Editors’ Note: We focus a lot at Slate on the Supreme Court, and less so on the country’s many other courts—even though they hear exponentially more cases and issue rulings all the time that affect people’s lives. With the help of a few intrepid law students, we’re going to start writing up cases we think are of particular interest. Here’s the first bunch, from October.
Making the Road Safe for Amish Buggies
Late last week, the Supreme Court of Kentucky held in a 5-2 decision that the state had not violated the religious freedom of nine Amish men who had been told to display bright slow-moving-vehicle emblems on their horse-drawn buggies when they drive on the highway. The men, members of the Old Order Swartzentruber Amish, a conservative subset of the religion, argued that the emblems—florescent yellow-and-orange triangles with red borders—were garish and at odds with their faith, which requires them to be plain and refrain from using worldly symbols. They also said they’d be made community pariahs if they obeyed.
In a twist, the Kentucky court’s ruling against the men, which won a lot of attention in a state that has seen a recent surge in its Amish population, was preceded by a law passed last spring that allows the use of a more-subdued gray, reflective tape in place of the bright yellow-orange triangles. It’s a sensible seeming solution: Gray is a nice Amish-y color.
The case did, however, present the Kentucky Supreme Court with a heady question: Does the state Constitution, which promises that “no human authority” can interfere with the “right of worshipping Almighty God according to the dictates of their consciences,” offer greater religious protection than the U.S. Constitution itself, which promises that Congress can make “no law respecting an establishment of religion, or prohibiting the free exercise thereof”? A five-justice majority answered no: The Kentucky Constitution doesn’t go farther than the U.S. Constitution, and the U.S. Constitution, in turn, doesn’t offer limitless protection for religious activities. Everyone has to comply with legitimate state laws. (To make its point, the Kentucky court cited this famous 1990 opinion by the U.S. Supreme Court, holding that Oregon could take away the unemployment benefits of Native Americans who had illegally consumed peyote as part of a religious ceremony.) In the buggy case at hand, the Kentucky court said, the state’s interest in road safety was enough to carry the day.
In his emphatic dissent, Justice Will Scott argued that Kentucky’s Constitution granted much greater religious freedom than the U.S. Constitution, and that the state could accomplish its goal of promoting highway safety by implementing a less restrictive law—citing the new law that now allows for the grey emblem rather than the yellow-orange one. Though they lost in court, in light of that law, the nine Amish buggy drivers will ride again.
Getting Anti-Islam Ads off the Bus
A federal appeals court ruled last week that the public buses in southeastern Michigan don’t have to run an anti-Islam ad. The advertisement reads: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.” It came from AFDI, an “anti-Jihadist” nonprofit organization run by right-wing blogger Pamela Geller.
After SMART, the public transit authority, refused to run the ad, AFDI sued for violations of the First and 14th Amendments, arguing that SMART was discriminating against their views and denying their right to free speech in a public forum. SMART said it was simply enforcing its policy against running ads that are political or that subject a group to “scorn and ridicule.” A district court sided with AFDI, pointing out that SMART had previously accepted an advertisement from an atheist organization reading, “Don’t believe in God? You are not alone.”
On appeal, a panel of judges on the U.S. Court of Appeals for the Sixth Circuit ruled that SMART’s blanket prohibition on political advertising is fine. What SMART can’t do under the First Amendment is accept some political ads while rejecting others, or maintain a policy so vague that the deciding employees have basically unlimited discretion. The court distinguished between the political nature of the fatwa ad and RefugefromIslam.com and what it deemed to be the apolitical, religious nature of the atheist ad and its website. The idea is that an ad like, “Thinking of leaving Islam? Got questions? Get answers!” would be acceptable under SMART’s policy, while an ad that read, “Being forced to say the Pledge of Allegiance even though you don’t believe in God? You are not alone. DetroitCoR.org” would be rejected as political.