A federal judge has struck down Pennsylvania's blasphemy statute -- a law that forbids the use of certain blasphemous and profane words in the naming of a corporation -- with a ruling that clears the way for the plaintiff to use the name "I Choose Hell Productions" for his film company.
In his 68-page opinion in Kalman v. Cortes , U.S. District Judge Michael M. Baylson found that "the statute's plain language makes apparent its predominantly religious purpose."
Baylson also found that the law "unequivocally excludes only one religious perspective but not the other, as it permits speech deemed reverent to religious beliefs, yet excludes speech deemed irreverent to religious beliefs."
Passed in 1977, the statute prohibits words that constitute "blasphemy" or "profane cursing or swearing," or that "profane the Lord's name" when registering a corporate name.
The impetus for the law, Baylson found, was a wave of complaints from religious leaders about a McKeesport, Pa., businessman's decision to name his store "The God Damn Gun Shop."
Fast-forward 30 years to September 2007 when George Kalman, an independent filmmaker based in Downingtown, Pa., filed an application to name his company "I Choose Hell" with the business processing section of the Corporation Bureau of the Pennsylvania Department of State.
Kalman's application was rejected under the blasphemy law and he changed the name to ICH Productions.
And then he called the ACLU.
Attorney Mary Catherine Roper of the American Civil Liberties of Pennsylvania filed suit along with attorneys Thomas H. Lee II and Matthew Bleich of Dechert seeking to strike the law down on First Amendment grounds as both an infringement on free speech rights and an impermissible entanglement with religion that violated the Establishment Clause.
But Chief Deputy Attorney General Barry N. Kramer, arguing on behalf of Secretary of the Commonwealth Pedro A. Cortes, said the statute should survive the constitutional challenge because its purpose was to protect the public from offensive, indecent and profane expression.
Kramer noted that Pennsylvania officials recently revised the list of words considered to be "suspect" in order to eliminate the religious words "Christ," "damn," "God," "hell," and "Jesus."
But Baylson was unimpressed, saying the deletion of the religious words "fails to remedy the impermissible entanglement with religion that the statute requires."
Even under the new guidelines, Baylson said, the bureau's employees "in their own discretion, are still required to make standardless determinations as to what constitutes blasphemy, profane cursing or swearing, or profanes the Lord's name, based on nothing but their own religious beliefs."
Even if the list of suspect words contains no religious phrases, there is nothing stopping a bureau employee from applying the statute and rejecting a proposed corporate name if the employee believes that the name contains a phrase that constitutes blasphemy, regardless of whether the phrase in question appears or does not appear on the list.
Baylson's lengthy opinion begins by tracing the history of blasphemy laws both in England and the new world, and the profound effect the First Amendment had on how those laws were enforced in United States courts.
Blasphemy, Baylson noted, is "generally defined as the act of insulting or showing contempt or a lack of reverence for God or something considered sacred."
In the Judeo-Christian tradition, Baylson said, blasphemy appears in the Bible in Leviticus 24, where the unnamed son of an Israelite mother and Egyptian father who blasphemed the Lord was brought before Moses, and whose punishment was stoning and death.
In the law, Baylson noted, prohibitions on blasphemy predate the American Revolution, existing in Britain as early as 1648, when the British Parliament passed an ordinance providing that an individual convicted of one of several acts of blasphemy "shall suffer the pains of death."
Among those prosecuted under the law, Baylson noted, were George Fox, the founder of the Society of Friends, and William Penn, the founder of Pennsylvania.
Britain's prohibition on blasphemy was also enforced on American soil, Baylson noted, where the Massachusetts Bay Colony hanged four Quakers for blasphemy in 1659 and prosecuted numerous individuals accused of blasphemy in the infamous Salem witch trials of the 1690s.
Blasphemy laws were being enforced by courts in the United States well into the 19th century, Baylson found, but the case law "dramatically changed" after 1940 when the U.S. Supreme Court held that the First Amendment should be applied to all the states under the 14th Amendment.
The high court in 1952 struck down a New York law that banned "sacrilegious" films, Baylson noted, and the only other blasphemy case on the books since then appeared to be a 1970 ruling by a Maryland appellate court overturning a blasphemy conviction in a case in which a truck driver was also convicted of disorderly conduct and resisting arrest after getting into a fight and yelling: "Get your goddamned hands off me."
Seven years after that last mention in the law books, Pennsylvania's Legislature passed a blasphemy statute aimed at only the words used in naming corporations.
Baylson found that the law failed under all three prongs of the Lemon test in which courts scrutinize the purpose and effect of a law and its potential for entanglement of the state with religion.
"All told, the Blasphemy Statute's plain language, historical context, and the specific sequence of events leading to its passage inevitably lead to the conclusion that, objectively speaking, the statute was introduced and passed into law with a predominantly religious purpose," Baylson wrote.
Baylson said the law also "conveys a message of state endorsement of religion over non-religion" by requiring the bureau to reject corporate names that are "blasphemous," contain "profane" cursing or swearing or that "profane the Lord's name."
The religious meaning that is "inherent" in those terms, Baylson said, forces state officials "to reject applications that they believe are irreverent or offensive to religious beliefs, but accept applications that they believe are respectful or reverent to religious beliefs."
Kramer, who argued the case for the commonwealth, could not be reached for comment.