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Snakes and church vs. state

By Danny Cevallos, CNN Legal Analyst
May 28, 2014 -- Updated 2056 GMT (0456 HKT)
STORY HIGHLIGHTS
  • Death of a Kentucky pastor who handled rattlesnakes renews church vs. state issue
  • Danny Cevallos: Supreme Court delineated key difference between religious thought, action
  • Thought is always protected by Constitution, but states can regulate action in interest of safety
  • Cevallos: Kentucky law provides for only minimal punishment for snake-handling

Editor's note: Danny Cevallos, a CNN legal analyst, is a criminal defense attorney practicing in Philadelphia, New York and the U.S. Virgin Islands.

(CNN) -- The recent death of the "snake-handling" pastor of a small Pentecostal church in Kentucky has raised an age-old conflict between church and state.

Jamie Coots, the pastor of the Full Gospel Tabernacle in Jesus Name in Middlesboro, Kentucky, died after being bitten on his right hand by a rattlesnake during a weekend church service where he was handling rattlesnakes willingly, it seems.

It has been reported that the late pastor's son Cody Coots has continued the snake-handling tradition even after his father's death.

Danny Cevallos
Danny Cevallos

People handle snakes at church for the same reason that people do lots of things: the Bible tells them so.

"And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover."

Mark 16:17-18

This biblical passage is the genesis of serpent-handling for churches of the Holiness movement and the Pentecostal Church of God. For the faithful, those two verses are the authority for dancing with or passing around poisonous snakes during church services. Moreover, if bitten, they are likely to refuse medical treatment and rely upon God to heal them. There's just one problem with this Biblical authority. Another authority, known as the Commonwealth of Kentucky.

In Kentucky, the practice is illegal.

Well, barely.

Worshipping with deadly serpents
Funeral held for snake-handling pastor
Watch this pastor handle deadly snakes

Under the applicable section KRS §437.060, any person who displays, handles or uses a snake in connection with any religious gathering shall be fined $50 to 100. Hardly a capital offense. The Kentucky legislature has sent a message: poisonous snake-handling is marginally illegal -- but not as illegal as drugs or other crimes. The legislature's assigned penalty appears to fall somewhere between a speeding ticket and an overdue library book.

This illegal practice persists so openly that a reality TV show flouts the law by filming a crime in progress. When a network has a series based primarily on filming people breaking the law in your state, it's fair to say your law has lost some of its bite.

Belief Blog: A lethal Appalachian tradition

Ultimately, the issue is whether a state even has authority to regulate a practice that is primarily faith-based. The First Amendment to the United States Constitution declares "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The 14th Amendment, in turn, prohibits state legislatures from doing the same.

However, equally as formidable is the state's constitutionally reserved "police power." The name itself is a misnomer; the power is much more than your local police officer's ability to make an arrest. The states' traditional police power is their exclusive authority to regulate the public health, safety and morals of their residents.

Kentucky's authority to outlaw snake-handling derives from this police power. The issue here is whether a state has the power to regulate religious activity; so the two constitutional authorities meet head-to-head.

In Jones v. City of Opelika, the Supreme Court addressed the conflict between freedom of religion and the police power of a state.

The court articulated an important but still misunderstood concept about religious freedom: the First Amendment embraces two distinct concepts -- the freedom to believe and the freedom to act.

The first is absolute, but the second cannot be absolute. This makes sense.

Your thoughts alone, without speech or any action, are never criminal, even if of the most prurient, vile nature (at least for now -- once Apple figures out an app to download your thoughts, they may someday be criminalized).

Your conduct, on the other hand, can be regulated for the protection of society. While citizens of the United States have an unlimited right to our religious beliefs, our right to act within those beliefs is tempered by a state's duty to protect its citizens.

In Lawson v. Commonwealth, Kentucky's Supreme Court considered a direct challenge to its snake-handling statute, using the guidance of the Supreme Court in the Jones case. The court held that the state could properly regulate the time, place and manner of religious exercise -- such as passing snakes around at church -- where the regulation is necessary for the safeguarding of the health, good order and comfort of the community.

Legally, Kentucky's interest in protecting its residents outweighs a Kentuckian's interest in celebrating his religion by handling rattlesnakes. According to the courts, the state can prohibit this practice.

But Kentucky still barely criminalizes the practice. Handling poisonous snakes is potentially more dangerous than other regularly prosecuted activities, such as drug use. Ask yourself: Would you rather your child be at a party where someone is passing around a water bong or a water moccasin?

Whatever the reason for not aggressively prosecuting the already-illegal practice, the fact is that it presents a known danger. Kentucky is one of the states that has seen fit to criminalize the practice, and it has the power to do so.

Unfortunately, if Kentucky doesn't exercise its police power and impose stricter penalties, then the snakes will continue to impose their own punishment, which is often the death penalty.

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The opinions expressed in this commentary are solely those of Danny Cevallos

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