TBA Law Blog

Posted by: Joseph Jarret on Apr 1, 2014

Journal Issue Date: Apr 2014

Journal Name: April 2014 - Vol. 50, No. 4

Poisonous Serpents & Religious Expression in Tennessee

“And these signs shall follow them that believe …
They shall take up serpents; and if they drink
any deadly thing, it shall not hurt them.”
— Mark 16:17, KJV

It is a religious practice that finds its roots in Appalachia and goes back over a century. It is a ritual that is practiced in churches often referred to as “renegade” and “fiercely independent,” and most commonly looked upon by the uninitiated as a “dangerous and bizarre activity.”1 It is snake-handling, and in many Appalachian states, Tennessee among them, it’s against the law. According to the Appalachian Regional Commission (ARC),2 the region commonly referred to as Appalachia includes all of West Virginia and parts of 12 other states, to wit, Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee and Virginia. However, the practice of snake handling has been most commonly observed in more southerly states, specifically, West Virginia, Kentucky and Tennessee.

The Practice of Snake-Handling
Although the practice of snake handling does not follow a prescribed format, there does appear to be some commonality in such rituals. During religious services, amidst the sound of music, a worshipper, according to Hood and Williamson, approaches a wooden box, specially designed to house the creatures, then “calmly extracts a venomous serpent. As others gather around the activity, participation in worship increases with a more compelling sense of God’s presence and direction, and other serpents are taken out and passed among the obedient.” In some churches, participants also entwine the snakes around their necks and bodies.3

Snake-Handling and the First Amendment
Tennessee first outlawed the handling of poisonous snakes in 1947. It appears the motivation behind the legislation was the deaths of five East Tennesseans who died handling serpents during religious services.4 The legislation, codified as §39-2208, made it “unlawful for any person or persons to display, exhibit, handle or use any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of any person.”5 It soon became apparent that the new legislation did not have the chilling effect on snake-handling that many presumed it would. Five months after the legislation was passed, 10 members of a church in East Tennessee were convicted of violating the newly enacted statute. They appealed their convictions to the Tennessee Supreme Court.6 The Appellants (referred to in the Supreme Court’s opinion as “Plaintiffs in error”) were members of “The Holiness Church” located in Hamilton County. Among the various rituals practiced by church members was the handling of poisonous snakes. Church members also entwined the snakes around their necks and bodies.7 This was a case of first impression for the Tennessee Supreme Court, albeit the court did not at all appear vexed by the facts of the case. Rejecting the appellants’ assertion that the statute made an exemption for religious services, or, in the alternative, violated their freedom of religion guaranteed by both the federal and state constitutions, court upheld the statute.8 In so doing, the court issued a final, determinative ruling that is as precise as it is pragmatic: “rattlesnakes are poisonous … and the practice of handling them is dangerous to the life and health of people.”9
It would be almost 30 years before Tennessee courts were once again were forced to wrangle with the practice of snake-handling. In 1975, the Tennessee Supreme Court granted certiorari in the case of State ex rel. Swann v. Pack10 to determine whether the state of Tennessee may enjoin a religious group from handling snakes as a part of its religious service. It ultimately ruled it could. In the instant case, the Circuit Court at Cocke County, Newport, permanently enjoined the defendant, Pack, pastor of The Holiness Church of God in Jesus’ Name of Newport, and one of his elders from “handling, displaying or exhibiting dangerous and poisonous snakes.” The court predicated its action primarily upon a finding that the handling of dangerous and poisonous snakes was in violation of Tenn. Code Ann. § 39-2208 and that the practice was done in the presence of children and other people attending church services.11 The Court of Appeals, in a split decision, found the injunction to be overbroad, subsequently modifying it to read that the respondents were permanently enjoined from handling, displaying or exhibiting dangerous and poisonous snakes in such manner as will endanger the life or health of persons who do not consent to exposure to such danger.12 Ultimately upholding Tenn. Code Ann. § 39-2208, and opting for an outright prohibition as compared to the modified prohibition offered by the Court of Appeals, the Supreme Court opined, in pertinent part,
Under this record, showing as it does, the handling of snakes in a crowded church sanctuary, with virtually no safeguards, with children roaming about unattended, with the handlers so enraptured and entranced that they are in a virtual state of hysteria and acting under the compulsion of “annointment,” we would be derelict in our duty if we did not hold that respondents and their confederates have combined and conspired to commit a public nuisance and plan to continue to do so.13

Despite the fact that the Supreme Court treated the case as a public nuisance matter, it nevertheless refused to sidestep the equally challenging subject of the free exercise of religion. The court went to great lengths to insure that this important facet of the case was given its due regard. In its analysis the court ruled:
We hold that under the First Amendment to the Constitution of the United States xiv and under the substantially stronger provisions of Article 1, Section 3 of the Constitution of Tennessee, xv a religious practice may be limited, curtailed or restrained to the point of outright prohibition, where it involves a clear and present danger to the interests of society; but the action of the state must be reasonable and reasonably dictated by the needs and demands of society as determined by the nature of the activity as balanced against societal interests. Essentially, therefore, the problem becomes one of a balancing of the interests between religious freedom and the preservation of the health, safety and morals of society. The scales must be weighed in favor of religious freedom, and yet the balance is delicate. The right to the free exercise of religion is not absolute and unconditional. Nor is its sweep susceptible of discrete and concrete compartmentalization. It is perforce, of necessity, a vague and nebulous notion, defying the certainties of definition and the niceties of description. At some point the freedom of the individual must wane and the power, duty and interest of the state becomes compelling and dominant. Certain guidelines do, however, emerge under both constitutions. Free exercise of religion does not include the right to violate statutory law.16

Just as adherents to the faith take exception with Tennessee’s law regarding the handling of poisonous snakes, some legal scholars likewise have problems with the law as well as the manner in which our courts have interpreted it. Editors of the Washington University Law Review in particular opined that the Tennessee Supreme Court in both the Harden and Pack cases missed the mark. They opined that
Pack is another case sustaining state health and safety regulations without serious consideration of the public interests or impartial balancing of those interests against defendants’ right to free exercise of their religion. The court misunderstood Tennessee public policy and misread constitutional requirements. The Tennessee statute only prohibited snake-handling when performed in a dangerous manner. Both Harden and Pack assumed, without reliable evidence, that religious snake-handling was dangerous per se. The latter opinion considered handling a poisonous snake tantamount to a suicide attempt. The record contained no evidence supporting such a proposition: on the record the court could only have concluded that snake-handling presents no serious health threat.17

A contra argument is offered by legal scholar Robert W. Kerns Jr.,18 who suggests that “Snake-handling threatens not only the health and safety of its consenting adult practitioners, but also of children who, as seen in the historical discussion of handling, are within contact of the practice. Moreover, it threatens animal welfare which too must be a concern of the state.”19
It is interesting to note that the United States Supreme Court ultimately weighed in on the state’s ability to regulate religious practices ostensibly protected under the Establishment Clause of the First Amendment. In Church of the Lukumi Babalu Aye v. City of Hialeah,20 the Supreme Court ruled as invalid, city ordinances enacted in an effort to prevent animal sacrifices in connection with rituals practiced by adherents of the Santeria religion. The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the orishas. The basis of the Santeria religion is the nurture of a personal relation with the orishas, and one of the principal forms of devotion is an animal sacrifice. Animals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep and turtles. The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and death rituals.21 The City of Hialeah, Fla., enacted several ordinances, the sum and substance of which rendered illegal, the “possession, sacrifice, or slaughter of an animal if it is killed in any type of ritual.”22 The Supreme Court invalidated the ordinances, noting the legislators are precluded from devising mechanisms, be they overt or disguised, that are designed to persecute or oppress a religion or its practices.23 In an opinion authored by Justice Kennedy, the Supreme Court ruled that a “law burdening religious practice that is not neutral or not of general application must undergo the most rigorous scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”24 Noting how laws affecting the free exercise of religion merit strict scrutiny, Justice Kennedy further opined that “a law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.25
In 2004, the Supreme Court in Locke v. Davey26 considered the implications of Lukumi Babalu in a case involving a Washington State scholarship program for gifted students. In Davey, the state of Washington established the Promise Scholarship Program27 to assist academically gifted students with postsecondary education expenses. In accordance with the state constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. When Joshua Davey, a scholarship recipient, was denied funding to pursue a theology program at Northwest, a private religious college, he filed suit in U.S. district court, claiming the state constitution’s ban on funding religious instruction violated his First Amendment right to free exercise of religion. The district court rejected Davey’s claim. The Ninth Circuit Court of Appeals reversed, concluding Davey’s free exercise rights were violated.28 The United States Supreme Court, in a 7-2 opinion delivered by Chief Justice William Rehnquist, ruled that a state does not violate the First Amendment’s free exercise clause when it funds secular college majors but excludes students majoring in devotional theology.29 The court rejected Davey’s argument that the state scholarship program was unconstitutional because it was not neutral toward religion. “The state has merely chosen not to fund a distinct category of instruction,” the court wrote. Similarly the Washington Constitution — which explicitly prohibits state money from going to religious instruction — does not violate the free exercise clause. Unlike laws and programs the court has struck down under the free exercise clause, nothing in either the scholarship program or the state constitution “suggests animus towards religion.” States have a “historic and substantial interest” in excluding religious activity from public funding.30 Justice Rehnquist further observed that the “Establishment Clause and the Free Exercise Clause are frequently in tension.” Relying upon a metaphor purported to be a favorite of Justice Oliver Wendell Holmes,31 Justice Rehnquist asserted that the court recognized the “play in the joints” between the Establishment and Free Exercise Clauses.32 Justice Scalia, in a dissenting opinion with which Justice Thomas joined, argued that “in Church of Lukumi Babalu Aye Inc. v. Hialeah, the majority opinion held that “[a] law burdening religious practice that is not neutral … must undergo the most rigorous of scrutiny,” and that “the minimum requirement of neutrality is that a law not discriminate on its face.”33 Justice Scalia further opined that “when the state makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the state withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.”34

Other States
Although the rituals exercised in churches that practice snake handling are fairly uniform, the states where such rituals occur differ in their approach to the practice. Tennessee’s serpent-handling law has remained virtually unchanged since its inception in 1947 and continues to make no specific mention of the use of poisonous or dangerous snakes in religious practices. Kentucky likewise outlaws the handling of poisonous snakes, albeit specifically renders, illegal “using, displaying, or handling any kind of reptile in connection with any religious service.”35 Kentucky’s Act remains unchanged since it was challenged in 1942 in the case of Lawson et al. v. Commonwealth.36
In Lawson, the defendants were jointly indicted and convicted for violating Kentucky’s law against snake-handling, then codified as Chapter 60 of the Acts of the General Assembly, Kentucky Statute §1267 a-1.37 Taking a position akin to that assumed by the Tennessee Supreme Court in State ex rel. Swann v. Pack supra, the Kentucky Supreme Court upheld the defendants’ convictions and in so doing, relied upon the government’s police powers to curb breaches of the public peace. Justice Tilford, writing for a unanimous court, opined,
laws enacted for the purpose of restraining and punishing acts which have a tendency to disturb the public peace or to corrupt the public morals are not repugnant to the constitutional guarantees or religious liberty and freedom of conscience, although such acts may have been done pursuant to and in conformity with, what was believed at the time to be a religious duty. Without violating the constitutional guarantees, the state, under the police power, may enact laws in order to promote the general welfare, public health, public safety and order, public morals and to prevent fraud.38

Several decades ago, the state of Alabama enacted a law that says in pertinent part: “Any person who displays, handles, exhibits, or uses any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of another shall be guilty of a felony, and upon conviction shall be imprisoned for a term to be fixed by the court of not less than one, nor more than five years.”39 The Alabama law was challenged in the case of Hill v. State.40
In Hill, the defendant was convicted in DeKalb County Court of displaying, handling or exhibiting a poisonous snake in a manner endangering the life and health of another. He appealed to the Court of Appeals, which held, on Jan. 17, 1956, that the statute did not violate the federal or state constitutional guarantees of freedom of religion.41 The Alabama Supreme Court denied certiorari.
The West Virginia Code currently makes no reference whatsoever to the practice of handling poisonous snakes. This is an interesting phenomenon considering the fact that in 2012, Pentecostal Pastor Mack Wolford died of a rattlesnake bite sustained while officiating at an outdoor service in West Virginia. Coincidentally, his father, a pastor in his own right, likewise died after being bitten by a poisonous snake in 1983.

Snake-Handling: A Brief History
Although historians don’t completely agree on the origins of snake handling, the practice is most commonly tied to the Holiness Movement of the late 19th and early 20th centuries.42 According to historians Ralph W. Hood Jr., W. Paul Williamson43 and Thomas G. Burton,44 and a Tennessean by the name of George Went Hensley was responsible for spreading snake handling practices in the South in the early 20th century. Hensley is credited with founding the Holiness Church of God in 1909 at Sale Creek in Grasshopper Valley, Tenn., approximately 35 miles northeast of Chattanooga. Hensley, it is surmised, was motivated by a dramatic experience that occurred atop White Oak Mountain near Ooltewah, Tenn., on the eastern rim of the valley, during which he confronted and seized a rattlesnake. Unbitten, and armed with the snake, Hensley returned to the valley, entered Grasshopper Church of God, and admonished members of the congregation to follow his example and “take up or be doomed to eternal hell.”45
Although illiterate, Hensley nevertheless became a licensed minister of the Church of God (Cleveland, Tenn.) in 1915. He, along with fellow church members, treated as an imperative a passage in the Book of Mark, Chapter 16, verses 17-18, King James version of the Bible, which reads: “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.”
Just as historians continue to debate the precise ancestry of the Holiness Movement, biblical scholars continue to debate whether Mark 16:17-18 belong in the Bible. Specifically, noted Bible scholar Robert H. Stein has opined that the vocabulary used in Mark 16:9-20 differs notably from that which appears in the rest of the book (Stein refers to the vocabulary as “non-Markan”), surmising that the words were added by a scribe. Further, he asserts that the most trusted, ancient manuscripts fail to contain the verses.46
Nevertheless, the practice continues despite the skepticism offered by scholars or the fact that George Hensley died of a snakebite in 1955. According to witnesses, during a Sunday worship service held in the town of Altha, Fla., Hensley handled a diamondback rattlesnake for approximately 15 minutes before it bit him. The Calhoun County Sheriff attempted to convince Hensley to receive medical treatment to no avail.47 The sheriff ultimately ruled Hensley’s death a suicide.48

Despite laws that ban the practice and prosecutors willing to pursue charges against offenders, the practice continues. For example, recently the grand jury of Campbell County, Tenn., returned a no true bill of indictment against Andrew Hamblin, pastor of the Tabernacle Church of God, LaFollette, in response to charges brought against him when it was learned that he was handling poisonous snakes as part of religious services held in his church.
Further, the ceremony continues to fascinate the uninitiated, as evidence by the fact that National Geographic has devoted a reality TV show to the ritual titled Snake Salvation. This is a program advertised as one that “follows two pastors of this creed who frequently battle the law, a disapproving society and sometimes their own families to lead their faithful followers to righteousness.” Pastor Hamblin is one of those pastors being followed by prosecutors and TV crews alike. For now, it appears Tennessee’s courts find more compelling the argument that religious expression cannot go so far as to violate statutory law. And snake-handlers, well, it appears they will continue to follow a law they believe trumps anything the various state legislatures can promulgate, as evidenced by the untimely death of Kentucky pastor Jamie Coots (featured in Snake Salvation). Coots died as a result of a bite received from a poisonous snake during a snake-handling ceremony in February after refusing medical treatment. “Judge not, and ye shall not be judged!”49

Joe Jarret is a Tennessee attorney, mediator and Army veteran who lectures full-time for the University of Tennessee, Department of Political Science, in Knoxville. He is a graduate of Stetson University College of Law.


  1. 1. See Hood, R. W., & Williamson, W. P. (2008). Them that believe: The power and meaning of the Christian serpent-handling tradition. University of California Pr.
  2. 2. The Appalachian Regional Commission (ARC) is a regional economic development agency that represents a partnership of federal, state, and local government. Established by an act of Congress in 1965, ARC is composed of the governors of the 13 Appalachian states and a federal co-chair, who is appointed by the president. Local participation is provided through multi-county local development districts.
  3. 3. See Hood, R. W., & Williamson, W. P. (2008). Them that believe: The power and meaning of the Christian serpent-handling tradition. University of California Pr.
  4. 4. Burton, Thomas G. Serpent-Handing Believers, Knoxville: University of Tennessee Press, 1993, at 74..
  5. 5. § 39-2208 “It shall be unlawful for any person, or persons, to display, exhibit, handle or use any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of any person.”
  6. 6. Harden v. State, 216 S.W.2d 708, 24 Beeler 17, 188 Tenn. 17, 1949.
  7. 7. Id at 710.
  8. 8. Id. at 713.
  9. 9. Id.
  10. 10. State ex rel. Swann v. Pack. 527 S.W.2d 99 (Tenn. 1975), cert. denied, 424 U.S. 954.
  11. 11. Id. at 102.
  12. 12. Id. at 103.
  13. 13. Id. at 113.
  14. 14. The First Amendment to the United States Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
  15. 15. Article 1, Section 3 of the Constitution of Tennessee titled “Freedom of worship” reads: “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship.”
  16. 16. State ex rel. Swann v. Pack at 111.
  17. 17. Snakehandling and Freedom of Religion, State ex rel. Swann v. Pack, 527 S.W.2d. 99 (Tenn. 1975), 1976 Wash. U. L. Q. 353 (1976) at 363.
  18. 18. See Kerns Jr, R. W. (2013). “Protecting the Faithful from Their Faith: A Proposal for Snake-Handling Law in West Virginia.” W. Va. L. Rev., 116, 561-735.
  19. 19. Id. at 732.
  20. 20. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520,113 S. Ct. 2217,124 L. Ed. 2d 472,1993 U.S.
  21. 21. 13 Encyclopedia of Religion 66 (M. Eliade ed. 1987), 1 Encyclopedia of the American Religious Experience 183 (C. Lippy & P. Williams eds.1988).
  22. 22. City of Hialeah Ordinance 87-52.
  23. 23. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520,113 S. Ct. 2217,124 L. Ed. 2d 472,1993 U.S. at 547.
  24. 24. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520,113 S. Ct. 2217,124 L. Ed. 2d 472,1993 U.S. at 546.
  25. 25. Id.
  26. 26. Gary Locke, Governor of Washington, et al., Petitioners v. Joshua Davey, 540 U.S. 712, 124 S. Ct. 1307; 158 L. Ed. 2d 1; 2004
  27. 27. The Washington State Promise Scholarship, created by the state legislature in 1999, provided college scholarship money to talented, needy students.
  28. 28. Davey v. Locke, 299 F.3d 748, 2002 U.S. App. LEXIS 14461 (9th Cir. Wash., 2002).
  29. 29. Id. at 1309.
  30. 30. Id. at 1313.
  31. 31. “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Lowry, Walker. “Mr. Justice Holmes: The Community vs. The Individual.” California Law Review (1948): 390-404.
  32. 32. Id. at 1311.
  33. 33. Id. at 1317,18.
  34. 34. Id. at 1316.
  35. 35. Ky. Rev. Ann. Stat. § 437.060 (2012). Use of reptiles in religious services.
  36. Any person who displays, handles or uses any kind of reptile in connection with any religious service or gathering shall be fined not less than fifty dollars ($50) nor more than one hundred dollars ($100).
  37. 36. Lawson et al. v. Commonwealth, 291 Ky. 437 (Ky. 1942), 164 SW2nd 972.
  38. 37. Id.
  39. 38. Id at 976 citing 16 Corpus Juris Secundum, 599.
  40. 39. Act No. 45, General and Local Acts 1950 (effective October 31, 1950) stated: “Section 1. Any person who displays, handles, exhibits, or uses any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of another shall be guilty of a felony, and upon conviction shall be imprisoned for a term to be fixed by the court of not less than one, nor more than five years.” In 1953, the penalty was reduced to a misdemeanor, with a $50 to $150 fine or up to six months in jail. Both acts have since been repealed.
  41. 40. Hill v. State, 38 Ala.App. 404, cert. denied, 88 So.2d 887.
  42. 41. Id.
  43. 42. The Holiness movement originated in the first half of the 19th century in the United States as a renewal movement within American Methodism but soon became trans-denominational. It sought to recover the emphasis of evangelist John Wesley on the perfection of love in the lives of believers and followers of Jesus Christ. Hood & Williamson at 1-12.
  44. 43. Id. at 42-45.
  45. 44. Burton, Thomas G. Serpent-Handing Believers, Knoxville: University of Tennessee Press, 1993.
  46. 45. The Dolly Pond Church of God With Signs Following. Collins, Tennessee Snake Handlers, page 1 (1947).
  47. 46. Robert H. Stein, Bulletin for Biblical Research 18.1 (2008) 79-98).
  48. 47. “Snake Kills Cultist,” The New York Times, July 26, 1955, 12; “Cultist Dies of Snakebite; Believed Dolley Pond Leader,” Chattanooga Times, July 25, 1955, 3.
  49. 48. Hood & Williamson p. 50.
  50. 49. Matthew 7:1-3, King James Bible.