Unusual First Amendment Challenge To Smoking Ban Fails

A rather innovative free exercise challenge to Austin, Texas' ban on smoking in public places was rejected by a federal district court several weeks ago. In Roark & Hardee v. City of Austin, (Oct. 18, 2005), plaintiffs launched a partially-successful broad-based attack on Austin's smoking ordinance. One of plaintiff's constitutional claims was that the ordinance infringed the free exercise of religion because it banned the burning of incense. However, the court was unconvinced since the City expressly disavowed that the ordinance covers the burning of incense or candles and stated that it would not enforce the ordinance to ban these activities.