| Show THE IDAHO TEST OATH CASE THE case before the supreme court of the united states on which a decision is anxiously expected aromi promises to be one of the most important ever presented to that tribunal it involves the question of the constitutional scope of religious liberty and the limit of legislative powers as to the free exercise of religion the case on behalf of the appel lant was ably argued by hon F 8 richards of this city and judge jeremiah M Wilson of washington DC BC tso 1 0 stenographic report was taken of the oral arguments but the brief presented to the court has ewen received as printed and we give the following synopsis so that whatever may be the result the friends of constitutional freedom way may know that their cause was fully clearly and ably advocated before the highest court of our country before the supreme court of the united states for the october term an appeal was made from a final order and judgment of the district court of the third judicial district of idaho territory upon a writ of habeas corpus duly issued out of said court for the production of the body of samuel D davis da vis oy y which order the petitioner was remanded to jeche he custody of the sheriff of oneida county idaho territory Terri territory tor Y and is still held in custody by him the appellant by his petition and exhibits thereto annexed prayed to be discharged from custody on the judgment and sentence rendered and imposed by the district court for the third judicial district of idaho territory on the day of september 1889 he had been convicted of conspiracy in unlawfully procuring himself to be registered TS s an elector contrary to the following provisions of the revised statutes of idaho sico no person under guardianship dian ship non compos mentiS fOr insane nor any person convicted of treason felony or bribery in the territory or r in any other state or territory in the union unless restored to civil rights nor any person who is a big bigamist a mist polygamist or who teaches advises counsels or encourages any person or persons to become biga inlets or polygamists or to commit any ther other crime came defined by law or to enter into ito what is known as plural or celestial marriage or who to is a member of buy any order organization or association which ich teaches advises counsels or encourages its members or devotees ot any other persons to commit the crime of bigamy polygamy or any other crime defined by law either as I a rite or ceremony of such order or or association or other avis to is permitted to vote at any eleo elec mon or to hold any position or office of honor trust or profit W within ittin this territory section of the revised statutes of idaho requires an elector to swear among other things that he be is not A member of any order organization or association which teaches advises counsels or encourages its members devotees or any other person to commit the crime of bigamy or polygamy polygamy oly gamy or any other crime defined ay y law as a duty arising or resulting from membership in such order organization or association or which practices bigamy or polygamy or plural or celestial marriage as aa a doe doctrinal rite of such organization the appellant had taken the oath prescribed by the idaho statute aej aai had sworn that he possessed all ali the qualifications ef cf an elector ejector and was not under any of the disabilities named in these sections the indictment averred that he was at the time A member of an order organization and association namely the church of jesus christ of latter day saints then and there otherwise and commonly known as the mormon church which taught advia advised ed 9 coun selled and encouraged its members and devotees to commit the crimes of bigamy and polygamy as duties arising and resulting from membership in said order organization and association an i which said order organization and association as they each and all then and there well knew practiced bi bigamy my and polygamy and plural and bial celestial marriage as doctrinal rites of said organization and therefore guilty 11 it is not denied and consequently is admitted that he had the of citizenship age and residence he was not auder the disability of any conviction for treason felony or bribery he was not registered or enair entitled ded to vote at any other place he was not a bigamist or polygamist he did not and would not publicly or privately or in any manner whatever teach advise counsel or encourage any person to commit bigamy or polygamy nor any other crime and he regarded the constitution and laws as interpreted by the courts as the supreme law of the land any teachings of the church to the contrary notwithstanding standi ng it is only claimed that he belonged to the mormon church which the indictment charges taught advised counselled counseller coun selled and encouraged its members and debowes to commit bigamy and polygamy as duties arising and resulting from membership ip in such church this raises the only question in the case could the appellant be chased and disqualified from holding office because of membership in the mormon church his counsel answer no such legislation is forbidden by the constitution ution of the united states it is claimed in the brief for the appellant the tae idaho statute franchising disfranchising Dis 9 and OUis sens from holding office of membership berodt be in the mormon baurch is 18 unconstitutional and void be e cause it prohibits the free exercise arcise of religion I congress shall make no law respecting spec ting ingan an establishment of religion or prohibiting the free exercise thereof constitution arta amendments the provisions of the statute of idaho which provide as quoted above are in violation of this article of the constitution and therefore void the court has haa held that religious freedom is guaranteed everywhere throughout the united states so far as congressional interference is concerned 11 98 U 8 and that congress cannot pass pass a law for the government of territories which shall prohibit the free exercise of religion MA ibid it necessarily follows that a territorial legislature cannot pass such a law in the language of this court congress could confer no power on any local government established by its authority to violate the provisions of the constitution 19 how section 1891 of the revised statutes 0 the united states provides that I 1 the constitution and all laws of the united states which are not locally inapplicable shall have the same force an and effect within all the org organized anizeL territories and in every territory hereafter organized as elser elsewhere here within the united states this inhibition against prohibiting the free exercise ex ercse of religion brings the inquiry whether prohibition of membership in a church or disfranchisement because of such membership ber ship is a prohibition of the free exercise of religion refugion 11 the constitutional guarantee involves more than mere opinion and belief it not only protects a man in the enjoyment of his religious opinions but also in the free exercise of religion this free exercise of religion must embrace his right to enjoy the benefits of a church to worship according to its forms and ceremonies to participate in its ordinances and partake of its sacraments and this be could not do without being a member of the church organization it does not necessarily follow from such membership that he must believe all the dogmas or doctrines of the church he may disbelieve any or even all of them but its bere ceremonies forms and associations may be of such a character as comport with his ideas of worship and duty to his hig creator no matter what his bis belief is if he violates no law he may freely exercise his religion according to such forms and cert ceremonies if he cannot cannat he is deprived of the free exercise of religion this must be so otherwise the words of the constitution or prohibiting hi the free exercise thereof are su surplusage and without meaning it requires no such declaration as this to secure only freedom of 0 opinion P in ion and belief the appellant violated no law he did not practice bigamy or polygamy nor did he advise anyone any one else to do so it does not appear that he even believed in these practices and certainly he repudiated them by his oath he simply belonged to the mormon church and maimed his right to worship in that church this act undertakes to say that he shall not do this without forfeiting his franchise one of the most sacred rights of citizen citizenship ip this is equivalent to saying he shall not belong to that particular church nor worship with within n it because of its doctrines on certain subjects although he is not bound to and may not believe them he may join any other church may have the same religion and exercise it in any other church but not in this one thus far we have proceeded upon the hypothesis that since there is nothing in the record to show what the appellant really did believe he may have become a member of the church and worshipped wor shipped in it according to its methods without believing in these doctrines and for such worship he could not be constitutionally deprived of his franchise but suppose he did believe in bigamy and polygamy and associated and worshipped wor shipped with others who believed with him or he with them in a church organization can he be dis franchised because of this belief it will not do to say that he is dis franchised not because of his belief but because because of his membership in in the chura church h that would be sticking in the bark because some reason mastbe be found for saying that he shall not belong to such a church and that reason as cannot be disguised is belief in its doctrines as to bigamy and polygamy therefore this is disfranchisement on account of belief laws are made for the government of actions and while they cannot interfere with mere religious belief and opinions they may with practices 98 US in the reynolds ley case 98 united states this court held that congress was deprived of all legislative power over mere opinion that it was left free to reach actions which were in violation of social duties or subversive of good order but that it could not prohibit the free exercise of religion abid ibid the question before the court in that case was whether a man who had entered into it in plural marriage could claim exemption from punishment punishment because he be had done so from rm a sense of religious duty the court held that while he was protected in his belief he was liable to punishment for the practice and it endorsed the declaration that it is time enough for the rightful purposes of civil government for its ito officers to interfere when principles break out into overt acts against peace and good order 98 united states the appellant might safely rest his ewe case on this definition for as we have already shown he has been guilty of no overt act against peace Rs and good order because mere membership in the church is not an overt act against peace and good order but the importance of the subject demands a more extended inquiry into the meaning of the terms religion and the free exercise thereof the constitution has not defined these terms nor have they been fully expounded by this court we therefore invite the attention of the court to some popular definitions that may throw light on this subject RELIGION religion means the consel conscious one relation between man and god and the expression of that religion in human conduct religion ia or dictionary herzog religion in christian coun countries trIeR is generally understood as the feeling of reverence toward the creator and ruler of the world together with all those acts of worship and service to which that feeling feel ing leads the root of this sentiment lies i n the very constitution of man ae the new peoples dia of universal knowledge vol 8 in all forms of religion there is one part which may be called the doctrine of dogma which is to be received by faith and the cultus or worship which is the outward expression of the religious sentiment by religion is also meant that homage to the deity in all the forms which pertain to the spiritual liffin life in contrast with theology the theory of the divine nature and government mcclintock McOlin tock strongs cyclopedia of biblical theological and ecclesiastical literature vol 8 RELIGIOUS LIBERTY entire freedom of creed thought and wor worship iship perfect equality of all religious 11 I 1 long associations and a protection of of each from the domination of the other is what is meant by religious liberty 0 in the united states religious liberty is a personal right the principle being fundamental fand that what is religious is of necessity beyond the reach of government the new peoples Cyclops edia adia of universal knowledge vol 2 I 1 the free exercise and enjoyment of religious remigious reig ious profession and worship may be considered as one of the absolute rights of individuals recognized in our american constitutions and secured to them by law civil and religious liberty generally go hand in hand and the suppression of either of them for any length of time will determine the existence of the other 2 kents commentaries sh 6 A number of other citations are made to similar effect it is evident from the foregoing standard authorities that religious liberty is a right embracing more than mere opinion sentiment faith or belief it includes all human conduct that gives expression to the relation between man and god it includes all frames of feeling all forms of faith and acts of woi Yip to which man is impelled by his hopes or fears it includes the cultus tusa or outward expression of the religious sentiment senti mentA it means entire freedom of creed thought and worship with a restriction upon the government that it cannot go behind the overt act in other words it includes all acts of manifestation nani fe or exercise of religion which are not in violation of peace and good order 98 united states that the term I 1 free exercise of religion was intended by th promoters of the first article of amendment to the constitution to have th this Is broad and comprehensive signification is apparent from an examination of the history of that period to which this court said we should look for the meaning odthe of the tertia term and in the reynolds case supra it gave an epitome thereof here is given the full text of that epitome and after quoting in full the virginia act for establishing religious freedom fr 11 referred to by the supreme court the brief cites the language of thomas chomas jefferson concerning that act and also of george washington the provisions from the constitutions of the original states and from i the eh charters arters of several of the colonies declaring the natural and inalienable alie right of every individual to worship god according to the dictates of his own conscience and securing the free exercise of religion so long as it did not disturb eclie peace and safety of the state are quoted at length also mr mal madi SOUS sons definition of religious freedom the amendments on this subject proposed by the states at the time of the adoption of the federal constitution and other valuable historical facts after which the document continues f an ea it is evident from the foregoing that the colonial idea of religious freedom did not consist in the preservation er of the right to entertain opinion or belief merely but in securing the right to a free exercise of religion according to the dictates of conscience and this included practices 9 as well as faith and worship so long as they did not actually disturb the civil peace of the colony there can be no doubt that this is the free exercise of religion which our patriot fathers intended to secure to their posterity and it is what we are contending for in this case the comments of st george tucker |
