Opinion No. 25-73

"May the Department of Revenue refuse to issue a motor vehicle operator's license to a person whose religious beliefs preclude his submission to the taking of a photograph of the licensee as required by Sec. 302.181, RSMo, but who otherwise satisfies all requirements for the issuance or renewal of a motor vehicle operator's license."

"1. The chauffeur's license and motor vehicle operator's license issued under the provisions of this chapter shall be in such form as the director shall prescribe but the license shall be a card made of plastic or other comparable material. All licenses shall bear the licensee's social security or tax identifying number, if the licensee has one, and if not, then a number assigned to the licensee by the director, the expiration date of the license, the name, date of birth, residence address, and a brief description and colored photograph of the licensee, and either a facsimile of the signature of the licensee or a space upon which the licensee shall write his usual signature with pen and ink immediately upon receipt of the license. No license shall be valid until it has been so signed by the licensee. .

"2. All film involved in the production of photographs for chauffeur's license and motor vehicle operator's license shall become the property of the department of revenue.

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The department of revenue may issue a temporary license without the photograph to out-of-state applicants, members of the armed forces, and in those situations where for any other reason the department finds it necessary; provided, however, where such temporary license is issued it shall be valid only until the applicant shall have had time to appear and have his picture taken and a license with his photograph issued." (Emphasis added).

"Pursuant to Section 302.181, to obtain a motor vehicle operator's license, all licensees are required to have their photograph taken. A settlement of Amish Mennonites in the Polk and Dallas County areas believe that it is contrary to God's will for them to have their picture taken. They base their belief on the following scripture:

"Thus, unless some exception is made on religious grounds, it will not be possible for this group to legally operate their automobiles. "

"We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin's compulsory school attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forebears have adhered to for almost three centuries. In evaluating those claims we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a 'religious' belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has. important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claim would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clause." Wisconsin v. Yoder, 32 L.Ed.2d 15, 25.

"Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State's control, but it argues that 'actions,' even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that' activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. See, e.g., Gillette v United States, 401 US 437, 28 L Ed 2d 168, 91 S Ct 828 (1971); Braunfeld v Brown, 366 US 599, 6 L Ed 2d 563, 81 S Ct 1144 (1961); Prince v Massachusetts, 321 US 158, 88 L Ed 645, 64 S Ct 438 (1944); Reynolds v United States, 98 US 145, 25 L Ed 244 (1878). But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. E.g., Sherbert v Verner, 374 US 398, 10 L Ed 2d 965, 83 S Ct 1790 (1963); Murdock v Pennsylvania, 319 US 105, 87 L Ed 1292, 63 S Ct 870, 146 ALR 81 (1943); Cantwell v Connecticut, 310 US 296, 303-304, 84 L Ed 1213, 1217, 1218, 60 S Ct 900, 128 ALR 1352 (1940). This case, therefore, does not become easier because respondents were convicted for their 'actions' in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. Cf. Lemon v Kurtzman, 403 US 602, 612, 29 L Ed 2d 745, 755, 91 S Ct 2105 (1971)." Wisconsin v. Yoder, 32 L.Ed.2d 15, 27-28.

"Nor can this case be disposed of on the grounds that Wisconsin's requirement for school attendance to age 16 applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion, or that it is motivated by legitimate secular concerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. Sherbert v Verner; cf. Walz v Tax Comm., 397 US 664, 25 L Ed 2d 697, 90 S Ct 1409 (1970). The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values... promoted by the right of free exercise. ." Wisconsin v. Yoder, 32 L.Ed.2d 15, 28.

"We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For '[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.' Braunfeld v Brown, supra (366 US at 607). Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forgo that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." Sherbert v. Verner, 10 L.Ed.2d 970-971.

"The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v Connecticut, 310 US 296, 303, 84 L ed 1213, 1217, 60 S Ct 900 128 ALR 1352. Government may neither compel affirmation of a repugnant belief, Torcaso v Watkins, 367 US 488, 6 L ed 2d 982, 81 S Ct 1680; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 US 67, 97 L ed 829, 73 S Ct 526; . . . On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for 'even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions.' Braunfeld v. Brown, 366 US 599, 603, 6 L ed 2d 563, 566, 81 S Ct 1144. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 US 145, 25 L ed 244; Jacobson v. Massachusetts, 197 US 11, 49 L ed 643, 25 S Ct 358; Prince v Massachusetts, 321 US 158, 88 L ed 645, 64 S Ct 438; Cleveland v United States, 329 US 14, 91 L ed 12, 67 S Ct 13." Sherbert v. Verner, 374 U.S. 398, 402-403, 10 L.Ed.2d 965, 969-970, 83 S.Ct. 1790 (1963).

". . . It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, '[o]nly.the gravest abuses, endangering paramount interests, give occasion for permissible limitation,' . . ." Sherbert v. Verner, 374 U.S. 398, 406.