*1 McMILLAN, OLUGBALA v. STATE a/k/a
OF MARYLAND 289, September Term, [No. 1969.] May
Decided 1970. *2 J., argued before Hammond, was C. The cause Digges, Finan, Barnes, JJ. Smith Brown, Gibson, whom were Allen & Larry with S. brief, appellant. for Josey on Attorney General, Touhey, Assistant Joseph with T. Burch, Attorney General, Edward B. Francis whom were General, Attorney Charles E. Assistant Borgerding, F. Kaminlcow, Attorney, E. Michael Jr., Moylan, State’s brief, appellee. Attorney, Assistant State’s opinion of the Court. J., Barnes, delivered Finan, Concurring opinion page at J., in the result. concurs infra. King England (1600-1649), I, Charles It is said and, lit- Parliament his hat before refused to remove September erally speaking, head. On lost his McMillan, Benjamin Olugbala-Olugbala, also known being ar- headgear (filaas) while refused to remove his Carter, Baltimore, raigned the Criminal before contempt of jail for J., presiding sentenced sovereignty; I, it a matter court. With Charles religion. appear a matter Olugbala, to be it with would forth, re-we set hereinafter For we the reasons which judgment court. of the lower verse the being ar- purpose of Olugbala court for the inwas charges At the com- riot. raigned related on various requested him proceedings the court mencement of the asserting that responded cover. He to remove his head signifi- filaas, had cover, known as his head religious prac- contrary to his it would be cance and that *3 repeated re- court it. The and beliefs to remove tices judges Olugbala explained that several quest. Counsel for head cover wear his him to in other courts has allowed in- religious without beliefs out of deference to his request. again repeated its Whereupon court cident. confer him to Olugbala requested court allow granted. then request Counsel counsel, was with his which bench, permis- which approach the permission to asked pur- for request apparently sion was denied. This whereby would discussing proffer pose of his nature of prove as to the proposed to he outline what wearing of relationship his religious and their beliefs event, Olugbala any now contends In filaas. of his explain the nature given opportunity to they him imposed on religious and the sanctions wearing Nor did court regard the filaas. with to the con- and their of these beliefs question the nature him on following col- wearing The filaas. nection with his and counsel the court loquy place then took between the defendant: situation; an individual have a “We
Counsel: detained has been one occasion on more than also rec- have institutions these institutions ognized they beliefs as relate to covering head permitted and have this or rec- ognized this. special This is a situation and have permitted Olugbala Mr. keep his hat on. This man came before the State Human Relations Commission, and we have documentation of that case, they recognized spe- also we had a cial prevailed situation upon Depart- ment of matter, Correction in this I and would strongly prevail upon Honor, Your this is not an wearing individual who is a hat out of con- tempt court, wearing recognition it in very belief yar- much the same as a mulka to a Jew.”
The “If a yar- Court: Jew were in here awith on, mulka he would remove it.” police Counsel: “Even wearing officer is part hat as of their uniform. This man is wear- ing part it as belief.”
The Court: “In this Court he will remove his Sorry, agree hat. you. I don’t with I am in charge of this Court and he will remove it.” :ji * # * “* *
The get along Court: I am not hard to with, got but this is one rule that has to be fol- lowed, any- and he has to follow it the same as body going I longer. else. am not to wait much He will remove it or he will be found in con- tempt.”
Counsel: “The defendant has informed his attorney religious that his compel- beliefs are ling overwhelming and because of these be- hat, not liefs he will remove his etc.” “Very well, The Court: I find him in con- tempt and confine him until such time as he purges himself. That will be when he comes back * * in and hat. removes his appealed. this citation the defendant From The defen-
151 pending has been the outcome of dant released bail appeal. this judge opinion in cit-
We are of the that the trial erred ing judgment contempt of the the defendant for and the lower The record reveals court should be reversed. that do, although inartfully, what the defendant to endeavored proffer was to make of the beliefs nature relationship and their to refusal to uncover his head. his think, however, transcript makes clear that We it proper proffer even if as to the defendant had made imposed duty they upon him and the this, resulting filaas, to had to wear his testified citing contempt of him for would have action the court contempt the same. The court held the defendant been religion, knowledge denomination of his without length origin, general tenets, organization of or the espoused time he had it. Amendment of of the First
The Free Exercise Clause of the Dec- and Article 86 the United States Constitution Maryland give Rights of the Constitution laration of religious liberty.1 This protection includes extensive universally only practice of protection assure the myr- religions conventionally accepted known and of, and off-beat iad of seldom heard off-brand Schempp and Abington Dist. v. concepts. School See Vitale, Engel (1963) ; v. Curlett, Murray 203 v. 374 U. S. Watkins, 421, ; v. 367 U. S. (1962) Torcaso 485 370 U. S. Maryland, 366 U. S. (1961) ; v. State 488 McGowan v. Virginia Board Education ; (1961) State West 420 Connecticut, ; (1943) Barnette, Cantwell U. 624 819 S. State, ; Schowgurow v. 240 Md. (1940) 296, 303 310 U. S. State, ; Craig 220 Md. (1965) 121, 124, A. 2d ; v. District Colum- Dobkin 590, 2d 684 155 A. 1963). App., (D.C. Ct. bia, A. 2d 657 disputed Amendment seriously the First longer is no 1. It applicable states to the is Constitution States the United Connecticut, 310 v., Cantwell through Amendment. Fourteenth (1940), 128 A.L.E. 1352. Ct. 900 Ed. 60 S. 89 L. U. S. Sharpsburg, 241 A. 2d 249 Md. Eldership v. Md. and Va. *5 152 Cantwell, Indeed in Mr. tersely stated, Justice Roberts
“* * *
Amendment
[T]he
embraces two1 con-
[First]
cepts
to believe and freedom to act. The first
—freedom
but,
things,
is absolute
in the nature of
the second cannot
be.”
Accordingly,
may abridge
the State
prac-
any
only
tices
upon
individual
a demonstration that
compelling
some
outweighs
state interest
the interest of
Verner,
the individual
in his
tenets. Sherbert v.
;
(1963)
Brown,
Morman
whose
duty
practice polygamy.
male members a
See also
Massachusetts,
;
Prince v.
While the courts
not
the verities of re
ligious beliefs,
Judge
as
Barnes said in Md. Va. Elder
&
ship
Sharpsburg,
249 Md.
A. 2d 691
“* * *
(1968),
courts,
think,
wisely we
will not
[T]he
”
‘theological thicket,’
nevertheless,
they may
enter a
in
quire as to whether
defendant
and bona
the
is sincere
fide
harboring
in his
of
belief.
of
the
The
Court
the
Ballard,
United States in United States v.
Prior to the before this on 25, 1970, March filed Motion for Correction Omis- strength Maryland in the Record and on sion Rule 4, sought P3 c to have tran- included in the record script testimony hearing corpus of the held a habeas Baltimore, Judge Grady, before in the Criminal Court of September 19, corpus hearing on 1969. which This habeas for was initiated the defendant on his incarceration to, contempt as, day subsequent on the was held same arraignment proceedings at which objec- guilty contempt. appellant found The raised testimony transcript tions to the inclusion of the of this argument appeal in the record and at the time of the ruling. open this Court for do the motion was left We given transcript testimony at the think that corpus proceedings properly habeas can be considered part arraignment of the record of the out of which given testimony contempt citation arose. think We *7 legal sig- corpus proceeding can at the have no habeas nificance, contempt citation concerned. insofar the is as objection However, we appellant raised since the has no grant transcript in appellee’s include this motion to pur- it for informative the record and have considered we only. poses hearing un- corpus the defendant stated
At the habeas religious a known a of sect der oath that he was member Tanzania, origin Ujamma, apparently in had as which religion based it Africa. characterized The defendant He social, political, and and beliefs. on economic for two of the faith been a member stated he had religion compelled years. his He further testified that any oppressors of his filaas before him to wear his op- country were people of this white that he felt the op- his people and that court was pressing the black compelled by his he was pressor, and therefore consequence, if, keep even as a head covered his belief gas that he be- go chamber. He stated he had to shine “nature let the sun nature lieved to be God * * anybody *.” As else just as it do on as hard on me weigh the already emphasized, the courts cannot have we theological citing the Prior to belief. merits judge in- contempt, trial made had the surrounding defen- quiry as to the circumstances may beliefs, espousal dant’s conversion and his insincere allegiances tenets to be to these have his found record we However, of the on the basis or bona fide. right to assume this. have good acting in indeed, is sincere
If the defendant keep head covered in that he must faith his belief Douglas, court, Mr. Justice in find the words of while we Sherbert, perti- supra, concurring most opinion in in his to be to me decision seems “The we have for nent : case though important.” 374 dimension, profoundly of small at 410. U. S. pay reversed, appellee to costs.
Order concurring: Barnes, J., result, decision I confine the
I in would concur Declaration of application Article of the to the Maryland regard Rights in to re Constitution ligious majority correctly that the observes freedom. The in Con of the Cantwell United States necticut, 84 L. Ed. 310 U. S. 60 S. Ct. impose provisions of did indeed
A.L.R. 1352
in re
the First Amendment of the Federal Constitution
gard
religion
al
to the free exercise of
States
legedly
process clause of the Fourteenth
under the due
States,
Supremacy
Clause
Amendment. The
under the
Article 2
State under
the Federal Constitution
this
Rights
Maryland
Declaration of
Constitu
*8
recognize
by
obligated
apply
decision
tion are
this
States;
Supreme
and we have
the
of the United
Eldership
Sharpsburg,
done
in Md. and Va.
v.
249
this
650,
(1968).
I
ex
156
eight
amendments to
Federal Constitution
the first
through
properly
applicable to
held
the States
are
(that
Amendment
Due Process
of the Fourteenth
Clause
only
being
portion
Amend-
Fifth
clause
one
itself
ment)
repeat
Bru-
those reasons here. See
and need not
City, 257 Md.
v.
Baltimore
kiewa
Police Commissioner of
Giles,
222,
;
36, 78,
(1970)
245
231
State v.
A. 2d
263
342, 660-669,
;
v.
(3967) Truitt
Md.
I wish to note that regard most my opinion I un- in to what believe be Indeed, by Supreme un- Court. fortunate error unfold, my opinion this re- happy error results of this gard confirmed. is the more deference, suggested also, that error be
I have with by return to more orthodox remedied Court’s Failing this, remedy the second doctrine. constitutional Congressional might either Ar- action under well be III, or under 2 of the Federal Constitution ticle Clause Amendment, Bru- itself. See Fourteenth Section City, supra, Baltimore v. Police Commissioner kiewa at Md. 263 A. 2d 231. at earnestly requires my public opinion, interest In remedy hope I the error be remedied. will pass. soon come to