Constitutional Pledges of Religious Liberty
By J. F. Blunt
Tyranny of Robbing an Honorable Citizen of a Portion of His Time—The Founders and Builders of This Nation Set Up Bulwarks Against Religious Despotism
“This is a country of religious liberty, not of religious toleration merely.” Thus wrote Thomas M. Cooley, the eminent jurist, whose work on “Constitutional Limitations” is a handbook greatly appreciated by the legal fraternity, and who is an acknowledged authority with bench and bar in America. In a foreword, of which the foregoing is the opening sentence, printed in “American State Papers,” Judge Cooley says: “Every person is entitled to worship God according to the dictates of his own conscience, under the obligations which rest upon all alike, that public order shall be respected, and the elements of morality and decency observed.” Tyrannical and Destructive
Passing on in a terse analysis of the issue thus forcibly presented, he says: “Whenever the law, either in terms or by the method employed in its enforcement, goes beyond this, and undertakes to compel observances that are only required by particular creeds, no matter how numerous may be those who consider them of divine obligation, it becomes tyrannical and destructive of a fundamental principle of American liberty. “It is also tyrannical when it punishes as a public offense the management of a citizen’s private affairs in such a manner as his own conscience approves, taking care in doing so neither to wrong nor to disturb those of his fellow citizens who differ with him in their views. “If in their opinion the course he pursues must be displeasing to the Ruler of the world, the question involved belongs not to human tribunals, and it is the purpose of our constitutional system that human laws administered by imperfect human instruments shall not assume to deal with it.” In “Constitutional Limitations,” upon the same subject, page 476, Judge Cooley makes this pertinent comment: “The Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates against his religion, and by forcing him to keep a second sabbath in each week, unjustly, though by indirection, punishes him for his belief.” Pledge of Freedom of Worship
With a view to the avoidance of such partiality in the administration of justice in California, the framers of the constitution now operative in this state inserted in that instrument this sweeping pledge of religious liberty: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this state.”—Article 1, section 4, Constitution of California. When one Newman, a Hebrew clothier of Sacramento, was found guilty of keeping his store open on Sunday in violation of a state law then on the statutes of California, the Supreme Court of California ordered his discharge from custody, declaring that “the enforced observance of a day held sacred by one of the sects, is a discrimination in favor of that sect, and a violation of the freedom of the others.” (Volume 9, page 502, California Reports.) Punishing the Laborer for Working
The same tribunal, in a more recent decision, commenting upon the fundamental proposition of the state constitution, that “all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty” (article 1, section 1, Constitution of California), said: “A man’s constitutional liberty means more than his personal freedom. It means, with many other rights, his right freely to labor, and to own the fruits of his toil. It is a curious law for the protection of labor which punishes the laborer for working. Yet, that is precisely what this law does. . . . Such protection to labor carried a little further would send him from the jail to the poor-house.”—Volume 112, page 468, California Reports. Stood Alone Without a Sunday Law
Thus it comes about that California for more than thirty years has stood for the equality of all its citizens before the law. It long enjoyed the unique distinction of being the only state in the Union where Sunday laws were not in force, and where all citizens, whether Jews or Gentiles, Catholics or Protestants, heathen or Christian, were not constrained by the civil power in respect to their religious beliefs or the observance of days, which might be regarded by any sect as deserving of acceptance or practise. The rulings of the courts of California almost invariably in support of natural rights, as affecting religious privilege, have been approved by the masses. Not only so, but it has been widely discerned that by no other course could the fundamental guaranties of state and nation be carried out. The founders of the national government were not remiss in their efforts to insure the free exercise of civil and religious liberty in the republic. On the contrary, they established strong barriers against religious oppression and civil intolerance. While recognizing in the Declaration of Independence the self-evident truths, “that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness,” they took care to incorporate in the Constitution of the United States at the onset a provision that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” (Article 6, section 3, United States Constitution.) Lest the foregoing guaranty might be insufficient, and to guard against possible eventualities, the first amendment emphasized the purpose of its framers to insure absolute and perpetual religious freedom, in the guaranty that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”; and to prevent any possible coercion of citizens on the part of the individual states composing the Union, thus pledged to the maintenance of equal rights, the fourteenth amendment was added, in due time, declaring that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Supreme Law of the Land
Thus safeguarded, the wonder ever must exist that even for a time it should have been left to a single state to maintain so excellent a policy, while all the rest were engaged in restrictive legislation, wholly opposed to those fundamental pledges. Yet, in the original draft of the Federal Constitution, as if imbued with prophetic vision and possessed of the foreknowledge that parties would arise to demand the curtailment of these natural prerogatives, its sponsors had declared that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” (Article 6, section 2, United States Constitution.) They Made Sunday Laws Notwithstanding
In harmony with these principles, whose justice none can gainsay, the several states have adopted constitutional provisions guaranteeing civil and religious liberty, which guaranties have been ignored by nearly all of them, in the enactment of Sunday laws, always the outgrowth of sectarianism, and opposed alike to the divine law and to the national standards of freedom. And, as though this were not enough, a persistent demand is heard from various quarters, that these unjust and unconstitutional enactments be rendered more oppressive by further restrictive legislation, whereby the whole community39shall be forced, willingly or unwillingly, to lend outward obedience to laws primarily directed to the exaltation of Sunday, a day nowhere in Sacred Writ designated as intended for such honor. Bearing in mind that the fundamental object to be gained by the institution of governments, as enunciated by the Declaration of Independence, is to insure the maintenance of unalienable rights, inherent in mankind, it only remains to point out, in the words of that most glorious manifesto, “that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”