You Better Smith When You Say "cheese!": Whether the Photograph Requirement for Drivers' Licenses Violates the Free Exercise Clause of the First Amendment - Lauren N. Harris

• Citation: Vol. 61 No. 2
• Publication year: 2010

Comment

You Better Smile When You Say "Cheese!": Whether the Photograph Requirement for Drivers' Licenses Violates the Free Exercise Clause of the First Amendment

All fifty states require that a licensee's photograph be included on his or her driver's license.¹ While many people willingly comply with the photograph requirement and say "Cheese!" without complaint, the photograph requirement presents an obstacle to others that may in fact prevent them from obtaining valid drivers' licenses even though they are otherwise qualified. The photograph requirement causes a problem when an applicant for a driver's license has religious beliefs that forbid the taking of his or her photograph. An applicant is faced with the dilemma of following his or her religious beliefs or obtaining a valid driver's license in both of the following situations: (1) when the applicant adheres to a particular religion that prohibits the taking of his or her photograph, or (2) when the applicant believes that being photographed is against his or her religion even though this belief is not shared by others. Recognizing this lose-lose choice that some people face, some states—but not all—allow exceptions to the photograph requirement and issue valid drivers' licenses notwithstanding the fact that the licensees' photographs are not taken.²

In some of the states that have not granted exceptions to the photograph requirement for applicants with religious objections, courts have addressed whether the photograph requirement violates the Free Exercise Clause ofthe First Amendment to the United States Constitu-tion³ or their respective state constitutions.⁴ Some of these courts have held that the challenged statutes are unconstitutional infringements into the plaintiffs' free exercise of religion and have required that the states grant exceptions to the plaintiffs who challenge them.⁵ Other courts have upheld the challenged statutes after declaring that the states' alleged interests should prevail over any intrusions the statutes make into the plaintiffs' free exercise of religion.⁶ When the court determines whether to uphold the challenged statute, the context in which the case is decided appears to be of extreme importance in explaining the government's interest and whether such interest is sufficient to allow an intrusion into the plaintiff's free exercise ofreligion. In particular, cases decided since the terrorist attacks on the United States on September 11, 2001, focus on the identification purpose served by the photograph requirement and how it aids airport security and prevents future terrorist attacks.⁷ In light of these new found public safety concerns, courts throughout the United States analyze cases decided after September 11 differently from the cases decided before September 11.

In Section I, this Comment traces the rather complex history of the Free Exercise Clause and explains the current law. In Section II, this Comment discusses the cases from various jurisdictions throughout the United States that have considered whether the photograph requirement on drivers' licenses violates the Free Exercise Clause. In Section III, this Comment considers the relevancy of the context in which the case is decided in explaining the government's interest and whether such interest is sufficient to allow an intrusion into the plaintiff's free exercise of religion. Of particular importance in Section III is a discussion of how the terrorist attacks of September 11, 2001, may have affected the courts' evaluation of state interests in photographing licensees. In Section IV, this Comment concludes with an analysis of the potential impact of post-September 11 safety concerns on future cases involving First Amendment challenges.

I. History of the Free Exercise Clause

A. Extent of Application

The First Amendment to the united States Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."⁸ The emphasized clause, which is the focus ofthis Comment's constitutional analysis, is commonly referred to as the Free Exercise Clause.⁹ The united States Supreme Court efficiently summarizes the protection provided by the Free Exercise Clause as follows: "The Free Exercise Clause commits government itself to religious tolerance, and . . . [l]egislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices."¹⁰ Importantly, the protection of the Free Exercise Clause does not apply solely to acts of Congress (even though the Clause's explicit language may cause one to think otherwise) because the Fourteenth Amendment to the united States Constitution¹¹ makes the Clause applicable to state legislation as well.¹² As a result, both Congress and state legislatures are prohibited from enacting legislation that amounts to religious persecution.¹³

In Reynolds v. United States,¹⁴ the Supreme Court first considered the impact of the Free Exercise Clause and whether it allows a person to circumvent the established law on the basis that his or her religious beliefs are contrary to what the law requires or forbids.¹⁵ While discussing the extent to which the legislature may intrude into one's religion, the Court noted that the legislature may interfere with religious practices but not religious beliefs.¹⁶ Therefore, one is free to believe whatever he or she chooses, and the government cannot reward or punish him or her for doing so.¹⁷ To protect society, however, the government may regulate one's religious practices.¹⁸ Based on this reasoning, the Court held that one violates the established law when he or she does not comply with a law interfering with his or her religious practices due to his or her religious beliefs.¹⁹ To hold otherwise, the Court believed, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."²⁰

B. Evolution of the Proper Test for Free Exercise Challenges

1. Sherbert v. Verner: Introduction of the Strict Scrutiny Test.

In the cases following Reynolds, the Court considered whether challenged laws violated the Free Exercise Clause by unlawfully intruding into religious beliefs but did not initially set forth an explicit test for making such determinations.²¹ In fact, the Court did not articulate a specific test until 1963.²² During that year, in Sherbert v. Verner,²³ the Court ruled that all laws allegedly violating the Free Exercise Clause had to be analyzed under the strict scrutiny test.²⁴ Under the strict scrutiny test, laws substantially burdening the free exercise of religion are upheld only if: (1) the government has a compelling interest that the challenged law helps attain, and (2) there are no alternatives to the challenged law that would intrude less into one's free exercise of religion.²⁵

In order to prevail under the strict scrutiny test, a plaintiff must first plausibly assert that he or she objects to a law due to his or her religious beliefs.²⁶ Next, he or she must show that enforcement ofthe challenged law substantially burdens the free exercise of his or her religion.²⁷

To make this showing, the plaintiff must first plausibly assert that he or she has sincere religious beliefs.²⁸ The first step of this inquiry is a consideration of whether the plaintiff's beliefs are religious.²⁹ "Although a religious beliefrequires something more than a purely secular philosophical or personal belief, courts have approved an expansive definition of religion."³⁰ The second step of this inquiry is a consideration of whether the plaintiff sincerely holds the beliefs.³¹ Notably, the sincerity of the plaintiff's beliefs is often not disputed by the parties because the government normally stipulates that the plaintiff's beliefs are sincere.³² In the rare instances in which the parties dispute the plaintiff's sincerity, there is no judicial determination regarding whether his or her religious beliefs are in fact true because such a question is beyond the powers of the court.³³ Rather, the focus of the analysis is whether the plaintiff appears to believe what he or she professes to believe.³⁴ The plaintiff may prove this by explaining the precepts of his or her professed faith and demonstrating that he or she follows its mandates in his or her daily life.³⁵

Once the plaintiff plausibly asserts the sincerity of his or her religious beliefs (or the sincerity is stipulated by the government), the plaintiff must then prove that the challenged law causes a substantial burden on his or her free exercise of religion.³⁶ The plaintiff may prove this by demonstrating either of the following: (1) the challenged law pressures him or her to violate his or her religious beliefs in order to obtain an important state benefit,³⁷ or (2) the challenged law compels the plaintiff to violate his or her religious beliefs.³⁸ An example of a challenged law pressuring one to violate his or her religion may be found in Sherbert. The plaintiff in Sherbert, a member of the Seventh-day Adventist Church, satisfied her burden by proving that the state statute setting forth the eligibility requirements for unemployment compensation forced her to choose between receiving the government benefit or violating her religious belief regarding the acceptability of Saturday work.³⁹ Although the state statute did not compel the plaintiff to forego her Saturday worship, the Court stated that the resultant ineligibility for unemployment compensation pressured the plaintiff to violate her religious belief.⁴⁰ An example of a challenged law compelling one to violate his or her religion may be found in Wisconsin v. Yoder.⁴¹ In Yoder members of the Amish religion satisfied their burden by proving that the state statute requiring children to attend school until reaching the age ofsixteen compelled them, under the threat ofcriminal sanction, to violate their religious belief...