Lemon Sherbert and Rattlesnakes

Last updated on: November 19, 2013 at 10:31 am by Fred Clark

Lemon Sherbert and Rattlesnakes 2013-11-19T04:00:40-05:00 Fred Clark

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The Tennessee Wildlife Resources Agency recently confiscated 50 venomous snakes — “including rattlesnakes and copperheads and some non-native species” — and has charged their owner with “possession of class I wildlife (wildlife inherently dangerous to humans).”

That seems pretty reasonable — both the law itself and the enforcement of it. This situation certainly seemed “inherently dangerous to humans” — not to mention being inherently dangerous to the wildlife itself, which was not being allowed to be wild-life. Importing venomous non-native species also seems like a Very Bad Idea that, I would hope, was covered by some other statute enforced by the TWRA. We’ve already got Burmese pythons all over the Everglades, we don’t also need Autralian tiger snakes in Eastern Tennessee.

The report from the Tennessean linked above doesn’t say much about the wildlife aspects of this story, or of the law in question. It’s more concerned with the First Amendment issues raised by this incident. The 50 snakes were seized from the Tabernacle Church of God, a house of worship made notorious by the reality TV show Snake Salvation. The star of that show and the church’s snake-handling pastor, Andrew Hamblin, was the man charged with illegal possession of dangerous wildlife.

Hamblin, like everybody else these days, is crying “religious liberty.” As Alan Blinder reports for The New York Times:

“This ain’t no longer just a fight for snake handling,” Mr. Hamblin, the father of five, told a group of supporters wearing red — to symbolize the blood of Christ — before his arraignment on a misdemeanor wildlife possession charge. “This is a fight for freedom of religion.”

As Mr. Hamblin, holding a Bible, spoke from the third step of the Campbell County Courthouse, several women cried and shook.

Members of Mr. Hamblin’s two-story brick church, which sits along a gravel road, have made no secret of their status as one of the country’s estimated 125 snake-handling congregations.

So, OK people, this seems like good time to review our Lemon test.

That’s the legal standard by which American courts assess laws being challenged on the basis of religious liberty. It takes its name from the 1971 case of Lemon v. Kurtzman. The First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” When someone’s free exercise thereof seems to be constrained by a law, this is the standard judges use to decide whether or not that law is constitutional. The Lemon test has three “prongs”:

The government’s action must have a secular legislative purpose.

The government’s action must not have the primary effect of either advancing or inhibiting religion.

The government’s action must not result in an “excessive government entanglement” with religion.

Tennessee’s wildlife statues certainly seem to meet these three criteria. Laws prohibiting the possession of dangerous wildlife have a legitimate secular function — protecting both public safety and the wellbeing of wildlife. This law isn’t primarily concerned with either promoting or restricting religion. And it doesn’t require government to arbitrate sectarian doctrinal disputes or otherwise create an “excessive entanglement.”

A slithery slope argument. (New York Times photo by Shawn Poynter, click for link to original article.)

At face value, then, Tennessee law seems to pass the Lemon test, which makes Hamblin’s “religious liberty” argument seem doomed. This is why you can hear the language of Lemon echoed in statements from the county prosecutor and from the wildlife authority. Keeping dozens of venomous snakes is a “significant public safety hazard,” the prosecutor said, emphasizing the secular legislative purpose. “We don’t view him as any different from anyone else in the general public who has a king cobra in his room,” said the TWRA spokesman, emphasizing that this action does not have the primary effect of either advancing or inhibiting religion.

The current wave of “religious liberty” revisionists, though, don’t care about Lemon. That legal test is just as concerned with the establishment clause as it is with the free exercise clause, and the revisionists hate the establishment clause. Their long-term goal is to convince the courts to ditch Lemon and to go back to the now-mostly-defunct earlier standard: the Sherbert test. That standard — which takes its name from the 1963 case of Sherbert v. Verner — focused on the free exercise rights of individuals.

Sherbert offered two tests for individuals which, if met, put the burden of proof on government to pass two tests of its own. The individual claiming an infringement of their religious liberty had to show: 1) that their claim involved a sincere religious belief; and 2) that the law in question put a “substantial burden” on their freedom to exercise that belief. Hamblin’s claim, I think, passes both of those tests. Under Sherbert, then, the TWRA would have to show: 1) that it was acting on a “compelling state interest;” and 2) “that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.”

Tennessee wouldn’t have any problem with that first test, but the second is squishier and might be more difficult to prove. I imagine some kind of Sherbert-esque attempt to carve out a religious exception for snake-handling churches is what Hamblin is hoping for here.

(One caveat: Kate Tracy’s write-up of this story for Christianity Today links to what seems to be a different wildlife statute than the one the Times and the Tennessean are reporting Hamblin was charged with violating. But that statute might run into a tiny bit more trouble with the Lemon test. That law, passed in 1989, makes it a misdemeanor to “to display, exhibit, handle, or use a poisonous or dangerous snake or reptile in a manner that endangers the life or health of any person.” Sure, there’s a clear secular purpose to such a law, but it seems that this might also have been written with snake-handling congregations in mind, and that could raise problems with the second prong of the Lemon test.)

In any case, it’s not the court’s or the TWRA’s duty to evaluate or consider the biblical or doctrinal basis for the fringe American Christian practice of snake-handling. As a Baptist, I don’t want the state involved in such discussions.

But as a Baptist blogger, though I should point out that snake-handling is immensely stupid — just as utterly stupid as it appears. It’s alleged biblical basis is a fraud — based on an illiterate misreading and misappropriation of a single verse taken wildly out of context.

If you read Mark 16:18 and take that to mean you should be keeping 50 copperheads and rattlesnakes in your church, then you’re a buffoon who can’t be trusted to safely handle either snakes or the Bible.

I think, in summary, that Andrew Hamblin is a biblically illiterate idiot, that even biblically illiterate idiots like Hamblin have a constitutional right to the free exercise of religion, and that this constitutional right is not so infinite and absolute that it extends to the unregulated hoarding, abuse and importation of dangerous wildlife.

Cue the Tonio K.:

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