STATE v. HERSHBERGER No. C9-88-2623.
462 N.W.2d 393 (1990)
STATE of Minnesota, Respondent, v. Eli A. HERSHBERGER, et al., Appellants.
Supreme Court of Minnesota.
November 9, 1990.
Philip G. Villaume, Philip G. Villaume & Associates, St. Paul, and Joseph L. Daly, Howard J. Vogel, St. Paul, for appellants.
Robert R. Benson, Fillmore County Atty., Preston, and Matthew J. Opat, Asst. Fillmore County Atty., Chatfield, for respondent.
David L. Bishop, Oppenheimer, Wolff & Donnelly, and Judith Cook, Minneapolis, for amicus.
Heard, considered and decided by the court en banc.
POPOVICH, Chief Justice.
The facts of this case are reported in Minnesota v. Hershberger, 444 N.W.2d 282 (Minn.1989) (Hershberger I). On appeal of that decision to the United States Supreme Court, certiorari was granted, the judgment was vacated, and the case was remanded to this court for reconsideration in light of the decision in Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. ___, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (Smith II). Minnesota v. Hershberger, 494 U.S. ___, 110 S.Ct. 1918, 109 L.Ed.2d 282 (1990). By order dated June 8, 1990, we required the parties to address two issues:
At the outset, we must address the state's request that this court reconsider our findings in Hershberger I, that the Amish appellants hold a sincere religious belief which forbids use of the SMV symbol, and that a less restrictive alternative to use of the symbol exists. While it is true that the United States Supreme Court's vacation of Hershberger I leaves that decision without force or effect, Threlkeld v. Robbinsdale Fed'n of Teachers, Local 872, AFL-CIO, 316 N.W.2d 551, 552 (Minn.), appeal dismissed, 459 U.S. 802, 103 S.Ct. 24, 74 L.Ed.2d 40 (1982), the record before us remains as it was when we found the Amish appellants to have demonstrated a personal sincere religious belief in conflict with the SMV statute and the state to have failed to demonstrate that use of silver reflective tape in conjunction with lighted red lanterns does not constitute a less restrictive alternative to the SMV symbol. Hershberger I, 444 N.W.2d at 287, 289.
Reconsideration of these issues would be proper if the Supreme Court had
While the practical application of Smith II remains to be seen, the Supreme Court appears to have significantly changed first amendment free exercise analysis. The Smith II court held a law of general application, which does not intend to regulate religious belief or conduct, is not invalid because the law incidentally infringes on religious practices. This holding apparently does away with the traditional compelling state interest test for laws burdening the exercise of religion standing alone. 494 U.S. at ___, 110 S.Ct. at 1599-1603. The Smith II court limited the compelling state interest test used by this court in Hershberger I to claims involving not the free exercise clause alone, but free exercise in conjunction with other constitutional protections. Id. at ___, 110 S.Ct. at 1601. These so called "hybrid" cases involve free exercise claims that touch on other constitutional protections ranging from parental rights, e.g., Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), to freedom of speech and press. E.g., Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Section 169.522 does not intend to regulate religious conduct or belief. Accordingly, under the first amendment free exercise clause as now interpreted by Smith II, whether the compelling state interest test is applicable apparently depends on whether requiring the Amish to comply with the SMV statute infringes on rights other than the free exercise of religion.
To establish a hybrid case under Smith II, appellants argue the compelled use of the SMV symbol touches on freedoms of assembly, speech, travel and particularly, freedom of association. The Amish community demonstrates the attributes of those associations traditionally deserving constitutional protection. The Amish community embodies "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." Roberts v. United States Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 3250, 82 L.Ed.2d 462 (1984). The United States Supreme Court has recognized that religious practices of the Amish "pervade and determine the entire mode of life of * * * adherents." Yoder, 406 U.S. at 210, 92 S.Ct. at 1530. Buggy and other slow moving vehicle transportation is an integral part of the Amish communal life and worship, so that a statute infringing on such transportation impairs associational freedoms.
While there might be merit in deciding the case and affirming Hershberger I based on associational freedoms also infringed by the statute, thereby distinguishing Smith II, we decline to do so. It is unnecessary to rest our decision on the uncertain meaning of Smith II when the Minnesota Constitution alone provides an
We address now the issue we reserved for another day in Hershberger I: whether Minn.Stat. § 169.522, when applicable to these appellants, violates rights protected by article I, section 16 of the Minnesota Constitution. 444 N.W.2d at 284. Section 16 states:
Minn. Const. art. I, § 16 (emphasis added). This language is of a distinctively stronger character than the federal counterpart, which states only that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." U.S. Const. amend. I. Whereas the first amendment establishes a limit on government action at the point of prohibiting the exercise of religion, section 16 precludes even an infringement on or an interference with religious freedom. Accordingly, government actions that may not constitute an outright prohibition on religious practices (thus not violating the first amendment) could nonetheless infringe on or interfere with those practices, violating the Minnesota Constitution. Commentators have noted "the state Bill of Rights expressly grants affirmative rights in the area of * * * religious worship while the corresponding federal provision simply attempts to restrain governmental action." Fleming & Nordby, The Minnesota Bill of Rights: "Wrapt in the Old Miasmal Mist", 7 Hamline L.Rev. 51, 67 (1984).
Section 16 also expressly limits the governmental interests that may outweigh religious liberty. Only the government's interest in peace or safety or against acts of licentiousness will excuse an imposition on religious freedom under the Minnesota Constitution. Conversely, the free exercise clause of the first amendment has been interpreted to allow varied government interests to justify such an imposition. See, e.g., Bowen v. Roy, 476 U.S. 693, 707, 106 S.Ct. 2147, 2156, 90 L.Ed.2d 735 (1986) (interest in avoiding case by case inquiries in administration of social security benefits outweighs religious freedom); Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (military's interest in uniformity and discipline outweighs individual's interest in wearing yarmulke). Because section 16 precludes an infringement on or an interference with religious freedom and limits the permissible countervailing interests of the government, Minnesotans are afforded greater protection for religious liberties against governmental action under the state constitution than under the first amendment of the federal constitution.
The state argues that by expressly including public safety as a restriction on exercise of religious freedoms, section 16 requires us to deny an exemption from the SMV statute for the Amish. The relevant provision of section 16 states:
Minn. Const. art. I, § 16. Rather than a blanket denial of a religious exemption whenever public safety is involved, only religious practices found to be inconsistent with public safety are denied an exemption. By juxtaposing individual rights of conscience with the interest of the state in public safety, this provision invites the court to balance competing values in a manner that the compelling state interest test we relied on in Hershberger I ably articulates: once a claimant has demonstrated a sincere religious belief intended to be protected by section 16, the state should be required to demonstrate that public safety cannot be achieved by proposed alternative means. Hershberger I, 444 N.W.2d at 288-89.
This analysis is similar to that applied to the claim for religious freedom based jointly on federal and state constitutional protection in State v. Sports & Health Club, 370 N.W.2d 844 (Minn.1985). While we did not expressly base our decision in Sports & Health Club on section 16 grounds, we held an exemption from the state Human Rights Act was not required, notwithstanding that sincere religious beliefs were burdened by the Act, because the state had a compelling interest in prohibiting discrimination and no less restrictive alternative existed. 370 N.W.2d at 853; see also State v. French, 460 N.W.2d 2 (Minn.1990) (plurality) (exemption based on religious grounds required under Minnesota Constitution unless state demonstrates compelling and overriding state interest in statutory purpose and in refusing to grant exemption). Thus, while the terms "compelling state interest" and "least restrictive alternative" are creatures of federal doctrine, concepts embodied therein can provide guidance as we seek to strike a balance under the Minnesota Constitution between freedom of conscience and the state's public safety interest.
Religious liberty is a precious right. The Preamble to the Constitution of the State of Minnesota states:
Minn. Const. preamble (emphasis added). The framers thus acknowledged religious liberty as coequal with civil liberty. The history of the adoption of the constitution indicates the importance of individual rights to the framers. See Fleming & Nordby, supra, at 70-71. This court has long recognized that individual liberties under the state constitution may deserve greater protection than those under the broadly worded federal constitution. See, e.g., State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985) (double jeopardy clause); Wegan v. Village of Lexington, 309 N.W.2d 273, 281 n. 14 (Minn.1981) (equal protection); O'Connor v. Johnson, 287 N.W.2d 400, 405 (Minn.1979) (rights of criminally accused); State v. Oman, 261 Minn. 10, 21-22, 110 N.W.2d 514, 522-23 (1961) (due process); Davis v. Pierse, 7 Minn. 1, 6-7 (Gil. 1) (1862) (rights of criminally accused). Specifically as to individual religious freedom, a plurality of this court in French recognized that the early settlers of this region were of varied sects, may have endured religious intolerance in their native countries and were thus sensitive to religious differences among them. French, 460 N.W.2d at 9-10. This history supports a broad protection for religious freedom in Minnesota.
The interest in public safety is also fundamental, and serves as a rationale for the very formation of our state government. Article I, section 1 of the Minnesota Bill of Rights establishes, "Government is instituted for the security, benefit and protection of the people * * *." Minn. Const. art. I, § 1. Protection of public safety has long been understood to include control over the public highways, roads and streets of the state. See State v. Edwards, 287 Minn. 83, 86, 177 N.W.2d 40, 42-43 (1970).
The record in this case demonstrates an important attribute of the balancing test we adopt today for purposes of analyzing article I, section 16 of the Minnesota Constitution. The state's interest in public safety cannot be disputed. Merely because public safety is articulated as a competing interest in section 16, however, does not establish that interest as paramount. To infringe upon religious freedoms which this state has traditionally revered, the state must demonstrate that public safety cannot be achieved through reasonable alternative means. It may be that a claim for a religious exemption from public safety laws will seldom prevail over the state's strong interest in protecting the lives of its citizens. Today we hold only that the state has failed to provide a record which demonstrates that both values embodied in section 16, freedom of conscience and public safety, cannot be achieved through use of white reflective tape and a lighted red lantern.
The decision of the trial court denying the motion of these appellants to dismiss all pending charges is vacated, and those charges are hereby dismissed.
SIMONETT, Justice (concurring).
I join the court's opinion. Because this is the first occasion where our court has considered its liberty of conscience clause in any detail, aside from the plurality opinion in State v. French, 460 N.W.2d 2 (Minn. 1990), I should like to add an observation or two.
Article I, Section 16 of our constitution appears to have originated from quite similar clauses in the early constitutions of states along the eastern seaboard, such as New York's Constitution of 1777.
Section 16 reads in part:
Arguably, Section 16 protects only expressions of belief and opinion and is no more than a free speech clause. There is no mention in the foregoing clause of religious practices or the free exercise of religion. Section 16 speaks, however, of the right "to worship God" according to the dictates of one's conscience; and the words "to worship," if read within their historical context, surely must mean the practice of one's religion. See M. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv.L.Rev. 1409, 1459 (1990).
After stating that no preference is to be given by law to any religious establishment or mode of worship, Section 16 goes on,
This "peace or safety" provision also appears in various formulations in some of the older state constitutions,
As the court's opinion states, our "peace and safety" clause invites the traditional First Amendment balancing test to reconcile public safety on the highways with Amish religious practices. (Maj. op. at 397.) It seems to me, too, that Section 16's emphasis on "the dictates of [one's] own conscience" is consistent with a "sincerely held religious belief," as the United States Supreme Court has employed that phrase in construing the First Amendment; indeed, if anything, the Section 16 language is more emphatic.
There is much to be said in construing Section 16 in harmony with the nation's First Amendment whenever that is possible and appropriate.
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