Gingerich v. Commonwealth

382 S.W.3d 835, 2012 WL 5285697, 2012 Ky. LEXIS 175

• Court: Kentucky Supreme Court
• Decided: October 25, 2012
• Docket: Nos. 2011-SC-000379-DGE, 2011-SC-000380-DGE
• Status: Published

Opinions

Opinion of the Court by

Justice NOBLE.

The Appellants in these two cases, Zook et al. and Gingerich et al.,¹ have argued to this Court that KRS 189.820 unconstitutionally interferes with their freedom to practice their religion as required by their beliefs. The Commonwealth argues that the statute regulates safety on the public highways by requiring slow-moving vehicles to display a particular brightly colored emblem to warn of the vehicles’ slow speed. The Appellants, all members of the Old Order Swartzentruber Amish, claim that the bright orange-yellow of the requisite emblem and its triangular shape are at odds with their religious beliefs, and that forcing them to use the emblem interferes with them requirement to be plain and brightly displays the trinity, a symbol not adopted by the Amish.

Because we find that KRS 189.820 is a statute designed to protect the public and is not specifically targeted at preventing any religious practice, it is a statute of general applicability. The government need only establish a rational basis for the statute in order to pass constitutional muster.

Here, the lower courts found that common sense established that the bright col- or, reflective edge, and distinct shape of the slow-moving vehicle emblem required by the statute increased the visibility of the intended warning, both night and day, and was superior to the gray reflective tape proposed instead by Appellants, which only provides a protective warning at night. The lower courts, having established the requisite rational basis for the statute, were affirmed by the Court of Appeals, which is in turn affirmed.

I. Background

Before 2012,² Kentucky required that slow-moving vehicles whether “sold, leased, or rented” or “for use” on the public highways of Kentucky have a slow-moving vehicle emblem as standard equipment that was to be displayed both day and night when in operation. KRS 189.820. A slow-moving vehicle emblem (SMV emblem) “[cjonsists of a fluorescent yellow-orange triangle with a dark red reflective border as specified in American Society of Agriculture Engineers R276 or Society of Automotive Engineers J948 standards, or consisting of reasonably similar reflective qualities as specified in said standards.” KRS 189.810(2). Failure to display the emblem on a slow-moving vehicle was a misdemeanor, punishable only by a fine for $20 to $35. KRS 189.993(5).

Appellants, members of the Old Order Swartzentruber sect of the Amish religion, operated horse-and-buggy vehicles on Kentucky roadways during daylight hours without displaying the SMV emblem. They were stopped and ticketed for being in violation of the statute, and thereby ostensibly creating a road hazard. Nine different persons were stopped and ticketed, one on four different occasions.

Three of the defendants below — Jacob Gingerich, Emanuel Yoder, and Levi Zook — proceeded with a joint bench trial in Graves District Court. The remaining six, Menno Zook, David Zook, Eli Zook, Mose Yoder, Levi Hostetler, Jacob Ginge-rich and Danny Byler were tried jointly by a jury in Graves District Court.

The bench-trial defendants claimed that KRS 189.820 violated their constitutional rights to the free exercise of their religion under Sections 1 and 5 of the Kentucky Constitution.³ They were found guilty of violating the statute and fined the minimum amount, $20.00, by the trial court, which took into account that the defendants were conflicted between the law and their religious beliefs. The trial court also imposed court costs of $128, resulting in a total fine and costs of $148.00 each.

The trial court analyzed the conflict between the defendants’ stated religious beliefs and compliance with the statute’s requirement of displaying a SMV emblem based on there being a “compelling state interest” in promoting highway safety, which it held overcame the defendants’ free exercise of religion claims. The trial court found that since the violations occurred in the daytime, the bright color required by the statute for the SMV emblem served as an adequate warning to other drivers, and that since the gray reflective tape did not adequately fluoresce in daylight, the SMV emblem was the least restrictive alternative to provide for public safety. At least in terminology, the trial court applied the “strict scrutiny” standard of review to the statute.

The jury-trial defendants also argued that the statute violated their constitutional right under Sections 1 and 5 of the Kentucky Constitution in a pretrial motion to dismiss, which was denied. The case then went to trial before a jury. The defendants claimed in their defense that complying with the statute violated their religious beliefs, that they would be shunned by their religious community if they obeyed the statute, and that the silver reflective tape they were willing to use was the equivalent of the SMV emblem, a defense they claimed was supported by the language in the statute referencing materials of “reasonably similar reflecting qualities.” They offered no testimony about how this would compare in daylight. The jury rejected these defenses, and found the defendants guilty on all counts, and recommended a $25.00 fine. The trial court imposed the fine and costs.

Both the bench-trial defendants and the jury-trial defendants appealed to Graves Circuit Court.

As to the bench-trial defendants, the circuit court rejected “strict scrutiny” as the proper standard of review for the constitutionality of the statute, holding that the Kentucky Constitution was not more protective of the free exercise of religion than the United States Constitution was and thus offered no greater protection for the free exercise of religion than the federal courts allowed. The circuit court further noted that KRS 189.820 was not specifically enacted to prohibit the Old Order Swartzentruber Amish from practicing their religion, but rather was enacted as a law generally applicable to all slow-moving vehicles to promote public safety on the highways. The Graves District Court was affirmed, because its decision was appropriate under the “rational basis” standard of review.

As to the jury-trial defendants, the Graves Circuit Court recognized that the issues were the same as those in the appeal from the bench trial, and incorporated by reference its opinion in that case, affirming the Graves District Court jury verdict.

All the defendants filed motions for discretionary review with the Kentucky Court of Appeals, which were granted. That court rendered a unanimous opinion on June 3, 2011, resolving all the cases and affirming the Graves Circuit Court. The Court of Appeals agreed that the Kentucky Constitution does not offer more protection for religious freedom than the United States Constitution does, and found that the rational basis standard of review applied by the federal courts is the appropriate standard of review for Kentucky cases on laws of general applicability. Under that analysis, the Court of Appeals held that KRS 189.820 is a neutral law of general applicability enacted for the public welfare and does not impermissibly restrict religious practice. But that court did go further and analyzed the case under strict scrutiny and found that the statute passed that standard of review as well, which was more analysis than the cases called for, and could inevitably lead to confusion.

This Court granted discretionary review in order to clearly establish the standard of review for laws of general applicability, enacted for the common good, which only incidentally affect the practice of one’s religion.

II. Analysis

These cases present an opportunity for this Court to clarify what the Kentucky Constitution requires when a claim is made that a statute violates religious freedom by interfering with the practice of a religion. While we have recognized that the Kentucky Constitution may afford greater protection of individual rights than those prescribed by the United States Supreme Court,⁴ this Court has often stated regarding particular sections of the Kentucky Constitution that our state constitution offers no more protection than the same or similar section of the federal constitution. See, e.g., LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky.1996) (“Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.”); McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882, 894-95 (Ky.1981) (“Each of our four constitutions have qualified freedom of speech and press by responsibility for abuse of these liberties. Clearly these provisions were not intended to grant greater protection than the First Amendment to the federal constitution which antedated our first constitution adopted in 1792 by four months.”). We now state that this principle is also true of the free-exercise-of-religion protections in Section 1 and Section 5 of the Kentucky Constitution.⁵

It has been argued in these cases that the last sentence of Section 5 of the Kentucky Constitution, “No human authority shall, in any case whatever, control or interfere with the rights of conscience,” grants more protection to religious practice than the First Amendment of the United States Constitution. Certainly, the language in the Kentucky Constitution is more specific. But it is linguistically impossible for language to be more inclusive than that in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const, amend. I (emphasis added). “Free exercise” of religion arguably requires a government to not place restrictions on the religious practice.

But governments are required to do many other things as well, some of which may conflict with a particular religious pi'actice. In fact, Section 5 of the Kentucky Constitution, in its entirety, sets forth some of these things. Our state government may not give preference to any religious sect, society, denomination, creed, mode of worship or system of ecclesiastical polity. Our state government cannot compel religious attendance nor the participation in building or maintaining churches or paying ministers. Parents may not be compelled to send their children to schools which they conscientiously oppose. And no one can have his or her civil rights, privileges, or capacities taken away or enlarged because of religious belief.

But at times, varied religious beliefs come into conflict with one another. And the government is also charged with acting for the common good. As this Court’s predecessor previously stated in Lawson v. Commonwealth, 291 Ky. 437, 164 S.W.2d 972, 976 (1942):

Laws enacted for the purpose of restraining and punishing acts which have a tendency to disturb the public peace or to corrupt the public morals are not repugnant to the constitutional guaranties of religious liberty and freedom of conscience, although such acts may have been done pursuant to, and in conformity with, what was believed at the time to be religious duty. Without violating the constitutional guaranties, the state, under the police power, may enact laws in order to promote the general welfare, public health, public safety and order, public morals, and to prevent fraud.

In other words, the government is likely to be confronted with situations where the common good comes into conflict with the free exercise of a particular religion. But how does the government function when there are conflicting constitutional mandates?

Relying on precedent of the United States Supreme Court, this Court’s predecessor held that religious freedom has two components: freedom to believe and freedom to act. Mosier v. Barren County Board of Health, 308 Ky. 829, 833, 215 S.W.2d 967, 969 (1948) (citing United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944), and Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)); Lawson, 164 S.W.2d at 973 (citing the same cases). What one chooses to believe is an absolute freedom, which no power on earth can in reality arbitrate. Mosier, 215 S.W.2d at 969.

But, “in the nature of things,” freedom to act cannot be absolute in human society where beliefs and practices vary, and where a given practice, absolutely freely enacted, can inflict harm on others. Id. Thus religious conduct must remain subject to regulation for the protection of society. Id. Or stated another way, “the constitutional guarantee of religious freedom does not permit the practice of religious rites dangerous or detrimental to the lives, safety or health of the participants or to the public.” Id. (citing Lawson, 164 5.W.2d at 976).

As both our state and federal law have long held, then, government can act to restrict the free exercise of religion when that exercise is detrimental to the common good. But given the certain terms of the Kentucky and federal constitutions regarding interference with religious practice, there must be a burden the government meets before it can do so. Whether the governmental regulation is subject to a heightened level of review or whether it must merely meet a rational governmental purpose is determined by the action the government takes, why it is taking it, and how much the act restricts religious practice.

The federal courts have made a clear distinction. Those courts have determined that governmental acts done for the health, safety and welfare of the public, which are applied generally to everyone, need only have a rational basis even when they incidentally affect religious practice. See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

In Smith, the respondents were fired from their jobs at a private drug rehabilitation facility for ingesting peyote, a hallucinogenic drug prohibited by Oregon statute, as part of a religious ritual of the Native American Church, of which both were members. When they applied for unemployment compensation, their applications were denied on the grounds that they were fired for violating the law. They challenged the law on the grounds that it violated the Free Exercise Clause of the First Amendment of the United States Constitution. The United States Supreme Court held that “the First Amendment has not been offended” because “prohibiting the exercise of religion ... is not the object of the [statute] but merely the incidental effect of a generally applicable and otherwise valid provision.” Id. at 878, 110 S.Ct. 1595. Moreover, the Court held that government actions that substantially burden a religious practice need not be justified by a “compelling governmental interest,” so long as they are generally applicable. Id. at 884, 110 S.Ct. 1595.⁶

Subsequent United States Supreme Court cases that have cited Smith approvingly have stated that it stands for the proposition that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Though the Supreme Court has not expressly said so, the test for such statutes is the rational-basis test, e.g., Combs v. Homer-Center School Dist., 540 F.3d 231, 242-43 (3d Cir.2008), under which the statute is presumed to be constitutional and which provides that “ ‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,’ whether or not the basis has a foundation in the record.” Heller v. Doe by Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)).

But on the other hand, the U.S. Supreme Court has held that governmental acts that are directed specifically at restricting a given religious practice, and are thus not generally applicable, are subject to strict scrutiny. Church of Lukumi 508 U.S. at 531, 113 S.Ct. 2217. When a statute must pass the strict scrutiny standard of review, the government must establish a “compelling state interest” requiring the enactment, and that the method it applies in the statute is “narrowly tailored to advance that interest” (often referred to as the least restrictive alternative) before the statute can restrict the religious practice. Id. at 531-32, 113 S.Ct. 2217.

In Church of the Lukumi, the United States Supreme Court held that a city ordinance prohibiting animal sacrifice was an unconstitutional violation of the Free Exercise Clause because the ordinance was targeted at practitioners of the Sante-ría religion, and was therefore neither generally applicable nor neutral. The Court made clear that “[fjacial neutrality is not determinative” and that “[ojfficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt.” Id. at 535, 113 S.Ct. 2217. Thus, the city council had the burden of proving that it had a “compelling government interest” and that the ordinance was “narrowly tailored to achieving that interest,” burdens that the city council did not meet.

The distinction between the different levels of review has not been as clear in the decisions of this Court and its predecessor. The Kentucky courts have often found it difficult not to blend these levels of review, as Lawson and Mosier illustrate. Both cases are commonly viewed as using a strict scrutiny standard, but the cases blend some of the analysis.⁷ Thus, the question of the proper standard of review under the Kentucky Constitution remains open.

In Lawson, this Court reviewed a statute that specifically prohibited the 'use of snakes in a religious service. 164 S.W.2d at 972. Thus, the actual practice of religion was targeted by the statute. As noted above, when a statute is aimed at a particular religious practice, federal law requires that strict scrutiny be applied to the purpose of the statute, and the government is required to have a compelling interest to support the enactment, and the statute must be narrowly tailored to achieve the interest. See Church of the Lukumi, 508 U.S. at 546, 113 S.Ct. 2217. In Lawson, the Court focused primarily on public safety through prohibiting exposing citizens to venomous snake bites, clearly a compelling governmental interest, arid because of the potential for death, there really was no other alternative to the governmental regulation. Id. at 976. Though Lawson does not use the words, this meant the law was narrowly tailored. Thus Lawson is perceived as a strict scrutiny case, and since the statute actually prohibited a particular religious practice, that is the appropriate standard of review.

On the other hand, though also viewed as a case applying strict scrutiny, Mosier did not require it. The Board of Health had issued a regulation requiring all children to be vaccinated for smallpox, and any child who was not vaccinated was to be excluded from the city schools. 215 S.W.2d at 968. The evidence supported the public health concerns behind the regulations, and the regulations applied to all children. Id. Two fathers, Mosier and a man named Stuart stated several reasons why their children should not be vaccinated. Stuart specifically claimed that “his religious and conscientious belief prevented him from subjecting his children to vaccination by injecting foreign substances into the veins,” and that requiring him to have the children vaccinated thus violated Section 1 of the Kentucky Constitution. Id. at 969.

The Court cited Lawson as authority, but the facts establish a distinct difference. The regulation was not directed at a specific religious practice, but rather applied generally to all children, and any impact on religious practice was purely incidental. The regulation stood because there was a rational basis for enactment, which the Court specifically found: to stop the spread of a dangerous disease. Glasgow was located on a central travel artery with many soldiers coming home from Europe (World War II), and the traffic could spread the very contagious disease; vaccination was a sure preventive of the disease; and it was too late to vaccinate when an epidemic occurred. Id. at 968. The Court did not discuss whether this was the least restrictive alternative, and did not need to because the regulation had general applicability and was not aimed at a specific religious practice. Rather, the Court simply concluded that while religious beliefs could not be regulated, conduct could, and thus Stuart could “not endanger the health of the community by refusing to have his daughter vaccinated.” Id. at 969.

This Court now finds that statutes, regulations, or other governmental enactments which provide for the public health, safety and welfare, and which are statutes of general applicability that only incidentally affect the practice of religion, are properly reviewed for a rational basis under the Kentucky Constitution, as they are under the federal constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review. As discussed above, providing this clearer standard brings Kentucky’s jurisprudence in line with United States Supreme Court precedent.

Given the facts of this case, then which standard of review applies? Are KRS 189.820(1) and (2) constitutional?

KRS 189.820 is on its face most directly aimed at farm vehicles, rather than the Amish conveyance buggies, but clearly applies to all slow-moving vehicles on the public highways. The emblem standards specified refer to agriculture and motor vehicles. The statute is clearly a statute of general applicability, aimed at protecting public safety on the highways by requiring a brightly colored, reflective, universally shaped warning emblem. It does not prohibit any religious practice, and only incidentally impacts the Amish way of life because the Amish believe that they should generally travel in horse-drawn buggies. In fact, the record indicates some exceptions are made for vehicles driven by non-Amish persons. We need not debate whether this is a lifestyle choice or an actual religious choice. In either event, the statute is not aimed at slow-moving vehicles because they are a choice (or a religious practice), but rather because they are dangerous, in comparison to posted legal speeds on the highway. And, if a slow-moving vehicle is dark in color or is in deep shade, it is difficult to see whether it is an Amish buggy or a dusty combine.

The slow-moving buggies of the Appellants that did not display the SMV emblem, or any other warning mechanism, presented the potential harm the statute was enacted to counter, and the vehicles are regulated on the public highways because they are slow, not because they are a religious choice. Since the Kentucky Constitution provides no greater protection to religious practice than the federal Constitution does, this Court will follow federal precedent, and thus the statute is presumed constitutional unless there is no rational basis for it. But there is ample rational basis for such a statute: it is aimed at public general safety, and works toward that goal in several ways (e.g., by using a universal symbol, increasing visibility over vehicles without the emblem). Thus, this Court finds that KRS 189.820 meets the rational basis standard of review and is thus not unconstitutional. Appellant’s convictions and penalties must stand.

III. Conclusion

The opinion of the Court of Appeals is affirmed.

All sitting. MINTON, C.J.; CUNNINGHAM and SCHRODER, JJ„ concur. VENTERS, J., concurs in result only by separate opinion. SCOTT, J., dissents by separate opinion in which ABRAMSON, J., joins.

1 . Though these are technically separate cases, they have identical legal issues and thus are being resolved in a single opinion.

2 . These statutes were amended in 2012 to change the requirements for slow-moving vehicles. See 2012 Ky. Acts ch. 53, §§ 1-3.

3 . None of the defendants raised a claim based on the federal constitution.

4 . In Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.1992), this Court held that it is "not bound by decision of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution as interpreted by the United States Supreme Court.” Id. at 492 (citing Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975)). In fact, Wasson read the Kentucky Constitution as providing greater equal protection rights than the federal courts had, at that time, read in the United States Constitution. Id. at 492-93. Other decisions have read portions of the Kentucky Constitution more broadly than the federal constitution has been read. See, e.g., Baucom v. Commonwealth, 134 S.W.3d 591, 592 (Ky.2004) (recognizing that Section 11 of the Kentucky Constitution affords greater protection than the federal constitution because it guarantees "hybrid representation” for an accused).

5 . Section 1 states, in relevant part: "All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned ... [t]he right of worshipping Almighty God according to the dictates of their consciences.”

Section 5 states:

No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of-his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.

6 . Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993 as a response to the Court's holding in Smith. The RFRA, enacted pursuant to Congress’ power under Section 5 of the Fourteenth Amendment, responded to Smith by expressly requiring the government to demonstrate that a statute burdening a religion is "(1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-l(c) (1993). In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court declared RFRA unconstitutional as applied to the states. However, the RFRA, as subsequently amended, has been upheld as valid as applied to the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). Therefore, the Court’s holding in Smith remains good law with respect to the states.

7 . It is important to note that this Court is not suggesting that Lawson and Mosier were incorrect applications of federal precedent. Placing the cases in their historical contexts demonstrates that the highest court in Kentucky would have had no reason to pay mind to whether the cases required strict scrutiny or rational basis review because those notions were not clearly established or quantified in the 1940s. The notion of a heightened standard of review was not introduced until 1938 in the infamous Footnote 4 of United States v. Carotene Products, 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), a mere four years before Lawson. Importantly, Footnote 4 did not elucidate what the heightened standard was; it merely introduced the notion that statutes burdening certain fundamental rights require more scrutiny than other statutes. It was not until 1944, two years after Lawson and only four years before Mosier, that the Supreme Court first acknowledged the specific standard of "strict scrutiny" in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). In that case, Justice Black wrote, "It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” Id. at 216, 65 S.Ct. 193. This historical context demonstrates that today's opinion is neither a criticism nor a departure from prior jurisprudence; rather, it is a long-needed clarification of the question of which standard of review should apply to these situations.