Blasphemy and the Law of Religious Liberty in Nineteenth-Century America

IN 1811, CHIEF JUDGE JAMES KENT OF THE COURT OF APPEALS OF NEW YORK upheld the conviction of John Ruggles for blasphemy. Ruggles's crime was shouting "Jesus Christ was a bastard, and his mother must be a whore." He was convicted after a jury concluded that "these words were uttered in a wanton manner, and, as they evidently import, with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion." Ruggles had openly and wantonly reviled Jesus and Mary, with no purpose other than abusing and offending his audience. In contemporary England, such "contumelious reproaches or profane ridicule of Christ or Holy Scripture" were treated as common law crimes. English courts reasoned that "whatever strikes at the root of christianity, tends manifestly to the dissolution of civil government." ¹

Ruggles's lawyer seized on the obvious distinction between the union of church and state in England and the provisions of New York's constitution allowing "free toleration to all religions and all kinds of worship" and prohibiting any official relationship between church and state. He argued that "christianity did not make a part of the common law of this state." How could an offense against Christianity be criminally punished if Christianity had no legal status--if there were no established religion to defend and all forms of religion were freely tolerated? The new constitutional order made such a question a difficult and troubling one. ²

The separation of religion from government in the new Republic unsettled centuries of legal custom. Among other changes, the constitutional protection of religious liberty in New York and other states challenged the authority of traditional restraints on speech and behavior. To legislators and constitutional theorists in the early nineteenth century, John Ruggles and other dissenters were examples of the dangers created by unrestrained liberty. The explosive qualities of religious liberty revealed the fragility of the new constitutional order. How to rein in the grosser tendencies of this explosion, to prevent liberty from degenerating into its opposite, "license"? Exploring the meaning of religious liberty as they punished blasphemers, nineteenth-century legists discovered and struggled to control a weakness in their constitutional democracy.

Dissenters in the new republic exploited the absence of traditional links between church and state, challenging courts to explain why some language was dangerous beyond the mandate for toleration. Frequently those accused of blasphemy fused their challenges with attacks on traditional sexual morality, forcing defenders of Christianity to explain how verbal offenses sapped the moral sensibility of Americans. The dilemma and the perceived duty of legal regulation were to guard the liberties of the people against licentiousness cloaked by spurious claims of religious difference. Through the delineation of the crucial difference between religious and moral debate, on the one hand, and vituperative and subversive rhetoric, on the other, American judges and jurisprudes refashioned the law of church and state. They tailored their English legal heritage to fit (and flatter) its American environment.

While blasphemy jurisprudence remains a largely overlooked piece of American legal history, those historians who have studied the case law have dismissed it as a meaningless vestige of English law or attacked it as a blatant violation of civil liberties. This article, while it does not deny the British ancestry of blasphemy law or its anti-libertarian thrust, argues that scholars have overlooked the reconstruction of religious liberty in American constitutional thought and case law after independence. Judge Kent, surely, was keen to embrace the social and political control inherited from a vigorous English tradition and adapted English legal reasoning to the case of John Ruggles. Yet there was a crucial difference, for the state church and monarchical government of the mother country made the punishment of dissenters a less onerous intellectual and jurisprudential task in England than in the new United States. ³

Through the investigation of the controversies that gave rise to...