The Niqabi Paralegal

I've been continuing to do some legal research, just to see this question through and because my love of legal research is why I'm studying to become a paralegal.

I mentioned in an earlier entry that there were two other cases "on point", meaning that they deal directly with the issue of non-photo driver's licenses and religious exemptions.

The first case is Bureau of Motor Vehicles of The State of Indiana v. Pentecostal House of Prayer, Inc, 269 Ind. 361 (1978). This is actually the earliest case on the issue that I've found. Like the other cases, it deals with a Christian who believed that photographs were graven images and didn't want a photo driver's license. The Indiana Supreme Court upheld this right.

One point is particularly interesting. The argument of those who oppose religious exemptions is that driving is a privilege, not a right. The Indiana Supreme Court responded to this issue:

The gist of this argument is that there is no "right" to drive in this state, rather, driving is merely a privilege. In other words, the state's position is that no First Amendment problem is raised where a citizen's free exercise right is brought into conflict with a mere privilege. This position was considered and expressly rejected by the United States Supreme Court in Sherbert v. Verner:

"Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege'. It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege"

Thus the trial court correctly found coercive state action in that the photograph requirement of the statute would operate to deny these appellees the ability to drive, regardless of whether this ability is characterized as a right or privilege

House of Prayer, supra at 368 (citations omitted, emphasis added)

I thought that was really interesting.

The other case on point is Dennis v. Charnes, 646 F. Supp. 158 (D. Colo. 1986). Once again, the plaintiff was a Christian who objected to photographs on the ground that they were graven images. The Colorado district court found for the plaintiff and granted him a religious exemption.

What's interesting about this case is that the first time the judge heard it, he found against the plaintiff. However, while the case was under appeal, the Jensen v. Quaring decision came out. The court of appeals therefore reversed the judge's original decision and remanded the case (sent it back to be re-heard). This time the judge found no difference between his case and Jensen. Therefore he found in favor of the plaintiff. In his decision, he discusses his change of position in a candid manner.

I had run a check of cases that cite Jensen and looked up those that were decided after 1990. Only one of these was related to photo identification. This is In re Miller, 252 A.D.2d 156 (N.Y. App. Div. 4th Dep't 1998). In this case it involved a law requiring pistol permit licenses to have photographs on them. The plaintiff was Amish (a very conservative Christian group) and like all the other plaintiffs, he objected to the photograph as a graven image (apparently many of the people who get so overheated about Sultana Freeman don't realize that all of the cases brought so far on this topic are about Christians not Muslims).

The New York court found against the plaintiff and said that he had to have a photograph on his pistol permit even if it went against his religion. The court closely followed Smith. The interesting point is that the court expressly distinguished between driver's licenses and pistol permits and said that its ruling only applied to pistol permits and therefore was not in conflict with the three driver's license cases. This was because the state's interest in regulating firearms is greater than its interest in regulating the operation of motor vehicles. The court said: Although the governmental interest in requiring photographs on a driver's license for identification purposes is not compelling enough to justify the burden placed on the driver's exercise of religious beliefs, the compelling governmental interest in enforcing criminal laws that involve both the possession and use of firearms and public safety by immediate photographic identification justifies the burden placed upon petitioner's exercise of religious beliefs

Miller, supra at 159, 160 (citations omitted).

So to the best of my knowledge no lower court has attempted to over-rule the right to take a religious exemption and get a non-photo driver's license. The only court that has looked at a related issue expressly declined to re-visit the issue of non-photo driver's licenses.

We'll have to wait and see if Florida will take that step.

Added: Law professor Eugene Volokh has some comments on the right versus privilege question.