Archive for the ‘Courts’ Category

By Mike Appleton, Weekend Contributor

“Those situations in which the Court may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area.”

-Sherbert v. Verner, 374 U.S. 398, 423 (1963) (Harlan, J., dissenting)

Were Maurice Bessinger still alive, he would undoubtedly be a strong supporter of the Religious Freedom Restoration Act. Had that law been available in 1964, history might well read differently.

Mr. Bessinger owned a small chain of barbecue restaurants in South Carolina known as “Piggie Park.” As a matter of company policy, African Americans were prohibited from consuming food on the premises of his restaurants and were required to place and pick up orders from the kitchen window.

When a class action was filed against Mr. Bessinger under the public accommodations provisions of the Civil Rights Act of 1964, among his defenses was the claim that the Act violated the First Amendment because “his religious beliefs compel him to oppose any integration of the races whatsoever.” Newman v. Piggy Park Enterprises, Inc., 256 F. Supp. 941 (1966). The court had no sympathy for his defense. “Undoubtedly,” it said, “defendant Bessinger has a constitutional right to espouse religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence and support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” 256 F. Supp. at 945.

Mr. Bessinger partially prevailed at the trial court on interstate commerce grounds, but lost on appeal and was assessed attorney’s fees for his trouble, the Fourth Circuit finding that in view of a prior Supreme Court ruling upholding the constitutionality of the Civil Rights Act of 1964, the assertion that he was not bound because the law “contravenes the will of God” and constituted interference with “the free exercise of the Defendant’s religion” was legally frivolous. Newman v. Piggy Park Enterprises, Inc., 377 F.2d 433 (4th Cir. 1967), aff’d, 390 U.S. 400 (1968).

Had the Religious Freedom Restoration Act been in effect when Mr. Bessinger was sued, might he have prevailed? Perhaps.

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By Mike Appleton, Weekend Contributor

“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.”

-Munn v. Illinois, 94 U.S. 113, 126 (1876)

The events in Indiana and Arkansas during the past week contain at least two lessons. The first is that hypocrisy is like teeth; most of us have some and exposure usually produces a nasty bite. Second, interminable debates on the topic of comparative victimology are, well, interminable. Neither lesson is useful. So perhaps it is time to take a deep breath and engage in a bit of dispassionate reflection on the scope and application of the Religious Freedom Restoration Act.

Let us begin with the oft repeated claim that a person operating a business ought to have the right to refuse service to anyone at any time for any reason (or no reason at all). Whatever merits this claim may have as a philosophical position, it has never found approval as a principle of law. The reason is that historically the common law has recognized that there are categories of commercial enterprise of sufficient importance to the general welfare to mandate their availability to all members of the public on equal terms. (more…)

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By Cara L. Gallagher, weekend contributor

On Monday, the Supreme Court nixed a request from three teenagers to hear their case against Morgan Hill School District. The court’s denial to hear Dariano v. Morgan Hill ended an effort to overturn a lower court decision that supported the school’s right to prohibit the boys’ from wearing t-shirts displaying the American flag on Cinco de Mayo. This case reflects a consistency in the Court’s history of showing great deference to school administrators and districts since the landmark student speech case Tinker v. Des Moines (1969). Mary Beth Tinker and her brother won the right to wear anti-Vietnam armbands in school in that case. Tinker would be the high point for young people, the last celebrated Supreme Court victory for youth free speech advocacy. Since then, federal court decisions, or the lack of intervention by refusing to hear cases like Dariano, have resulted in significant restrictions on student speech in public schools. Forty-six years later, expressions of speech are more nuanced, savvier, and the topics just as controversial. If there was ever an audience of people hungry to see a contemporary free speech case at the Supreme Court, it’s high school students.

One came close to a Supreme Court appearance last year.

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125px-Flag_of_Malaysia.svgPrisonCellWe have yet another attack on free speech and the free press from one of our allies. Malaysian cartoonist Zulkiflee Anwar Alhaque, better known as Zunar, has been hit with nine counts of sedition for tweets critical of the country’s judiciary. It is an outrageous prosecution brought under a law that defines sedition as any comment that promotes hatred toward the government. Zunar previously defended his art against claims that it is defamatory. Zunar faces up to 43 years in jail if found guilty on all nine charges.

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By Darren Smith, Weekend Contributor

Amanda Knox

Amanda Knox

In what hopefully will become the conclusion of a oppressive years long ordeal, Italy’s highest court, the Court of Cassation, overturned the murder convictions against Amanda Knox and Raffaele Sollecito.

The news came as somewhat a surprise considering the zeal at which the prosecution fought to ensure the defendants be imprisoned for over two decades. The subsequent court drama and media circuses made it seem an almost foregone conclusion her fate would ultimately rest upon an extradition hearing within the purview of American courts.

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By Darren Smith, Weekend Contributor

Flag of TurkeyIn an injustice to both the liberty of a Kurdish man and free speech in general a court in Turkey handed down thirteen year sentence to a defendant accused of removing a Turkish flag at a military base near Diyarbakir, Turkey. The disproportionate sentence followed an outraged Recep Erdogan who declared after the act, “[w]e don’t care if he is a child. Even if a child dares to take down our sacred flag both him and those who send him there will pay a price.”

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By Darren Smith, Weekend Contributor

variable-speed-yellow-black-largeCriminal Cases resulting from speeding offense probable cause may be in jeopardy due to improper colors used variable speed limit signs. If courts determine that these signs violate statutory signage standards, exclusionary rules may apply resulting in dismissals of numerous criminal cases.

An example of this is found on Interstate 90 straddling Snoqualmie Pass in Washington State. Over a decade ago, the Washington State Department of Transportation installed Highway Advisory Beacons, near the mountain pass to warn driver of upcoming hazards along with incorporation into the state’s variable speed limit statute. An example of these types of signs is pictured above.

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