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February 01, 2005

blue-state legislation for a Christian nation

Don Herzog, Herzog: "A Christian Nation?": February 1, 2005

Legislatures don't usually bother combing through the books to repeal obsolete laws.  You'll be tickled to know that Massachusetts, which has come a long way since its forbiddingly stern Puritan past, still has this statute on the books (ALM GL ch. 272, § 36):

Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

The statute dates to the seventeenth century.  My home state of Michigan has an abbreviated version of the same statute on the books (MCL § 750.102).  Courts routinely upheld such statutes in the early 1800s and commentators didn't politely pretend they were defending "Judaeo-Christian" values.  Here's Charles Elliott, Professor of Biblical Literature and Exegesis at Chicago's Presbyterian Theological Seminar in his 1867 book on The Sabbath:

    But it may be asked, would not the Jew be denied equality of rights by legislation protecting the Christian Sabbath and ignoring the Jewish?  The answer is:  We are not a Jewish, but a Christian nation; therefore, our legislation must be conformed to the institutions and spirit of Christianity.  This is absolutely necessary from the nature of the case.  A Christian nation cannot, without the greatest wrong to itself, ignore Christianity, or place it on a level with Judaism, Mohammedanism, and infidelity.  Christianity is the salt of the earth the great conservative principle of all that is good and holy in the world; and the Sabbath is the great conservator of Christianity.

But the Massachusetts statute is quite hopeless today, on free speech and establishment grounds alike.  Anybody wish we could still have such legal actions?  At least one other Western country does.

Great Britain's Blasphemy Act of 1697, 9 Will. III c. 35, attaches legal disabilities to anyone who

shal by writing printing teaching or advised speaking deny any one of the Persons in the Holy Trinity to be God or shal assert or maintain there are more Gods than One or shal deny the Christian Religion to be true or the Holy Scriptures of the Old and New Testament to be of Divine Authority....

Repeat offenders earn more legal disabilities and a three-year prison term.  The Act was repealed in 1967, but the common law of seditious blasphemy lives splendidly on.  An 1838 decision limited its scope to attacks on the Church of England.  (Here's a quick history.)  So had Salman Rushdie written a Satanic Verses bashing the 39 Articles, he could have found himself prosecuted.  Should a free society content itself with saying, "yeah, but we don't issue fatwas"?  The law permits private actors to prosecute and was last successfully deployed in the 1977 case against (somehow I knew it would come to this; didn't you?) The Gay News and its editor for running a poem depicting the love of a gay centurion for Jesus on the cross.  And right now some viewers up in arms over the BBC's broadcast of Jerry Springer The Opera would like to use it again.  Said the director of Christian Voice, "If Jerry Springer The Opera isn't blasphemous then nothing in Britain is sacred."

Tony Blair's government has been tinkering with reforming the common law with a statute prohibiting incitement to religious hatred.  The measure enjoys broad support.  I wonder if it would open Rushdie to prosecution for the actual version of The Satanic Verses.  But I suppose it would pair nicely with the country's Race Relations Act of 1976, which dictates in part that

A person commits an offence if —
(a) he publishes or distributes written matter which is threatening, abusive or insulting; or
(b) he uses in any public place or at any meeting words which are threatening, abusive or insulting, in a case where, having regard to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain by the matter or words in question.

That act too would be blatantly unconstitutional here for several reasons.  Still, you've got to hand it to the Brits.  They know what a Christian nation is.  They have an established church extensively connected with the government at the highest levels, with for instance 26 bishops still entitled to sit in the House of Lords, and a common law of seditious blasphemy.  They know what it means to enforce civility, too.  Us?  We have quaint and obsolete statutes and disputes about Christmas in public schools.  We don't even revere Massachusett's proud history:  I don't know anyone longing for the restoration of bloody-minded Puritan rule.  Ah, secularism.  Nostalgia isn't what it used to be.


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Posted by: Shag from Brookline

Keep in mind that the First Amendment speech/press clause restricted only the federal government until the enactment of the Fourteenth Amendment, which according to many constitutional scholars "incorporated" some or all of the Bill of Rights thus restricting states as well. So the Massachusetts statute in question would today be examined with speech/press restrictions standards. Also, the Massachusetts Constitution itself has a speech/press clause as I recall. Perhaps this statute will go the way of fornication, adultery, jaywalking, etc.

Posted by: Shag from Brookline | Feb 1, 2005 7:39:55 AM

Posted by: D.A. Ridgely

Speaking of the 39 Articles, I suppose Blair’s statute would also outlaw the even earlier (1549) Book of Common Prayer, or at least the Great Litany passage: “… from the tyranny of the Bishop of Rome and all his detestable enormities, … good Lord deliver us.”

For what it’s worth, to say that the contemporary Church of England is “extensively connected with the government at the highest levels” in anything more than a ceremonial capacity (and barely that), would be quite a stretch. If anything, establishment hastened the decline of Christianity in Great Britain. Hence, their befuddlement over an influx of monotheists who continue to take their faith rather more seriously.

Posted by: D.A. Ridgely | Feb 1, 2005 8:35:53 AM

Posted by: Jim Hu

A dumb question: when a law, or part of it is struck down in the courts, how is the statute corrected in the books? Just wondering.

Posted by: Jim Hu | Feb 1, 2005 11:00:30 AM

Posted by: miab

"when a law, or part of it is struck down in the courts, how is the statute corrected in the books? Just wondering."

It's not, unless the legislature feels like it.

Posted by: miab | Feb 1, 2005 1:10:32 PM

Posted by: D.A. Ridgely

Mr. Hu:

Miab is technically correct in that the courts can't require legislatures to revise their statutes. However, what happens in practice is that all statutes are routinely annotated with references to judicial decisions that interpret or invalidate them, either in whole or in part, almost on a daily or at least weekly basis. Courts and lawyers practicing in those areas of law make it their business to keep up with these developments. (One of the classic risks laypeople encounter when they try to be their own lawyers is the risk of failing to understand how a statute is subsequently affected by judicial decisions.) Anyway, most legislatures do routinely do some statutory housecleaning, including either repealing or revising invalidated statutes. Again, the code books typically keep tables of legislative histories, so one can trace when a bill was passed, how it got codified (if, in fact it was) and what happened afterwards.

Posted by: D.A. Ridgely | Feb 1, 2005 1:48:20 PM

Posted by: DBCooper

Speaking of nostalgia...remember just 20 years ago when New York was a red state...and Minnesota was the lone blue state? Maybe those labels are not as permanent as we now seem to believe.
I apologize for the non-sequitur in advance.

Posted by: DBCooper | Feb 1, 2005 4:36:43 PM

Posted by: rtr

We still allow blashemophous power-tripping judges to declare such absurd things as "comtempt of Court" for the nostalgia minded.

Posted by: rtr | Feb 1, 2005 4:39:39 PM

Posted by: Aaron S.

I am amused by any appeal to a "judeo-christian" ethic. There is only an ethic in common between the Jews and the Christians insofar as the Christians adhere to the ethics espoused in the Torah in concert with Biblical ethics. The trouble is, the Jewish Adonai has more in common with the Muslim Allah than with the Christian Christ. Adonai is a jealous, vengeful god and recommended that his children act similarly. Therefore, none of this forgiveness and universal love nonsense that I hear from the Christians. The Torah wants eyes as payment for eyes lost. Human life is not universally sacred (e.g. Sodom), Adonai was only looking out for his chosen people, the Jews.
Which is part of the reason why I think religions in general are an antiquated source for ethical guidance, but are rather, at least in the Jewish and Muslim cases, forms of life with which communities have something culturally in common.

Posted by: Aaron S. | Feb 1, 2005 7:04:24 PM

Posted by: john t

Ho HO Ho I can't stop laughing at the stupidity of those 17th & 18th century dolts that Mr. Herzog has so much fun with. Why were they not as wise as we are. If they had been no doubt they would have had restrictions on "lookism",a vice practiced soley by men against innocent & naive women,an unsavory act found ,curiously enough,on university grounds,especially around swimming pools,but crushed quickly by those guardians of intellect to whom we intrust our learning and traditions. OK,let's skip the tradition part,nostalgia being a worse affliction then crotch itch. Ah virtue,thy name is consistency.

Posted by: john t | Feb 2, 2005 11:23:40 AM

Posted by: Terrier

john t, they did have a restriction against lookism - it was called "property rights" as in "she is my property." Back then looking might get your eyes put out. Aren't you fortunate to live in these enlightened times?

Posted by: Terrier | Feb 2, 2005 11:44:48 AM

Posted by: rtr

"OK,let's skip the tradition part..."

Skip? Or strip?

Posted by: rtr | Feb 2, 2005 11:45:36 AM

Posted by: miab

D.A. Ridgely writes:
"Miab is technically correct in that the courts can't require legislatures to revise their statutes. However, what happens in practice is that all statutes are routinely annotated with references to judicial decisions that interpret or invalidate them, either in whole or in part, almost on a daily or at least weekly basis. . . . Anyway, most legislatures do routinely do some statutory housecleaning, including either repealing or revising invalidated statutes . . . ."

All true. But legislatures frequently keep laws on the books as a sort of protest against the judicial decision -- e.g., various Jim Crow laws still on the books in some Southern states, and anti-abortion laws still on the books in a lot of places.

A judicial decision doesn't exactly 'strike down' a statute. It declares it unconstitutional and therefore unenforceable.

If/when Roe v Wade is overturned, all those anti-abortion statues would be enforceable again, without needing to be re-enacted by the legislature.

Posted by: miab | Feb 2, 2005 11:59:14 AM

Posted by: arbitrary aardvark

Has the Mass. statute been found unconstitutional? I is a lawyer, not a very good one, and would take such a case if local counsel and a plaintiff could be found.

Posted by: arbitrary aardvark | Feb 3, 2005 8:47:01 PM

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