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

The Commonwealth v Sharpless, 2 Serg & R. 91 (Sup. Ct. Penn. 1815) is cited 6 times in The Myth of Separation(Pornography case)

Legal analysis and writing by Lee Edwards, Esq.

Major claims by Barton in his publications:

From The Myth of Separation, page 64-67, Barton writes:

This case will deal with "morality." Today's oft-repeated assertion that "Morality cannot be legislated!" was not accepted by our Founders. They believed that morality could be legislated and had found the Bible to be the perfect example of moral legislation. Evidently no one had told God He couldn't legislate morality--He had done so and in the opinion of our Founders, had done so quite successfully! Consequently, when the courts made decisions concerning moral values, they relied on Biblical guidelines.

The following cases illustrate how the courts upheld Congress' legislation of moral standards--standards based on the Bible. The indictment delivered by the grand jury in Commonwealth v. Sharpless describes the offense:

Jesse Sharpless ... John Haines . .. George Haines ... John Steel . . . Ephraim Martin . . . and --- Mayo . . . designing, contriving, and intending the morals, as well of youth as of divers other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires . . . in a certain house there . . . scandalously did exhibit and show for money ... a certain lewd ... obscene painting, representing a man in an obscene ... and indecent posture with a woman, to the manifest corruption and subversion of youth, and other] citizens of this commonwealth . . . offending . . . [the] dignity of the Commonwealth of Pennsylvania.

Here we have a classic description of a porno case, yet this one occurred in 1815! The defense claimed that this was not an indictable offense since it was only a "home viewing," and not a "public porno shop." The court, with Judge Duncan delivering the opinion, addressed these arguments, stating that many things occurring in private have a public effect and are therefore punishable:

The defendants have been convicted, upon their own confession, of conduct indicative of great moral depravity. . . . This court is ... invested with power to punish not only open violations of decency and morality, but also whatever secretly tends to undermine the principles of society. . .. Whatever tends to the destruction of morality, in general, may be punished criminally. Crimes are public offenses, not because they are perpetrated publicly, but because their effect is to injure the public. Burglary, though done in secret, is a public offense; and secretly destroying fences is indictable. Hence, it follows, that an offense may be punishable, if in its nature and by its example, it tends to the corruption of morals; although it be not committed in public.

The defendants are charged with exhibiting and showing . .. for money, a lewd . . . and obscene painting. A picture tends to excite lust, as strongly as a writing; and the showing of picture is as much a publication as the selling of a book. . . . If the privacy of the room was a protection, all the youth of the city might be corrupted, by taking them, one by one, into a chamber, and there inflaming their passions by the exhibition of lascivious pictures. In the eye of the law, this would be a publication, and a most pernicious one.

The court, by referring to other laws not specifically related to this case, had noted that the law did not allow lascivious, lewd, or obscene publications--the types of publications that are widely distributed today. This is another example of moral legislation based on Biblical standards. In an act unusual for that period, a second Justice, Judge Yeates, also delivered a statement:

Although every immoral act, such as lying, etc., is not indict able, yet where the offense charged is destructive of morality in general ... it is punishable at common law. The destruction of morality renders the power of the government invalid. . . . The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences.. . . No man is permitted to corrupt the morals of the people; secret poison cannot be thus disseminated.

These rulings and opinions clash sharply with those of current courts who refuse to oppose such materials or even to take any stands that would involve having to define "morality." When objective standards for right and wrong are disallowed (i.e., the Bible), the. standards for morality become variable and individually determined. By refusing to sustain standards of morality, the courts have, by default, installed immorality as the acceptable and prevalent standard.

Legal analysis and writing by Lee Edwards, Esq.

Facts: Defendant was convicted in Pennsylvania for exhibiting a painting "representing a man in an obscene, impudent, and indecent posture with a woman." There was no statute in Pennsylvania against obscenity and Defendant appealed.

Issue: Was obscenity a common law crime in Pennsylvania?

Answer: Yes. Conviction affirmed.

Reasoning: The Supreme Court of Pennsylvania held that the Defendant's prosecution was not barred under either the federal of Pennsylvania constitution.

Comment: This case was decided before the ratification of the Fourteenth Amendment. While it is doubtful that the defendant's prosecution would pass constitutional muster today, obscenity is still recognized as an exception to the protection of free speech.

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