Roger Williams had himself been banished from Massachusetts
in 1631 because he
had declared his opinion that the magistrate might not
punish a breach of the Sabbath (Sunday) Winthrop’s Journal, Vol. 1,
pp. 52,53, cited in American State Papers, Third Edition, p. 57,
Review and Herald Publishing Association, 1943.
Despite the fact that a large number of immigrants arriving
in the United States during its founding days were escaping religious
persecution themselves, they afforded little religious liberty to those who
were of minority faiths within their own borders. Many of the original states
breached the religious liberties of citizens who desired only to worship God
as their consciences dictated. The Congregational Church in Massachusetts, the
Methodists in Kansas, and the Church of England (Episcopalian) in Virginia had
particularly poor records of religious liberty in the early days, and even the
early Quaker settlers in Pennsylvania were not convinced of the concept of
religious liberty in their colony.
The inclusion of the guarantee of religious liberty and the
separation of church and state into the First Amendment of the United States
Constitution was a great step forward in the provision of religious liberty
for the citizens of the United States. Yet over and over again it failed to
prevent the states from enacting and enforcing Sunday laws in the nineteenth
century. The record of the United States in that century was poor. Many
virtuous persons were jailed, even placed in chain gangs or ruined
financially, simply because they failed to desist from work on Sunday.
In the 1880’s, Senator Blair of New Hampshire promoted
Sunday legislation in the U.S. Senate with great vigor, but without success.
However, it was in the nineteenth century that the ground was laid by the
judiciary of the United States to open the way for widespread Sunday laws,
despite the protection of religious liberty afforded under the First
Amendment. Indeed, the ingenuity of the proponents of Sunday legislation in
the judiciary knew no bounds in their desire to enforce such laws by
circumventing the First Amendment. This should be a lesson to all Americans
Many believe that before Sunday laws are once more placed
in force, that it would be necessary to undertake the very difficult process
of repealing the First Amendment. But the history of the nineteenth century
stands as a testimony that, with no little guile, the justices of various
courts, were able to distort fact and claim that Sunday laws were not
religious in nature. Such claims may convince the unthinking, but in reality
are simply self-serving subterfuges to circumvent the clear intent of the
Chief Justice Stephen Field of the California Supreme
Court, had, in 1858, prior to his elevation to the highest judicial post in
the state, introduced a sham reasoning to ease the way for decisions in favor
of Sunday legislation. As attorney Warren Johns states,
Field, aware that Sunday laws rested on shaky ground if
justification was tied to religious purposes... offered constitutional
refuge to blue laws [Sunday laws] by treating them as civil rather than
religious legislation (Warren Johns, Dateline Sunday, Pacific Press,
1963, pp. 84,85).
Since Field was later elevated to the Supreme Court of the
United States, his legal ploy was carried into that court. Field asserted that
health and welfare benefits would result from a weekly rest day. This form of
promotion has now surfaced in countries such as Australia, the Netherlands,
and Norway. In Nebraska, the move for a Sunday law was rooted on the grounds
that it made the state "family friendly" (Lincoln Sunday Journal
Star, March 1, 1998). Further as we have seen, the Pope’s Apostolic
Letter, Dies Domini, has advocated Sunday civil legislation on the
grounds of its benefits for servants and workers. But a serious student of
these moves to Sunday legislation will not be deceived. They are religious,
strictly religious. The fact that the moves arise from Roman Catholic and
Protestant sources should deceive no one. Make no mistake, the chief victims
of Sunday law enforcement have always been religious minorities. It must not
escape the notice of the wise that although civil penalties have been invoked
for breaches of Sunday laws, no such penalties have been enacted for failure
to rest on civil rest days such as national holidays. When was anyone
prosecuted for failure to rest on the fourth of July or Martin Luther King
day? If a government believes that at least one day of rest is essential per
week for all citizens, what purpose can there be in confining that day to
Sunday? Surely the citizen should be afforded the privilege of choosing such a
day at his convenience. Does a rest on Sunday ensure better health than a rest
on Monday? The answer is that all Sunday laws proscribing labor are religious
and in the United States do breach the First Amendment of the American
Even as recently as 1932,
A deputy sheriff [in Virginia] arrested two Seventh-day
Adventists for Sunday work, one — a crippled mother who walked on crutches
— for washing clothes on her own premises, and the other, a man who
donated and hauled a load of wood to church to heat it for religious
services (American State Papers, op. cit., p. 567).
In 1926 a spy saw a man pressing his trousers on Sunday in
Baltimore, Maryland. He was fined. In Georgia in 1930, police arrested a Bible
colporteur for delivering a book of Bible exposition on Sunday, yet assisted a
circus to set up and permitted an airplane to give joy rides on the very same
day (Warren Johns, op. cit., p. 114). We need not be deceived. Sunday laws are
aimed primarily against religious dissenters. Numerous other such cases
are extant and have been documented in Warren Johns’ masterly book.
The history of the enacting of religious laws by
governments, the union of church and state, is a very explosive one.
Inevitably, such legislation leads to deprivation of religious liberty and
persecution of minorities. Governments possess one right and one right alone
in religious matters — the protection of the religious liberty of all their
citizens. Happy is the nation where the government confines its religious
legislation to that single prerogative.
Rightly, in 1959, the Federal Court found that the
Massachusetts Sunday laws were religious. But in 1962, the Supreme Court of
the United States ruled by an 8-1 majority that Sunday laws did not breach the
First Amendment. This was an incredible decision and a most dangerous one.
This decision has not been revoked or overturned. It stands ready for and
favorable to the enactment of Sunday laws. The First Amendment has proved to
be little protection, in these last days, against the promotion of the
sectarian convictions of the majority and the revoking of religious liberty of
all. The United States stands well-positioned to assist the first beast power
in enforcing Sunday observance.
In presenting the majority decision, Chief Justice Earl
Warren claimed that
…to say that states cannot prescribe Sunday as a day of
rest for these [secular] purposes solely because centuries ago such laws had
their genesis in religion would give a Constitutional interpretation of
hostility to the public welfare rather than one of mere separation of church
He went on to write,
It is common knowledge that the first day of the week has
come to have special significance as a day of rest in this country. People
of all religions and people of no religion regard Sunday as a time for
family activity, for visiting friends and relatives, for late sleeping, for
passive and active entertainment, for dining out and the like.... Sunday is
a day apart from all others. The cause is irrelevant; the fact exists. It
would seem unrealistic to require a state to choose a common day of rest
other than that most persons would select of their own accord (Case McGowan
Despite the assertion of this eminent jurist, the cause is
most decidedly not irrelevant. The cause denotes a sorry history of
religious persecution. In any case, what business is it of a state to enforce
any day as a day of rest for all citizens?
Justice Felix Frankfurter also wrote an opinion in this
case, in support of the majority decision. He implausibly acknowledged that
…the earlier among the colonial statutes were
unquestionably religious in purpose.... But even the seventeenth century
legislation does not show an exclusive religious preoccupation.
Only Justice William Douglas dissented in the four Sunday
law cases adjudged in 1961 (Gallagher v. Crown Kosher Supermarket; McGowan
v. Maryland; Two Guys from Harrison v. McGinley; Brownfeld v. Brown). Justice
Douglas asserted, quite properly, in his dissenting opinion that Sunday laws
did in fact breach both the establishment clause (that is, the prohibition of
the State establishing a religion) and the free exercise clause (the right of
all citizens to exercise their faith freely) as enshrined in the First
Amendment. He well stated that
The First Amendment commands government to have no
interest in theology or ritual; it admonishes government to be interested in
allowing religious freedom to flourish — whether the result is to produce
Catholics, Jews or Protestants, or to turn the people toward the path of
Buddha, or to end in a predominately Moslem nation, or to produce in the
long run atheists or agnostics!
In citing the protection of the religious liberty of all
citizens, Justice Douglas expressed a dictum of great wisdom.
But Justice Douglas’ opinion, expressed so cogently and
with great wisdom, did not prevail. Americans remain under the judicial
imposition that Sunday laws do not breach the First Amendment, despite the
fact that they clearly do.
In recent years two other major decisions of the Supreme
Court have further positioned the United States to fulfill the actions of the
second beast of Revelation, while God does not predestinate, He does foresee
the future with equal clarity as He does the past and present.
On April 17, 1990 in the case of Smith v. the State of
Oregon, the Supreme Court by a 5-4 majority effectively removed the
religious liberty of every citizen. The case itself is not so much of
interest. It concerned American Indians who treated fellow American Indians
for various ailments including drug abuse. They were employed by the State of
Oregon. It was discovered that these health workers were themselves taking a
drug, peyote, in pagan religious rites to which they adhered. Consequently the
state fired them. They ultimately appealed to the Supreme Court, claiming that
their First Amendment rights had been breached.
They lost the case. What did concern those who value
religious liberty was that in his majority opinion
Justice Antonin Scalia went far beyond the case and
declared that when religious rights clash with the government’s need for
uniform rules, the court will side with the government (Los Angeles
Times, April 18, 1990).
In commenting the newspaper stated,
the Supreme Court Tuesday forcefully declared that it
would no longer shield believers whose practices violate general laws
Following the Civil War, the Fourteenth Amendment had been
added to the United States Constitution. It stated in part, that
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without
due process of law, nor deny to any person within its jurisdiction the equal
protection of the laws.
The Amendment, as time passed, was interpreted to protect
citizens from state legislation which was in
…conflict with the United States Constitution. By 1925
the United States Supreme Court had decreed that First Amendment guarantees
were applicable to state and local government through the provisions of the
Fourteenth Amendment (Warren Johns, op. cit., p. 113).
Such support of the First Amendment by the Fourteenth
Amendment led the Supreme Court, in the 1940’s, to uphold the right of
Jehovah’s Witnesses refusing to salute the flag. In 1986 the Supreme Court
told the states that they
…could not deny unemployment benefits to Seventh-day
Adventists who refused to work on Saturdays (Los Angeles Times, April
In 1972, the U.S. Supreme Court exempted Amish children
from compulsory school laws.
But subsequently, the 1990 Smith decision was antagonistic
to all such decisions. Justice Sandra Day O’Connor, presenting the
dissenting opinion of the four Supreme Court justices who objected to Justice
Scalia’s opinion, (even though she herself was one of the six justices who
denied the Smith claim for reinstatement), stated that Justice Scalia’s
…is incompatible with our nation’s commitment to
individual religious liberty. In my view, the First Amendment was enacted
precisely to protect the rights of those whose religious practices are not
shared by the majority and may be viewed with hostility (Los Angeles
Times, April 18, 1990).
In this opinion, Justice O’Connor was absolutely correct.
The majority decision was an affront to religious liberty in the United
President Bill Clinton attempted to redress the issue
through legislating a bill to restore religious liberty and although it passed
Congress, it was struck down by the Supreme Court.
Did the Smith v. the State of Oregon decision have
practical implications in respect of the deprivation of religious liberty of
American citizens? Most definitely it did. Those effects were rapid. Only just
over ten months later, the Washington Post, March 9, 1991, listed
numbers of cases where citizens were deprived of their religious liberty by
the court’s majority opinion in the Smith case.
The most glaring example is that of the Yang case.
The Yang family had migrated to the United States from Laos. They were
Buddhists. Tragically their 23-year-old son died of natural causes. The
physician requested an autopsy, but the parents refused permission since the
Buddhist faith opposes such procedures. Ignoring the parents’ prohibition,
the physicians performed the post-mortem. The Yangs sought compensation on the
grounds that "the forced autopsy infringed on their religious
freedom" (Ibid.). In January, 1990, U.S. District Judge Raymond J.
Pettine upheld their claim. We observe that this decision was delivered three
months prior to the Smith decision of the Supreme Court. No decision
was made at that time in respect of damages. Ten months later, when Pettine
was deciding how much money the family should be awarded, the judge announced
"with deep regret" and "the deepest sympathy for the
Yangs" — that the Smith decision had forced him to reverse his
The Yangs clearly had been deprived of their religious
liberty by the Smith decision. Their claim had been upheld three months before
that decision and negated seven months after the decision. Ironically this
decision was taken in the state of Rhode Island, where Roger Williams had been
the seventeenth-century trailblazer in guaranteeing religious liberty to its
A Jewish woman in Michigan lost a similar case under the
Smith decision when an autopsy was performed on her son. The Jewish faith
forbids autopsies. A Moslem prison inmate in Illinois lost his petition to be
served a diet devoid of pork on the same grounds (Ibid.). Numbers of other
cases were listed. The Smith decision did override the First Amendment
protections and thus made it almost ineffectual. The United States has
virtually reached the stage of the incredible decision of the Supreme Court of
the State of New Jersey which found, in the case, State of New Jersey v.
Perricones (1962), that "the freedom of religion guaranteed in the
First Amendment to the United States Constitution was the freedom of belief,
not the freedom of practice, and religious practices could be controlled by
the state" (Montie Barringer, Insight, August 2, 1977). To provide
the right of belief but not of practice is to provide only that liberty which
cannot be taken from the individual, for it is a matter of the mind.
Referring to the Smith case, Forest Montgomery, counsel for
the National Association of Evangelicals stated that
…the problem with the [Smith] decision is that the
United States Supreme Court has gutted the free exercise of the First
Amendment (Washington Post, March 9, 1991).
Thus the Supreme Court has now put in place a decision
which would permit the government, if it felt a compelling reason to do so, to
trample the consciences of sabbathkeepers.
Further, on March 26, 1991, the Supreme Court removed the
protection afforded under the Fifth Amendment of the U.S. Constitution. The
case concerned the death penalty imposed upon Oreste Fulminante by an Arizona
court. Fulminante had
…confessed murder of his 11-year-old stepdaughter to a
fellow inmate working as a government informant (Washington Post, March
He appealed to the Supreme Court on the grounds that his
confession was coerced. By a 5-4 majority, the Supreme Court held that
Fulminante’s confession had been coerced and his appeal was upheld. One
would have thought that the result would simply have been that the trial
verdict would be quashed and a new trial would be called at which the
confession would have been inadmissable. However, the justices once more went
far beyond the case itself and
…voted that some convictions may be allowed to stand
despite the case of confessions obtained in violation of the defendant’s
constitutional rights (Ibid., emphasis supplied).
The Fifth Amendment guarantees that no coerced confession
is admissable evidence of guilt in a trial. This has been interpreted to
include psychological coercion as well as physical torture. In writing the
majority opinion, Chief Justice William Rehnquist spoke of "harmless
error" in admitting such evidence before a court. It is difficult to
describe the use of a coerced confession as harmless. One of the justices,
Anthony Kennedy, credibly stated that
…other than a videotape of the crime one would have
difficulty in finding evidence more damaging to a criminal plea of innocence
than a confession (Ibid.).
It seems unconscionable that Supreme Court justices boldly
state that "the use of confessions in violation of the defendant’s
constitutional rights" is sometimes acceptable in a criminal case.
Decisions such as this place the judiciary above the Constitution, to which
they should be subject.
It is little wonder that Justice Byron White, writing for
the dissenting justices stated that,
Permitting a coerced confession which could be part of
the evidence on which a jury is free to bare its verdict of guilty is
incompatible with the thesis that ours is not an inquisitional system
of criminal justice (Ibid., emphasis added).
White’s use of the word "inquisitional" was
perfectly justifiable for surely all use of coercion in order to extract a
confession harks back to the days of the inquisition.
The Jewish system of justice two thousand years ago
accepted no confession of guilt as evidence in criminal trials. This judicial
rule applied whether the accused was subject to coercion or freely made such a
confession. This was a wonderful protection for often it is difficult to prove
a confession to be coerced. While at Christ’s trial Caiaphas in desperation
used Christ’s confession that He was the Son of God in order to convict Him
of blasphemy, he did so in breach of the Jewish law.
But Jesus held his peace. And the high priest answered and said unto him, I
adjure thee by the living God, that thou tell us whether thou be the Christ,
the Son of God. Jesus saith unto him, Thou hast said: nevertheless I say unto
you, Hereafter shall ye see the Son of man sitting on the right hand of power,
and coming in the clouds of heaven. Then the high priest rent his clothes,
saying, He hath spoken blasphemy; what further need have we of witnesses?
Behold, now ye have heard his blasphemy (Matthew 26:63-65).