Blasphemy Laws and the American Tradition

Some Important Quotations

Laura Loomer wrote on Twitter that “We don’t have ‘blasphemy’ laws here in the US. If you want to be outraged over blasphemy, I suggest you move to a Muslim country where you can be given the death penalty if you depict Mohammed. We don’t do that here in America.”

This senitment is common on both sides of the aisle, but it shows a shocking ignorance of the history of American Jurisprudence. In fact, for a greater part of our history, blasphemy laws remained an essential part of our juridical structure. Interestingly, a 2009 report from The New York Times actually found that there were multiple US states with anti-blasphemy statutes on the books.

There is well established precedent for this going back to the American founding, as a 2021 article in the Harvard Law Review titled “Blasphemy and the Original Meaning of the First Amendment” extensively demonstrates. In this article, the absurdity of claims that blasphemy laws are “Anti-American” or in any way contrary to the spirit or letter set forth by the Founding Fathers is shown by a simple appeal to history:

From the Founding era, when the country ratified the First Amendment, through Reconstruction, when the Fourteenth Amendment applied the Federal Free Exercise Clause to the states, Americans viewed blasphemy prosecutions as compatible with free religious exercise. The same state legislatures that ratified the Free Exercise Clause passed statutes that criminalized blasphemy. And the same public that ratified the state religious freedom provisions convicted defendants charged with blasphemy...The courts thus developed a body of religious liberty doctrine that was firmly established by the Civil War. Whether the relevant constitutional moment was 1791 or 1868, the Free Exercise Clause, as originally understood, posed no barrier to proscribing blasphemy. Along with the general public, the legislatures that ratified the First Amendment treated blasphemy proscriptions as compatible with religious freedom. Two years after Massachusetts adopted its 1780 constitution — including a religious liberty provision — it enacted a blasphemy statute…Under this law, Massachusetts successfully prosecuted blasphemy in 1790. Similarly, pursuant to New Hampshire’s 1784 constitution, which recognized religious liberty, the legislature passed a 1791 blasphemy law. Vermont’s 1793 constitution, guaranteeing free exercise, was followed by a 1797 blasphemy statute. New Jersey’s legislature followed the same pattern under its analogous constitutional provision. And after Pennsylvania passed its 1790 constitution securing religious freedom, a Pennsylvania jury convicted a blasphemer in 1799. (Blasphemy and the Original Meaning of the First Amendment)

While many would expect a strong judicial precedent overturning these blasphemy laws, the opposite is actually the case, “only meager precedent (a federal district court decision and a state intermediate appellate court decision) has directly held anti-blasphemy laws unconstitutional.” (ibid.) This stands in contrast to the absolutely overwhelming precedent in support of blasphemy laws from every level of the judicial system (People v. Ruggles in 1811, Vidal v. Girard’s Executors in 1844, Robertson v. Baldwin in 1897, State v. Mockus in 1921, Oney v. Oklahoma City in 1941, State v. Stoltenberg in 1974, etc.)

While the history of the matter is quite interesting, it is more profitable to consider particularly the reason why these laws were promulgated in the first place. As a Catholic, the justifications that our theologians give to blasphemy laws are quite different than the justifications given in the Anglo-American tradition.

First, it is important to recognize that the “rights” enshrined in the bill of rights were not seen as absolute principles, but themselves had a history and exceptions to the rule were baked into these formulations. As an example, Robertson v. Baldwin in 1897 states

The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the ‘Bill of Rights,’ were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant’s motion, nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment. Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.

Second, these liberties were not to be exercised in an absolute degree. Rather, it is clear that the principle of public order would be able to restrict the exercise of these rights. Hence, for example, one has a “right” to freedom of speech, yet this could not be exercised anywhere you feel like where it might violate the public order. The distinction that American jurists will often give is between liberty of conscience and liberty of action. The former is seen as absolute, while the latter is to be restricted according to the principles of the common good.

This principle is drawn out by Oney v. Oklahoma City in 1941

Always in civil society, two desires, which in a degree are in conflict, strive for supremacy. One is the desire of the individual to control and regulate his own actions in such a way as to promote what he conceives to be for his own good and advantage, and the other is the desire of the whole to control the actions of the individual in such a way as to promote what it conceives to be for the common good or general welfare. The realization of the desire of the individual is personal liberty, and the effectuation of the desire of the whole is authority. Our form of government is designed to secure a nice balance between the two. When the pendulum swings too far toward the rights of the individual, liberty degenerates into license and anarchy. When it swings too far the other way, authority becomes tyrannical. In the very nature of things, therefore, we must have an ordered liberty under law. For, as said by Chief Justice [of the Supreme Court] Hughes “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.” Freedom of religion embraces two concepts, freedom to believe and freedom to act. The first is absolute, but the second remains subject to regulation for the protection of society. The City, under delegation of authority from the state in the exercise of police power, may enact ordinances to punish those who abuse these freedoms, to which we have adverted, by utterances inimical to the public welfare, tending to corrupt public morals, incite crime, or disturb the peace. The ordinance here involved prohibits the use of violent, abusive, or insulting language and the display of insulting, profane, or abusive emblems, flags, or devices calculated to cause a breach of the peace; and the uttering, publication, circulation, or distribution of any words or language casting contumelious reproach or profane ridicule on God, Jesus Christ, the Holy Ghost, the Holy Scripture, or the Christian or any other religion, calculated to cause a breach of the peace. On its face it is plainly directed against actions calculated to cause a breach of the peace and disturb public order. Its object is to prevent the inciting of violence.

Third, the fundamental reason for blasphemy laws in the Anglo-American tradition is different than the fundamental reason for blasphemy laws in the Catholic tradition. In the Anglo-American tradition, the reason why blasphemy laws were seen as contrary to the common good was due to the particular offense that would be felt by the individual at hearing his religion be blasphemed. Hence, certain Jurists would justify the formation of blasphemy laws by false sects on the same grounds as blasphemy laws against the true religion.

On the other hand, the restrictions to religious liberty advocated for by the Catholic Church is quite different. As the Catechism of the Catholic Church states,

The right to religious liberty can of itself be neither unlimited nor limited only by a ‘public order’ conceived in a positivist or naturalist manner. [Pius VI, Quod aliquantum 10; Pius IX, Quanta cura 3] The “due limits” which are inherent in it must be determined for each social situation by political prudence, according to the requirements of the common good, and ratified by the civil authority in accordance with ‘legal principles which are in conformity with the objective moral order.’ (CCC 2109)

In the Anglo-American tradition, the limitations of the “public order” are essentially tied to the subjective dispositions of the populace, whereas in the Catholic tradition the limitations of the “public order” are tied to the objective principle of the common good. Hence, it may even come to pass that the laws made to preserve public order (in the Catholic sense) may contradict the subjective dispositions of the populace.

I will give a few examples of this.