"Constitution Day" Apparently Not on the List
A state appeals court ruled Wednesday that a western Pennsylvania township violated constitutional protections in forcing a sexually oriented business to close on minor holidays such as Flag Day.
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The video and book store, Adultland XXX, faced the prospect of being shut down for a year because it conducted sales on Flag Day 2006. It previously was cited for opening on Columbus Day 2005.The township has invoked an 1893 state banking law to determine which holidays require the business to be shuttered, but the 19th century law is not specifically mentioned in the ordinance.
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[The store's] attorney Joseph T. Moran said the ordinance’s vagueness violated state and federal constitutional due-process rights.
You take whatever victories you can get, I suppose. And I’m a big fan of the void for vagueness doctrine as a general check on excessive government infringement on liberty.
Still, wouldn’t it have been nice if the case had been argued and decided on the (one would hope rhetorical) question of whether competent consenting adults have, or ought to have, an unfettered liberty interest in entering into private commercial transactions of whatever kind suits their fancy — including buying and selling naughty videos?
Alternatively, how about asking whether it is a legitimate function of government to single out one politically unpopular business for what is obviously a persucative restriction. Stated differently, is vindictive spite ever a rational basis, let alone a compelling one, for nullifying equal protection under the law? (Note: California gay couples need not answer that question.)
But if “void for vagueness” is the best we can get, we’ll take it — until the obnoxious nanny-statist prudes of Pulaski Township, Pennsylvania, rewrite the law in a way that inactivist judges find acceptable.
The case is Boron v. Pulaski Township, No. 1555 C.D. 2007 (Commonwealth Ct. Pa., November 19, 2008) (PDF – 17 pages).
Previously:
–Fifth Circuit Says Lawrence Extends to Commercial Transactions
Filed under: Constitutional Issues, Freedom of Contract, Law Enforcement Abuses, Property Rights, Society, Religion, Culture Wars