“The state has now [possesses] the power to completely prohibit the use of certain practices in religious worship services…”

By Gary A. Hughes

Prohibiting Rattlesnakes and Strychnine

The courts, when dealing with cases involving religious freedom issues, almost always cite approvingly the adage that the First Amendment erects a wall of separation between church and state. * This is legal shorthand for saying the state has one domain, religion another, and never the twain shall meet.

But this wall has not proven to be one of solid stone; from time to time breaches have appeared. One such can be called the “restriction‐​on‐​action” breach. This found expression in the opinion of the United States Supreme Court in Reynolds v. United States, a case involving a Mormon who was being prosecuted for violation of the federal law proscribing bigamy. His defense was the First Amendment’s guarantee of religious freedom; it was, he claimed, a dictate of his religion to take more than one wife whenever possible. As the court noted in its opinion, the Mormon church taught its male members “that the failing or refusing to practice polygamy by [the] male members of [the] Church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come.” But much to Reynolds’ surprise, the wall was found not to be as impenetrable as he had assumed. The court decided that while the First Amendment guarantees one an absolute right to believe, it allows the state to restrict translation of those beliefs into practices. Actions which offend against societal wealfare, safety, or morals cannot be permitted, said the Court, even if they spring from valid religious belief. In this case, polygamy not only offended against societal morals, it was criminally proscribed. Thus, the wall is solid when mere belief is involved, but when action is at issue, the wall is much like Swiss cheese: solid with occasional holes, which allow the state to intervene in some instances.

One would assume that if any aspect of religion is protected from state interference, it is the content of the Ceremonial practices of a sect, unconventional as they may be. Ceremony is a major expression of a religion’s tenets; a finding that the state possesses the power to interfere in this area would pose a grave threat to religious freedom. In a recent case, the Supreme Court of Tennessee made such a finding: invoking the Reynolds restriction‐​on‐​action doctrine, the court allowed the state of Tennessee to prohibit a sect from using certain unconventional practices in its worship service.

The case, State ex rel Swann v. Pack, concerns two practices of the Holiness Church of God in Jesus’ Name—the handling of live rattlesnakes by some members and die drinking of strychnine by others during the worship service. Both practices were engaged in, according to one of the defendant members of the sect, to “confirm. the Word of God,” not as a test of the member’s faith. The snakes were handled only by those who believed the “Spirit” was with them at the time, and, as stipulated at the trial level, in such a way that no nonconsenting person was endangered.

The local district attorney discovered these practices and brought suit to have them declared a public nuisance and halted. The trial court shared somewhat the district attorney’s concern, granting an injunction against further snake‐​handling within the county. However, the court allowed “any person who wishes to swallow strychnine or other poison [to] do so if he does not make it available to any other persons.” On appeal, the Tennessee Court of Appeals manifested less sympathy for the district attorney’s position. The judges there found the lower court’s injunction to be overbroad and modified it to forbid snake‐​handling only if done “in such a manner as will endanger the life or health of persons who do not consent to exposure to such danger.” The lower court’s allowance of strychnine drinking was continued.

In the Tennessee Supreme Court, the district attorney found judges as horrified as he by the practices at issue. The court, citing Reynolds, applied the restriction‐​on‐​action doctrine, and cited other cases illustrating the number of holes that have rent the wall of church‐​state separation over the years sinceReynolds. The state “has the right to guard against the unnecessary creation of widows and orphans” thundered the court, and it proceeded to order a halt to both practices.

While the practices enjoined here may not be appealing, the question posed by the court’s action is of the gravest import. The state here is found to have the power to dictate what is or is not acceptable in a worship service. Even if one agrees with the result in this particular case, the paramount question is: To what extent could the ruling be expanded in the future? It may be only a small step from state prohibition of certain activities to state prohibition of certain prayers or songs or perhaps even meetings themselves. For instance, suppose the government turned more openly repressive and churches requested their congregations to fast until we were delivered from the tyrants. In such an event, could the church meetings themselves be banned as per se a public nuisance? Judges often write of the necessity of keeping the metaphorical door that separates individual liberties from governmental interference tightly closed against government entry, for once that door is left the slightest bit ajar, government intrusion into personal liberties inevitably results. This metaphor has been used innumerable times in cases dealing with First Amendment freedoms. No one knows what future governments may be like (indeed, who foresaw the character of the Nixon Administration?) or what future conditions may seem to require. Therefore, it is best at all times to keep sight of the underlying principle involved, and allow the occasional offensive act if to arrest it would damage that principle. Cases dealing with freedom of the press often recite that sometimes the “bad” must be allowed to insure the “good” is not suppressed. Such a philosophy should also be applied in cases involving freedom of religion.

To show proper respect for the wall of separation, the Tennessee Supreme Court should have told the district attorney to leave the sect alone. The state cannot tell a religious sect what it can or cannot do during its worship service and still comply with the mandate of the First Amendment’s religion clauses.

The best and constitutionally correct decision would have been for the court to say: This is an area in which the state has no power to intervene. Everyone attends the worship service voluntarily ; no one attends or remains under compulsion: The practices at issue are apparently(for the record does not appear to be clear on this) conducted in such a way that those persons not participating are placed in no danger. In a system of government whose original theoretic justification was the necessity of protecting the individual from the depredations of others, there is here no need for the state to interfere, for in this situation no one is threatened by another.

To appreciate the correctness of this position, one must recall John Locke’s explanation of the origin of government. Locke’s theory, of course, as set forth in his Two Treatises of Government, provided the philosphical foundation of the American system of government,and thus provides an explanation of the nature of the powers of that government.

According to Locke, people in the state of nature collectively own the tangible commodities we commonly call property. By die use of his or her labor, a person severs a portion of that property from the commonly owned stock, thus making it his or her own. Since such alienation is the result of individual effort, those capable of greater effort (due to physical strength, size of family, or other factors) amass a greater amount of property than others. As a response to such inequality, those who have less attack those who have more.

Thus, wrote Locke, the “great and chief end … of Mens [sic] uniting into Comonwealths, and putting themselves under Government, is the preservation of their Property.” Each person agreeing to the formation of the government cedes to it his or her natural right to retaliate against an attacker. The government is thus created to protect the individual against the aggressions of others. And as the government has only those powers it receives from its people, as Peter Laslett has observed, “its [Locke’s government’s] power is given for attaining an end and is thus limited to it.” Its power to intervene is thus limited to those situations where an individual is threatened or injured by another individual. Where there is no threat to an individual from another, the government,has no power to intervene.

But reality often does not mirror theory. In the present case, reality dictated that the state think it should intervene. This illusion stems from the state’s longstanding assertion—having no legitimate theoretical foundation—that it can intervene to protect people not only from others, but from themselves. This philosophy is reflected in numerous laws, most notably those penalizing alcoholic intoxication, consensual “deviant” sex practices, and drug possession. As noted earlier, the state founded on Lockean philosophy cannot legitimately make such a claim—but it has, time and time again. And the courts, equally mistaken, have accepted the claim with depressing regularity.

Recognizing that reality rather than theory controls, what would be the best resolution of the issues presented in this case? When dealing with fundamental rights such as freedom of religion, the courts frequently invoke the “least‐​onerous‐​alternative” doctrine. This is legalese for saying that if the state believes it must infringe upon a fundamental right, it must restrict the extent of the infringement to that absolutely necessary to accomplish its purpose. In cases such as this, it means the state must breach the wall only to the extent absolutely necessary to accomplish its task, and no further, for small holes do less damage to the integrity of the wall than large ones.

In this context, the Court of Appeals opinion is preferable to that of Tennessee’s highest court. The latter court employs a bludgeon approach. Believing nonparticipants might be or were endangered, the court issued a blanket prohibition against the activities at issue. This insured the cessation of any danger. But it also, as the court itself noted, deprived the church Of its theological heart. The former court utilizes a more surgical approach, tailoring its directive to protect the the nonparticipants, but leaving the religious freedom of the sect substantially intact. Of the two approaches, this clearly embodies the “least onerous alternative.” As the “spectators” were apparently already protected in practice, the Court of Appeals opinion in reality gives approval to the church’s activities. Only a tiny burden is placed on die sect: members are prohibited from taking their snakes among the nonparticipants and cannot make strychnine available to others. But given the nature of reality, as mentioned earlier, such a burden represents the least that could have been fashioned. The decision represents a breach in the wall, but only a very small one.

As a consequence of the decision of the Tennessee Supreme Court, another gaping hole has rent the church‐​state wall of the First Amendment. The state has now been found to possess the power to completely prohibit the use of certain practices in religious worship services, even though they pose no realistic threat to anyone other than those who freely engage in them. We must all be vigilant to see that the state shows restraint in the use of this power so that the integrity of is weakened no further, for the passions of the future, like the natural elements, are capable of eroding even the strongest safeguards, especially when they have been already weakened by a breach of large proportions. The Supreme Court of Tennessee may well have opened Pandora’s box.

* Throughout this essay the terms “state,” “the state,” and “government” will be used interchangeably to mean the political institutions of a polity generally.