"Survey of Tennessee Constitutional Law in 1976-77"

Kenneth L. Penegar

Tennessee Law Review, Vol. 46, No. 1, Fall 1978, p. 120

(Numbers in brackets refer to page numbers in the article; numbers in braces refer to footnote numbers.)

[129]

Philosophically, the most troublesome case the court decided in this sensitive area is State ex rel. Swann v. Pack,

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{42} 527 S.W.2d 99 (Tenn. 1975). There was no statute involved here. Rather, the state’s involvement came through a petition to chancery court to enjoin the practices in question.

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the snake-handling case. A restrictive outcome could have been reasonably predicted, of course, because of the exceptionally dangerous nature of the practices involved: The active and public display and handling of poisonous snakes and the consumption of strychnine poison. By what means a restrictive result would be supported, what rationale, premises, and intermediate points of reason would be employed, were the critical issues. The court rose to the occasion. In an opinion written by Justice Henry the court first developed a history of the Holiness Church of God in Jesus Name. The practice of snake handling is traceable in the view of this "‘charismatic sect . . . of the Pentecostal variety’"

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{43} Id. at 105 (quoting W. Labarre, They should Take up Serpents 29 (1962)).

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to the Bible in the book of Mark, which says:

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{44} Mark 16:17-18 (King James) (emphasis added).

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The purpose of handling snakes and the taking o poisons by those who lead the rituals of the church, according to testimony of one of the defendants, is to "‘confirm the Word of God,’" not to test one’s faith.

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{45} 527 S.W.2d at 106 (quoting R. Pelton & K. Carden, Snake Handlers 22 (1974)). In this connection, the court wanted to be explicit in correcting the assumption made earlier by the court in Harden v. State, 188 Tenn. 17, 216 S.W.2d 708 (1948), that the purpose of snake-handling was to test the sincerity of believers. Harden upheld a statute, Tenn. Code Ann. S 39-2208 (1975), only marginally involved here, making it a crime to handle snakes so as to endanger the life or health of another.

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Having characterized the church group as unconventional but enduring and sincere, Justice Henry affirmed the court’s adherence to a fundamental principle of official tolerance. "The government must view all citizens and all religious beliefs with [130] absolute and uncompromising neutrality. The day this country ceases to countenance irreligion or unusual or bizarre religions, it will cease to be free for all religions. We must prefer none and disparage none."

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{46} 527 S.W.2d at 107. The Tennessee court has employed this distinction in other settings. See, e.g., Gaskins v. State, 490 S.W.2d 521 (1973) (statute against marijuana manufacture did not interfere with free exercise of religious beliefs).

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Official tolerance of all beliefs and religions is one thing; tolerance of any kind of behavior or action is quite another.

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{47} This distinction is traceable at least to John Locke, who distinguished mental from material substances:

J. Locke, A Letter Concerning Toleration, in 35 Great Books of the Western World 3, 16-17 (W. Popple trans. 1971).

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Beginning with a reference to Reynolds v. United States

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{48} 98 U.S. 145 (1878).

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and [131] concluding with Wisconsin v. Yoder,

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{49} 406 U.S. 205 (1972).

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the court found that "[t]he consistent holding of the courts has been that belief is always protected, but that conduct or action is subject to regulation."

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{50} 50 527 S.W.2d at 111 (emphasis in original). Other significant decisions drawn upon by the Tennessee courts were Sherbert v. Verner 374 U.S. 398 (1963); Thomas v. Collins, 323 U.S. 516 (1945; West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940); Davis v. Beason, 133 U.S. 333 (1890).

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Religious practice or conduct may be limited, curtailed, restrained, or prohibited only when such practice involves a clear and present danger to the interests of society, and such regulation must be reasonable, presumably proportional to the danger created by the practice. This conclusion is the first holding of the case.

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{51} There follows dictum that "[t]he right to the free exercise of religion . . . a vague and nebulous notion, defying the certainties of definition and the niceties of description," which detracts but slightly from the otherwise grand march of the opinion. 527 S.W.2d at 111. Of potentially more significance is the assertion as an emergent guideline under both the federal and state constitutions of the proposition that "[f]ree exercise of religion does not include the right to violate statutory law." Id. Surely the author of the opinion had in mind as a necessary corollary that the statute in question itself not be offensive to the essentials of a free religious belief system. It must have been presumed that the statute was itself relative innocuous. For example, if some such qualification is not read into the court’s statement, then it fails to take account of the holding in Wisconsin v. Yoder, 406 U.S. 205 (1972), in which Amish children were accorded an exemption from a state statute requiring school attendance beyond the eighth grade because the positive social values of the Amish educational alternative were documented and accepted by authorities. In contrast, any positive effects stemming from the religious practice in Swann are incapable of documentation. As it stands, the court’s statement is simply too broad to comport with its own recitation of the rationale of the various Supreme Court decisions, including Yoder.

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The court appreciated the difficulty of relying simply on the distinction between beliefs and conduct. This distinction would not suffice as a foundation to enjoin the practices of this religious group anymore than it would allow the Supreme Court in Wisconsin v. Yoder

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{52} 406 U.S. 205 (1972); see note 51 supra.

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to permit the practice there. In Yoder the Court had to go further and hold that allowing the Amish to keep their children out of the public schools beyond the [132] eighth grade would not impair the health of the children or result in their inability to be self-supporting or to discharge the responsibilities of citizenship.

The magnitude of social impact was the final idea by which the court measured the practices at issue in Swann. The common-law concept of a public nuisance was employed to frame the factual situation:

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{53} 527 S.W.2d at 113.

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What follows in the court’s opinion is a subtle blending of the state’s interest in preventing harm to others, long recognized in the common law and reaffirmed in modern anticontagion-type cases,

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{54} See, e.g., McCartney v. Austin, 57 Misc. 2d 525, 292 N.Y.S.2d 188 (1968) (compulsory polio shots); Holcomb v. Armstrong, 39 Wash. 2d 860, 239 P.2d 545 (1952) (compulsory chest x-rays).

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with perhaps a newly reasserted state interest in protecting the individual against his own improvidence. The reliance here was on a smaller category of authorities.

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{55} Perhaps the most relevant was Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964) (compelling the provision of medical care to a dying patient). Also cited and relied on by the court was a case upholding compulsory water fluoridation. Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609 (1955).

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"Yes," the court stated boldly, "the state has a right to protect a person from himself and to demand that he protect his own life."

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{56} 527 S.W.2d at 113. The court’s opinion conceded that suicide is not presently a crime, nor is the attempt to commit suicide, although it was at common law. Nevertheless, the court asserted that "such an attempt would constitute a grave public wrong, and we hold that the state has a compelling interest in protecting the life and promoting the health of its citizens." Id.

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Presumably, then, the court intended that its injunction of the practices of the Holiness Church of God in Jesus Name could rest either [133] on the threat to the life of those other than the snake-handling elders or on the threat to the handlers themselves even in the absence of threat to others. Since this case factually involved both kinds of risk, the court found it unnecessary to distinguish them in legal import.

Swann is a far-reaching decision. Some of the foreseeable possibilities include challenges to state statues requiring the wearing of motorcycle helmets,

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{57} See Arutanoff v. Metropolitan Gov’t, 223 Tenn. 535, 448 S.W.2d 408 (1969) (statute upheld). There is something of a division of authority among the states. See, e.g., Note, The Limits of State Intervention: Personal Identity and Ultra-Risky Actions, 85 Yale L.J. 826 (1976). See also 1 Mem. St. U.L. Rev. 178 (1970); 36 Tenn. L. Rev. 405 (1969).

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inquiries into culpability for death of terminally ill patients, and efforts to regulate hazardous sports such as hang-gliding. Although the court might in the future qualify or limit the reach of its decision in Swann when pressed by different circumstances, there seems little doubt that conceptually the court is prepared to justify the state’s interference with an individual’s self-destructive conduct on the basis of the state’s interest in that person’s contribution to the common good and to the strength of the state. The court’s view seems reasonably clear from the following lines: "Tennessee has the right to guard against the unnecessary creation of widows and orphans. Our state and nation have an interest in having a strong, healthy, robust, taxpaying citizenry capable of self-support and of bearing arms and adding to the resources and reserves of manpower."

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{58} 527 S.W.2d at 113. This justification may be criticized as making individuals instruments of public policy rather than making the state serve the interests of the individual. On the other hand, there are other justifications that tend to support the supplanting of the state’s judgment for that of the individual concerning what is in the individual’s own best interest.

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