In Court: Amish Buggies, Youth Gun Bans, and Anti-Islam Bus Ads

The law, lawyers, and the court.
Nov. 1 2012 12:24 PM

Amish Buggies, Youth Gun Bans, and Anti-Islam Bus Ads

Slate’s pick-of-the-month court rulings—a new feature.

Amish children arrive via horse and buggy to their newly built schoolhouse.
Amish children arrive via horse and buggy to their newly built schoolhouse in 2007 in Nickel Mines, Pa.

Photo by William Thomas Cain/Getty Images.

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.

Fighting for its ads in the courts is not a new tactic for AFDI. The group is also responsible for the controversial subway ads calling Jihad “savage” in New York City this September, which the group was able to place only after obtaining a federal court order ruling that the Metropolitan Transit Authority could not constitutionally decline to run them. AFDI got its way in that case because the MTA had accepted political ads in the past.

The Sixth Circuit’s ruling last week wasn’t final, and the case will now return to the district court for a full trial. In an email to the Wall Street Journal, Pamela Geller promised to ask the district court to “engage in aggressive discovery to demonstrate on a complete record that SMART’s speech restriction was arbitrary and ultimately unconstitutional.”

 

Selling Guns to Teenagers

A federal court of appeals has upheld a federal law banning the commercial sale of handguns to 18-to-20-year-olds. The ban is old—it was passed in 1968 as part of an omnibus crime control act—but the National Rifle Association, together with several Texans between the ages of 18 and 20, hoped it had a new basis for persuading the courts to strike it down: The Supreme Court’s 2008 decision, District of Columbia v. Heller, which ruled that banning handgun possession in the home violates the right to “keep and bear arms” under the Second Amendment.

Last week’s rejection of the NRA’s challenge, by the U.S. Court of Appeal for the Fifth Circuit, emphasized that the Second Amendment right to bear arms has important limits, even after Heller. Prohibitions on the possession of firearms by felons and the mentally ill, for example, are long-standing regulations that the Supreme Court gave a nod of approval to in Heller. The Fifth Circuit said it mattered, too, that the youth ban isn’t sweeping: 18-to-20-year-olds may still possess and use handguns they get from a parent or guardian.

The court also pointed out that the concept of gun control extends back to the colonies, including founding-era regulations that disarmed specific groups of people, such as Loyalists (colonists allied with the British), for public safety reasons. These restrictions were tied to the notion of “civic virtue,” which at the time children were thought incapable of possessing. If the founders believed only “virtuous” citizens should be armed, the Fifth Circuit reasoned, they probably would have agreed that stricter rules should apply to minors.

Today we don’t use the word virtue when we talk about the right to buy a gun, but the underlying idea has not disappeared—Heller discusses the rights of “law-abiding, responsible citizens.” And the 1968 regulation is an expression of Congress’ skepticism that 18-to-20-year-olds fall into that category (sorry, youth). The legislation was passed after a lengthy investigation, which found that minors tend to be irresponsible and prone to rash behavior—a dangerous cocktail when combined with easy access to handguns. Indeed, 18-to-20-year-olds account for nearly 20 percent of all arrests for murder and non-negligent manslaughter, even though they make up only 4.3 percent of the population. They are often victims, too: a teenager today is more likely to die of a gunshot wound than of all natural causes.

After the suit was filed, the Facebook page of one of the plaintiffs from Texas, James D’Cruz, drew criticism for containing disturbingly violent messages. An editorial by the executive director of the Coalition To Stop Gun Violence compared the page to the writings of the Columbine and Virginia Tech shooters, calling D’Cruz “a poster boy for why we should prevent handgun sales to those under 21 years of age.”

The NRA says it is considering an appeal, though the unanimity of the three judges—two of whom were appointed by President George W. Bush—suggests an uphill battle.

Ryan McCartney, Katie Mesner-Hage, and Skye Nickalls are students at Yale Law School.