OPINION:
Gabe Olivier was minding his own business one day when he heard a stranger preach the Gospel of Jesus Christ on a nearby street corner. Those words changed him — dramatically and forever.
Wanting others to hear the same life-changing message, he began standing in a public park outside an amphitheater in Brandon, Mississippi, to share the Gospel, hoping to reach as many people as possible. The First Amendment grants him the right to do so. Yet local powers opposed Mr. Olivier. The city adopted an ordinance designed to separate him from his would-be audience, placing limits on where and how he could engage in the free exercise of his beliefs, effectively eliminating his evangelism.
Mr. Olivier sought to challenge this gross infringement on his religious speech, but a federal court deprived him of the opportunity because of a misunderstanding and misapplication of a 40-year-old precedent dealing with prisoners.
The U.S. Supreme Court will now decide whether the lower court was wrong, and Mr. Olivier will finally get to challenge Brandon’s limitation on his speech. Shortly after the ordinance was adopted, Brandon police officers arrested Mr. Olivier when he tried to share his faith outside the city’s remote “protest zone,” about the size of a Walmart parking space.
Mr. Olivier did not contest the charge of violating what he believes to be an unconstitutional ordinance, and he paid the fine. Wanting to return to the park to continue his evangelism, he filed a federal lawsuit to challenge the law and enjoin it from being used against him in the future. Mr. Olivier was hopeful of regaining his constitutional rights, but the district court dashed his hopes by dismissing his constitutional claims. He asked the U.S. Court of Appeals for the 5th Circuit to reverse this decision, but this was not to be.
The appellate judges declined to consider, by a 9-8 count, the merits of Mr. Olivier’s claim. They relied on the same precedent as the district court: the Supreme Court’s 1994 decision in Heck v. Humphrey. In that case, the justices held that a plaintiff prisoner serving a sentence under a state conviction could not bring a constitutional claim in federal court challenging the conviction or the sentence. The court reasoned that prisoners are required to use a different option, known as habeas corpus, to pursue these types of claims.
Mr. Olivier was never a prisoner, nor does he seek to overturn his “conviction.” He simply wants the court to strike down the unconstitutional ordinance so he can share his faith again. Nothing in Heck should prevent forward-looking relief like that sought by Mr. Olivier.
Bemoaning the 5th Circuit’s stance on this issue, Judge James Ho, in his dissent from the decision denying en banc consideration, remarked: “The fact that Olivier was previously convicted under the ordinance should make him not just a permissible but a perfect plaintiff. But instead, [5th Circuit precedent] uniquely prohibits citizens like Olivier from suing. That gets things entirely backwards. And it sends an odd message to citizens who care about defending their constitutional rights.”
That subversion of constitutional freedoms should scare us all. Constitutional rights are of little use if not acknowledged and enforced by courts.
Representing Mr. Olivier’s last shot at justice, the Supreme Court can right this wrong and resolve an issue that has sharply divided circuit courts: Can a person previously convicted under an unconstitutional law challenge that law to prevent future enforcement against him and others?
All Americans deserve their day in court, particularly when constitutional rights are at stake. Let’s pray the Supreme Court ensures it.
• Nate Kellum is senior counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. First Liberty represents Gabriel Olivier. Learn more at FirstLiberty.org.
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