US SUPREME COURT DECISIONS

On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, dissenting.

We depreciate the precedential weight of summary dispositions in our decisional process, expressly holding in Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), that such dispositions 'are not of the same precedential value as would be an opinion of this Court treating the question on the merits.' I would not require district courts, courts of appeals, and state courts to ascribe any greater precedential weight to summary dispositions than this Court does. Accordingly, I did not join the holding in Hicks v. Miranda, 422 U.S. 332, 344-345, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), that 'the lower courts are bound by summary decisions by this Court,' which requires state and lower federal courts to treat our summary dispositions of appeals as conclusive precedents regarding constitutional challenges to like state statutes or ordinances.

The Court of Appeals in this cace conscientiously followed the procedure mandated by Hicks. Faced with a claim that three appeals from state courts that had been dismissed by this Court 'for want of a substantial federal question' compelled rejection of petitioners' contentions that the Philadelphia ordinance in question violated the

Page 428 U.S. 913, 914

Federal Constitution,1 the Court of Appeals compared in detail the constitutional issues presented here and those presented in the jurisdictional statements filed in this Court in the three earlier cases. 524 F.2d, at 576. Hicks makes such analysis obligatory as a condition to reliance on a summary disposition. 422 U.S., at 345 n. 14, 95 S.Ct. 2281.2 Completion of this process satisfied the Court of Appeals that one or more of the earlier jurisdictional statements had presented to this Court constitutional claims addressed to massage parlor ordinances, like those addressed by petitioners to the Philadelphia ordinance, 'based upon equal, but reprehensible, treatment of both sexes; an invidiously discriminatory sexbased classification; an irrational exception in the ordinance for massage treatments given under the direction of a medical practitioner; unreasonable abridgement of the right to pursue a legitimate livelihood; and the irrebuttable presumption doctrine.' 524 F.2d, at 576 (footnotes omitted). Accordingly, the Court of Appeals, without expressing its own views on the merits of the constitutional contentions, but in compliance with the holding of Hicks, decided the constitutional questions adversely to petitioners solely and squarely upon the authority of Smith v. Keator, 419 [428 U.S. 913, 915]

Full Text of Opinion