Dissenting Opinion

EXCERPTS FROM THE DISSENTING OPINION
IN WAL-MART V. ROBERTSON

AT THE HEART of the controversy surrounding this case is whether the free exercise of religion is intended by the praying of individuals in public places. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to the free exercise thereof, any individual is entitled to that exercise of said given prayers in any public place and to what extent it is that those places come under obligation to provide and/or not to prevent the free exercise of religion, etc.
The State has long recognized its interest in guaranteeing such rights, and protection of such does not run afoul of specific constitutional prohibitions respecting the establishment of religion. "In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that the 'primary requirements' of a free people is its free expression of speech, the free practice of religious worship, to peaceably assemble, to petition grievances, etc., as guaranteed by the First Amendment. . . this Court has never declared these to be the only legitimate State interests. . . ."
The Court recognizes this to include the State's legitimate interests in the quality . . . of life and the maintenance of certain minimum standards in the total community environment. . . i.e., as by for example, guaranteed by both the 29th Amendment, criminalizing the burning, mutilation, or otherwise open display of disrespect for the American Flag; the 31st Amendment, repealing the 14th Amendment; and the 36th Amendment, establishing a hierarchy of freedoms in the First Amendment, i.e., the right of individuals to pray shall not be abridged in any way; further, the Court sees no conflict of interest in both protecting that right and the establishment of religion. . . .
The Court has sustained in Wal-mart v. Robertson that to insure those rights of a free people in a total community environment, Wal-mart Corp. must provide for its customers adequate opportunity and place of worship for the purpose of meaningful prayers at the entrance of each of its 12,345 stores. The Court is not announcing that businesses must provide places of worship and an environment for prayer in all sections of its stores; nor is it requiring the maintenance of periodic moments of silence at regular intervals; only that undue hardship must not be directed at those whose desires are constant with the First Amendment's guarantee of the uttering of prayers in public. Let us reflect for a moment on the very real difficulties . . . the often innumerable decisions the people of the state face during a normal shopping day; to in any way deny their constitutionally protected right to petition deity for assistance through the free expression of religion via prayer, the Court views as a serious infringement upon that right. This Court views anything less than this minimum protection as being a violation of both the First and Thirty-third Amendments, guaranteeing both the rights to free expression in the form of prayers and the reserving to the states the requirement of securing certain basic minimum standards in the total community environment. . . .
With all due respect, I dissent. Concurring for the most part with the majority's decision in Wal-mart v. Robertson, I find nothing in the language or history of the Constitution, nor do I find anywhere in this case the flexibility to allow those entrepreneurs of the State to define their own terms of what constitutes public prayer; i.e., a moment of silence between aisles; issuance of cassette tape players with headphones for the listening of church music, etc. The Court's decision fails to address the very real question of why one form of prayer must become the standard. These options must remain open. Further--and of a much more far-reaching and broader scope: Certain businesses of a smaller denomination may find an unreasonable burden placed upon them in providing only said shrines for worship and utterings at the expense of the profit motive, without allowing said owners the choice of worship for their customers. . . .
It is my view, therefore, that the Utah statute is not unconstitutionally infirm. . . .