Wednesday, October 31, 2012

"Obstruction of Justice by Religion"

1 Frank Swancara, Obstruction of Justice by Religion: A Treatise on Religious Barbarities of the Common Law, and a Review of Judicial Oppressions of the Non-Religious in the United States (1936) (Chapter XVII: "Blasphemy Laws in the United States" and Chapter XVIII "Some Alleged 'Reasons' for Blasphemy Laws")

Swancara's discussion of blasphemy laws in the United States is an interesting one.  From his perspective, those States which adopted the common law of England after the Revolution adopted a form of blasphemy law from Woolston's Case (1729) which was much broader than later English common law doctrine would permit.  Because of the unrelated doctrine that courts could not modify the adopted common law, Swancara suggests that U.S. courts were "stuck" with the early version of blasphemy law that did not incorporate the "decencies of controversy" test developed in England in the 1800s.  It's not clear to me, however, whether this line of thought actually impacted judgments in American courts.  Beyond the common law, Swancara provides a very good discussion of American statutory prohibitions on blasphemy, dating as far back as Massachusetts in 1641 and up to the time the book was published.  Swancara's discussion of blasphemy laws concludes with a critical examination of the purported reasons for banning irreligious speech.  This interesting, little known work could be very useful for scholars researching the history of American blasphemy prohibitions.