Religious freedom vs. the law

Frankfort, USA - The vehicle you drive makes a statement about you.

That’s a concept familiar to buyers and sellers — whether it’s Hummers, Harleys, Porsches or Priuses.

But now the concept is being argued as a matter of constitutional law.

Lawyers for a strict Amish sect are arguing that their use of horse-drawn buggies is not just a mode of transportation — it’s a form of free speech.

The Amish are asking the Kentucky Court of Appeals to overturn a state law that requires horse-drawn vehicles to display a bright orange-red triangle on roads to warn motorists of their presence.

The free-speech argument appears literally as a footnote — but an intriguing one — to the Amish’ brief to the court. Their lawyers’ main arguments are that the law violates the Amish’s religious beliefs and that the commonwealth hasn’t proven that the emblem is effective or applied consistently.

Many Amish groups willingly display the symbol on their buggies. But members of the Old Order Swartzentruber Amish believe they should not.

They say it violates their religious beliefs that require them to use modest rather than bright colors and not rely on human-made symbols for safety. They are willing to use gray reflective tape outlining the rear of their vehicles (which they believe does not form an abstract symbol).

Several Amish men were convicted last year for failing to display the triangles in two cases in Graves County in Western Kentucky.

The American Civil Liberties Union of Kentucky is appealing on their behalf. ACLU lawyers are arguing that not only does the law conflict with the Amish members’ religious beliefs, it also conflicts with their constitutional rights of association and free expression.

“Association” would be violated, they argue, because Amish people who display the triangle would be shunned by their community.

As for freedom of speech, the lawyers argue:

“The Swartzentruber Amish’s plain buggies are a form of intentional expression to the world of their beliefs, including their beliefs in separation and in the values of humility, tradition and non-conformity. It is well established that use of a tangible item to communicate a message falls within the protection of the free-speech clause of the First Amendment to the U.S. Constitution....If the Swartzentruber (Amish) were to display the (slow-moving vehicle) emblem on their buggies, their message of separateness, humility, tradition, and non-conformity would be diluted or entirely eliminated.”

The Court of Appeals hasn’t set a date to hear the appeal, and the Attorney General’s office hasn’t replied to the Amish’s arguments.

Free speech or not, we’re seeing a lot more buggies on Kentucky roadways. As I reported last year, the state’s Amish population has tripled to about 8,500 in the past decade and a half. They now are present in 21 counties, according to a report by Elizabethtown College in Pennsylvania. Their national population has doubled.

The legal issues here are complicated.

Federal courts had long held that laws must withstand strict scrutiny on whether they burdened religious minorities. That changed with a 1990 U.S. Supreme Court ruling against ceremonial drug use. That decision said that if a law was passed that applied to everyone equally, rather than targeting a religious group, then everyone had to comply. If not, each person could become a “law unto himself” by citing private religious conscience, the court said.

The ACLU maintains that people making a “hybrid” claim of freedom of speech as well as freedom of religion deserve more protection under federal law than just a freedom-of-religion claim. (It’s also arguing that the Kentucky constitution provides more protection of religion minorities than the federal one.)

“A good many ‘free exercise’ cases are linked today with free speech/expression claims because of the Supreme Court’s decision...weakening free exercise (of religion) protection,” observes Charles Haynes, senior scholar at the Washington-based First Amendment Center. “This has been especially true in public school cases, where students have won religious-liberty cases on free-speech grounds.”

He hadn’t heard of a case in which anyone argued that a buggy amounted to free speech. One can imagine how it applies to other items — from Muslim headscarves to Jewish yarmulkes to Christian T-shirts and cross necklaces.

Well, the argument is just a footnote. For now.

See a link to the full legal brief on my blog.

Peter Smith is the religion writer for The Courier-Journal. This column is adapted from his Faith & Works blog at He can be reached at (502) 582-4469.