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guaranteed by the constitutional provisions in respect to religious liberty. Religious liberty is impossible without freedom of expression and profession of one's faith and doctrines. Religious liberty implies the utmost freedom in the promulgation of the creed one professes, and exhortation to non-believers to embrace that faith. The serious and honest discussion of the doctrinal points of the Christian or any other religion is protected from infringement by our constitutional limitations. But no one can claim, under these provisions of the constitution, the right of indulgence in “ offensive levity, or scurrilous and opprobrious language,” which serves no good purpose, and, when done in public, is likely to bring about more or less disturbance of the public order. Such actions and such language, whether written or spoken, constitute a nuisance, which comes within the jurisdiction of law. It is legal blasphemy. The statute against blasphemy “ does not prohibit the fullest inquiry and the freest discussion, for all honest and fair purposes, one of which is, the discovery of truth. It admits the freest inquiry, when the real purpose is the discovery of truth, to whatever result such inquiries may lead. It does not prevent the simple and sincere avowal of a disbelief in the existence and attributes of a supreme intelligent being, upon suitable and proper occasions. And many such occasions may exist; as where a man is called a witness, in a court of justice and questioned upon his belief, he is not only permitted, but bound, by every consideration of moral honesty to avow his unbelief, if it exists. He may do it inadvertently in the heat of debate, or he may avow it confidentially to a friend, in the hope of gaining new light on the subject, even perhaps whilst he regrets his unbelief; or he may announce his doubts publicly, with the honest purpose of eliciting a more general and thorough inquiry, by public discussion, the true and honest purpose being the discovery and diffusion of truth. None of these constitute the willful blasphemy prohibited by this statute.'
§ 74. Permissible limitations upon religious ship. - 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
i Com. v. Kneeland, 20 Pick, 206, 220, see Updegraph v. Com., 11 S. & R. 394 ; People v. Ruggles, 8 Johns. 289 (5 Am. Dec. 335). In speaking of charitable uses, Judge Duer, in Ayres v. Methodist Church, 3 Sandf. 351, said: “If the Presbyterian and the Baptist, the Methodist and the Protestant Episcopalian, must each be allowed to devote the entire income of his real and personal estate, forever, to the support of missions, or the spreading of the Bible, so must the Roman Catholic his to the endowment of a monastery or the founding of a perpetual mass for the safety of his soul; the Jew his to the tra tion and publication of the Mishua, or the Talmud; and the Mohametan (if in that colluries gentium to which this city (New York], like ancient Rome, seems to be doomed, such shall be among us), the Mohametan his to the assistance or relief of the annual pilgrims to Mecca.”
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.”] Thus it has been held by the Supreme Court of
1 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. 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.
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. As long as these unions are quiet and
Cooley on Torts, 34. 2 Reynolds v. United States, 98 U. S. 145.
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 probibit 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 wbich prohibited those only, which are conducted by the opponents of the Christian religion, would be unconstitutiona) 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.
§ 75. Religious discrimination in respect to admissibility of testimony.— According to the English common law, no one was a competent witness, who did not believe in the existence of God, and of a state of rewards and punishments hereafter. This rule has been recognized and enforced to its fullest extent in the earlier cases,' and it was almost universally required by the courts of this country, that the witness, in order to be competent, should believe in a superintending Providence, who can and would punish perjury. The reason for the rule was declared to be, that without such belief an oath could not be made binding upon
1 See Atwood v. Welton, 7 Conn. 66.
2 See Arnold v. Arnold, 13 Vt. 362; Hunscom v Hunscom, 15 Mass. 184; Butts v. Swartwood, 2 Cow. 431; Cubbison v. McCreery, 7 Watts & S. 262; Jones v. Harris, 1 Strobh. 160; Blocker o. Burness, 2 Ala. 354; Brock v. Milligan, 10 Ohio, 121; Central R. R. Co. 0. Rockafellow, 17 III. 541.