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be given of religious freedom, and restriction. "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the state."
A fair commentary upon this provision, in general terms, is, that no law shall be passed creating preferences in favor of one religious sect or denomination, or as to their mode of worship over another; there shall be no established religion by the state; whatever establishes a distinction for or against one sect, as against another, is not equal toleration; is not religious equality; but has its tendency towards religious persecution. Whether laws passed authorizing the raising of money by general taxation, to be appropriated to the education of children of one particular religious faith or sect, are not violations of this fundamental law, is yet to be determined. Whether under color of appropriations for secular education, moneys can be so raised and applied to those of one particular religious faith, is a question for the future. It is clearly against the spirit and intent of the constitution.
"This provision, excludes the right to enact laws compulsory of attendance upon religious instruction. The citizen must be led by his own choice and sense of duty, to attend the ordinances of religion. The duties he owes to his Maker, can only be enforced by the admonitions of his conscience; human laws cannot enforce this by penalties; nor can they impose any restraints upon the free exercise of religion according to the dictates of each individual conscience. No state or civil authority can come between the finite being and the Infinite, when the former is seeking to render that homage which is due, and in a mode which commends itself to his belief, as suitable for him to render, and as is acceptable to its object. a Nor can any restraints be imposed upon a reasonable expression of religious belief. If the believer regards it his duty to propogate his opinions, the freedom of speech under the other provision of the constitution, secures him the right to do so, subject a Cooley on Limitations, 470.
to the restraints therein imposed. Nearly every state constitution in the Union, in similar provisions, confers this privilege. It was the intention, that the citizen be left to adopt his own creed to his own convictions, and both, to such light and understanding as a free inquiry into his own nature, needs, duty and relation to God, and man will give him.
While this freedom of opinion is thus secured and conceded, it will be denied by few, "that the promulgation of the great doctrines of religion; the being, and attributes, and providence of one Almighty God; the responsibility to Him for all our actions founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; can never be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive how any civilized society can well exist without them. And at all events, it is impossible for those who believe in the truth of christianity as a divine revelation, to doubt, that it is the especial duty of government to foster and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience." a
"Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs, the superintending care and control of the Great Governor of the universe, and of acknowledging with thanksgiving, His boundless favors, at the same time that we bow in contrition, when visited with the penalties of his broken laws. No principle of constitutional law is violated when Thanksgiving, or Fast days are appointed; when chaplains are designated for the army or navy, when legislative sessions are opened with prayer, or the reading of the scriptures; or when religious teaching is encouraged by exempting houses of religious worship from taxation for the support of state government. Undoubtedly, the spirit of the constitution will require, in all these cases, that care be taken to avoid all discrimination in favor of any one denomination or sect; but the power to do any of these things will not be unconstitutional, a Story on Const. § 1871.
simply because of being susceptible of abuse. This public recognition of religious worship, however, is not based entirely, perhaps even mainly, upon a sense of what is due to the Supreme Being himself, as the author of all good, and of all law; but the same reasons of state policy which induce the government to aid institutions of charity, and seminaries of instruction, will also incline it to foster religious worship and religious institutions, as conservators of the public morals, and valuable, if not indispensable assistants to the preservation of the public order.” a
"Nor while recognizing a superintending Providence, are we always precluded from recognizing also, in the rules prescribed for the conduct of citizens, the patent fact, that the prevailing religion of the states is Christian. Some acts would be offensive to public sentiment in a christian community, and would tend to public disorder, which, in a Mahomedan, or in a Pagan country, might be passed without notice, or even be regarded as meritorious. The criminal laws of every country have reference in a great degree to prevailing public sentiment; and punish those acts as crimes, which disturb the peace and order, or tend to shock the moral sense of the community. The moral sense, is measurably regulated and controlled by the religious belief; and therefore it is, that those things which, estimated by a christian standard, are profane and blasphemous, are properly punished as offences, since they are offensive in the highest degree to the general public sense, and have a direct tendency to undermine the moral support of the laws, and corrupt the community." b
Christianity has also been recognized in our judicial decisions, and is so far carried out in our criminal jurisprudence, as that the law will not permit the essential truths of revealed religion to be ridiculed and reviled. In other words, that blasphemy is an indictable offence at common law.c
Blasphemy has been defined as the speaking evil of the Deity, with an impious purpose to derogate from the Divine Majesty, and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning God, calculated and a Cooley on Religious Liberty, 471.
c Vidal v. Girard, 2 How. U. S. R. 198; Updegraph v. The Commonwealth, 11 Bearg. & R. 394.
designed to impair and destroy the reverence, respect, and confidence due to Him, as the intelligent Creator, Governor and Judge of the world. It embraces the idea of detraction, when used towards the Supreme Being, and as "calumny," and usually carries the same idea, when applied to an individual. It is a wilful and malicious attempt to lessen men's reverence of God, by denying his existence, or his attributes as an intelligent Creator, Governor and Judge of men, and to prevent their having confidence in Him. a Blasphemy against God, and contumatious reproaches, and profane ridicule of Christ, or of the Holy Scriptures, are offences punishable at the common law. b "Such offences have always been considered independent of any religious establishment, or the rights of an established church. They are treated as affecting the essential interests of civil society. There is nothing in our manners or institutions which has prevented the application, or the necessity of this part of the common law. We stand in need of all that moral discipline, and of those principles of virtue, which help to bind society together. The people of this nation, and of this state, profess the general doctrines of christianity as the rule of their faith and practice; and to scandalize the Author of these doctrines, is not only, in a religious point of view, extremely impious, but a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things sacred and profane; for, to use the words of one of the greatest oracles of human wisdom: Lord Bacon, "Profane scoffing doth, by little and little deface the reverence for religion." Things which corrupt moral sentiment, as obscene actions, prints, and writings, and even gross instances of seduction, have upon the same principle been held indictable; and shall we form an exception in these particulars, to the rest of the civilized world? No government among the polished nations of antiquity; and none of the institutions of modern Europe, ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under
a Commonwealth v. Kneeland, 20 Pick. 213.
b People v. Ruggles, 8 John. 290.
the sanction of their tribunals, the general religion of the community to be openly insulted and defamed. a
But it does not follow, because blasphemy is punishable as a crime, that therefore one is not at liberty to dispute and argue against the truth of the christian religion, or of any accepted dogma. Its "divine origin and truth" are not so far admitted in the law, as to preclude their being controverted. To forbid discussion upon this subject, except by the various sects of believers, would be to abridge the liberty of speech and of the press in a point which with many, would be regarded as most important of all. Blasphemy, implies something more than a denial of any of the truths of religion, even of the highest and most vital. A bad motive must exist; there must be a wilful and malicious attempt to lessen men's reverence for the Deity, or for the accepted religion. But outside of such wilful and malicious attempt, there is a broad field for candid investigation and discussion, which is as much open to the Jew and the Mahomedan, as to the professors of the Christian faith. No author or printer who fairly and honestly promulgates the opinions with whose truths he is impressed with, for the benefit of others, is answerable as a criminal. A malicious and mischievous intention in such case, is the broad boundary between right and wrong. It is to be collected from the offensive levity, scurrillous and approbrious language, and other circumstances, whether the act of the party was malicious. b
Nor is the constitutional provision of this state, that no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief, to be interpreted as a repudiation of the doctrine that the christian religion shall remain the common law of the state. The legislative and practicable interpretation of this provision, is in harmony with the common law. By the Revised Statutes of this state, c it is provided, that every person who shall be elected or appointed to any civil office or public office, or public trust, before he shall enter on the duties of such trust, shall take the following oath or affirmation: "I do solemnly swear" or "affirm," as the case may be, "that I will supa Id. 294, per Kent, Ch. J.
b Updegraph v. Commonwealth, 11 Searg. & R. 394. 01 Rev. St. 119