Monday, September 13, 2010

McConnell on The Strange Story Behind the Supreme Court's First Free Exercise Case

Schism, Plague, and Late Rites in the French Quarter: The Strange Story Behind the Supreme Court’s First Free Exercise Case has just been posted by Michael W. McConnell, Stanford Law School.  Here's the abstract:
On November 9, 1842, Father Bernard Permoli performed an open casket funeral in the church of St. Augustin in the French Quarter of New Orleans, Louisiana. He blessed the body and offered the prayers specified by the doctrines and forms of the Roman Catholic Church. For this performance of the priestly function, he was prosecuted by the City, criminally convicted, and fined $50. The ceremony violated a city ordinance, passed thirteen days before, prohibiting open casket funerals at all “Catholic Churches” of the city, other than a designated mortuary chapel on the outskirts of town. After he was charged for the violation, Permoli filed an answer claiming the protection of the Free Exercise Clause of the First Amendment.

Thus began a case that went all the way to the United States Supreme Court. Under the name of Permoli v. Municipality No. 1 of the City of New Orleans, it was the first Supreme Court case in which a party invoked the protections of the Free Exercise Clause of the First Amendment. Unfortunately for Father Permoli, the Court rejected his argument, holding, in a unanimous opinion by Justice Catron, that the Free Exercise Clause does not apply to the acts of state and local governments. The case is now cited, along with Barron v. Baltimore, solely for the proposition that the Bill of Rights did not apply to the states prior to the Fourteenth Amendment. Except for that, the case has largely been forgotten.

That is a loss. Not only do the arguments in the case tell us a great deal about the state of free exercise jurisprudence in the antebellum period; the case itself is a darned good story.

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