The Constitutional Principle: Separation of Church and State
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Updegraph v Commonwealth

Updegraph v Commonwealth, 11 Serg. & R. (Pa) 394 (1824)-Supreme Court PA- is cited 13 times in The Myth of Separation (Blasphemy case)

Legal analysis and writing by Lee Edwards, Esq. and by Susan Batte, Esq.

Major claims by Barton in his publications:

From The Myth of Separation, page 51-55, Barton writes:

This was the first case cited in Holy Trinity. The following is the description of the grand jury's indictment and the facts of the case:

Abner Updegraph . . . on the 12th day of December [1821] . . .not having the fear of God before his eyes . . . contriving and intending to scandalize, and bring into disrepute, and vilify the Christian religion and the scriptures of truth, in the Presence and hearing of several persons ... did unlawfully, wickedly and premeditatively, despitefully and blasphemously say . . . : "That the Holy Scriptures were a mere fable: that they were a contradiction, and that although they contained a number of good things, yet they contained a great many lies." To the great dishonor of Almighty God, to the great scandal of the profession of the Christian religion.

Since the indictment was for blasphemy, the court needed to establish a legal definition of the word. It turned to the writings of Sir William Blackstone:

Blasphemy against the Almighty is denying his being or providence, or uttering contumelious reproaches on our Savior Christ. It is punished, at common law by fine and imprisonment, for Christianity is part of the laws of the land.

The Updegraph case went to trial, and the jury found Updegraph guilty. The attorney for the defendant submitted to the court his reasons that the jury's verdict should be overturned. He Pointed out that Updegraph was a member of a debating association which convened weekly and that what he had said was uttered in the course of argument on a religious question. Wilkins argued that both the state and federal Constitution protected freedom of speech, and that is any state law against blasphemy did exist, the federal Constitution had done away with it- -that Christianity was no longer part of the law.

Undoubtedly, had this case been tried today, the defense would differ little. Arguments for unlimited freedom of speech and against the constitutionality of laws limiting expression have been used since courts existed. Notice how the court responded to these arguments:

The jury . . . finds a malicious intention in the speaker to vilify the Christian religion and the scriptures, and this court cannot look beyond the record, nor take any notice of the allegation, that the words were uttered by the defendant, a member of a debating association, which convened weekly for discussion and mutual information... . That there is an association in which so serious a subject is treated with so much levity, indecency and scurrility ... I am sorry to hear, for it would prove a nursery of vice, a school of preparation to qualify young men for the gallows, and young women for the brothel, and there is not a skeptic of decent manners and good morals, who would not consider such debating clubs as a common nuisance and disgrace to the city. .. . It was the out-pouring of an invective, so vulgarly shocking and insulting, that the lowest grade of civil authority ought not to be subject to it, but when spoken in a Christian land, and to a Christian audience, the highest offence conna bones mores; and even if Christianity was not part of the law of the land, it is the popular religion of the country, an insult on which would be indictable.

Having sustained the jury's verdict and the legality of laws on blasphemy, the court turned its attention to the objections raised by the defense attorney:

The assertion is once more made, that Christianity never was received as part of the common law of this Christian land; and it is added, that if it was, it was virtually repealed by the constitution of the United States, and of this state. . . . If the argument be worth anything, all the laws which have Christianity for their object--all would be carried away at one fell swoop-the act against cursing and swearing, and breach of the Lord's day; the act forbidding incestuous marriages, perjury by taking a false oath upon the book, fornication and adultery ...for all these are founded on Christianity--- for all these are restraints upon civil liberty. ...

We will first dispose of what is considered the grand objection--the constitutionality of Christianity--for, in effect, that is the question. Christianity, general Christianity, is and always has been a part of the common law . . . not Christianity founded on any particular religious tenets; not Christianity with an established church ... but Christianity with liberty of conscience to all men.

Thus this wise legislature framed this great body of laws, for a Christian country and Christian people. This is the Christianity of the common law . . . and thus, it is irrefragably proved, that the laws and institutions of this state are built on the foundation of reverence for Christianity. . . . In this the constitution of the United States has made no alteration, nor in the great body of the laws which was an incorporation of the common-law doctrine of Christianity . . . without which no free government can long exist.

To prohibit the open, public and explicit denial of the popular religion of a country is a necessary measure to preserve the tranquillity of a government. Of this, no person in a Christian country can complain. . . . In the Supreme Court of New York it was solemnly determined, that Christianity was part of the law of the land, and that to revile the Holy Scriptures was an indictable offence. The case assumes, says Chief Justice Kent, that we are a Christian people, and the morality of the country is deeply engrafted on Christianity. The People v. Ruggles.

No society can tolerate a willful and despiteful attempt to subvert its religion, no more than it would to break down its laws--a general, malicious and deliberate intent to overthrow Christianity, general Christianity. Without these restraints no free government could long exist. It is liberty run mad to declaim against the punishment of these offences, or to assert that the punishment is hostile to the spirit and genius of our government. They are far from being true friends to liberty who support this doctrine, and the promulgation of such opinions, and general receipt of them among the people, would be the sure forerunners of anarchy, and finally, of despotism. No free government now exists in the world unless where Christianity is acknowledged, and is the religion of the country.... Its foundations are broad and strong, and deep. .. it is the purest system of morality, the firmest auxiliary, and only stable support of all human laws. . . .

Christianity is part of the common law; the act against blasphemy is neither obsolete nor virtually repealed; nor is Christianity inconsistent with our free governments or the genius of the people.

While our own free constitution secures liberty of conscience and freedom of religious worship to all, it is not necessary to maintain that any man should have the right publicly to vilify the religion of his neighbors and of the country; these two privileges are directly opposed.

Legal analysis and writing by Lee Edwards, Esq.

Facts: Defendant was indicted for blasphemy, convicted, and fined five shillings for saying, during the meeting of a debating society, that the Christian Scriptures were a fable. The indictment did not allege that he made the statement "profanely."

Issue: Did Pennsylvania law require that indictments allege that blasphemous pronouncements be uttered "profanely"?

Answer: Yes. The conviction was reversed.

Comment: In the Updegraph case, Barton's claims are deceptive because, although the jury in the trial court did convict the defendant, the appellate court reversed. The statement in the opinion that Christianity was part of the common law of Pennsylvania and was not modified by the United States Constitution was dictum.

The case was decided prior to the ratification of the Fourteenth Amendment.

Legal analysis and writing by Susan Batte, Esq.

1. Updegraph. This case seems frightening because the intent of the speech was not to incite riot, but merely to participate in a debating association. That's not to say that Ruggles' actions were more or less offense because they were ramblings or rantings or direct indictments leveled at the god-fearing Christians of the day. This is just to say that in a forum that was specifically designed for the practice of free speech, the good people of Pennsylvania thereupon decided that only non-religious speech is protected under state and federal constitutional guarantees.

2. The court reversed the conviction on a technicality: that "profanely" was absent from the indictment. This smells of a court looking to base its decision on a legal concept, while leaving the way open to comment, a la obiter dicta, on popular notions.

3. The opinion could have stood without any of the comments on Christianity.

4. Cursing, blasphemy, incestuous marriage, perjury, and adultery would all exist without declaring Christianity a part of the common law of Pennsylvania. Not so. There were statutes and cases which made or could make any or all of these aforementioned acts criminal. Christianity is not necessary for a state to pass a law against murder. Nor is it necessary for a state to pass a law against incestuous marriage, perjury or adultery. The society does decide which acts it will declare criminal - and it does so through its elected officials. If society determines that certain behavior is criminal, they have done so not because they are Christians but because they have recognized that certain behavior must be determined criminal if the society is to continue to thrive and if the society values the protection of its people.

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