blasphemy" is found here. |
The recognized propriety of respect for the God of the Christians in this country of Christians has naturally called for statutes to prevent the making of such disrespectful reference to the Godhead as would offend true believers.
| This is silly secularist propaganda. The Third Commandment does not prohibit any offensive reference to Baal, Ashtoreth, or "to the godhead of any religion." Otherwise all the prophets would be guilty of violating this Commandment for their sarcastic ridicule of idol-worship and false gods. |
A modern reading of the Third Commandment of the Decalogue, not to take God’s name in vain, should lead to the prohibition of offensive reference to the Godhead of any religion, or to any being or thing held sacred, in the hearing of a believer in any such creed or in malicious publications; all this of course, for the sole and only purpose of maintaining the peace and dignity of the state. Yet statutes penalizing blasphemy rest almost entirely on Christianity being part and parcel of the common law.
It must come then as a shock to learn of criminal statutes in the United States -- enforceable and sometimes enforced -- wherein, to the exclusion of other creeds, the divinity of Christ and the Holy Family are set down as matters of belief, and to utter as to him and them "profane" words (not necessarily offensive words) or to deny such divinity, constitutes a crime. There is no reference whatsoever to belief in or offensive references to other Godheads, or to things held sacred by others than believing Trinitarian Christians. Even the rights of Christians other than believers in the Trinity or the divinity of Christ are here disregarded. This harks back to Blackstone’s definition of "blasphemy against the Almighty": "Denying his being or providence, . . . contumelious reproaches of our Saviour Christ . . . profane scoffing at the Holy Scripture or exposing it to contempt and ridicule."[82]
Happily the law elsewhere does not go to such length as in Maryland, which makes it a crime "to blaspheme or curse God or write or utter profane words about our Saviour Jesus Christ or of or concerning the Trinity or any of the persons thereof";[83] although in Pennsylvania much the same language has been construed to mean the denial of the divinity of Christ.[84] This was the interpretation put on the rule in the earliest and the only reported case on blasphemy in Maryland, that of Lumbrozo. The early colonists in Maryland under Lord Cecil Calvert began to force their religious beliefs on Unitarians, non-believers, and the many Jewish merchants who were then in the colony. The "Edict of Toleration" of 1649 prescribed hanging and confiscation of goods for denial of such divinity, following English precedent. Nine years thereafter they actually made ready to hang a Jew, the distinguished chirurgeon Dr. Lumbrozo, merely because he would not affirm such belief in Christ.[85] And the greatest surprise of all is that despite frequent castigation for this narrowness, the good people of Maryland insist on keeping the statute of 1649 in effect in 1924, in much the same words as the original with the penalty reduced to six months in jail and a fine of $100.[86]
Maine, Massachusetts and other states have like mediaeval laws of the Church. Chancellor Kent dealt with their constitutionality in these words: "Shall we say that any word or deed, which would expose the God of the Christian religion or the Holy Scriptures to contempt ridicule, would be protected by a constitutional religious freedom? We register a most emphatic negative." This even though the law in question did not punish like attacks on "religious imposters," like "Mahomet and the Grand Llama."[87] A leading Massachusetts case, Commonwealth v. Kneeland,[88] handed down in 1838 and never overruled, goes great lengths in claiming superiority for orthodox Christian belief, with the inevitable suggestion of a union of Church and State. There a conviction of an editor or publisher was sustained because he "maliciously" printed these words: "Universalists believe in a God which I do not; but I believe their God with all his moral attributes (aside from nature itself) is nothing more than a mere chimera of their own imagination."
In England with Christianity established by law, since 1883, non-conformists and Jews, even an atheist like Bradlaugh, are allowed their civil rights, and blasphemous libel is something other than the denial of the truth of Christianity, under the law of the land.[89] The burden of a proper modern prosecution of blasphemy should be wilfully and with public contumely to ridicule a prevalent religion, not only with offense to the sensibilities of believers, but likewise against the public peace.[90]
[82] 4 BL. COMM. *59
[83] MD. ANN. CODE (Bagby, 1924) art. 27, § 24.
[84] Updegraph v. Comm., supra note 11.
[85] See ALTFELD, op. cit. supra note 66, at 3. It is interesting to note that Lumbrozo subsequently affirmed his faith as a Christian and only then was allowed to enjoy the rights of a denizen, including jury service.
[86] Supra note 83.
[87] See People v. Ruggles, supra note 10.
[88] 20 Pick. 206 (Mass. 1838).
[89] Att’y Gen’l v. Bradlaugh, 14 Q. B. D. 667 (1885).
[90] Full notes on this subject appear in (1921) 14 A. L. R. 880, and (1927) 48 A. L. R. 85.
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