The Constitutional Principle: Separation of Church and State
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City of Charleston v Benjamin

City of Charleston v Benjamin, 2 Strob. 508 (Sup. Ct. S.C. 1846) is cited 7 times in The Myth of Separation (Sabbath violation)

Legal analysis and writing by Lee Edwards, Esq

Major claims by Barton in his publications:

From The Myth of Separation, page 73-75, Barton writes:

This controversy focused on the violation of a law best described by a quotation from the case:

"An Ordinance for the better observance of the Lord's day, commonly called Sunday." . . . "No person or persons whatsoever shall publicly expose to sale, or sell . . . any goods, wares or merchandise whatsoever upon the Lord's day."

The defendant was accused of selling a pair of gloves in his shop on a Sunday. The defense used in the case is one that is frequently raised today: laws that prefer or support Christianity are a violation of the religious rights of others. The defense attorney argued that the Sunday law was a violation of the Constitution and an infringement on his client's religious rights because the defendant was a Jew, and observed the seventh day of the week. On the other side, the city's attorneys responded that:

Christianity is a part of the common law of the land, with liberty of conscience to all. It has always been so recognized. . . . If Christianity is a pan of the common law, its disturbance is punishable at common law. The U.S. Constitution allows it as a part of the common law. The President is allowed ten days [to sign a bill], with the exception of Sunday. The Legislature does not sit, public offices are closed, and the Government recognizes the day in all things. . . . The observance of Sunday is one of the usages of the common law, recognized by our U.S. and State Governments. . . . The Sabbath is still to be supported; Christianity is part and parcel of the common law. . . . Christianity has reference to the principles of right and wrong .. . it is the foundation of those morals and manners upon which our society is formed; it is their basis. Remove this and they would fall.. .. [Morality] has grown upon the basis of Christianity.

The court commended the defendant for his religious devotion, but pointed out that in the United States, Sunday is a particularly important day because Sunday is . ..

The Lord's day, the day of the Resurrection, is to us, who are called Christians, the day of rest after finishing a new creation. It is the day of the first visible triumph over death, hell and the grave! It was the birth day of the believer in Christ, to whom and through whom it opened up the way which, by repentance and faith, leads unto everlasting life and eternal happiness! On that day we rest, and to us it is the Sabbath of the Lord--its decent observance, in a Christian community, is that which ought to be expected.

Then, addressing the defendant's assertion that all religions are to be treated equally under the Constitution, the judge directed attention to the source of the tolerance described in the Constitution:

What gave to us this noble safeguard of religious toleration . . . ? It was Christianity.... But this toleration, thus granted, is a religious toleration; it is the free exercise and enjoyment of religious profession and worship, with two provisos, one of which, that which guards against acts of licentiousness, testifies to the Christian construction, which this section should receive! What are acts "of licentiousness" within the meaning of this section? Must they not be such public acts, as are calculated to shock the moral sense of the community where they take place? The orgies of Bacchus, among the ancients, were not offensive! At a later day, the Carnivals of Venice went off without note or observation. Such could not be allowed now! Why? Public opinion, based on Christian morality, would not suffer it! What constitutes the standard of good morals? Is it nor Christianity' There certainly is none other Say that cannot he appealed to, and I don't know what would he good morals. The day of moral virtue in which we live would, in an instant, if that standard were abolished lapse into the dark and murky night of Pagan immorality. In the Courts over which we preside, we daily acknowledge Christianity as the most solemn part of our administration. A Christian witness, having no religious scruples about placing his hand upon the book, is sworn upon the holy Evangelists--the books of the New Testament, which testify of our Savior's birth, life, death, and resurrection; this is so common a matter, that it is little thought of as an evidence of the part which Christianity has in the common law. I agree fully to what is beautifully and appropriately said in Updegraph v. The Commonwealth...--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"

Since Christianity was the source of the religious tolerance found both in the United States and in its Constitution, the court could not allow it to become an equal among other religions; Christianity must remain foremost in the laws and statutes. The court then addressed the charge that laws preferring Christianity violated the free exercise of religion:

It is said [that a Sunday law] violates the free exercise and enjoyment of the religious profession and worship of the Israelite. Why? It does not require him to desecrate his own Sabbath. It does not say, "you must worship God on the Christian Sabbath." On the contrary, it leaves him free on all these matters. His evening sacrifice and his morning worship, constituting the 7th day, he publicly and freely offers up, and there is none to make him afraid. His Sundays are spent as he pleases, so far as religion is concerned. It is however fancied that in some way this law is in derogation of the Hebrew's religion, inasmuch as by his faith and this statute, he is compelled to keep two Sabbaths. There is the mistake. He has his own, free and undiminished! Sunday is to us our day of rest. We say to him, simply, respect us, by ceasing on this day from the pursuit of that trade and business in which you, by the security and protection given to you by our [Christian] laws, make great gain. . . . There is therefore no violation of the Hebrew's religion, in requiring him to cease from labor on another day than his Sabbath, if he be left free to observe the latter according to his religion.

Legal analysis and writing by Lee Edwards, Esq.

Facts: A Jewish merchant was fined $40 for selling gloves on Sunday.

Issue: Whether the conviction was repugnant to Article VIII of the Constitution of South Carolina?

Answer: No. The ordinance was a legitimate exercise of the state's police power and did not violate the Constitution of South Carolina.

Comment: This case was decided prior to the ratification of the Fourteenth Amendment and no issue under the United States Constitution was raised. Judge O'Neall says twice in his opinion (pp. 521, 524) that deciding whether Christianity is or is not a part of the common law was not necessary to the resolution of the case. Thus, his comments criticizing Jefferson and Paine, and stating that Christianity was a part of the common law are classic obiter dicta. Black's Law Dictionary defines "dictum" as follows: "The word is generally used as an abbreviated form of obiter dictum, 'a remark by the way;' that is, an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion. Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to the determination of the case in hand are obiter dicta, and lack the force of an adjudication." (page 409) "A remark made, or opinion expressed, by a judge, in his decision upon a cause, "by the way," that is incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent. (page 967)

Issue: The Act under which Benjamin was fined did not prohibit Jews from worshipping on their Sabbath or require them to worship on Sunday. Much more recent cases brought under the federal constitution have held that Blue Laws may be a valid exercise of the police power, e.g. McGowan v. Maryland 366 U.S. 420 (1961), Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961).

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