Blasphemy law in the United States

"An Act against Atheism and Blasphemy" as enacted in 1697 in "His Majesty's Province of the Massachusetts-Bay in New-England" (1759 printing)

Massachusetts, Michigan, Oklahoma, South Carolina, Wyoming, and Pennsylvania have laws that make reference to blasphemy.[1] Some US states still have blasphemy laws on the books from the founding days. For example, Chapter 272 of the Massachusetts General Laws – a provision based on a similar colonial-era Massachusetts Bay statute enacted in 1697 – states:

Section 36. Whoever willfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, His creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

The history of Maryland's blasphemy statutes suggests that even into the 1930s, the First Amendment was not recognized as preventing states from passing such laws. An 1879 codification of Maryland statutes prohibited blasphemy:

Art. 72, sec. 189. If any person, by writing or speaking, shall blaspheme or curse God, or shall write or utter any profane words of and concerning our Saviour, Jesus Christ, or of and concerning the Trinity, or any of the persons thereof, he shall, on conviction, be fined not more than one hundred dollars, or imprisoned not more than six months, or both fined and imprisoned as aforesaid, at the discretion of the court.

According to the marginalia, this statute was adopted in 1819, and a similar law dates back to 1723. In 1904, the statute was still on the books at Art. 27, sec. 20, unaltered in text. As late as 1939, this statute was still the law of Maryland. But in 1972, in Maryland v. Irving K. West, the Maryland Court of Appeals (the state's highest court) declared the blasphemy law unconstitutional.[2] This law was still on the books until at least 2003.[3]

Pennsylvania enacted a law against blasphemy in 1977. In the fall of 2007, George Kalman sent the completed forms for incorporating a company to the Pennsylvania Department of State. Kalman wanted to incorporate a movie-production company which he called I Choose Hell Productions, LLC. A week later, Kalman received a notice from the Pennsylvania Department of State which informed him that his forms could not be accepted because a business name "may not contain words that constitute blasphemy, profane cursing or swearing or that profane the Lord's name". In February 2009, Kalman filed suit to have the provision against blasphemy struck down as unconstitutional.[1] On June 30, 2010, U.S. District Judge Michael M. Bayslon of the Eastern District of Pennsylvania, in a 68-page Opinion, ruled in favor of Kalman, finding that Pennsylvania's blasphemy statute violated both the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution.[4]

Maine's law reads as follows:

Blasphemy may be committed either by using profanely insolent and reproachful language against God, or by contumeliously reproaching Him, His creation, government, final judgment of the world, Jesus Christ, the Holy Ghost, or the Holy Scriptures as contained in the canonical books of the Old and New Testament, or by exposing any of these enumerated Beings or Scriptures to contempt and ridicule, and it is not necessary for the state to prove the doing of all of them.[5]

The last person to be jailed in the United States for blasphemy was Abner Kneeland in 1838 (a Massachusetts case: Commonwealth v. Kneeland).[6] The Kneeland case preceded the ratification (1868) of the 14th Amendment, which incorporated the Bill of Rights and made it apply to the states and not just to the federal government. From 1925, the Supreme Court applied the Bill of Rights to all states.[7]

In 1921, Lithuanian-American Michael X. Mockus was convicted in Maine. He appealed to the Supreme Judicial Court of Maine on March 25, 1921 in State v. Mockus and lost the appeal.[8]

In February 1926, Lithuanian-American Communist Anthony Bimba was charged in Brockton, Massachusetts with blasphemy under a law passed during the time of the Salem Witch Trials more than two centuries earlier, as well as sedition.[9] A widely publicized week-long trial followed, during which Bimba's attorney likened atheism to religious belief and maintained that individuals had a right under the United States constitution to believe or disbelieve in the existence of a God.[10] Bimba was ultimately found not guilty of blasphemy but convicted of sedition, for which he was fined $100.[11]

The last U.S. conviction for blasphemy was of atheist activist Charles Lee Smith. In 1928, he rented a storefront in Little Rock, Arkansas, and gave out free atheist literature there. The sign in the window read: "Evolution Is True. The Bible's a Lie. God's a Ghost." For this he was charged with violating the city ordinance against blasphemy. Because he was an atheist and therefore could not swear the court's religious oath to tell the truth, he was not permitted to testify in his own defense. The judge then dismissed the original charge, replacing it with one of distributing obscene, slanderous, or scurrilous literature. Smith was convicted, fined $25, and served most of a twenty-six-day jail sentence. His high-profile fast while behind bars drew national media attention. Upon his release, he immediately resumed his atheist activities, was again charged with blasphemy, and this time the charge held. In his trial he was again denied the right to testify and was sentenced to ninety days in jail and a fine of $100. Released on $1,000 bail, Smith appealed the verdict. The case then dragged on for several years until it was finally dismissed.[12]

The U.S. Supreme Court in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) held that the New York State blasphemy law was an unconstitutional prior restraint on freedom of speech. The court stated that "It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures."

• Schroeder, Theodore (1919). Constitutional Free Speech Defined and Defended in an Unfinished Argument in a Case of Blasphemy. New York: Free Speech League.