The Ultimate Clash of Loyalties - Part 2Tom Carter January/February 2019
View part 1 here: http://libertymagazine.org/article/the-ultimate-clash-of-loyalties
Background: Both secular and religious governments have put millions to death for their most sacred beliefs. In the first century: Jews, Samaritans, and Christians had to endure the ultimate clash of loyalty—“either treason to the Roman state or treason to their God.” Christians for three centuries believed that “religion was a matter of free will, not of compulsion.” Then they began to persecute each other. In 1528 Balthasar Hubmai, who was tortured by both Protestants and Catholics, was put to death with his wife, Elizabeth, for establishing governments that did not enforce religious beliefs. The principles they expounded took root over two centuries later.
Proposition: We will examine whether the decisions of the Supreme Court of the United States could inadvertently be laying the foundation for another “ultimate clash of loyalties.”
The importance of Supreme Court cases is indicated by Justice Robert Jackson: “The Supreme Court is not final because it is infallible; it is infallible because it is final.” In 1940 the United States Supreme Court took up the flag salute cases. Walter Gobitis, a Jehovah’s Witness, and his family looked on giving allegiance to the flag as a symbol of religious disloyalty. In this “clash of loyalties” the Gobitis children were expelled from their public school. The Supreme Court held the school was justified in expelling the children because “the flag is the symbol of the nation’s power—the emblem of freedom in its truest, best sense.”1
Persecution followed for Jehovah’s Witnesses. “In Wyoming some Jehovah’s Witnesses were tarred and feathered, in Arkansas some were shot, and in Nebraska one Jehovah’s Witness was castrated.”2 The nation’s intellectual community reacted to Gobitis with articles condemning the decision.
In 1943 the Supreme Court agreed to revisit Gobitis. In reversing, the Court said that while “causes and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design,”3 “a person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.” Second, the Court refused to require unity of belief and action, even in saluting the flag: “Ultimate futility of such attempts to compel coherence [of beliefs] is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, [and] the Inquisition, as a means to religious and dynastic unity.”4 The Supreme Court showed both courage and wisdom to avoid this “clash of loyalties.” Yet, arguably, the Supreme Court did not seem to apply these same principles 18 years later in the Sunday law cases.
One of the crimes of high treason was counterfeiting the Great Seal. Changing the Great Seal meant disloyalty to the authority represented by the Seal. In Judeo-Christian history the Sabbath became a symbol of God’s authority and creative power. Genesis 2:3 indicates that from creation the seventh day was “blessed” and “sanctified.” The Sabbath commandment (Exodus 20:8-11) contains all the normal elements of a seal: (1) the name of the Majesty—“the Lord thy God”; (2) His office—“Creator” (“the Lord made heaven and earth”);(3) the territory over which He rules—“heaven and earth, the sea, and all that in them is.”
In New Testament times both Christians and Jews recognized the Sabbath as a special symbol. They met together in Jewish synagogues on the Sabbath.5 Christianity’s original members were Jewish Christians. Acts 18:1-4 states that when Paul came to Corinth, he met “a certain Jew named Aquila.” He had arrived in Corinth because Emperor Claudius had decreed all Jews must leave Rome. Paul stayed with Aquila because his “was of the same craft” and “he reasoned in the synagogue every sabbath, and persuaded the Jews and the Greeks.”In the A.D. 130s there was a Jewish rebellion against Rome. In A.D. 135 Emperor Hadrian “expelled both Jews and the Jewish Christians [from Jerusalem], and prohibited categorically the practice of the Jewish religion, especially Sabbath keeping and circumcision.”6
“Anti-Judaism contributed to substituting a new day of worship for the Sabbath.” Justin Martyr, writing from Rome, was one of the first to advocate the change from Sabbath to Sunday. “He empties the Sabbath of all its theological significance, reducing it to a temporary ordinance derived from Moses, which God imposed solely on the Jews as ‘a mark to single them out for punishment they so well deserve for their infidelities.’ He refers, on the other hand, to Sunday as ‘the day on which we all hold our common assembly, because it is the first day on which God, having wrought a change in the darkness and matter, made the world; and Jesus Christ our Savior on the same day rose from the dead.’”7 He failed to point out it was also the Roman day to honor the sun.
The Catholic Church indicates Protestants “have continued the custom, even though it rests upon the authority of the Catholic Church and not upon an explicit text in the Bible.”8 Constantine made the first Sunday law in A.D. 321. It prohibited certain categories of work from being done “on the venerable day of the Sun.”
Later the Council of Laodicea (A.D. 364), Canon 29, stated: “Christians must not Judaize by resting on the Sabbath, but must work on that day, rather honoring the Lord’s Day; and, if they can, resting then as Christians. But if any shall be found to be Judaizers, let them be anathema from Christ.” Since then millions of Sabbathkeepers who did not recognize Sunday have suffered religious persecution.
The Sunday-Saturday Issue
and the U.S. Supreme Court
Our country’s 250-year history has generated many clashes over the Sunday-Saturday issue. William Lloyd Garrison, fiery editor of the Liberator, drafted the resolution of those opposed to Sunday laws, which read: “Resolved, That the penal enactments of the state legislature compelling the observance of the first day of the week as the Sabbath are despotic, unconstitutional, and ought to be immediately abrogated; and that the interference of the state, in matters of religious faith and ceremonies, is a usurpation which cannot be justified.”9 On the other hand, the National Reform Association in their constitution stated: “The object of this Society shall be to maintain existing Christian features in the American Government; to promote needed reforms in the action of the government touching the Sabbath . . . and its acceptance of the moral laws of the Christian religion, and so indicate that this is a Christian nation.”10
The Supreme Court in 1961 decided the landmark case of McGowan v. Maryland (366 U.S. 420 ). Much of their decision quoted the 1896 Hennington v. Georgia case, decided the same year they endorsed racial segregation in Plessy v. Ferguson. In McGowan appellants had been indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine. The Court took up whether the establishment of religion clause was violated. In contrast to flag saluting cases, in which the Court warned against uniformity and cohesive symbols, McGowan ruled:
“Sunday is a day apart from all others. The cause is irrelevant; the fact exists. It would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare to require a state to choose a common day of rest other than that which most persons would select of their own accord. For these reasons, we hold that the Maryland statutes are not laws respecting an establishment of religion.”
At the same time the Court took up Braunfeld v. Brown (366 U.S. 599 ), ruling that the appellants, Orthodox Jews, had no right to an exemption, even though keeping their Sabbath in addition to Sunday might well mean loss of their business. “Many believed the Court had departed from its own pronouncements and exhibited insensitivity to the Jews’ religious freedom.”11 Chief Justice Earl Warren justified this by saying: “In light of the evolution of our Sunday closing laws through the centuries . . . most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion.” Justice William Brennan countered in his Braunfeld dissent: “Any substantial state interest will justify encroachments on religious practice, at least if those encroachments are cloaked in the guise of some nonreligious public purpose.”12
The Court would not have had to look far to see religious motivation. January 25, 1959, before the Sunday law cases were argued, Pope John XXIII called for a great ecumenical council—Vatican II. Then on May 15, 1961, two weeks before McGowan and Braunfeld were decided, Pope John XXIII released an encyclical—Mater et Magistra. A whole section was entitled “Making Sunday Holy.” The section starts: “The Church has always demanded a diligent observance of the third commandment: ‘Remember that thou keep holy the sabbath day.’” And it ends with: “We call upon all, public authorities, employers and workers, to observe the precepts of God and His Church and to remember their grave responsibilities before God and Society.” Preparatory to Vatican II, a Protestant, Robert McAfee Brown, Ph.D., and a Catholic, Gustave Weigel, Ph.D., S.J., leading theologians, were asked to write a book together. Gustave Weigel, speaking of Sunday laws, stated: “An interesting development is taking place. . . . In the past they [Catholics] were cold to Protestant efforts to keep the day holy in the Protestant fashion, but today they warmly support Protestant campaigns or try to enlist Protestant support for campaigns of their own.”13
The “common day of rest” concept in McGowan compelled unity. Remember, Gobitis indicated that compelling coherence or unity resulted in the religious persecution of the Dark Ages. “Justice William Douglas, dissenting in McGowan, said: “It seems to me plain that by these laws the states compel one, under sanction of law, to refrain from work or recreation on Sunday because of the majority’s religious views about that day. The state by law makes Sunday a symbol of respect or adherence. . . . By what authority can government compel it?”14
The National Catholic Register commented on the Sunday law decisions: “Cardinal Richard Cushing of Boston and Archbishop Joseph F. Rummel of New Orleans among others have spoken out strongly in behalf of the Sabbath. These spokesmen received strong support in a recent decision of the U.S. Supreme Court. . . . Despite the fact that the Court had to take a stand against those who observe Saturday instead of Sunday as a day of rest, it did not hesitate to do so, for strong social reasons. . . . It is believed that the question of how far states can go in imposing sanctions on Sabbatarians may well be the subject of future constitutional tests.”15
Impact on the Rights of Minorities
Since McGowan businesses have faced hardships. The uniformity concept has not helped Sabbatarians, who have been fired or not hired because of their religious beliefs. The 1964 Civil Rights Act under Title VII has helped by requiring reasonable accommodation for religious practices unless it would require undue hardship for the employer. Yet some Supreme Court cases have made it very easy to show “undue hardship.” See TWA v. Hardison (432 U.S. 63 ).
The author has witnessed the trauma of those losing jobs because of religious beliefs. One case, in which the author was mentioned as attorney, not only ruled in favor of the one fired but said, “RSS [Richmond State School] was, in the judgment of the court, extremely fortunate to employ Padon. Padon is obviously, as the court analyzes his character, a dedicated, conscientious, hardworking individual completely willing to make any reasonable accommodation to the demands of his job. . . . Padon is perfectly willing to perform Saturday work if necessary to preserve life, health or property; however, he steadfastly refuses to do routine work, work which could easily be delegated to others, or work which could reasonably be postponed from sundown on Friday to sundown on Saturday.”16
Other cases have not turned out so well. An adverse ruling was given a man who had worked for a railroad company for 29 years. The appeals court said: “Although the record does not indicate that the Katy [Missouri-Kansas-Texas railroad] bent over backwards to accommodate Turpen, we cannot say that the district court was clearly erroneous in finding that the railroad satisfied its statutory duty.”17 The Supreme Court has shown sensitivity in cases such as Sherbert v. Verner (374 U.S. 398 ), ensuring unemployment compensation, but legal authorities point to its checkered role: “The Supreme Court has in the past been inconsistent, to say the least, in the protection of religious free exercise and of Sabbatarians in particular. . . . There is every reason to believe that, although all religions are equal, some are more equal than others.”18
The McGowan case has blurred the line between what is secular and religious. It has also given precedent to enforce uniformity even when conscience and religious liberty issues are involved. Twenty-four years later the Supreme Court decided Lynch v. Donnelly.19 This was the “crèche,” or “Nativity scene,” case. The Lynch case shows how McGowan has blurred the line between what is religious or secular: the majority in Lynch cited McGowan three times; the minority six times; and the concurring opinion once. The Nativity scene pictures one of the most sacred events of the Bible—the Incarnation. The majority admitted Sunday laws were on a par with the virgin birth by stating that not allowing the display “would also require that we view it as more of an endorsement of religion than the Sunday closing laws upheld in McGowan v. Maryland.”20 The minority, on the other hand, played up the secular nature of Sunday laws: “In McGowan,” “we concluded that while such laws were rooted in religious motivations, the current purpose was to serve the wholly secular goal of providing a uniform day of rest for all citizens.”21 The key words to notice are: “rooted in religious motivations”; “uniform day of rest”; and “for all citizens.” Aren’t Sabbatarians right to object to being compelled to observe a governmental provided uniform day of rest, even if it did achieve some secular goals?
Wisconsin v. Yoder (406 U.S. 205 ) was a significant victory for religious freedom. It allowed the Amish to go their distinctive way even against a compulsory school system. It ruled: “Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” But what are such interests of the highest order? Treason, being the highest of all crimes, would certainly qualify. Will legitimate religious beliefs again be made into treason for the sake of uniformity? Is the blurring of lines between what is secular and what is religious heading us down a wrong path? The twenty-first century faces great issues: nuclear destruction, energy and food crises, not to mention world peace. Where will religious freedom for religious minorities fit in? While it seems remote, could we be laying the foundation for a repeat of the ultimate clash of loyalties—when legitimate religious beliefs could become the nation’s highest crime?
Minersville School District et al. v. Gobitis, 310 U.S. 586.
In P. Finkelman, Religion and American Law: An Encyclopedia (2013), p.186.
West Virginia State Board of Education v. Barnette, 419 U.S.624 at 632.
Ibid., at 641.
Acts 9:20; 13:5, 14, 15, 42; 14:1; 17:1, 10, 17; 18:1-4, 7, 8, 19, 26; 19:8.
K. A. Strand, The Sabbath in Scripture and History (Washington, D.C: Review and Herald Publishing Association, 1982), p. 135.
Ibid., pp. 137, 139.
John A. O’Brien, The Faith of Millions: The Credentials of the Catholic Religion (Huntington, Ind.: Our Sunday Visitor, 1974), pp. 400, 401.
The Liberator, Mar. 31, 1848, p. 50.
D. McAllister, The National Reform Movement, Its History and Principles: A Manual of Christian Civil Government (Allegheny, Pa.: Christian Statesman Co., 1898), pp. 15, 16.
R. B. Flowers, M. Rogers, and S. K. Green, Religious Freedom and the Supreme Court (Waco, Tex.: Baylor University Press., 2008), p.146.
Braunfeld v. Brown, 366 U.S. 613.
R.M.A. Brown, G. Weigel, and W. Herberg, An American Dialogue (Garden City, N.Y: Doubleday & Co., 1961), pp.162,163.
For Douglas’ complete dissent, see: McGowan v Maryland, 366 U.S. 561-581 (1961).
The Register, America’s National Catholic Newspaper, June 25, 1961, p. 6.
Padon v. White, 485 F.Supp. 602, 604 (1979).
U.S. Court of Appeals for the Fifth Circuit, 736 F.2d 1022 (1984).
K. Hall, The Supreme Court in American Society: Equal Justice Under Law (New York: Garland Pub., 2000), p.485.
Lynch v. Donnelly, 465 US 668 (1984).
Ibid., at 682.
Ibid., at 719.