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.
I. THIS PROPOSED MEASURE VIOLATES THE ESTABLISHMENT
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:
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:
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:
5. The Unites States Supreme Court has also explicitly ruled that:
II. THIS PROPOSED MEASURE VIOLATES THE FREE EXERCISE CLAUSE OF
THE FIRST AMENDMENT
6. In striking down Maryland's blasphemy law, a Maryland Court of Appeal held that the:
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:
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:
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.
III. THIS PROPOSED MEASURE VIOLATES THE FREE SPEECH CLAUSE OF
THE FIRST AMENDMENT
14. The Supreme Court has also said:
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:
17. Vague laws are even more acutely subject to being struck down if they threaten First Amendment rights. As the Supreme Court has said:
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:
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:
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:
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:
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,
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:
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