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Subject Area: Law
Topic: The American Revolution and Constitution

§ 66.: Permissible limitations upon religious worship.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 66.

Permissible limitations upon religious worship.—

While the constitution of the United States prohibits all interference with the free exercise of religion according to the dictates of the conscience, and guarantees before the law a substantial equality to all systems of religion, by the influence of natural social forces, Christianity has become a part of the common law of this country to the extent of those of its moral precepts, which have a bearing upon social order, and the breach of which is pronounced by common opinion to be injurious to the welfare of society. Immorality and crime, according to public sentiment as it has been given public expression in the laws of the country, cannot be sanctioned and permitted to those, who through their mental aberrations have adhered to and professed a religion, which authorizes and perhaps commands the commission of what is pronounced a crime. An act is still a crime, notwithstanding the actor’s religious belief in its justifiableness. So far, therefore, as religious worship involves the commission of a crime, or constitutes a civil trespass against the rights of others, it can and will be prohibited. As Judge Cooley happily expresses it: “Opinion must be free; religious error the government should not concern itself with; but when the minority of any people feel impelled to indulge in practices or to observe ceremonies that the general community look upon as immoral excess or license, and therefore destructive of public morals, they have no claim to protection in so doing. The State can not be bound to sanction immorality or crime, even though there be persons in a community with minds so perverted or depraved or ill-informed as to believe it to be countenanced or commanded of heaven. And the standard of immorality or crime must be the general sense of the people embodied in the law. There can be no other.”1 Thus it has been held by the Supreme Court of the United States that the religious liberty of the Mormons of Utah is not infringed by the act of Congress providing penalties for the practice of polygamy, which is sanctioned or commanded by their religious creed.2 In many of the State constitutions,—notably, California, Colorado, Connecticut, Florida, Georgia, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nevada, New York, South Carolina, there are provisions to the effect that the constitutional guaranty of religious liberty is not to justify or sanction immoral or licentious acts, the practice of which threatens the peace or moral order of society.

Under the English law, legacies of money to be expended for masses for the repose of the soul of a deceased person, whether it be the testatrix or some one else, was declared void, because it was a gift for, what was declared by the English statute, a superstitious use. The prohibition of such a legacy was prompted by the then existing religious antagonism and intolerance. It would hardly require an adjudication to satisfy us of the unconstitutionality of such a law under our constitutional guaranties of religious liberty; but in the case cited below this ruling has been made by the New Jersey Supreme Court.3

Of late years the question of police regulation of religious worship has assumed a rather important as well as curious phase, in consequence of the formation of religious unions, variously called Salvation Army, Band of Holiness, etc., which parade in the public streets, conduct religious exercises in the market place, or other prominent thoroughfares, and do other things of a like character; with the desire to attract the attention of those classes of society which are beyond the reach of the ordinary Christian and moral influences.1 As long as these unions are quiet and peaceable in their actions, neither creating any public disturbance nor obstructing the thoroughfare, and are not by their utterances so rudely offensive to the public sentiment, as tinged and colored by the prevailing influence of Christianity as to endanger the public peace, there will probably be no question raised against the continuance of their public parades and exhibitions. But suppose an Israelite, a Chinaman, a Mohammedan, the infidel or the atheist, should undertake in the public streets to preach upon the peculiar doctrines of their respective religions, and in their efforts to win disciples should enter upon a free and searching criticism of the distinctive doctrines of the Christian religion; will they be permitted to proceed with their efforts at proselytism, and outrage the prevailing sentiment by utterances, which however honest are held by the majority of the community to be little less than blasphemous? If the public peace is endangered by these public meetings, they can be lawfully prohibited, whether the doctrines taught be Christian or Hebrew, infidel or Mohammedan. All religions are equal before the law, and the Christian has no more right to disturb the public peace by preaching the gospel of Christ in the streets of the Jewish or other unchristian quarter of a city, than has the Jew or infidel a right to threaten the public peace by the promulgation of his religious doctrines in a Christian community. But would it be permissible to prohibit by law discourses which are designed to assail and supplant the Christian religion with some other creed? The quiet and peace of mind of a Christian believer is greatly disturbed, and his inalienable right to “the pursuit of happiness” invaded, by hearing upon the public streets and highways animadversions and free criticisms of the Christian doctrines and institutions, in whose divine origin and truth he has implicit faith. And being a trespass it would seem permissible to prohibit all such discussions. But the Jew’s or infidel’s right to “the pursuit of happiness” is as much invaded by the Christian exhorter’s animadversions upon their religious tenets, and is entitled to equal protection. We therefore conclude, first, that public religious discussions are not nuisances at common law, that is, independently of statute, unless they incite the populace to breaches of the peace, or obstruct the thoroughfare, and in that case the breach of the peace or obstruction of locomotion constitutes the offense against the law rather than the discourse. However, on the ground that all religious discussions on the public streets are more or less calculated to disturb the mental rest and quiet of those whose religious opinions are assailed, we hold that these public meetings can be prohibited altogether. But a law which prohibited those only, which are conducted by the opponents of the Christian religion, would be unconstitutional on account of the discrimination against other religions and in favor of the Christian religion. All religious discourses in the street and other public places should be prohibited or none at all.

[1]Cooley on Torts, 34.

[2]Reynolds v. United States, 98 U. S. 145.

[3]Kerrigan v. Tabb, N. J. Eq. 39 A. 701. In this case the legacy was to a priest to be expended for masses for the repose of the soul of the testatrix. The legacy was held to be valid and protected by this constitutional provision for religious liberty. See, also, to same effect, Hoeffner v. Clogan, 171 Ill. 462; Sherman v. Baker, 20 R. I. 613.

[1]See State v. White, 64 N. H. 48, where beating a drum in the streets was held to be disorderly conduct, notwithstanding it constituted a part of a religious exercise of the Salvation Army.