TBA BRIEFINGS
JANUARY 2016
President's Column
♦ TOPEKA BAR ASSOCIATION ♦
TBA Office
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the government for a redress of grievances.
Tiffany Fisher, Executive Director
534 S. Kansas Avenue, Suite 1130
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Phone: 233-3945
email: [email protected]
website: www.TopekaBar.com
U.S. Const. amend. 1, Ad. 1791
Board of Directors
The ideas behind the freedoms expressed in the First
Amendment to the United States Constitution are generally
supposed to have arisen out of the European Enlightenment.
Similar ideas are expressed in the Declaration of the
By Jim Rankin
Rights of Man and of the Citizens introduced to France’s
revolutionary constitutional Assembly by General Lafayette. The Declaration, based
upon the Enlightenment principles of natural right, passed the revolutionary Assembly
in 1789. Indeed, Enlightenment thinkers employed the theory of natural law—derived
from reason—to challenge the absolutist theory of divine right. An absolutist monarch
such as Charles I, could argue his powers, since they were derived directly from God,
were total. Total power extended to control over religious dissent, speech, press, and
Committee Chairpersons
assembly. There is then an interconnectedness between the freedoms expressed in our
Stephen W. Cavanaugh, Bench-Bar
First Amendment and in the French Declaration. Historically, and perhaps logically, the
Terri Bezek & Anthony Mattivi, Continuing Legal primary and seminal freedom was and is free exercise of religion. After all, the concerns
Education
regarding freedom of the press and free speech derive primarily from the religious
Anthony Mattivi & Ron Wurtz, Criminal Law
Alan Alderson, Family Law
dissent which arose in the Middle Ages and spread throughout Europe with the advent
Vince Cox, Law Day
of movable type. Arguably then, the most fundamental societal control which must be
Christopher Joseph, Legislative
exercised by a totalitarian leader is control over religious practice. Dissenting religious
Mary Christopher, Medical-Legal
practices, without universal enforcement of national pieties, threatens a totalitarian
Shaye Downing & Doug Shima, Membership
sovereign’s grip on society and could lead to increasingly dangerous demands for
Dan Gronniger, Memorials
Pedro Irigonegaray, Naturalization
liberty. Interestingly, the seed of the ideas expressed in the First Amendment and the
Scott Sumpter, Probate
French Declaration was laid long before the Enlightenment.
James P. Rankin, President
Laura Graham, President-Elect
Dave Newbery, Treasurer
Diane Bellquist, Secretary
Mark Bennett, Director
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Jim Wright, Honorary President
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Sarah Morse, Young Lawyers Division
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♦ TBA BRIEFINGS ♦
Editor: Sarah Morse - 233-0593 or smorse@
gseplaw.com
Contributors: Terry Beck, Doug Shima, Amanda Kiefer
The third century A.D. was a time of political unrest within the Roman Empire. By
230 A.D., the military suppression of civil unrest by the Emperors Septimius Severus
and Caracalla collapsed into a fifty year period of anarchy. But just prior to the period
of chaos, the Empire, under tight military control, engaged in religious persecution in
order to assure civil quietude. Among the persecuted groups were the early Christians.
All persons regardless of their individual responsibilities were expected to sacrifice to
the Roman gods. Such sacrifices served as an outward sign of loyalty to the Emperor
and his Empire. Additionally, participation by all under Rome’s control in the Empire’s
civic pieties was, as Cicero teaches, a duty to one’s country and family. Cicero
writes:
Piety like any other virtue cannot long endure in the guise of a mere convention
and pretence. When piety goes, religion and sanctity go with it. And when these are
gone, there is anarchy and complete confusion in our way of life. Indeed I do not
know whether, if our reverence for the gods were lost, we should not also see the end
of good faith, of human brotherhood, and even of justice itself, which is the keystone
of all the virtues.
Cicero, On the Nature of the Gods, Book 1 (45 B. C.) Trans. Horace C. P. McGregor
(1972).
For Rome, therefore, religious piety—including sacrifices to Rome’s gods and
emperors—was a civic virtue of the utmost importance. It was an ancient form of state
continued on page 7
and Rich Eckert.
♦ Page 2 ♦
JANUARY 2016
continued from page 2 - President's Column
imposed political correctness.
For Christians, however, sacrificing
to Rome’s gods was anathema. In an
open letter to Scapula Tertullus, the then
serving proconsul of Africa, entitled Ad
Scapulan, the Carthaginian Christian
lawyer Tertullian defiantly addresses
human rights, perhaps for the first time in
recorded history:
We are worshippers of one God, of
whose existence and character Nature
teaches all men. . . [I]t is a fundamental
human right, a privilege of nature, that
every man should worship according to
his own convictions: one man’s religion
neither harms nor helps another man.
It is assuredly no part of religion to
compel religion-to which free-will and
not force should lead us. . . You will
render no real service to your gods by
compelling us to sacrifice. For they
can have no desire of offering from the
unwilling . . . We therefore sacrifice for
the emperor’s safety, but to our God and
his, after the manner God has enjoined,
in simple prayer.
Tertullian, Ad Scapulan,
Ch. II, ca. 212 A.D., Trans.
By Rev. Sydney Thelwall, (1869).
Tertullian survived his defiance and
probably died of natural causes around
240 A.D. By 313 A.D., the Emperor
Constantine had adopted a policy of
toleration regarding Christianity and
during Constantine’s reign, the religion
spread throughout the Empire. Tertullian’s
letter to Scapula gives evidence of the
ancient origins of the greater human
rights concept which informs the First
Amendment to our Constitution and the
French Declaration of 1789.
During the 1930's and 1940's the
Supreme Court had an opportunity to
examine the freedoms expressed in
the Constitution’s First Amendment in
a context similar to that addressed by
Tertullian approximately 1,700 years
before. In 1943, the United States Supreme
Court acted to overrule its own precedent
TBA BRIEFINGS
in a case involving Jehovah’s Witnesses.
West Virginia Board of Education v.
Barnette, 319 U.S. 624 (1943), was one of
several cases decided between 1938 and
1943 involving the Jehovah’s Witnesses.
West Virginia statutes permitted local
school districts to adopt compulsory flag
salute rules. Jehovah’s Witness children
were expelled from school for refusing to
salute the flag using the prescribed stiff
arm method. Jehovah’s Witness religious
doctrine held that such a demonstration
constituted worship of a graven image
and was, therefore, against God’s law
based on their reading of the versus 4 and
5 of Exodus, chapter 20. In affirming the
federal district court’s injunction against
enforcement of the flag salute rules,
Justice Robert H. Jackson first noted there
was no conflict with the rights of others,
stating:
The freedom asserted by these appellees
does not bring them into collision with
rights asserted by any other individual.
. . Nor is there any question in this case
that their behavior is peaceable and
orderly.
West Virginia Bd of Ed. V. Barnette,
supra 319 U.S. at 630 (1943).
Later in his opinion, Justice Jackson
famously stated:
If there is any fixed star in our
constitutional constellation, it is that
no official, high or petty, can prescribe
what shall be orthodox in politics,
nationalism, religion, or other matters
of opinion or force citizens to confess
by word or act their faith therein.
West Virginia Bd of Ed. V. Barnette,
supra 319 U.S. at 642 (1943).
Barnette overruled the Court’s 1940
ruling in another Jehovah’s Witness flag
salute case Minersville School District v.
Gobitis, 301 U.S. 586 (1940). In Gobitis,
the expelled students argued they were
acting in sympathy with Jehovah’s
Witnesses in Germany who were being
persecuted and imprisoned for refusing to
salute the Nazi swastika flag. Writing for
the Court’s majority in Gobitis, Justice
♦ Page 7 ♦
Felix Frankfurter stated that “national
unity was the basis of national security.”
After Gobitis was issued, Witnesses were
attacked in various parts of the country.
The attacks were blamed on the Gobitis
decision resulting in the Court reaching
for a means to backtrack from its 1940
ruling. Examining a West Virginia statute
and local school board policy largely on
free speech grounds, the Court in Barnette
hoped to broaden the First Amendment
principle and avoid the embarrassment
of so quickly overruling Gobitis.
Understandably, Justice Frankfurter
dissented in Barnette illuminating the
enduring conflict between personal liberty
and duly constituted authority in these
words:
The constitutional protection of religious
freedom terminated disabilities, it did not
create new privileges. It gave religious
equality, not civil immunity. Its essence
is freedom from conformity to religious
dogma, not freedom from conformity
to law because of religious dogma.
Religious loyalties may be exercised
without hindrance from the state, not
the state may not exercise that which,
except by leave of religious loyalties, is
within the domain of temporal power.
Otherwise, each individual could set
up his own censor against obedience
to laws conscientiously deemed for the
public good by those whose business it
is to make laws.
West Virginia Bd of Ed. V. Barnette,
(Frankfurter, dissenting) supra 319 U.S.
at 653 (1943).
There is perhaps no more powerful
bulwark against development of
totalitarian rule than liberty of conscious
expressed as the free exercise of religious
practice. Nevertheless, there are limits to
this freedom. Tertullian implies as much
in the above quoted passage from Ad
Scapulian. The limit is peaceableness and
respect for the established order. In the
last sentence of the above quoted passage,
Tertullian assures Scapula that Christians
“sacrifice for the emperor’s safety … in
simple prayer.”