Americans United for Separation of Church and State
Concerning the New York State Senate’s
Religious Ridicule Bill
by Edward Tabash
In early 1999, an actual blasphemy law was introduced into the New York State Senate. This measure would make it a crime to ridicule any religious belief or ridicule any concept of a deity upon which such beliefs are based in any public place. This bill is clearly unconstitutional in that it violates both Religions Clauses and the Free Speech clause of the First Amendment. This bill would give religionists special rights to silence those who disagree with their beliefs, placing the state on the side of assisting religious believers in suppressing public expressions of dissent, thus violating the Establishment Clause. It would also punish people for expressing their views on matters of religion, thus violating the Free Exercise Clause. In prohibiting speech because of the specific content and message of that speech, this legislation violates the Free Speech Clause. The letter to the New York State Senate contains a comprehensive constitutional argument as to why this measure is completely unconstitutional.
June 17, 1999
HONORABLE MARTIN CONNOR,
MINORITY LEADER, NEW YORK STATE SENATE
Legislative Office Building
Albany, New York 12247
Re: Senate Bill S02 167. Religious Ridicule Bill
Dear Senator Connor:
I am a member of the Board of Trustees of the Washington. D.C., based Americans United for Separation of Church and State. I chair the Legal Committee. Americans United is the largest and oldest organization in the United States devoted exclusively to the separation of church and state and to individual religious liberty.
I write to implore you to do everything in your power to secure the defeat of New York State Senate Bill S02167, which attempts to criminalize ridiculing of religious beliefs. This measure would make it a crime in a public place to “hold up the deity or the religious beliefs, practices, symbols, figures, or objects of any religious denomination sect or class of people, to ridicule, hatred, mockery, contempt or obloquy,” or “present, portray, depict the religious beliefs, practices, symbols, figures or objects of any religious denomination in an obscene, lewd, profane or lascivious manner.” This is essentially a blasphemy law.
CLAUSE OF THE FIRST AMENDMENT
1. This measure would clearly put the State of New York on the side of religion in any ideological dispute between a given religious belief and an opponent of that belief. This is entirely impermissible in our constitutional system in which all branches of government must be neutral as between and among all religious beliefs and non belief. The United States Supreme Court has definitively stated:
2. Senate Bill S02167, if passed into law, will cause the State of New York to aid religious beliefs as opposed to non religious beliefs. It would do this by protecting only religious beliefs from ridicule but would not similarly protect any other types of beliefs. Such overt assistance to only religious believers would violate the constitutional mandate, binding on each state, to refrain from conferring special privileges on religious believers, which privileges are offered to no one else. Again, in the precise words of the United States Supreme Court:
3. In the justification for S02167, it is set forth that the motion picture Monty Python’s Life of Brian was “seen by religious leaders as a cruel and blasphemous mockery of religion, Holy Scripture, the ancient Jewish faith, and the life and death of Christ.” Even if this movie were all of these things, it is still not constitutionally permissible for any branch of government, state or federal, to prohibit non believers or dissenting believers from ridiculing the cherished sentiments of anyone else’s faith. In a case remarkably on point, almost 50 years ago, the United States Supreme Court struck down another New York State law that banned all “sacrilegious” motion pictures. In so declaring this statute unconstitutional, the Court stated:
Thus, half a century ago, our nation’s highest Court ordered the State of New York to stop trying to insulate religious believers from verbal or visual attacks on their beliefs.
4. Your state, New York. has always been an intellectual leader and trendsetter in our nation’s history. It would be monstrous if New York would regress to where it was 50 years ago and try, once again, to impose on its people a medieval style blasphemy law, artificially choking off the articulation of any publicly uttered comment that would deride any religious belief. In his concurring opinion in Burstyn v. Wilson, Justice Frankfurter said:
Those of you in the New York Legislature must not allow your state’s legacy of intellectual progress to be stifled by some atavistic throwback to the dark ages, when heretics were punished for speaking in public. As the United States Supreme Court said 127 years ago, “The law knows no heresy and is committed to the support of no dogma…,” Watson v. Jones, 13 Wall. 679, 728 (1872).
5. The Unites States Supreme Court has also explicitly ruled that:
S02167 would violate this decree from the Court in that it would make the State of New York officially hostile to the “advocacy of no-religion.” It would also violate the mandate that all state governments be neutral “between religion and nonreligion.” This measure would harness the police power of the state as the enforcement mechanism for ecclesiastical authorities. The author of this bill and its supporters must be reminded that we are supposed to be entering the 21 st Century, not the 15 th.
THE FIRST AMENDMENT
6. In striking down Maryland’s blasphemy law, a Maryland Court of Appeal held that the:
The United States Supreme Court has indeed:
Thus, the free exercise of conscience in matters of religious faith involves as much constitutional protection for the right to reject all religious beliefs as it does for the right to accept any and all religious beliefs. By singling out religious beliefs for some kind of special insulation from ridicule, with the same insulation unavailable to opposing non religious views, S02167 unconstitutionally throws the official weight of the State of New York on the partisan side of any religious belief over a contrary viewpoint.
7. In April of 1823, the retired 3d President of the United States, Thomas Jefferson, writing to the retired 2d President of the United States, John Adams, said:
Here, Jefferson was articulating a concern that many freethinkers and many other non literalists have about Biblical claims, a sincere doubt about the veracity of supernatural claims. Whether it be talking animals or other miraculous phenomena, many thinkers sincerely doubt and disbelieve the claims of sacred scriptures, if those claims contain events which, if they occurred, today, would be deemed to violate known laws of nature. This is not to take a position on whether or not there is a basis for arguing that religiously asserted miracles are more believable than any other supernatural claims. It is to say that debates about the truthfulness of any religious assertion can, and frequently do, involve highly critical comments about whether or not paranormal incidents have ever occurred on our planet. For many non believers, the supernatural is always absurd, whether it be part of a present day insistence on UFO encounters; or, whether it be a claim that a supernatural event or events occurred in Biblical times. In order for both sides in such a debate to have a full and equal opportunity to air their respective points of view, government must never step in and punish or artificially choke off the full extent of possible argument by either side.
8. The questions of human origin, purpose, and destiny are crucial issues confronting all of us. Some respond by subscribing to various beliefs in a supernatural force or forces. Others respond by seeing the universe as containing no supernatural agencies. Under our constitutional system, no branch of government can deploy its law enforcement authority to ban the expression of either side’s arguments in the debate over whether we live in a God-permeated or Godless universe. Jefferson’s above quoted comment, likening the virgin birth to Greco-Roman mythology, could be seen as ridiculing Christianity. So could comments that are very critical of the supposed talking snake in the Garden of Eden, or that are very critical of the claim that Jesus was resurrected from the dead. If the proponents of the claims of religion don’t like the barbs aimed at their beliefs by non believers, the solution is not to run and hide behind the apron strings of the police power of the state, by having the nonbeliever arrested, cited, fined, or otherwise formally punished. This is rank cowardice.
9. In America, if you don’t like what your opponent says about your beliefs, you don’t seek to outlaw the expression of your opponent’s views; you seek to answer your adversary’s arguments with your own arguments, Texas v. Johnson, 491 U.S. 397, 419-420; 109 S.Ct. 2533, 2548 (1989). Our national Constitution does not permit any state to invoke its law enforcement apparatus to forcibly silence or otherwise formally punish the words of the nonbeliever, in a contest of competing ideologies with believers. Government must maintain its wholesome neutrality in religious controversies, as discussed above. The raging controversies between believers and nonbelievers should be left free to fully play themselves out in verbal encounters, in print, in film, and in any other medium of communication that human ingenuity can devise. The very nature of metaphysical disputes frequently involves assertions that can be said to ridicule the opposing viewpoint. In no other area of human disputation does the State of New York propose to intervene. It cannot now choose religious controversy as the one area in which it will exert its official muscle to punish the verbalization of the arguments of only one side of any such dispute.
10. The United States Supreme Court has unmistakably said: “No person can be punished for entertaining or professing religious beliefs or disbeliefs…” Everson v. Board of Education of Ewing Township, 330 U.S. 1, 15-16; 67 S.Ct. 504, 511 (1947). This, alone, should be sufficient to resoundingly reject S02167.
11. In January of 1786, about three and a half years before becoming the principle initial author of the First Amendment, the future 4thPresident of the United States, James Madison successfully persuaded the Virginia Legislature to enact Thomas Jefferson’s Bill for Establishing Religious Freedom. Thus, this Bill was the joint effort of two of our country’s most important Founders. This joint Jefferson/Madison measure contained language that was approvingly adopted by the United States Supreme Court 121 years ago:
Jefferson and Madison have sent us a message for the ages, which our nation’s highest court has also adopted. That message is: It is not the proper function of the official power of any state to suppress or punish the articulation of any viewpoint regarding what is true and false in matters of religion. S02167 is a most unenlightened attempt to flout the teachings of these two precious Founders and to flout the clear mandate of our nation’s Supreme Court. In the Jefferson/Madison Bill for Establishing Religious Freedom, it is further asserted that our legal freedoms should not depend on our opinions about religion any more than they should depend on our opinions about physics and geometry, Op. Cit., Jefferson, Writings, Library of America, at page 346. S02167 singles out the nonbeliever, or other dissenter from any religious viewpoint, as someone who must suffer less freedom, in this case, less freedom of speech, than the scope of legally protected freedom to speak one’s mind, that is available to the believer.
12. Daniel Carroll. who was a member of the House of Representatives during Congress’ consideration of the Bill of Rights, made the following comment on August 15, 1789, during the House debates on the First Amendment, “… the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand…,” Church and State in the United States, Anson Phelps Stokes and Leo Pfeffer, Harper & Row, New York, (1964), at page 94. This statement, now 210 years old, captures with deep sensitivity and compassion how tenuous and delicate our liberties really are. Representative Carroll understood that the freedom to express one’s views on matters of conscience is such a fragile liberty, that the slightest indication from the police power of the state that the expression in question is subject to punishment, can destroy all hope of ever achieving a society in which candid and frank discussions of these matters can ever take place.
THE FIRST AMENDMENT
13. S02167 violates the requirement that branches of government not attempt to punish speech based upon the content of that speech. As the Supreme Court has unequivocally said:
Legislation that would punish the ridiculing of religion is as clear a violation of the constitutional requirement of content neutrality as could ever exist.
14. The Supreme Court has also said:
Thus, to the extent that S02167 is designed to shield clergy and other religious believers from hearing words that are offensive to their beliefs, this measure impermissibly attempts to prohibit the expression of ideas based on their perceived offensiveness to some members of society.
15. It wouldn’t even matter if an overwhelming number of the residents of New York favored this type of measure. As the Supreme Court has further said:
S02167 is thus an unconstitutional attempt by a state government to punish speech because of its substantive content.
16. To make it a crime to: “hold up the deity or the religious beliefs, practices, symbols. figures, or objects of any religious denomination sect or class of people, to ridicule, hatred, mockery, contempt or obloquy,” or “present, portray, depict the religious beliefs, practices, symbols, figures or objects of any religious denomination in an obscene, lewd, profane or lascivious manner,” as does S02167, is to violate the constitutional prohibition against vagueness. There are so many different interpretations that reasonable people may apply in attempting to determine what does and what does not constitute “ridicule, hatred, mockery, contempt or obloquy,” that this proposed legislation does not meet the basic threshold of clearly informing people of the precise nature of the actions that could result in prosecution. The Supreme Court has said:
Some people may poke fun at their own religion. They may do it in such a way that half their co-religionists think it’s devastatingly funny and the other half might take offense. Jewish comedians, for instance, frequently make fun out of their own heritage. If S02167 were to pass, and Woody Allen were to do an outdoor benefit for some cause in Central Park, and tell Jewish jokes as part of his routine, could he be arrested? Could Jackie Mason be arrested?
17. Vague laws are even more acutely subject to being struck down if they threaten First Amendment rights. As the Supreme Court has said:
What one person might consider ridicule and mockery of a religious belief system, another person might consider merely humorous. Yet an additional person might consider the comments to be on- target and clever philosophical criticisms of that religion’s viewpoint, as can be seen by the Jefferson quote on the notion of a virgin birth, as set forth above. As the Supreme Court has said: “One persons vulgarity is another’s lyric.” Cohen v. California, 403 U.S. 15, 25; 91 S.Ct. 1780, 1788 (1971).
18. S02167 is fatally defective in a way in which other statutes that have been struck down as unconstitutionally vague have not been. This measure would be unconstitutional even if we could be absolutely certain as to what terms such as “ridicule” and “mockery” would mean in every single case. This is so because even if there is no problem with vagueness, verbal ridicule and mockery of religious beliefs is squarely protected by the First Amendment. Thus, unlike other statutes that could have possibly passed constitutional muster had they not been vague, S02167 cannot be saved by any clarifying definitions, because even the most precise pinpointing of the exact type of words, the utterance of which would be punishable, will not divest those words of their otherwise clear First Amendment protection.
19. The Supreme Court has said that if any statute seeks to prohibit any type of speech, that statute: “must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. 518, 522; 92 S.Ct. 1103, 1106 (1972). S02167 suffers from a more fatal constitutional defect than most other statutes that are measured by the inquiry as to overbreadth. Regardless of how narrowly a court might construe S02167, it can never be interpreted to apply to only a category of speech that the state may outlaw. because every conceivable application of S02167 would be unconstitutional, in that it attempts to ban a type of speech that enjoys full constitutional protection.
20. Even if a state may regulate in a certain area, it cannot try to achieve a permissible objective by unduly infringing upon a protected freedom. Cantwell v. Connecticut, 310 U.S. 296, 304; 60 S.Ct. 900, 903 (1940). Regarding S02167, as shown above, the state has no constitutional permission to shield religious believers from hearing their beliefs subjected to speech which heaps “ridicule, hatred, mockery, contempt or obloquy” on those beliefs or on a deity upon which those beliefs are supposedly founded. Thus, all government bodies, state and federal, are foreclosed from the entire enterprise of attempting to essentially ban blasphemous speech.
D. CLEAR AND PRESENT DANGER
21. New York also cannot fabricate any claim of concern for public safety as a basis for trying to shield S02167 from a successful First Amendment attack. The Supreme Court has said:
For someone to “ridicule” or “mock” a religious belief or practice is not at all akin to gathering a group of hostile individuals with blazing torches outside of a disfavored house of worship and urging the members of the group to immediately set the building on fire.
E. FIGHTING WORDS AND HOSTILE AUDIENCES
22. In 1942, the Supreme Court did state that it will allow a state to punish someone who utters “fighting words,” words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572; 62 S.Ct. 766,769. In Chaplinsky, a person in a public place called a City Marshall a “goddamned racketeer” and a “damned fascist.” 315 U.S., at pages 569-570; 62 S.Ct., at page 768. Yet, thirty years later, the Supreme Court reversed the conviction of a person who said to a police officer in a public place: “You son of a bitch, I’ll choke you to death,” and further said to the police that if they put their hands on him again, he will cut all of them to pieces, Gooding v. Wilson, supra., 405 U.S., at page 519; 92 S.Ct., at page 1105. Surely, the statements made in Gooding were much more provocative, and more likely to induce a breach of the peace, than the statements made in Chaplinsky. Thus, the Court had obviously become more protective of the right of free speech in between these two cases.
23. Further, the statute struck down as unconstitutional in Gooding made it a crime for any person in the State of Georgia to “use to another, and in his presence… opprobrious words or abusive language tending to cause a breach of the peace… ” 405 U.S., at page 519; 92 S.Ct., at page 1104. If the Supreme Court would strike down a statute criminalizing the use of “opprobrious words or abusive language” to another person, the Court would surely strike down S02167’s attempt to criminalize holding up the deity or any religious belief to “ridicule, hatred, mockery, contempt or obloquy.” Twenty four years after Chaplinsky, the Supreme Court said that it would not uphold laws that punish conduct that is statutorily defined as “calculated to create a disturbance of the peace,” because such broad language “leaves wide open the standard of responsibility” and because it hinges too much on defining the “boiling point of a particular group” of listeners, Ashton v.Kentucky, 384 U.S. 195, 200; 86 S.Ct. 1407, 1410 (1966). The Court, in Ashton, went on to say that it will strike down laws that “…make a man a criminal simply because his neighbors have no self control and cannot refrain from violence.” Ibid.
24. Thus, the Court showed that it will not allow a “heckler’s veto” to circumvent the First Amendment. Speakers cannot be constitutionally punished because their listeners may resort to violence as a result of inadequate discipline to peaceably endure hearing a contrary or offensive viewpoint. Are the sponsors of S02167 arguing that both clergy and other religious people in the State of New York are so volatile that if they hear anyone ridicule their beliefs they will become uncontrollably violent? Even if this is so argued, the Supreme Court has clearly said that a state may not criminalize speech because those of opposing viewpoints lack self restraint. “Constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Cox v.Louisiana, 379 U.S. 536, 551; 85 S.Ct. 453, 462 (1965).
25. In Cohen v. California supra., 403 U.S., at page 16; 91 S.Ct., at page 1784, the Supreme Court struck down on First Amendment grounds the conviction of a man who walked through the Los Angeles County courthouse, wearing a jacket bearing the completely spelled out phrase of: “F…. the draft.” In addressing the state’s argument that to permit such a phrase with such an offensive word fully spelled out, to be paraded in a public place like a county courthouse, could incite violent reactions and a breach of the peace, the Court said that the state’s “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to free expression.” 403 U.S., at page 23; 91 S.Ct., at page 1787. The Court went on to say:
If the Court blanketed the display of the epithet at issue in Cohen with constitutional protection, it would undoubtedly also do so for the type of speech that S02167 seeks to criminalize.
26. In R. A. V. v. City of St. Paul, Minnesota, 505 U.S. 377, 380; 112 S.Ct. 2538, 2541 (1992), the Supreme Court held unconstitutional a statute that criminalized placing “a symbol, object, appellation, characterization, or graffiti, including, but not limited to a burning cross or Nazi swastika” on public or private property, which the person so placing such an object “knows or has reasonable grounds to know” will “arouse anger, alarm, or resentment in others on the basis of race, creed. color, religion, or gender.” The Court held the statute unconstitutional on its face because it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses, 505 U.S., at page 381; 112 S.Ct., at page 2542. In language directly relevant to S02167, the Court identified as one of the constitutional flaws of the ordinance in question, its permitting the condemnation of the enemies of a religion, at the same time as it prohibits the condemnation of any religion:
Thus, by this example in Justice Scalia’s majority opinion, the Court has clearly expressed its view that it is unconstitutional for any law to attempt to single out only religious sensibilities for special protection from being verbally offended. The above quoted language from R. A. V. should forewarn the New York Legislature to not embarrass itself by passing a law as patently unconstitutional as S02167.
27. In Terminiello v. City of Chicago, 337 U.S. 1, 5; 69 S.Ct. 894, 896 (1949), the Supreme Court overturned the conviction of a white supremacist speaker who was convicted of violating a city ordinance that permitted a person to be convicted if that person’s “speech stirred people to anger, invited public dispute, or brought about a condition of unrest.” The ordinance, itself, was declared unconstitutional. The Court took this action, even though this speech, given in an auditorium resulted in a large, unruly, and somewhat violent crowd of protestors outside. The crowd constituted “a surging, howling mob hurling epithets at those who would enter and tried to tear their clothes off.” 337 U.S., at page 16; 69 S.Ct., at page 901. This hostile crowd reached an estimated number of 1500. Ibid. Among the things that the speaker who was charged with violating the Chicago ordinance said in his speech was: “Now, this danger that we face-let us call them Zionist Jews if you will, let’s call them atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them.” 337 U.S. , at page 20; 69 S.Ct., at page 903. Yet, the Supreme Court, in striking down the ordinance as violative of the First Amendment and in reversing the conviction of the speaker said:
If the Court would afford constitutional protection to a speech such as was made in Terminiello, including the above quoted anti Semitic slurs, surely constitutional protection would apply to the type of speech that S02167 seeks to punish: speech that holds up “the deity or the religious beliefs, practices, symbols, figures, or objects of any religious denomination sect or class of people, to ridicule, hatred, mockery, contempt or obloquy.”
28. We can see from the above discussion that a legislature will not be permitted to attempt to punish the content of speech, just because that legislative body attempts to justify its effort to do so by expressing a concern that the speech in question will be highly offensive to some listeners or that it will possibly invoke violent responses from some members of the public.
29. Thomas Jefferson wrote in his Notes on the State of Virginia, published in 1787, in Query XVII thereof,
How can it be that the man we elected president precisely 200 years before we will choose our next president was many times more tolerant and open minded toward a diversity of viewpoints on religious matters than most politicians holding office, today? S02167 surely violates the very spirit of magnanimity that characterizes this Jefferson quote. Further, in the Jefferson/Madison Bill for Establishing Religious Freedom, cited above, the men who were to become, respectively, the 3d and 4 thPresidents of the United States, state:
30. S02167 takes away the very freedom to “be free to profess, and by argument to maintain, opinions in matters of religion,” by placing artificial constraints on a person’s freedom to articulate the depth and breadth of the reasons why that individual rejects a certain religious belief.
31. The massive amounts of clear constitutional law from the Supreme Court’s interpretation of both the Religion and Speech Clauses of the First Amendment, as cited herein, leave no doubt that S02167 is egregiously unconstitutional on its face. S02167 is not only unconstitutional, it is also such a barbaric regression from the self evident standards of contemporary free expression as to contravene some very basic tenets of modern civilization, itself. Thus, its passage by the New York Legislature would be a shameful act that could very well jeopardize New York’s otherwise historically deserved reputation as a major leader in progress and modernization.
32. In 1943, the Supreme Court said:
S02167 violates both the letter and the spirit of this magnanimous edict from our country’s highest court. The very passage of S02167 would be an inexcusable act of attempting to destroy the essence of both the separation of church and state and free speech. It must be resoundingly defeated.
33. Thank you for your attention to the foregoing. If you have any further questions, please do not hesitate to contact me.
On Behalf of Americans United for Separation of Church and State