Until well into the twentieth century, American law recognized blasphemy as proscribable speech. The blackletter rule was clear. Constitutional liberty entailed a right to articulate views on religion, but not a right to commit blasphemy1 — the offense of “maliciously reviling God,” which encompassed “profane ridicule of Christ.”2 The English common law had punished blasphemy as a crime,3 while excluding “disputes between learned men upon particular controverted points” from the scope of criminal blasphemy.4 Looking to this precedent, nineteenth-century American appellate courts consistently upheld proscriptions on blasphemy,5 drawing a line between punishable blasphemy and protected religious speech.6 At the close of the nineteenth century, the U.S. Supreme Court still assumed that the First Amendment did not “permit the publication of . . . blasphemous . . . articles.”7 And in 1921 the Maine Supreme Judicial Court affirmed a blasphemy conviction under the state’s First Amendment analogue.8 Even on the eve of American entry into World War II, the Tenth Circuit upheld an anti-blasphemy ordinance against a facial First Amendment challenge.9
Only in the postwar period did the doctrine promulgated by appellate courts begin to shift. In Joseph Burstyn, Inc. v. Wilson,10 the U.S. Supreme Court invoked the Free Speech Clause to invalidate a prior restraint on “sacrilegious” films.11 Burstyn did not directly hold anti-blasphemy laws unconstitutional,12 but its obiter dicta gave aid and comfort to the laws’ enemies.13 And although two state appellate courts sustained blasphemy proscriptions after Burstyn,14 a third struck down a state anti-blasphemy law under the First Amendment’s Religion Clauses.15 Most recently, a federal district court invalidated a state blasphemy statute under the Free Speech Clause and the Establishment Clause.16 Present-day scholars often assume that anti-blasphemy laws are unconstitutional,17 celebrating the absence of such laws as a core First Amendment principle,18 though treatise writers, noting the limited authority supporting the laws’ invalidity, tend to be more circumspect.19
This Note argues that none of the constitutional clauses currently thought to make anti-blasphemy laws unconstitutional — Free Exercise, Free Speech, Establishment — originally prohibited blasphemy prosecutions. In other words, the original public meaning of the First Amendment, whether in 1791 or in 1868,20 allowed for criminalizing blasphemy. Part I shows that Americans from the Founding through Reconstruction understood free religious exercise as permitting the proscription of blasphemy. Part II explains how the public conceived of free speech in a way that excluded blasphemy from constitutional protection. And Part III illustrates that constitutional commitment to nonestablishment posed no barrier to punishing blasphemy. Although an abundance of evidence — constitutions and statutes, trial and appellate cases, scholarly and popular commentary — indicates that anti-blasphemy laws are constitutional under the First Amendment’s original meaning, originalist writers tend to ignore this issue.21 Originalists should engage with this history: they should either explain why countervailing concerns overcome the original constitutional meaning or adopt a view of First Amendment jurisprudence that aligns with the original understanding.
I. Anti-blasphemy Laws and Free Religious Exercise
From the Founding era, when the country ratified the First Amendment, through Reconstruction, when the Fourteenth Amendment applied the Federal Free Exercise Clause to the states, Americans viewed blasphemy prosecutions as compatible with free religious exercise. The same state legislatures that ratified the Free Exercise Clause passed statutes that criminalized blasphemy. And the same public that ratified the state religious freedom provisions22 convicted defendants charged with blasphemy.23 When defendants appealed their convictions under both the federal and the state provisions, influential appellate judges affirmed that prosecuting blasphemy was consistent with religious liberty: anti-blasphemy laws, which targeted “malicious reviling [of] God, or religion,” still allowed for “free and decent discussions on any religious subject.”24 The courts thus developed a body of religious liberty doctrine that was firmly established by the Civil War. Whether the relevant constitutional moment was 1791 or 1868, the Free Exercise Clause, as originally understood, posed no barrier to proscribing blasphemy.
Along with the general public, the legislatures that ratified the First Amendment treated blasphemy proscriptions as compatible with religious freedom. Two years after Massachusetts adopted its 1780 constitution — including a religious liberty provision25 — it enacted a blasphemy statute.26 “[M]any members of the convention which framed the constitution, were members of the legislature which passed th[e] law.”27 Under this law, Massachusetts successfully prosecuted blasphemy in 1790.28 Similarly, pursuant to New Hampshire’s 1784 constitution, which recognized religious liberty,29 the legislature passed a 1791 blasphemy law.30 Vermont’s 1793 constitution, guaranteeing free exercise,31 was followed by a 1797 blasphemy statute.32 New Jersey’s legislature followed the same pattern under its analogous constitutional provision.33 And after Pennsylvania passed its 1790 constitution securing religious freedom,34 a Pennsylvania jury convicted a blasphemer in 1799.35
The broader legal situation at the Founding also indicates that religious liberty posed no problem for prosecuting blasphemy. Each state that ratified a new constitution also enacted a “reception provision,” adopting the English common law and the colony’s statutory law as the law of the newly independent state, insofar as the old law was compatible with the state’s new constitution.36 Even when the state constitution guaranteed free exercise, as was standard,37 legal writers included colonial anti-blasphemy laws in compilations of current state statutes.38 Thus, without the need for specific reenactment, colonial blasphemy statutes and the common law of blasphemy were recognized as part of state law at the dawn of the nineteenth century.
The first appellate case on blasphemy, People v. Ruggles,39 addressed whether blasphemy prosecutions were compatible with free exercise. In 1810, Ruggles raised his voice to revile Christ as a “bastard” and the Virgin as “a whore” — for which a jury convicted him of the common law crime of blasphemy in New York state court.40 On appeal before the New York Supreme Court, Ruggles challenged the blasphemy conviction under the state free exercise clause, which stipulated that “the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind.”41 “The constitution allows a free toleration to all religions,” Ruggles’s counsel argued, meaning that Ruggles “had a right, by the constitution, to declare his opinions.”42
Writing for a unanimous supreme court,43 Chief Justice Kent upheld the blasphemy conviction as compatible with free exercise.44 As the court explained, the clause guaranteed “the free, equal, and undisturbed, enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject.”45 But there was no right “to revile [Christianity], with malicious and blasphemous contempt” — a crime the court distinguished from protected religious expression.46 To interpret the clause as “breaking down the common law barriers against” blasphemy was “an enormous perversion of its meaning.”47
Ruggles was well received in New York. The state legislature sided with the Ruggles court: rather than abolish the common law crime of blasphemy, the legislature doubled down, punishing by statute even lesser forms of irreverence.48 Blasphemy prosecutions continued apace.49 A decade after Ruggles, the judge in a New York City blasphemy case50 explained that “[t]he case of Ruggles has settled the law on the subject,” charging the jury that the constitutional “right to entertain any religious opinion” did not permit “revil[ing] the [prevailing] religion.”51 And when a delegate at the 1821 New York constitutional convention sought to challenge Ruggles, the convention reaffirmed it.52
New York was no outlier. The other appellate blasphemy cases — decided in states that likewise enjoyed constitutional religious freedom protections — also upheld anti-blasphemy laws as consistent with religious liberty.53 In the 1824 case Updegraph v. Commonwealth,54 the defendant challenged Pennsylvania’s anti-blasphemy statute under the state constitution, which secured religious freedom.55 Pennsylvania’s highest court rejected the defendant’s argument.56 Although the “constitution secure[d] liberty of conscience and freedom of religious worship to all,” no one had the “right publicly to vilify the religion of his neighbors and of the country.”57 In 1837, a Delaware appeals court likewise upheld the state’s anti-blasphemy statute under its constitution,58 which guaranteed free religious exercise.59 Addressing “whether that statute [was] inconsistent with the state constitution,”60 the Chief Justice quoted the free exercise provision,61 concluding that it imposed no obstacle to affirming the defendant’s blasphemy convictions.62
In Massachusetts, Abner Kneeland challenged the state’s blasphemy law under the religious liberty provision of the state Declaration of Rights,63 but to no avail.64 Appearing pro se before the Supreme Judicial Court in 1838, Kneeland quoted this provision to illustrate that the anti-blasphemy statute was “repugnant” to the state constitution.65 Writing for the court, Chief Justice Shaw upheld the anti-blasphemy law as “entirely consistent with” the religious freedom provision.66 For Chief Justice Shaw, the law was meant to “punish acts which have a tendency to disturb the public peace,” not to “restrain . . . the profession of any religious sentiments whatever.”67 Thus, the statute was “not repugnant to” the state religious liberty clause.68
The outcome would not have been different under the Federal Free Exercise Clause. To be sure, in some states, the constitution qualified religious liberty with a public safety proviso69 — unlike the Federal Free Exercise Clause, which includes no explicit qualification.70 But states proscribed blasphemy even when their constitutions lacked any such proviso,71 suggesting that the presence or absence of a textual qualification was doing little work. Of course, there were other verbal differences between the federal and state provisions. In contrast with the U.S. Constitution’s lapidary language — which protects “the free exercise [of religion]” — the state constitutions recognized “the free exercise . . . of religious profession and worship”72 and “the rights of conscience, in the free exercise of religious worship,”73 among other formulations. But when an appellate court had occasion to address federal constitutional law, it treated the federal and state protections74 as equivalent, at least with respect to blasphemy.75 The court rejected the argument that either the U.S. Constitution or the state constitution had “virtually repealed” the state blasphemy statute as “inconsistent with . . . the freedom of religious worship.”76 Similarly, eminent jurists writing in their official capacities — Justice Story of the U.S. Supreme Court77 and Chief Justice Shaw of the Massachusetts Supreme Judicial Court78 — equated specific state provisions with general religious liberty principles that posed no problem for anti-blasphemy law.
Thomas Cooley followed this approach in his 1868 work on American state constitutional law, arguably “the most influential treatise of constitutional law in the second half of the nineteenth century.”79 In the chapter on “religious liberty,” Cooley explained that “blasphemy is punishable as a crime” under the free exercise provisions, without needing to cite specific constitutional language.80 At the same time, Cooley synthesized constitutional doctrine, citing the Ruggles line of cases to explain what counted as punishable blasphemy.81 “[S]peaking evil of the Deity with an impious purpose to derogate from the divine majesty” qualified, as did “[c]ontumelious reproaches and profane ridicule of Christ.”82 But beyond this category of blasphemy lay a “broad field for candid investigation and discussion,” since religious liberty protected the right “to form and to promulgate . . . opinions and doctrines upon religious matters.”83 Thus, at the time of the Fourteenth Amendment’s ratification, Americans enjoyed a developed body of constitutional doctrine under which religious liberty allowed for prosecuting blasphemy.
Reflecting this doctrinal consensus, states with religious liberty guarantees continued to pass anti-blasphemy laws before and after the Civil War. Pennsylvania enacted an anti-blasphemy statute in 1860, despite the state constitution’s religious liberty provision.84 Under its equivalent constitutional guarantee, New Jersey passed anti-blasphemy legislation in 1874.85 And an 1897 Iowa statute criminalizing “blasphemous . . . language” found no obstacle in the state constitution, which had copied the language of the Federal Religion Clauses.86
As with every consensus, there were dissenters. St. George Tucker, who speculated that religious liberty and associated guarantees had abolished the crime of blasphemy,87 was “[a]pparently alone at the time,” a voice of “isolated and ineffective dissent”88 among the early Republic’s other prominent legal commentators — James Wilson, Zephaniah Swift, James Kent, Lemuel Shaw, and Joseph Story — who all accepted blasphemy proscriptions as part of American law.89 A private letter from 1814 suggests that Thomas Jefferson also deemed blasphemy prosecutions at odds with religious freedom.90 If so, Jefferson, the idiosyncratic intellectual, was simply an outlier from the “accepted . . . doctrine” elaborated in “celebrated . . . cases.”91 Along with its progeny, Ruggles enjoyed “[w]idespread public support”: reprinted frequently, the 1811 opinion only grew in popularity over time.92 At the turn of the century, when a law journal described it as “[t]he leading decision in American law upon the subject” of blasphemy,93 Ruggles was still the rule.
II. Anti-blasphemy Laws and Freedom of Speech
As originally understood, freedom of speech and of the press afforded no protection to blasphemy. The states that enumerated “speech” and “press” rights in their Founding-era constitutions nonetheless prosecuted blasphemy.94 Legislatures bound by state constitutional guarantees of “freedom of speech” and “freedom of the press” passed statutes criminalizing blasphemy while also voting to ratify the First Amendment. Nor did the state speech and press provisions convey a different meaning than their federal analogues.95 From the Founding era to the end of the nineteenth century, every appellate judge who ruled on the validity of an anti-blasphemy statute under a speech or press guarantee voted to uphold the statute. For these judges, the law protected “opinions seriously, temperately, and argumentatively expressed,” but not the “despiteful railings” of blasphemers.96 Ultimately, nineteenth-century courts and commentators classed blasphemy with obscenity and libel, as speech unprotected by the First Amendment or its state counterparts.97 This understanding of blasphemy as unprotected speech prevailed around the time of the Reconstruction Amendments.
At the Founding, anti-blasphemy laws coexisted with constitutional guarantees of free speech and free press — a fact the modern Supreme Court has emphasized in cases on unprotected speech.98 Ten of the fourteen states eligible to ratify the Bill of Rights protected expression in their own constitutions.99 All ten guaranteed freedom of the press,100 and two — Pennsylvania and Vermont — also explicitly protected freedom of speech.101 Both states proscribed blasphemy. Pennsylvania convicted a blasphemer in 1799.102 And Vermont passed a 1797 anti-blasphemy statute notwithstanding its “freedom of speech” clause.103
Similar results obtained in states that only explicitly protected freedom of the press. Under the state’s free press clause,104 the New Hampshire legislature passed an anti-blasphemy statute — just one year after it had ratified the First Amendment.105 And shortly after Massachusetts ratified the free press provision of its 1780 constitution, it passed an anti-blasphemy statute.106 Notwithstanding Maryland’s free press clause,107 a 1799 compilation of state statutes “actually in force,” and excluding those laws “virtually repealed,” included a colonial statute that criminalized “blaspheming or cursing God” “by writing or speaking.”108 Likewise, Delaware’s colonial anti-blasphemy law, included in an official 1797 statutory compilation,109 was reenacted in 1826.110 Delaware’s free press clause posed no barrier.111
The 1824 Pennsylvania case Updegraph v. Commonwealth was the first appellate decision to answer a free speech challenge to an anti-blasphemy law.112 Pennsylvania’s constitution explicitly protected free speech: “The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject . . . .”113 Updegraph’s counsel quoted this provision in defense of his client, who had been convicted of blasphemy for a speech at a Pittsburgh club.114 The defense also appealed to the Federal Free Speech Clause to argue that the blasphemy statute was unconstitutional.115 The Supreme Court’s 1833 decision Barron v. Baltimore116 later held the Federal Bill of Rights inapplicable to state governments, but, at the time of Updegraph, it was not yet settled whether such constitutional limitations applied to the states.117 In this context, the defense cited “[t]he constitution [both] of this state, and of the general government,” which alike “guarantee[d] to each citizen the free and undisturbed enjoyment and expression of his opinions on all matters.”118
The Pennsylvania Supreme Court held that neither the federal nor the state constitution had rendered the blasphemy statute “obsolete [or] virtually repealed.”119 For guidance in interpreting both constitutions, the court turned to U.S. Supreme Court Justice Wilson, who had participated in framing the U.S. Constitution, and had, at the Pennsylvania legislature’s behest, revised state statutory law to comply with the 1790 state constitution.120 “With his fresh recollection of both constitutions,” Justice Wilson had delivered his influential Lectures on Law, which described blasphemy as a punishable offense.121 Whether considered under the heading of religious liberty or of free speech, it was “firmly settled” that “blasphemy against the Deity . . . is indictable and punishable as a temporal offence.”122 As the court explained, “no author or printer, who fairly and conscientiously promulgates the opinions with whose truths he is impressed, for the benefit of others, is answerable as a criminal.”123 Blasphemy required “offensive levity, scurrilous and opprobrious language,” or other indication of malice.124 The law distinguished between “opinions seriously, temperately, and argumentatively expressed,” on the one hand, and “despiteful railings,” on the other.125
The 1838 case Commonwealth v. Kneeland126 applied this doctrine to blasphemy in print. Kneeland, a publisher, had been convicted for blasphemous statements in an article he had written.127 On appeal, he challenged this conviction under the Massachusetts Constitution’s free press clause.128 For Kneeland, the blasphemy statute was “repugnant” to this liberty of the press clause, which “guarantie[d] [him] the strict right of propagating [his] sentiments” — though not, he conceded, the right to “slander his neighbor in print.”129 Writing for the Massachusetts Supreme Judicial Court, Chief Justice Shaw upheld the statute and conviction under the state free press provision.130 The 1782 statute had been “repeatedly enforced” and “recently . . . reenacted,” its validity “never . . . doubted.”131 As the court interpreted it, the statute permitted “the fullest inquiry, and the freest discussion, for all honest and fair purposes.”132 The statute did not “prevent the simple and sincere avowal of a disbelief” or “restrain the formation of any opinions.”133 Kneeland’s crime was not that he had admitted to disbelief in God, but that he had “calumniate[d] and disparage[d]” God.134
Although Justice Morton wrote in dissent, he “concur[red] with [the court] in sustaining [the statute’s] constitutionality.”135 The free press provision protected “the unrestricted discussion of all subjects . . . and the dissemination . . . of all honest opinions”136 — this constituted the “legitimate exercise of the freedom of speech or of the press.”137 But even the “fullest enjoyment of this right” did not warrant “obscene or profane language or publications” or “malicious falsehoods.”138 The dissent classed together “[v]erbal slander, profanity, obscenity, and blasphemy” as beyond constitutional protection.139 For the dissent, the argument that all speech “[n]o matter how obscene, how profane, how blasphemous . . . is all protected by the constitution” refuted itself.140 Where the dissent parted ways with the majority was on the jury instruction. Because the trial judge’s instruction did not adequately define the crime of blasphemy, Justice Morton would have reversed the conviction.141 But on the more important issue — the constitutionality of punishing blasphemy — the majority and dissent were one in mind.
This vision of free speech, triumphant in the courts of the early Republic,142 continued to prevail after passage of the Fourteenth Amendment. Despite the speech and press protections in Michigan’s constitution,143 the state’s official compilation of “general laws in force”144 as of 1872 included an anti-blasphemy statute.145 Connecticut, whose constitution likewise guaranteed speech and press freedoms,146 included an anti-blasphemy law in an official 1875 statutory compilation,147 which omitted statutes deemed “useless or obsolete.”148 And in 1874, the New Jersey legislature reenacted an anti-blasphemy statute,149 the state constitution’s speech and press guarantees notwithstanding.150
New Jersey prosecuted offenders,151 including Charles Reynolds, a former Methodist minister convicted of blasphemy in 1887 during a high-profile trial.152 With oratorical bombast, defense attorney Robert Ingersoll, a notorious freethinker,153 quoted the “great clause in the Constitution of 1844 . . . a clause that shines . . . like a star at night. — ‘No law shall be passed to restrain or abridge the liberty of speech or of the press.’”154 Ingersoll appealed to the jury — as “the judges of the law, as well as the judges of the facts” — to acquit: the statute was “unconstitutional, because it does abridge the liberty of speech.”155
The defense’s free speech argument failed to persuade.156 According to the trial judge, the statute, recently reenacted, was “not obsolete” but “good law,” and the crime of blasphemy differed from “[h]eresy and unconformity.”157 “The law, I instruct you, is constitutional.”158 The jury apparently agreed, convicting the defendant after an hour’s deliberations.159 Scholarly comment also supported the trial judge: “Ingersoll is wrong . . . in denouncing such prosecutions as an infringement of the constitutional right of free speech,” one law journal argued, comparing “prosecutions for blasphemy” to “prosecutions for libel.”160 This understanding of free speech also had support in the popular press. “Neither can we agree with [Ingersoll] that the law is iniquitous,” The New York Times explained, for “[o]bscene literature and blasphemous literature stand upon the same footing.”161
The New York Times had taken the same view in an 1879 article on an English blasphemy trial. “Blasphemy is rightly punished by statute here, as well as there,” the Times argued.162 The paper cited Chief Justice Kent in Ruggles and Chief Justice Shaw in Kneeland to explain the difference between “opinions . . . promulgated with propriety,” which “the law d[id] not prohibit,” and the “wanton manner” required for the crime of blasphemy.163 “Th[is] rule,” distinguishing free expression from blasphemy, was “fully recognized” in the other states.164
The era’s federal judiciary also recognized the rule that blasphemy fell outside the scope of First Amendment protection. For a federal court in Massachusetts, “[f]reedom of speech and of the press,” as guaranteed by the U.S. Constitution and most state constitutions, meant immunity from repercussions for speech, “except so far as such publication, by reason of its blasphemy, [or] obscenity . . . may be a public offense, or, by its falsehood and malice, may injuriously affect . . . individuals.”165 In the court’s eyes, blasphemy was equivalent to obscenity and defamation for First Amendment purposes. The U.S. Supreme Court took the same position on the First Amendment. “[T]he freedom of speech and of the press (art. 1) does not permit the publication of libels, [or] blasphemous or indecent articles . . . .”166 Although such statements were obiter dicta, they indicate that the traditional understanding of free speech and blasphemy was alive and well at the close of the nineteenth century, decades after Reconstruction.
III. Anti-blasphemy Laws and Nonestablishment
Unlike Congregationalist New England and the Anglican South, the mid-Atlantic colonies of Pennsylvania, Delaware, and New Jersey lacked religious establishments from the start.167 After Independence, other states disestablished gradually, often by statute.168 But these three mid-Atlantic states, drawing on their colonial tradition, constitutionally barred religious establishments throughout the antebellum period — and in terms arguably more absolute than the Federal Establishment Clause.169 Pennsylvania, Delaware, and New Jersey all illustrate how a strong constitutional commitment to nonestablishment was compatible with proscribing blasphemy.170
Pennsylvania’s 1790 constitution prohibited religious establishments in the strongest terms — without preventing blasphemy prosecutions. “[N]o preference shall ever be given, by law, to any religious establishments or modes of worship,” the constitution stipulated.171 Yet a blasphemy conviction followed within a decade of ratification.172 And, according to newspaper reports, early nineteenth-century Pennsylvania convicted at least three other blasphemers — one of whom was recorded raising a nonestablishment defense that the trial court rejected.173
In Updegraph, the 1824 appellate case, the defense challenged Pennsylvania’s colonial blasphemy statute on nonestablishment grounds, but without success. Updegraph’s counsel cited the constitution’s “no preference” language to argue that the blasphemy statute was “inconsistent with the constitution.”174 “Religious preference[s],” the defense explained, “are not recognised in the constitutions of 1787 [U.S.] or 1790 [Pennsylvania].”175 But, as the high court held, the anti-blasphemy statute did not amount to an unconstitutional preference: “No preference is given by law to any particular religious persuasion. Protection is given to all by our laws. It is only the malicious reviler of Christianity who is punished.”176 Pennsylvania had been found-ed on nonestablishment: “[G]etting quit of the ecclesiastical establishment” was why William Penn had come to America, where there was “[f]reedom from . . . the scourge of established churches.”177 Pennsylvania, with its longstanding anti-blasphemy law, continued to maintain this tradition: “Liberty to all, preference to none; equal privilege is extended to the mitred Bishop and the unadorned Friend.”178
The court distinguished Christianity’s legal status, as reflected in the blasphemy statute, from constitutionally impermissible establishments. Following William Blackstone and U.S. Supreme Court Justice Wilson, Updegraph endorsed that old maxim of blasphemy cases: Christianity is part of the common law.179 But the court took this to mean that “general Christianity, is . . . part of the common law of Pennsylvania.”180 This “general Christianity” did not mean “the doctrine of worship of any particular church or sect,”181 nor did it mean “Christianity with an established church, and tithes, and spiritual courts” — for all that would have violated the constitution.182 Instead, the statute reflected “Christianity, without the spiritual artillery of European countries,” “Christianity with liberty of conscience to all men,”183 which the constitution allowed. Nonestablishment thus permitted promotion of general Christian principles, such that the state could punish blasphemy.
This understanding prevailed in Pennsylvania up to the Civil War and beyond. In 1838, Pennsylvania ratified a new constitution with the same nonestablishment language as before.184 Under this identical nonestablishment provision, the legislature reenacted its colonial anti-blasphemy statute on the eve of the Civil War.185 Pennsylvania continued prosecuting under the statute well after the war’s end.186 And two years after the passage of the Fourteenth Amendment, the Pennsylvania Supreme Court quoted the state’s nonestablishment provision in re-affirming it as “well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed or blasphemed.”187
Like Pennsylvania, Delaware prohibited religious establishments in its constitution. “[N]or [shall] a preference [be] given by law to any religious societies, denominations, or modes of worship,” the 1792 constitution stipulated — a prohibition carried over verbatim into the 1831 constitution.188 Yet this prohibition never prevented Delaware’s colonial blasphemy statute from having the force of law. A 1797 statutory compilation published “pursuant to the Directions . . . of the [Delaware] Legislature” included Delaware’s colonial anti-blasphemy law.189 The Delaware legislature reenacted the colonial blasphemy statute in 1826, replacing its corporal punishment with a fine and imprisonment — the new standard criminal penalty.190
In the 1837 case State v. Chandler,191 the Delaware appellate court upheld this blasphemy statute as consistent with the constitutional ban on legal preferences for religious modes of worship.192 The defendant had maligned Christ as a “bastard” and the Virgin as a “whore” on two different occasions, for which two different juries convicted him of the statutory offense of blasphemy.193 In challenging the convictions, the defense “relied mainly on the alledged [sic] unconstitutionality of the statute against blasphemy, as being a law preferring [C]hristianity to other modes of worship.”194 The court quoted Delaware’s nonestablishment clause, nonetheless concluding that the indicted offenses were “punishable as blasphemy by our state constitution.”195
The Delaware appellate court drew a distinction between constitutionally impermissible establishments and the anti-blasphemy law. “[A] religion preferred by law” would, on the court’s view, count as a “legal establishment which the present constitution expressly forbids.”196 But recognizing the “religion preferred by the people” did not amount to an impermissible establishment.197 The court found ample evidence from Delaware’s history and current practice that Christianity was “the religion preferred by the people of Delaware,” such that the court’s members were “bound to notice as judges acting under the authority of the people . . . what is that religion which they have voluntarily preferred.”198 The state’s people remained free to change their religion, but as long as they had voluntarily chosen Christianity “their judges [were] bound to notice their free choice . . . and to protect them in the exercise of their right.”199 Thus, “by the constitution and laws of Delaware, the [C]hristian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion.”200
From the time of Independence, New Jersey’s constitution barred religious establishments, but that never prevented the state from criminalizing blasphemy. The 1776 New Jersey Constitution provided “[t]hat there shall be no Establishment of any one religious Sect in this Province in Preference to another.”201 Under this prohibition, the state legislature passed a statute punishing blasphemy that reviled the Triune God — Father, Son, and Holy Spirit — professed by Christians.202 New Jersey revised its constitution in 1844, enacting nearly the same nonestablishment clause as before.203 And under this clause, the legislature in 1874 reenacted the same anti-blasphemy statute.204
At the celebrated 1887 blasphemy trial of Charles Reynolds,205 the defense cited New Jersey’s nonestablishment provision but failed to persuade judge or jury. Reynolds’s defense attorney appealed to the nonestablishment clause, which showed that “[t]here was to be no establishment of one religion over another.”206 The defense likewise quoted the religion provisions adjacent to the nonestablishment clause,207 concluding that “[t]his statute . . . is not in accordance with” the 1844 constitution.208 Nonetheless, the trial judge instructed the jury that the statute was constitutional, and the jury promptly convicted.209
Like New Jersey, South Carolina illustrates that, around the time of the Reconstruction Amendments, anti-blasphemy statutes were compatible with nonestablishment. Four months before it ratified the Fourteenth Amendment, South Carolina ratified its Reconstruction constitution,210 which mandated that “[n]o form of religion shall be established by law.”211 Only a few years later, South Carolina’s Reconstruction legislature passed an anti-blasphemy statute.212 If Reconstruction-era notions of nonestablishment prevented anti-blasphemy legislation, a state under federal occupation would not have passed an anti-blasphemy law.
In proscribing blasphemy, nineteenth-century Americans did not flout constitutional guarantees of free speech, free exercise, and non-establishment. Rather, they conceptualized those guarantees in a way that permitted anti-blasphemy laws.213 Free speech and free exercise forbade government from punishing the “serious and conscientious” discussion of religious topics.214 But anti-blasphemy laws, which targeted only the “malicious . . . reviling [of] God or religion,” did not prevent “discussion of any subject” or “the propagation of any sentiments.”215 Likewise, nonestablishment prohibited legal preference for “any particular church or sect.”216 But this did not prevent the recognition of “general Christianity,” as reflected in laws punishing “malicious reviler[s] of Christianity.”217 Even Delaware’s conception of nonestablishment, which prohibited government recognition of Christianity as a “religion preferred by law,” still permitted legal cognizance of Christianity as a “religion preferred by the people.”218 Under this conception of nonestablishment, government could punish anti-Christian blasphemy as an offense against the predominantly Christian public.219
Originalists should either explain why countervailing considerations outweigh the First Amendment’s original meaning on blasphemy or adopt a view of the First Amendment consistent with the original understanding. Stare decisis often provides justification for departing from original understandings,220 but only meager precedent (a federal district court decision and a state intermediate appellate court decision) has directly held anti-blasphemy laws unconstitutional.221 Moreover, current Supreme Court precedent acknowledges that “[f]rom 1791 to the present . . . the First Amendment has permitted restrictions upon the content of speech in a few limited areas”222 — including obscenity and defamation — that have been “historically unprotected.”223 Not only does blasphemy qualify as historically unprotected; the Supreme Court has also identified and discussed it as such.224 For originalists, the path forward may lie in emphasizing this precedent, which recognizes blasphemy for what it has traditionally been: speech beyond the protection of the First Amendment.