Last February, Supreme Court Justice Harry A. Blackmun expressed "unrelieved discomfort with what seems to be a continuing tendency in this court to use as tests such easy phrases as 'compelling state interest' . . . "
He said he had never been able fully to appreciate what "a compelling state interest" is. But he suggested that labeling a state interest "compelling" could be a convenient way to fore-ordain the decision sought by result-oriented justices.
"If the phrase means 'convincingly controlling,' or 'incapable of being overcome' upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all," Blackmun said.
Among those who may not have heard or heeded Blackmun were top Indiana officials, who, in a brief filed in the court in August, asserted "a compelling state interest" in a case involving the International Society for Krishna Consciousness.
The Krishnas have a ritual, Sankirtan, in which "devotees" must go into public places, disseminate and sell religious literature and solicit contributions.
Officials of the Indiana State Fair tried to restrict observance of Sankirtan to booths. But the society argues that the First Amendment gave it the right to have its members observe Sankirtan in fairground thoroughfares.
A federal judge, agreeing with the society that the restriction was an unconstitutional prior restraint of the free exercise of religion, issued an injunction barring further state interference. The 7th U.S. Circuit Court of Appeals affirmed the lower court's decision.
On behalf of Gov. Otis R. Bowen and other Indiana officials, state Attorney General Theodore L. Sendak filed a petition for Supreme Court review in which he asserted "a compelling state interest" that counters or overrides the First Amendment.
That interest includes, Sendak wrote, "the interest of public safety, for the plaintiffs do pin flowers on people as a gift, and when the flower is discarded the exposed straight pin presents a safety hazard to barefooted pedestrians and little children who may attempt to pick up the pretty flower . . . "
Sendak's petition is before the high court for action.