IN THE SUPREME COURT OF ALABAMA
Case No. 2971313
********************************************************
SCOTT McDONALD, as next
friend for and on behalf of his sons,
CHRISTOPHER McDONALD and
NATHAN McDONALD,
Petitioners,
v.
ALABAMA DEPARTMENT OF
PUBLIC SAFETY,
Respondent.
********************************************************
PETITION FOR WRIT OF CERTIORARI
TO THE ALABAMA COURT OF CIVIL APPEALS
WITH SUPPORTING BRIEF
********************************************************
Lowell H. Becraft, Jr.
Attorney for McDonald Appellants
209 Lincoln Street
Huntsville, AL 35801
July 30, 1999
**********************
IN THE SUPREME COURT OF ALABAMA
SCOTT McDONALD, as
next
)
friend for and on
behalf
)
of his sons,
)
CHRISTOPHER McDONALD
and
)
NATHAN McDONALD,
)
)
Appellants,
)
)
v.
) Case
No. 2971313
)
ALABAMA DEPARTMENT
OF
)
PUBLIC SAFETY,
)
)
Appellee.
)
TO THE SUPREME COURT OF ALABAMA:
Come now your Petitioners, Scott McDonald and his sons, Nathan and Christopher, and petition this Court for a Writ of Certiorari to issue to the Alabama Court of Civil Appeals in the above styled cause under Rule 39, Ala.R.A.P. As grounds herefor, the Petitioners show the following:
1. Scott McDonald is the father of the minor children involved in this case, Christopher and Nathan McDonald. All 3 of these individuals believe that the federal social security number is the "Mark of the Beast" as mentioned in the Bible's Book of Revelation and Scott refuses to obtain such numbers for his minor sons, who likewise have no intentions of acquiring such a number. However, Appellee Alabama Department of Public Safety adopted in February, 1996, an administrative regulation, Regulation 760-X-1-.19, Ala. Admin. Code, requiring all applicants for Alabama driver licenses to submit their federal social security numbers as a condition precedent to the issuance of driver licenses.
In January, 1998, the McDonalds sued the Department seeking a declaratory judgment regarding the validity of the above mentioned regulation as well as an injunction against its enforcement. On July 24, 1998, Circuit Judge William Gordon of Montgomery granted summary judgment in favor of the Department; notice of appeal was thereafter timely filed by the McDonalds. On April 9, 1999, the Alabama Court of Civil Appeals rendered its judgment in this appeal affirming the decision of the circuit court. The McDonalds timely filed on April 20, 1999, a Rule 39(k) Motion as well as an Application for Rehearing, both of which were denied on July 16, 1999.
2. A copy of the opinion of the Court of Civil Appeals is attached to this petition which shows the case number of this appeal as No. 2971313.
3. Petitioners allege as grounds for the issuance of the writ the following:
A. One of the bases for this petition for the writ is that a material question requiring decision was one of first impression in the appellate courts of Alabama and was incorrectly decided. The issue is whether the Court of Civil Appeals erred in holding that the Department's Regulation 760-X-1-.19 does not violate the McDonalds' federal constitutional right to freely exercise their religious beliefs.
In Employment Division, D.H.R. of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990), the U.S. Supreme Court restricted most litigation involving "free exercise" claims based upon the First Amendment. However, this case established a new rule which still allows such claims to move forward: if rights other than that of "free exercise" are also being abridged, the claim is valid; see also Thomas v. Anchorage Equal Rights Commission, 165 F.3d 692, 705 (9th Cir. 1999). Here, the McDonalds clearly possessed other federal and state constitutional rights which are being violated by the offending regulation, yet the Court of Civil Appeals either ignored or did not address these other rights. But for this error, the McDonalds were entitled to judgment in their favor.
Not only was the decision of the Court of Civil Appeals erroneous, it decided an issue of first impression in Alabama as this issue has never been litigated (outside of this case) here in Alabama. This question is not only of first impression, it is also of constitutional significance.
B. Another of the bases for this petition for the writ is that the decision of the Court of Civil Appeals is in conflict with a prior decision of this Court on the same point of law. In its decision, the Court of Civil Appeals held as follows at pages 13-14:
C. A third basis for this petition is that the Court of Civil Appeals held Regulation 760-X-1-.19 valid notwithstanding the fact that no Alabama law forms the basis for the rule and an unconstitutional federal law cannot be the basis for this rule. The issue is whether the Court of Civil Appeals erred in holding the rule valid and having a statutory basis.
The Court of Civil Appeals held this rule valid as being based upon an Alabama law which only allows the Department to issue regulations. But this Court held in Jefferson County v. Alabama Criminal Justice Inform. Center Comm., 620 So.2d 651, 658 (Ala. 1993), that a statute authorizing an agency to make rules was insufficient to support the challenged rule: "The rulemaking powers found in §41-9-594 cannot be read so as to make cities and counties financially responsible for funding ACJIC ... an administrative agency is purely a creature of the legislature and has only those powers conferred upon it by the legislature"). But further, the Court of Civil Appeals also found that a federal law, 42 U.S.C., §666, constituted statutory authority for this rule. This federal law by its plain terms applies to the states of this Nation as states, and purports to impose mandatory obligations upon the State of Alabama. However, it has been recently held in a series of cases that Congress lacks such power to impose its will upon the states; see Printz v. United States, ___ U.S. ___, 117 S.Ct. 2365 (1997); Condon v. Reno, 155 F.3d 453, 458 (4th Cir. 1998)("Congress may not enact any law that would direct the functioning of the States' executives and legislatures"); and Pryor v. Reno, 171 F.3d 1281 (11th Cir. 1999). Based on this authority, §666 is unconstitutional and may not be held as valid authority for the challenged regulation. But without a valid statutory basis, the rule in question is void and the Court of Civil Appeals erred by failing to follow this precedence.
D. The final basis for this petition for the writ is that the Court of Civil Appeals held this rule valid even though it violates principles of equal protection. When a law creates different classes to which it does and does not apply, those classes must be reasonable, rational and related to the purpose of the law; see Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254 (1971)(the equal protection clause denies "to States the power to legislate that different treatment be accorded persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation'").
Rule 760-X-1-.19 discriminates between those who have social security numbers and those who don't, and only permits those with social security numbers to obtain Alabama driver licenses. But, this is an invalid distinction and the Court of Civil Appeals utilized an incorrect approach to reach the decision it did. Rather than focusing upon these classes themselves, the court analyzed this question by focusing on the object of the law, and this caused the court to make an erroneous decision.
In support of this petition, the following and attached brief is offered to explain in greater detail the issues raised via this petition.
Petitioners respectfully request that after preliminary examination, the
writ of certiorari be granted and that this Court proceed under its rules
to review the matters of which there is complaint, and to reverse the judgment
of the Court of Civil Appeals and for such other relief as Petitioners
may be entitled.
I certify that
I have this day served copies of this petition and the brief on all parties
to the appeal in the Court of Civil Appeals and also the Court of Civil
Appeals itself.
Respectfully
submitted this the 30th day of July, 1999.
___________________________
Lowell H. Becraft, Jr.
Attorney for Appellants
209 Lincoln Street
Huntsville, AL 35801
**********************
IN THE SUPREME COURT OF ALABAMA
SCOTT McDONALD, as
next
)
friend for and on
behalf
)
of his sons,
)
CHRISTOPHER McDONALD
and
)
NATHAN McDONALD,
)
)
Appellants,
)
)
v.
) Case
No. 2971313
)
ALABAMA DEPARTMENT
OF
)
PUBLIC SAFETY,
)
)
Appellee.
)
BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI
The McDonald Petitioners/Appellants have moved this Court to grant a writ of certiorari to review the April 9, 1999, decision in this appeal by the Court of Civil Appeals and this brief is offered in support of that petition.
Statement of Relevant Facts.
As the Court of Appeals noted, Scott McDonald believes that the federal "Social Security Number is a precursor to, or is itself, the ‘Mark of the Beast' referred to in the Book of Revelation ... and that he is not to accept such mark. Nathan and Christopher ... hold [] similar beliefs with respect to Social Security numbers" as taught to them by their parents (Opinion, p. 4). [1] For this reason, neither Nathan or Chris have obtained social security numbers.
When Nathan and Chris attained the age of 15 years, they became eligible to secure Alabama learner's permits which would allow them start driving a car and to ultimately acquire regular driver licenses. However when they applied for learner permits, they were informed by the Alabama Department of Public Safety ("DPS") that they could not get them unless they provided social security numbers as required by Regulation 760-X-1-.19, Ala. Admin. Code (Opinion, p. 5). This regulation imposes the following requirement:
"(1) All persons applying for a driver license shall be required to furnish to the Alabama Department of Public Safety their social security number in order to obtain an Alabama driver license....
"Statutory Authority: Code of Ala. 1975, §§32-2-9, 32-6-13; 42 U.S.C. §405(c)."
Reasons for Granting Certiorari.
A. The question of whether Regulation 760-X-1-.19 violates the McDonald sons First Amendment, "free exercise" rights is one of first impression in Alabama which the Court of Civil Appeals erroneously decided.
Before November, 1998, those having some "free exercise" claim against an agency of the State of Alabama were forced, because of the absence of similar provisions in the Alabama Constitution, to utilize as a basis for their complaint the "free exercise" clause of the First Amendment to the United States Constitution. [2] "Free exercise" jurisprudence has been evolving over the last few decades. In the last 30 years, the federal courts established a "least restrictive means" standard to test such claims and many "free exercise" claims were recognized through use of this test. However, a departure from this standard occurred with the decision in Employment Division, D.H.R. of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990), where the Supreme Court declared that most laws of general applicability should be enforced notwithstanding "free exercise" challenges to them. But the Smith Court acknowledged an exception to the new rule it announced in this case: if rights other than "free exercise" rights were being abridged by some statute or regulation, then the "free exercise" rights were to be recognized (the "hybrid" exception). An excellent example of post-Smith decisions applying this standard is Thomas v. Anchorage Equal Rights Commission, 165 F.3d 692, 705 (9th Cir. 1999), where an ordinance preventing marital discrimination was held inapplicable against those asserting "free exercise" violations:
Here in Alabama, no state court, prior to this case and the decision here of the Court of Civil Appeals, has ever been required to address Smith and its application to Alabama law, thus this case presents an issue of first impression. [3] But further, the Court of Civil Appeals erred in deciding this question because it failed to recognize certain colorable rights of the McDonald sons which make the Smith exception applicable to this case. First, the McDonald sons have a federally protected, First Amendment, free speech right to not speak allegiance to their feared "Mark of the Beast" system. Just this colorable federal right alone is sufficient under the Smith exception for recognition of the McDonalds' free exercise rights. But there are also additional colorable rights possessed by the McDonald sons which require application of the "hybrid" exception recognized in Smith. They have the federal right to interstate travel which is being abridged by the DPS' rule. They also have their federal and state right to work which is being indirectly abridged by this rule.
The McDonalds also suggest that their right to travel within this state is being abridged by Rule 760-X-1-.19. Decisional authority in Alabama and many other states recognize the right to travel. Other state courts which acknowledge the right to travel declare that driver licensing laws constitute reasonable regulation of the right to travel based upon the state's police power. A law based upon the state's police power may thus be challenged as unreasonable. However, this Court appears to have never addressed the question of the source of the state's power to adopt driver licensing laws. In light of this Court's recognition of the right to travel, are Alabama's driver licensing laws, like those of other states, justified as reasonable regulations based upon the police power of the state? If so, then is Rule 760-X-1-.19 such a reasonable regulation or is it unreasonable? But further, even though one's right to travel is subject to the police power, is the existence of this colorable right sufficient to be the basis for a challenge to this rule under the Smith exception? Or is driving a mere privilege as suggested by the Alabama Courts of Civil and Criminal Appeals? Only this Court may resolve this question; but clearly, the right to travel is a colorable right which entitled the McDonalds to assert a claim that this rule violates the "free exercise" of their religious beliefs.
In any event, this question of whether this rule violates the McDonald sons First Amendment, free exercise rights is one of first impression in this state which the Court of Civil Appeals erroneously decided; certiorari should thus be granted.
B. The question of the meaning of Alabama's new constitutional Amendment No. 622 is certainly one of first impression in this state; but further, the Court of Civil Appeals failed to recognize decisional authority of this Court which mandates application of this new amendment to this appeal, thus its decision was erroneous.
Prior to the election last November, there was no provision in the Alabama Constitution protecting the free exercise of religious beliefs. Consequently, all Alabama "free exercise" litigation was based upon the First Amendment. The U.S. Supreme Court's decision in Smith radically changed the jurisprudence in this field, and both Congress and the Alabama legislature sought various ways to limit the import of that decision. The Alabama legislature's remedy was to propose a new constitutional amendment, Amendment No. 622, which the people of Alabama adopted at the general election last November (see amendment reprinted at the end of this brief). This new amendment, the Alabama Religious Freedom Amendment, provides for the very first time a "free exercise" constitutional right in Alabama and it is expressly designed to make the decision in Smith inapplicable in this state. Additionally, this new amendment expressly adopts the "least restrictive means" test for addressing "free exercise" claims.
The McDonalds in their complaint attacked the validity of Rule 760-X-1-.19 and alleged that it violated, in the words of the Court of Civil Appeals, "their rights under the First Amendment to the United States Constitution to the free exercise of their religion." The phrase, "free exercise" of religion, is not an alien term to either the legal community or judiciary. Many states have constitutional provisions protecting "free exercise" and often state courts construe such provisions similarly to the same provision in the First Amendment. But in reference to Alabama's new Religious Freedom Amendment, the people have declared that Alabama is adopting a sizeable segment of First Amendment, "free exercise" jurisprudence. With this new amendment in effect, Alabama courts have been directed to utilize the federal "free exercise" decisional authority prior to Smith. Even though the McDonalds based their claim on the federal "free exercise" clause, there is virtually no difference between a claim based upon Amendment No. 622 or one based upon the First Amendment, the exception being that Smith does not apply for claims under the amendment.
Admittedly, the McDonalds did not assert a claim based on Amendment No. 622; the amendment did not exist when their complaint was filed in January, 1998, nor did it exist when the circuit court decided this case in July, 1998. However, it did exist a few weeks before the McDonalds filed their reply brief with the Court of Civil Appeals. In that reply, the McDonalds sought to use the new amendment as a basis for deciding this appeal and authority of this Court dictates such use; see Stone v. Gulf American Fire & Cas. Co., 554 So.2d 346, 368 (Ala. 1989)("we are bound to apply a constitutional law as it exists at the time the appeal is heard"). But, the Court of Civil Appeals refused to consider the amendment and held (Opinion at pp. 13-14):
C. Rule 760-X-1-.19 is invalid because it lacks a statutory foundation in Alabama law, and federal law cannot be used as a statutory foundation for this rule.
This Court has held that statutes which merely allow a state agency to adopt rules are not a substantive, independent basis to support regulations like Rule 760-X-1-.19; see Jefferson County v. Alabama Criminal Justice Inform. Center Comm., 620 So.2d 651, 658 (Ala. 1993)(computer center was not authorized to adopt a rule requiring the payment of fees for computer time, and the statute authorizing the agency to make rules was insufficient to support the challenged rule: "The rulemaking powers found in §41-9-594 cannot be read so as to make cities and counties financially responsible for funding ACJIC ... an administrative agency is purely a creature of the legislature and has only those powers conferred upon it by the legislature"). In this case, the McDonalds attacked the validity of Rule 760-X-1-.19, arguing that it lacked a statutory foundation and was thus void. But here, the Court of Civil Appeals erroneously relied, in part, upon Ala. Code §32-6-13 as a valid statutory basis for this offending rule (Opinion at p. 7) even though this section only allows the public safety director to generally adopt rules, and this decision is clearly contrary to Jefferson County. But further, the Court of Civil Appeals relied upon 42 U.S.C., §666(a)(13)(A) and contended that this "recently enacted legislation mandating" a requirement that states demand social security numbers for driver licenses was binding upon Alabama; Opinion at p. 7. But, §666(a)(13)(A) is unconstitutional because Congress cannot adopt laws forcing the states to act in any particular way; see Printz v. United States, ___ U.S. ___, 117 S.Ct. 2365 (1997); Condon v. Reno, 155 F.3d 453, 458 (4th Cir. 1998)("Congress may not enact any law that would direct the functioning of the States' executives and legislatures"); and Pryor v. Reno, 171 F.3d 1281 (11th Cir. 1999). [4]
Because the Court of Civil Appeals' decision is contrary to controlling state and federal precedence, and because Rule 760-X-1-.19 is invalid because it lacks a statutory foundation, this Court should grant the requested writ.
D. Rule 760-X-1-.19 is invalid because it violates equal protection principles.
The equal protection provisions of both the United States and Alabama Constitutions condemn legislative classifications which are irrational and discriminatory; see Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254 (1971)(the equal protection clause denies "to States the power to legislate that different treatment be accorded persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation'"). Rule 760-X-1-.19 discriminates between those who have social security numbers and those who don't, and only those with such numbers may secure Alabama driver licenses. But is this a valid distinction which withstands equal protection scrutiny?
The Court of Civil Appeals justified this rule as being mandated by 42 U.S.C., §666(a)(13)(A), which arose from the 1996 federal Personal Responsibility and Work Opportunity Reconciliation Act, P.L. 104-193, 110 Stat. 2105 (see §317 of this act, 110 Stat. at 2220), more commonly known as the "dead beat dads" law. Overlooking the fact that Congress cannot constitutionally dictate to the states, the "objective" of the federal "dead beat dads" law was to require persons to provide social security numbers when obtaining licenses so that those licenses could be revoked if a "dead beat dad" became delinquent in court ordered child support obligations. To meet the obligations of this federal "mandate," Alabama did enact the Child Support Reform Act of 1997 (Act. No. 97-447) and its provisions were designed to implement the intent and purpose of the federal "dead beat dads" law. This legislative scheme raises many interesting constitutional questions.
While the McDonalds avoid some of the interesting questions which could be raised as a result of this scheme, they do pursue others. Outside of its treaty powers, Congress has no constitutional authority to establish a nationwide system for the issuance of driver licenses, which is a purely state matter. Instead, Congress uses its spending power to impose its will upon the states, often with no thought given as to whether any particular state might or might not be able to follow that scheme due to constitutional restraints like those found in the equal protection provisions of the Fourteenth Amendment and Art. 1, §§1 and 35 of the Alabama Constitution. How valid is it for Congress to dictate to the states that only those with social security numbers may be issued driver licenses? Can Congress eventually dictate to the states that only aliens with social security numbers may be issued such licenses? Would Congress stretch its authority beyond its lawful limits if it required states to limit the issuance of driver licenses to aliens having social security numbers who were also under the age of 30 and had red hair?
Pursuant to federal and state constitutional restraints, Alabama may create legislative classes within the laws it adopts. Alabama has an interest in protecting the driving public and may demand that those wishing to drive demonstrate essential skills to be able to safely drive a car and avoid injury to others, such power arising from the police power. But Alabama may not impose conditions which are outside its police power nor may it create irrational classes in the laws it enacts. Alabama could not adopt a law permitting only aliens to obtain driver licenses while denying them to citizens. Alabama could not adopt a law allowing only aliens under 30 years of age with red hair to get licenses. The reason why such is the case is because such class legislation presents an invidious and irrational discrimination which just so happens to be illegal as violative of equal protection principles as well as being beyond the police power.
In Alabama, the police power justifies those laws designed to protect the health, safety and welfare of the people. To make roads safe, drivers must demonstrate an ability to drive safely and avoid accidents or harm to others and this is the only interest Alabama may promote through its driver licensing laws. Requirements that all drivers had to listen to either classical music or even rock music, that all cars had to be painted purple, or that all passengers in a car could not talk would clearly be beyond the police power and consequently illegal [5] because such would utterly have no relationship to the "object" of driver licensing laws: safe roads.
How does limiting driving to those with social security numbers and denying it to those without contribute to safe highways? Are those without such numbers inherently more dangerous than those with numbers? Clearly, this limitation of those who can get Alabama driver licenses is not only beyond the police power but is also an irrational and invidious discrimination against those without such numbers.
But further, the real object of this social security number requirement has nothing to do with driving. Its real purpose is to assist and help remedy the "dead beat dads" problem so that the licenses of dead beat dads may be revoked if they become delinquent in child support; this is a domestic relations problem, not one concerning driving. The delinquent child support problem is limited to delinquent parents who might comprise at most 10-15% of the Alabama populace. But to remedy this problem, must Alabama burden everyone else and more especially those who have nothing to do with this domestic relations problem? Nathan and Chris are young men without children, yet they cannot drive because some men in Alabama don't pay child support. This makes as much sense as requiring everyone to wear crash helmets at all times simply because some bikers sustain head injuries while biking.
"[T]he Equal Protection Clause is offended only if the statute's classification ‘rests on grounds wholly irrelevant to the achievement of the State's objective'"; see Crandall v. City of Birmingham, 442 So.2d 77, 78 (Ala. 1983). The Court of Civil Appeals did not in its decision in this appeal consider controlling Alabama precedence like Crandall or even the U.S. Supreme Court's decision in Reed. Silence in an appellate decision is often telling, and here the Court of Civil Appeals failed to engage in critical analysis to address the McDonalds' equal protection claim. To punish innocent young men like Nathan and Chris by denying them the opportunity to drive a car utterly fails to either contribute a solution to the dead beat dads problem or make roads safer. Because the Court of Civil Appeals ignored controlling precedence, the requested writ should be granted.
Argument.
ISSUE 1: Did the Court of Civil Appeals err in concluding that Rule 760-X-1-.19 does not violate the McDonalds' free exercise rights under the First Amendment of the United States Constitution?
The First Amendment to the U.S. Constitution prohibits Congress from establishing a religion as well as prevents it from denying the "free exercise" of religious beliefs, which are constitutional protections far broader than that protected by Art. 1, §3 of the Alabama Constitution. The restrictions of the First Amendment apply to the states via the 14th Amendment's due process clause; see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903 (1940); Engel v Vitale, 370 U. S. 421, 430, 82 S.Ct. 1261, 1266 (1962); School District of Abington Twp. v. Schempp, 374 U. S. 203, 215, 83 S.Ct. 1560, 1567 (1963); and Wallace v. Jaffree,472 U.S. 38, 49 n. 34, 105 S.Ct. 2479, 2486 (1985). Here, the McDonalds certainly have a right to believe that the Anti-Christ may soon appear on the earth and that this being will establish the "Mark of the Beast." They further have the religious right to believe that the social security number is either the precursor of that number, or even the number itself, simply awaiting some future event when it will be tattooed upon their hands or forehead. If they should receive the mark, they believe that they will be eternally damned. This belief is not uncommon as perhaps millions of Christians in America hold similar beliefs, and a multitude of books have been written which precisely explain this. Scott firmly believes that as the father of his sons, he must protect, nurture and give Biblical advice to and protect them against the "Mark of the Beast." This belief is clearly protected by the First Amendment, which constrains the actions of the DPS.
Under the facts of this case where the abridgement of several colorable constitutional rights are present, it is clear that this case falls within the "hybrid" exception set forth in Employment Division, D.H.R. of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595 (1990). In Smith, a case involving some parties who used peyote in Native American religious rituals contrary to state law, the Court found that "the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability'." However, the Court further noted an extremely important exception to this rule: "the First Amendment bars application of a neutral, generally applicable law to religiously motivated action" involving "the Free Exercise Clause in conjunction with other constitutional protections;" Id., at 881. Since there are at issue in this case as discussed below several other constitutional rights beyond that of the free exercise of religious beliefs, the DPS's regulation mandating social security numbers in order to obtain driver licenses is subject to strict scrutiny and may survive only if the DPS's interest is more compelling than that of the McDonald sons.
These other rights of the McDonald sons are several. They have a constitutional right to work for a living; see State v. Polakow's Realty Experts, Inc., 243 Ala. 441, 10 So.2d 461, 462 (1942). But beyond this constitutional right, they further have the constitutional right to travel which is protected by the U.S. Constitution; see Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 49 (1868)("We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states"); Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118 (1958)("The right to travel is a part of the ‘liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment"); United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 1178 (1966)("The constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union"); Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329 (1969)("This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement"); Dunn v. Blumstein, 405 U.S. 330, 339, 92 S.Ct. 995, 1001 (1972)("...since the right to travel was a constitutionally protected right, ‘any classification which serves to penalize the exercise of that right, [6] unless shown to be necessary to promote a compelling governmental interest, is unconstitutional'"); Memorial Hospital v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 1080 (1974)("The right of interstate travel has repeatedly been recognized as a basic constitutional freedom"); and Saenz v. Roe, ___ U.S. ___, 119 S.Ct. 1518, 1524 (1999)(noting that this right is "firmly embedded in our jurisprudence"). See also Schachtman v. Dulles, 225 F.2d 938,941 (D.C.Cir. 1955)("The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law"); Worthy v. Herter, 270 F.2d 905, 908 (D.C.Cir. 1959)("The right to travel is a part of the right to liberty"); Cole v. Housing Authority of City of Newport, 435 F.2d 807, 809 (1st Cir. 1970)("...the right to travel is a fundamental personal right that can be impinged only if to do so is necessary to promote a compelling governmental interest"); King v. New Rochelle Municipal Housing Authority, 442 F.2d 646, 648 (2nd Cir. 1971)("It would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state"); Demiragh v. DeVos, 476 F.2d 403, 405 (2nd Cir. 1973)("...the right to travel... [is] a ‘fundamental' one, requiring the showing of a ‘compelling' state or local interest to warrant its limitation"); United States v. Davis, 482 F.2d 893, 912 (9th Cir. 1973)("...it is firmly settled that freedom to travel at home and abroad without unreasonable governmental restriction is a fundamental constitutional right of every American citizen... At the minimum, governmental restrictions upon freedom to travel are to be weighed against the necessity advanced to justify them, and a restriction that burdens the right to travel ‘too broadly and indiscriminately' cannot be sustained"); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 923 n. 8 (5th Cir. 1977)("The Constitutional right to travel is ‘among the rights and privileges of National citizenship'"); Andre v. Board of Trustees of Village of Maywood, 561 F.2d 48, 52 (7th Cir. 1977)("The right to travel interstate, although nowhere expressed in the Constitution, has long been recognized as a basic fundamental right"); Wellford v. Battaglia, 343 F.Supp. 143, 147 (D.Del. 1972)("The right to travel... is a right to intrastate as well as interstate migration"); Costa v. Bluegrass Turf Service, Inc., 406 F.Supp. 1003, 1007 (E.D.Ken. 1975)("...pure administrative convenience, standing alone, is an insufficient basis for an enactment which ... restricts the right to travel"); Coolman v. Robinson, 452 F.Supp. 1324, 1326 (N.D.Ind. 1978)("The right to travel is a very old and well established constitutional right"); Tetalman v. Holiday Inn, 500 F.Supp. 217, 218 (N.D.Ga. 1980)(the "constitutionally protected right to travel ... is basically the right to travel unrestricted by unreasonable government interference or regulation"); Bergman v. United States, 565 F.Supp. 1353, 1397 (W.D. Mich. 1983)("The right to travel interstate is a basic, fundamental right under the Constitution, its origins premised upon a variety of constitutional provisions"); Lee v. China Airlines, Ltd., 669 F.Supp. 979, 982 (C.D.Cal. 1987)("...the right to travel interstate is fundamental"); and Pottinger v. City of Miami, 810 F.Supp. 1551, 1578-79 (S.D.Fla. 1992).
This right to travel is also a constitutional right under our state constitution, embodied within the "liberty" provision of Art. I, §1; see Joseph v. Randolph, 71 Ala. 499, 504-05 (1882)("There can be no denial of the general proposition that every citizen of the United States, and every citizen of each State of the Union, as an attribute of personal liberty, has the right, ordinarily, of free transit from, or through the territory of any State. This freedom of egress or ingress is guaranteed to all by the clearest implications of the Federal, as well as of the State constitution"). This constitutional right to travel is widely recognized; see State v. Wylie, 516 P.2d 142, 145-46 (Alaska 1973)("...the freedom to travel throughout the United States ‘uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement' is a fundamental personal right under the United States Constitution ... [and] ‘any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional'"); People v. Horton, 14 Cal.App.3d 930, 92 Cal.Rptr. 666, 668 (1971)("...the right of the citizen to drive on a public street with freedom from police interference ... is a fundamental constitutional right"); In re White, 97 Cal.App.3d 141, 158 Cal.Rptr. 562, 566-67 (1979)("...there is a constitutional right to intrastate travel"); Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884, 887 (1980)("...the right to travel interstate is without question a fundamental right under the United States Constitution"); Florida Motor Lines, Inc. v. Ward, 102 Fla. 1105, 137 So. 163, 167 (1931)("The right of a citizen to use the highways, including the streets of the city or town, for travel and to transport his goods, is an inherent right which cannot be taken from him, but it is subject to reasonable regulation in the interest of the public good"); Hall v. King, 266 So.2d 33, 34 (Fla. 1972)(the right to travel "may be restricted only for a compelling state interest"); Adams v. City of Pocatello, 91 Idaho 99, 416 P.2d 46, 48 (1966)("The right to operate a motor vehicle upon the public streets and highways is not a mere privilege. It is a right or liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions" ... [but]... "is subject to reasonable regulation by the state in the exercise of its police power"); Chicago Motor Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22, 25 (1929) ("Even the Legislature has no power to deny a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience"); People v. Chambers, 32 Ill.App.3d 444, 335 N.E.2d 612, 617 (1975); Sturrup v. Mahan, 290 N.E.2d 64, 68 (Ind.App. 1972)("...each citizen, adult or minor, has a fundamental right to move freely from State to State and from City to City within the State"); Swift v. City of Topeka, 43 Kan. 671, 23 P. 1075, 1076 (1890)("This right of the people to the use of the public streets of a city is so well established and so universally recognized in this country that it has become a part of the alphabet of fundamental rights of the citizen"); Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291,1301 (1974) ("...freedom to travel throughout this state and this nation is a fundamental right"); Town of Milton v. Civil Service Comm., 365 Mass. 368, 312 N.E.2d 188, 191 n. 2 (1974); State v. Moseng, 254 Minn. 263, 95 N.W.2d 6, 13 (1959)("...one's inalienable right to liberty and the pursuit of happiness is curtailed if he may be unreasonably kept off the highways maintained by him as a citizen and taxpayer; ... ‘the freedom to make use of one's own property, here a motor vehicle, as a means of getting about from place to place, whether in pursuit of business or pleasure, is a ‘liberty' which under the Fourteenth Amendment cannot be denied or curtailed by a state without due process of law.' In any event, the right of a citizen to drive a motor vehicle upon the highways is to be safeguarded against the whim or caprice of police or administrative officers"); Davis v. Davis, 297 Minn. 187, 210 N.W.2d 221, 223 ( 1973)("Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution, and the freedom to travel includes the freedom to enter and abide in any state"); Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 784, 787 (1943)("The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.... The rights aforesaid, being fundamental, are constitutional rights, and while the exercise thereof may be reasonably regulated by legislative act in pursuance of the police power of the State, and although those powers are broad, they do not rise above those privileges which are imbedded in the constitutional structure"); State v. Johnson, 75 Mon. 240, 243 P. 1073, 1078 (1926)("...while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, as a place of business for private gain. For the latter purpose no person has a vested right in the use of the highways of the state, but is a privilege or license which the Legislature may grant or withhold in its discretion"); Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789, 791 (1971)("The right of every citizen to live where he chooses and to travel freely not only within the state but across its borders is a fundamental right"); Gow v. Bingham, 107 N.Y.S. 1011, 1014 (1907)("...the right of personal liberty ... includes ... absolute freedom to every one to go where and when he pleases"); State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449, 456 (1971)("...the right to travel upon the public streets of a city is a part of every individual's liberty"); Fraternal Order of Police, Youngstown Lodge v. Hunter, 36 Ohio Misc. 103, 303 N.E.2d 103, 106 (1973)("Any classification which serves to penalize the exercise of a constitutional right (freedom of movement across frontiers in either direction and inside frontiers as well) unless shown to be necessary to promote a compelling governmental interest, is unconstitutional"); Cummins v. Jones, 79 Or. 276, 155 P. 171, 172 (1916); Josephine County School District No. 7 v. Oregon School Activities Assoc., 15 Or.App. 185, 515 P.2d 431, 437 (1973)("...the right to travel intrastate is a right protected from discriminatory regulation to the same extent as is his right to freedom of interstate movement"); Henry v. Cherry & Webb, 30 R.I. 13, 73 A. 97, 107 (1909)("...the right of personal liberty include[s] .. the right to go where a persons please[s]"); Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869, 872 (1958); Knowlton v. Board of Law Examiners, 513 S.W.2d 788, 790-91 (Tenn. 1974)("The right to travel freely among the states is a fundamental, constitutionally protected right"); Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 583 (1930)("The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety... It is not a mere privilege..."); Hadfield v. Lundin, 98 Wash. 657, 168 P. 516, 518 (1917)("They all recognize the fundamental distinction between the ordinary right of a citizen to use the streets in the usual way and the use of the streets as a place of business or main instrumentality of a business for private gain. The former is a common right, the latter an extraordinary use"); Eggert v. City of Seattle, 81 Wash.2d 840, 505 P.2d 801, 804 (1973)("The right to travel is a right applicable to intrastate as well as interstate commerce... Both travel within and between states is protected"); Ex parte Dickey, 76 W.Va. 576, 85 S.E. 781, 782 (1915)("The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of the one who makes the highway his place of business and uses it for private gain... The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader"); and Ervin v. State, 41 Wis.2d 194, 163 N.W.2d 207, 210 (1968)("The freedom to move about is a basic right of citizens under our form of government").
But not only do the McDonald sons have the constitutional right to work and travel, they have the right of free speech protected by both the First Amendment of the U.S. Constitution as well as Art. I, §4 of the Alabama Constitution. A corollary of free speech constitutional rights is the right not to speak contrary to one's firmly held religious beliefs. Perhaps one of the seminal cases on this point is West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178 (1943). Here, some Jehovah's Witnesses were being prosecuted and having their children expelled from school because they refused to participate in a mandatory salute to the national flag, and the reason for such failure was predicated upon the religious beliefs of this particular faith that saluting the flag was worshiping a "graven image." In according First Amendment protection to these Witnesses, the Supreme Court declared that compelling the salute "requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks." The Court concluded that to "sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind," Id., at 634, which the Court declared was a position clearly at odds with the First Amendment. The Court again adopted the rationale of Barnette in Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428 (1977), which involved the compulsory display of New Hampshire's state motto, "Live Free or Die," upon license plates. In protecting those who objected for religious reasons to the display of this motto, the Court concluded that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all."
The McDonalds' religious beliefs hold that the "Beast" will compel all to take the "Mark" not only as a means of surviving, but also as proof of allegiance to that "Beast" system. They have religious objections to ever expressing any sort of allegiance to a system which will eternally condemn them spiritually. But, the DPS's demand is virtually no different from that of the Beast's described in Revelation: it is commanding the McDonald sons to obtain social security numbers and then submit them to the DPS so that they may obtain driver licenses which will enable them to work ("buying and selling" as used in Revelation). The DPS is thus compelling the McDonald sons to speak or acknowledge allegiance to a system which their religious beliefs hold will send them to Hell for so doing.
Clearly, the McDonalds have more constitutional rights at issue in this case than just the "free exercise" of religion. Not only does the DPS demand for social security numbers directly impinge their religious beliefs regarding the "Mark of the Beast," but this demand further prevents them from working and traveling, which are constitutional rights. In order to both work and travel, the McDonald sons need driver licenses issued by the DPS. But the DPS refuses to issue them licenses unless they set aside and entirely compromise their religious beliefs and then declare allegiance to the very system which they believe will damn their souls.
A variety of cases have clearly recognized that religious beliefs such as those held by the McDonalds are entitled to protection against abridgment. In litigation involving a sincerely held religious belief which conflicts with a state law and is consequently burdened thereby, that law must be premised upon a "compelling state interest" in order to be upheld. The cases which have addressed this precise issue have devised as a means for resolving this conflict the "least restrictive means" test, which balances the religious beliefs in question against the claimed compelling needs of the state. If the state law is not the "least restrictive means" of enforcement or pursuit of the state's compelling interest, it must fall. [7]
This proposition manifests itself in several cases decided by the U.S. Supreme Court. For example, in Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794 (1963), a Seventh Day Adventist who believed that work on Saturdays, her Sabbath, was unbiblical, was refused unemployment benefits and she challenged that denial by litigation. In finding this action of the state violative of Sherbert's "free exercise" rights protected by the First Amendment, the Court used the "compelling state interest" test and concluded:
"The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest," Id., at 718.
But further, there are a wide variety of other cases from other courts which have used the compelling state interest test to resolve conflicts between state laws and religious beliefs. For example, in Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd. sub nom. Jensen v. Quaring, 472 U.S. 478, 105 S.Ct. 3492 (1985), at issue was a Nebraska law [8] requiring photographs on driver licenses; but, this requirement of the law violated Mrs. Quaring's beliefs based on Exodus 20: 4 that photographs were "graven images." The Eighth Circuit found that Mrs. Quaring's beliefs were sincerely held religious beliefs which were in fact burdened by this state law. Weighing this law against the First Amendment claims of Mrs. Quaring, the court concluded that the state interests were not so compelling that her beliefs could not be accommodated and the court required Nebraska to issue her a driver license. See also the similar case of Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc., 269 Ind. 361, 380 N.E.2d 1225 (1978).
In Dennis v. Charnes, 571 F.Supp. 462 (D.Colo. 1983), Mr. Dennis had the same beliefs as Mrs. Quaring regarding Colorado's requirement for a photograph upon driver licenses which he challenged in this litigation. He appealed the dismissal of his complaint and the Tenth Circuit reversed in Dennis v. Charnes, 805 F.2d 339 (10th Cir. 1984). On remand in Dennis v. Charnes, 646 F.Supp. 158 (D.Colo. 1986), the district court held the photograph requirement void as to Mr. Dennis since it abridged his religious beliefs.
In People v. Swartzentruber, 170 Mich. App. 682, 429 N.W.2d 225 (1988), state law required as a safety precaution large, orange reflectors to be placed upon buggies traveling the public highways. Certain Amish defendants were prosecuted for violating this law and they raised "free exercise" objections to it. That court disposed of the issue in favor of these Amish defendants through use of the compelling state interest test. In another case, State v. Hershberger, 444 N.W.2d 282 (Minn. 1989), that appellate court followed the rationale of Swartzentruber only to have the decision vacated by the U.S. Supreme Court based upon Employment Division v. Smith, supra. [9] But on remand, the Minnesota Supreme Court in State v. Hershberger, 462 N.W.2d 393 (Minn. 1990), still found in favor of the Amish. Even more recently in State v. Miller, 196 Wis.2d 238, 538 N.W.2d 573 (1995), that court used the compelling state interest test to set aside another reflector law which abridged the religious rights of the Amish. And long before the Supreme Court addressed the issue of the religious use of peyote by native Americans, a number of courts had used this test to uphold the use of this drug in religious ceremonies; see People v. Woody, 61 Cal.2d 716, 394 P.2d 813 (1964); State v. Whittingham, 19 Ariz.App. 27, 504 P.2d 950 (1973); Whitehorn v. State, 561 P.2d 539 (Okla.Crim.App. 1977); Native American Church of New York v. United States, 468 F.Supp. 1247 (S.D.N.Y. 1979), aff'd. 633 F.2d 205 (2nd Cir. 1980); and Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193 (5th Cir. 1984).
Not only have there been "free exercise" challenges to various state laws as noted above, there has also been similar litigation regarding the use of social security numbers and these cases have raised the very same issue presented here by the McDonalds regarding claims that providing social security numbers to public officials abridges the "free exercise" clause. Perhaps the first case where this issue was raised was Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y. 1977). Here, the Stevenses were receiving welfare benefits and they objected to a regulation mandating that social security numbers for their children be provided on the grounds that the number was the "Mark of the Beast." When they were denied welfare benefits because of their refusal to provide these numbers for the children, they instituted suit to enjoin enforcement of that regulation. In deciding in favor of the Stevenses, Judge Weinstein concluded that the religious belief at issue in a case of this nature must be sincerely held and it must have some theological foundation. He further concluded that to enforce the regulation, the state's interest in its enforcement must be more compelling than recognition of the religious belief in question:
"What is, in essence, involved is a balancing of the interests of the plaintiffs in the free exercise of their religion against the governmental interest in the challenged policy or statute. 'The gain to the subordinating interest provided by the [challenged governmental] means must outweigh the incurred loss of protected rights,'... before an infringement of those protected rights will be countenanced," Id., at 906.
"Once a bona fide First Amendment issue is joined, the burden that must be shouldered by the government to defend a regulation with impact on religious actions is a heavy one," Id., at 906.
In Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981), an almost identical fact situation was before that appellate court. Here, Callahan had spent a number of years in San Quentin prison and had been religiously converted. After release from jail, he sought dependent child welfare benefits but was denied them due to his failure to provide the social security numbers for his children. He sued to enjoin enforcement of the regulation requiring that he provide social security numbers for his children on the grounds that this requirement violated his religious beliefs, and he specifically argued that the social security number was the "Mark of the Beast." While the district court in that case found that Callahan's beliefs were sincere, it also concluded that his challenge to the number was really politically motivated. In reversing that judgment, the Ninth Circuit declared:
On remand, the district court once again ruled against Callahan, holding that the compelling interests of the state outweighed the burden imposed on his religious beliefs and naturally a second appeal ensued. In Callahan v. Woods, 736 F.2d 1269 (9th Cir. 1984), that court again reversed the decision of the lower court, holding:
"In determining whether a neutrally based statute violates the free exercise clause, we consider three factors:
(1) the magnitude of the statute's impact upon the exercise of the religious belief;
(2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief; and
(3) the extent to which recognition of an exemption from the statute would impede the objectives sought to be advanced by the state," Id., at 1273.
In summary, many state laws which abridge sincerely held religious beliefs have been subjected to the compelling state interest test and found wanting. Here in this appeal the exception in Smith applies because rights in addition to that of free exercise are being abridged by this DPS rule. Under Smith, a court is required to determine if the exception applies by analysis of other claimed rights besides that of "free exercise;" see Thomas v. Anchorage Equal Rights Commission, 165 F.3d 692, 705 (9th Cir. 1999). Here, the Court of Civil Appeals failed to engage in the required consideration of the other rights of the McDonalds and especially failed to consider their right as defined by cases like Barnette and Wooley, supra. If it had done so, it would have decided this appeal in favor of the McDonalds.
But in rejecting the above argument made by the McDonalds, the Court of Civil Appeals erroneously relied upon Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147 (1986), for its position that this rule requiring social security numbers for driver licenses is valid, but this case is immediately distinguishable. In Roy, the issue concerned a family's entitlement to welfare benefits which could only be obtained by provision of the family members' social security numbers. For religious reasons, Roy refused to obtain a social security number for his minor daughter and this resulted in the denial of benefits. Roy instituted suit alleging that the requirement to provide such numbers to obtain benefits violated his daughter's free exercise of religious beliefs. But at trial, it was learned that the Social Security Administration had already assigned a social security number to the daughter, consequently Roy wanted an injunction against any further use of the number. In reviewing a judgment in Roy's favor, the Supreme Court characterized Roy's claim as being entirely based upon a claim for benefits: "it is appellees who seek benefits from the Government and who assert that, because of certain religious beliefs, they should be excused from compliance with a condition that is binding on all other persons who seek the same benefits from the Government," Id., at 703. In reversing the judgment in favor of Roy, the Court carefully distinguished why this case was different from other "free exercise" cases:
The decision in Roy really has nothing to do with this case of the McDonalds other than it is just one of the many cases dealing with the "free exercise" clause. Unlike Roy, the McDonald sons have constitutional rights at stake other than their right of "free exercise": they have the right to work as well as the right to travel. These colorable rights are neither benefits nor privileges and as the Roy Court noted, government action regarding the grant of benefits is governed by a far lower constitutional standard than government action which abridges constitutional rights.
In summary, the Court of Civil Appeals failed to address and consider these other colorable rights in its decision, and a different outcome would have occurred if it had done so. However, this question has never been considered by any Alabama court beyond this litigation and this issue is one of first impression in Alabama and deserves resolution by this Court.
ISSUE 2: Did the Court of Civil Appeals err in declining to apply to this appeal the recently adopted Alabama constitutional Amendment No. 622?
In January, 1998 when the McDonalds filed their lawsuit against the DPS, there were no provisions in the 1901 Alabama Constitution which protected the free exercise of religious beliefs as did the First Amendment of the United States Constitution; for this reason, the McDonalds premised their constitutional claim against the DPS upon the First Amendment's free exercise clause. But circumstances changed dramatically while this case was pending on appeal before the Court of Civil Appeals. At the general election last November, Alabama voters approved Amendment No. 622 (reproduced at the end of this brief), which essentially adopts federal, First Amendment "free exercise" jurisprudence as it existed prior to the decision in Smith.
As a result of the adoption of this new amendment, the McDonalds asked the Court of Civil Appeals to decide this appeal by considering this new amendment. An established principle of appellate practice requires an appellate court to decide an appeal on the basis of the law as it exists at the time the appeal is decided; see Stone v. Gulf American Fire & Cas. Co., 554 So.2d 346, 368 (Ala. 1989)("we are bound to apply a constitutional law as it exists at the time the appeal is heard"). See also Fusari v. Steinberg, 419 U.S. 379, 387, 95 S.Ct. 533, 538 (1975)("This Court must review the District Court's judgment in light of presently existing Connecticut law, not the law in effect at the time that judgment was rendered"); Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518 (1969)("an appellate court must apply the law in effect at the time it renders its decision"); United States v. State of Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 926 (1960); and Peightal v. Metro. Dade County, 940 F.2d 1394, 1398 (11th Cir. 1991)("On appeal, however, it is our duty to apply the law as it exists when we deliver our opinion, even if it has changed since the time of a lower court decision"). But notwithstanding this existing authority, the Court of Civil Appeals ignored that authority and expressly declined to decide this appeal based upon the new amendment:
ISSUE 3: Did the Court of Civil Appeals err in concluding that Rule 760-X-1-.19 has a statutory foundation and was therefore valid?
In order for an applicant to obtain a driver license in Alabama, he must first apply for one via Alabama Code §32-6-1(a) and then take the driver's examination required via §32-6-3. If such applicant passes this test, he is entitled to a license, the contents of which are identified in §32-6-6. Those seeking learner permits, like Nathan and Chris, apply for such a license via §32-6-8. But nowhere in these driver licensing laws is there found any demand that an applicant submit a social security number, and this requirement arises only by operation of Rule 760-X-1-.19. But is the rule legal? Or is it illegal and invalid because it lacks statutory support?
When Rule 760-X-1-.19 was adopted in February, 1996, it listed as the statutory authority for its implementation the following: "Code of Ala. 1975, §§32-2-9, 32-6-13; 42 U.S.C. §405(c)." But, §32-2-9 only permits the adoption of regulations to govern various units of the DPS, and §32-6-13 is merely a statute allowing the DPS to adopt regulations to enforce the driver licensing laws; neither of these Code sections requires the provision of a social security number to obtain a driver license. Statutes which merely authorize an agency to adopt rules do not provide an independent basis for the substantive requirements of any agency rule; see Jefferson County v. Alabama Criminal Justice Inform. Center Comm., 620 So.2d 651, 658 (Ala. 1993)(computer center was not authorized to adopt a rule requiring the payment of fees for computer time, and the statute authorizing the agency to make rules was insufficient to support the challenged rule: "The rulemaking powers found in §41-9-594 cannot be read so as to make cities and counties financially responsible for funding ACJIC... an administrative agency is purely a creature of the legislature and has only those powers conferred upon it by the legislature"). Regulations like Rule 760-X-1-.19 have been frequently found to be unlawful attempts by agencies to legislate; see State v. Vaughan, 241 Ala. 628, 4 So.2d 9 (1941)(rule regarding bass fishing restriction was void); Alabama State Board of Optometry v. Busch Jewelry Co., 261 Ala. 479, 75 So.2d 121 (1954)(rule restricting advertising was held void); Gibbs v. Cochran, 281 Ala. 22, 198 So.2d 607 (1967)("Rule 23" making criminal the act of dispensing drugs based solely upon the statute allowing the agency to make rules was held void);and Assured Investors Life Ins. Co. v. Payne, 356 So.2d 144, 146 (Ala. 1978). This particular regulation, as based upon either or both §§32-2-9 and 32-6-13, was overbroad and consequently void; see Jefferson County Board of Education v. Alabama Board of Cosmetology, 380 So.2d 913, 915 (Ala.Civ.App. 1980)("Rules and regulations and administrative action cannot subvert nor enlarge upon statutory policy"); Ex parte City of Florence, 417 So.2d 191, 193 (Ala. 1982) ("administrative rules and regulations must be consistent with the constitutional or statutory authority by which their promulgation is authorized"); Ross Neely Express, Inc. v. Alabama Dep't. of Environmental Management, 437 So.2d 82, 84 (Ala. 1983)(due process "is violated when a statute or regulation is unduly vague, unreasonable, or overbroad"); and Kirby v. Mobile County Comm., 564 So.2d 447, 450 (Ala.Civ.App. 1990).
In contravention of the above authority, and particularly that of Jefferson County, the Court of Civil Appeals erroneously concluded that §32-6-13 constituted some statutory foundation for this rule. But perhaps the most egregious error was the Court of Civil Appeals' conclusion that 42 U.S.C., §666 [11] could also be a basis for this rule; see Opinion at pp. 7-8. In recent years, the U.S. Supreme Court has determined that, while Congress can adopt general laws that may apply to the states of this Union, it cannot adopt laws that specifically apply to the states as states as does §666; see New York v. United States, 505 U.S. 144, 112 S.Ct. 2408 (1992), and Printz v. United States, ___ U.S. ___, 117 S.Ct. 2365 (1997). More recently, this line of authority was used by both the Fourth and Eleventh Circuits to find the federal Driver Privacy Protection Act unconstitutional; see Condon v. Reno, 155 F.3d 453, 458 (4th Cir. 1998)("Congress may not enact any law that would direct the functioning of the States' executives and legislatures"); and Pryor v. Reno, 171 F.3d 1281 (11th Cir. 1999). This law, §666(a)(13)(A), specifically applies to the states as states and it is not a law of general applicability. A construction of this statute as requiring social security numbers for all who seek driver licenses from state authority would be unconstitutional, and it matters not whether the challenged law is a part of the federal welfare laws or not. Simply put, Congress lacks constitutional power to compel states to use or require social security numbers for driver licensing purposes. Section 666(a)(13)(A) is unconstitutional and cannot be the basis for the challenged Rule 760-X-1-.19. Thus, the Court of Civil Appeals erred by holding this rule valid, which is a sufficient basis for this Court to review this case.
ISSUE 4: Did the Court of Civil Appeals err in concluding that Rule 760-X-1-.19 comports with federal and state equal protection principles?
Rule 760-X-1-.19 limits those who may obtain Alabama driver licenses to classes of individuals who have social security numbers; those without these numbers need not bother the DPS by applying. But, this scheme raises some very interesting questions: Why is the right to drive a car limited to only those who have social security numbers to the exclusion of those who do not? Does state government have such a power? Is this not an invidious discrimination in favor of those who do have social security numbers against those who do not? Clearly, these are questions most suited to equal protection analysis under the provisions of the Fourteenth Amendment of the United States Constitution as well as Art. 1, §§1 and 35 of the Alabama Constitution; see Robert Burton Assoc., Ltd. v. Eagerton, 432 So.2d 1267 (Ala. 1983); and Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977).
In order to create distinct classes of people who either fall within or without the scope of some legislative scheme, the distinctions between such classes must at least be reasonable, rational, and related to the purpose of the law; see Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254 (1971)(the equal protection clause denies "to States the power to legislate that different treatment be accorded persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation'"). This rule is followed closely by Alabama courts when elucidating equal protection principles under either our state constitution or the federal; see Barbour County Comm. v. Employees of Barbour Co. Sheriff's Dept., 566 So.2d 493, 497 (Ala. 1990)(legislative classes "(1) must be germane to the purpose of the law; (2) must bring within its influence all who are under the same conditions and apply equally to each person or member of the class, or each person or member who may become one of such class; (3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class; (4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable under the facts of the case, and not oppressive and prohibitive"); Edwards v. Moore, 699 So.2d 220, 222 (Ala.Civ.App. 1997)(seduction statute was discriminatorily gender based because it didn't "bear a substantial relationship to any important governmental objective"); Merton v. State, 500 So.2d 1301 (Ala.Cr.App. 1986); and Crandall v. City of Birmingham, 442 So.2d 77, 78 (Ala. 1983)("the Equal Protection Clause is offended only if the statute's classification ‘rests on grounds wholly irrelevant to the achievement of the State's objective'"). Legislative distinctions burdening fundamental liberties of the people are subjected to strict scrutiny; see Smith v. Schulte, 671 So.2d 1334, 1337-38 (Ala. 1995)("The Alabama constitution allows the legislature to classify citizens in order to effect some ‘public interest'... only insofar as the resultant burden on individual rights or liberties does not outweigh the benefits effected by the statute"); and Chandler v. Hospital Authority of City of Huntsville, 500 So.2d 1012, 1015 (Ala. 1986)("Should a legislative classification burden the exercise of a fundamental right ... heightened judicial scrutiny is required and the ‘strict scrutiny' test will apply").
Examples of statutes shown to be violative of equal protection principles are numerous. A statute which exempts confederate soldiers from a tax violates this constitutional rule; see McLendon v. State, 179 Ala. 54, 60 So. 392 (1912). Statutes which operate unequally and arbitrarily regarding barbers violate these principles; see Lee v. Renfro, 257 Ala. 679, 60 So.2d 849 (1952). Statutes which grant immunity from suit often violate these principles; see Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala. 1978); and Gaines v. Huntsville-Madison County Airport Authority, 581 So.2d 444 (Ala. 1991). Arbitrary population distinctions (Comer v. City of Mobile, 337 So.2d 742 (Ala. 1976)), arbitrary laws regarding alcoholic beverages (City of Graysville v. Swann, 388 So.2d 540 (Ala. 1980), and Harrison v. Buckhalt, 364 So.2d 283 (Ala. 1978)), arbitrary tax class categories (City of Birmingham v. Stegall Co., Inc., 439 So.2d 91, 94 (Ala. 1983)), irrational abortions laws (Matter of Anonymous, 531 So.2d 895 (Ala.Civ.App. 1988)), and laws making arbitrary distinctions between citizens and aliens (Babcooke v. Duncan, 486 So.2d 431 (Ala. 1986)), have been shown to violate these principles. Equal protection principles require that there must be a rational basis for a legislative class and this distinction must have a substantial relationship to the objective of the law; see Norris v. Seibels, 353 So.2d 1165, 1168 (Ala. 1977); Town of Eclectic v. Mays, 547 So.2d 96, 105-06 (Ala. 1989); and Moore v. Mobile Infirmary Assoc., 592 So.2d 156, 165 (Ala. 1991)("The guarantee of equal protection prohibits ‘class legislation arbitrarily discriminatory against some and favoring others in like circumstances'"). See also Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968); and United States v. State of South Dakota, 636 F.2d 241 (8th Cir. 1980).
Presuming for purposes of argument that Rule 760-X-1-.19 is a statute, to subject it to equal protection scrutiny requires a determination of the valid state objective or purpose it promotes. According to the Court of Civil Appeals, a statutory "760-X-1-.19" would assist with the problem of "dead beat dads" who are delinquent in child support obligations. But further, another valid state interest which might be furthered by this rule is that relating to the process of issuing driver licenses. But under either of these objectives, a statutory "760-X-1-.19" still violates equal protection principles.
For purposes of argument, it is assumed that Alabama does in fact face a problem created by the failure of non-custodial parents to make timely child support payments, which most probably does burden the "welfare state." What can Alabama do to remedy this problem? If locating dead beat dads is a desperate need of the state, it could just simply secure social security numbers when litigants go through the domestic relations system. Once acquiring such numbers at the system's entrance, dead beat dads could be traced. This is perhaps the least restrictive means by which Alabama could solve this problem.
But perhaps there are other, grander solutions to this problem, solutions which burden not just those affected by such problems but the whole of society. Suppose that the Alabama legislature enacted a statutory "760-X-1-.19" and intended thereby to revoke the driver licenses of all who became at any time a dead beat dad. Is this grand scheme constitutional? How does limiting the right to drive to only those with social security numbers rationally assist in remedying the "dead beat dads" problem?
It must be noted that the vast majority of the people of Alabama are not "dead beat dads:" (1) there are many married couples who have no children or their children are adults; (2) there are many married couples with children who have not been divorced and never will; (3) there are many divorced couples who promptly pay and remain current in their child support obligations; (4) there are many custodial parents who are the recipients of court ordered support obligations and are thus under no obligation to pay support; (5) and finally, there are many single people like the McDonald sons who simply have nothing to do with domestic relations problems like those posed by the dead beats. The "dead beat" and "non-dead beat" groups are distinct and wholly unrelated to each other, with one class including those involved in domestic proceedings who owe child support, while the other class encompasses those not involved in such litigation. Being charitable, the segment of the Alabama population directly affected by this domestic relations problem could not be more than 15%. But, how will imposing burdens upon 100% of the potential driving public solve this problem involving the smaller class, or contribute to its resolution? How is this scheme better than the least restrictive one noted immediately above? This problem caused by a small segment of the population is not resolved by subjecting a far larger part of the populace to an invasion of privacy and limitation of their liberties. Clearly, a statutory "760-X-1-.19" is not even germane to the purpose of the 1997 Alabama Child Support Reform Act as the dead beat dads problem is a domestic relations problem, not one concerning driving. If having social security numbers assists the state in locating these dead beats, the solution then is to collect social security numbers from these dead beats (when they enter the litigation phase) and not everybody else. It would be even better to just secure the potential dead beat's driver license number rather than his social security number.
Alabama also has a valid state interest in protecting travelers upon its highways. The right to travel (as discussed above) is one subject to reasonable regulation by the state under its police power. [12] Pursuant to this power, the Alabama legislature has adopted a number of statutes ("rules of the road" codified in Title 32, chap. 5) designed to protect the safety of highway travelers. But the natural question to ask is how would a statutory "760-X-1-.19" further the valid state interests of insuring safety upon the highways like the other "rules of the road"? The simple answer to this question is that mere possession of a social security number has absolutely no relationship to this interest of the state, let alone a substantial connection to this interest; and there was no statistical proof offered by the DPS to the circuit court showing that possession of social security numbers by drivers makes the roads safer.
Likewise, Alabama has a valid state interest in insuring that those who are licensed to drive cars on the highways have the skills to do so and do not pose harm or danger to others on the highways. As shown previously, a variety of courts have decided that it is within the police power of the state to insure that those who apply for driver licenses can safely drive a car. To further this interest, the Alabama legislature has enacted various statutes requiring applicants for licenses to take tests. But, how does a statutory "760-X-1-.19" further the valid state interests of insuring that first time, driver license applicants have the minimum skills and other qualifications to safely drive a car? Again, the short and simple answer to this question is that there is no such connection or relationship to this valid state interest, and there was no statistical proof offered by the DPS to the circuit court showing that those with social security numbers are safer drivers. Since mere possession of a social security number has nothing to do with these interests of the state, a statutory "760-X-1-.19" violates principles of equal protection; see Robert Burton Assoc., Ltd. v. Eagerton, supra.
In short, Alabama does have valid interests in addressing the dead beat dads problem, making the roads safer, and issuing licenses to people who have good driving skills. But possession of a social security number has absolutely nothing to do with achieving these valid state goals. Excluding those without social security numbers from driving has nothing to do with a domestic relations problem. Excluding those without social security numbers from driving has nothing to do with either safer roads or safer drivers.
This Court in Barbour County Comm., supra, held that legislative classifications "(3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class;" 566 So.2d at 497. Nathan and Chris are "proper additions" to the Alabama driving public and they otherwise qualify for driver licenses. Their only problem is that they have religious objections to getting a social security number, which is a condition precedent to securing an Alabama driver license. While it might be nice and handy for the state to obtain social security numbers for everyone, it cannot do that by restricting and excluding otherwise fit candidates for driver licenses from driving, especially when making that restriction is neither the least restrictive way nor in any way related to the problem at hand. The Court of Civil Appeals thus erred in reaching the conclusion it did which ignored precedence of this Court. The writ should be granted.
Summary.
The people of Alabama are interested in religious liberty. Within the last few years, the media here in our state has been full of stories about legal battles being fought over religious liberties and the power of government. But it is somewhat odd that these controversies affecting the people of our state have been litigated not in state court but federal. Even odder still is the fact that this Court has had few opportunities to address questions of this nature. In its history, it appears that this Court has decided less than 17 or 18 religion cases, and many of those did not involve important constitutional questions. Further, this Court has never addressed the First Amendment issues raised here, thus this case presents an opportunity for this Court to contribute to that jurisprudence.
But further, a new religious liberty amendment has only recently been made a part of our constitution and it should rightly play a role in the decision of this appeal. What does this new amendment mean and how does it operate? This amendment became law in Alabama through the efforts of the Rutherford Institute of Alabama and the Christian Coalition and they stand ready, as friends of the Court, to file briefs should this Court grant certiorari.
Conclusion.
For the reasons noted above, certiorari should be granted in this appeal. If so granted, the McDonalds request the opportunity to re-brief this appeal and they further request that amicus be allowed to participate and provide guidance to this Court. The McDonalds also believe that oral arguments would assist the Court in deciding this case.
Respectfully submitted this the 30th day of July, 1999.
___________________________
Lowell H. Becraft, Jr.
Attorney for Appellants
209 Lincoln Street
Huntsville, AL 35801
A Final Note: Before the McDonalds instituted suit against the DPS, their counsel had conversations about this case with Justice Lyons while he was counsel for former Governor James. This note is just a reminder, for what its worth.
RELEVANT NEW CONSTITUTIONAL PROVISION
Enrolled, An Act,
Proposing an amendment to the Constitution of Alabama of 1901, establishing the Alabama Religious Freedom Amendment; prohibiting the burdening of the freedom of religion unless the government demonstrates that it has a compelling interest in doing so and that the interest is achieved by the least restrictive means; and providing a claim or defense and relief against government violation.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. The following amendment to the Constitution of Alabama of 1901, as amended, is proposed and shall become valid as a part thereof when approved by a majority of the qualified electors voting thereon and in accordance with Sections 284, 285, and 287 of the Constitution of Alabama of 1901, as amended:
PROPOSED AMENDMENT
SECTION I. The amendment shall be known as and may be cited as the Alabama Religious Freedom Amendment.
SECTION II. The Legislature makes the following findings concerning religious freedom:
(1) The framers of the United States Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution, and the framers of the Constitution of Alabama of 1901, also recognizing this right, secured the protection of religious freedom in Article I, Section 3.
(2) Federal and state laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.
(3) Governments should not burden religious exercise without compelling justification.
(4) In Employment Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.
(5) The compelling interest test as set forth in prior court rulings is a workable test for striking sensible balances between religious liberty and competing governmental interests in areas ranging from public education (pedagogical interests and religious rights, including recognizing regulations necessary to alleviate interference with the educational process versus rights of religious freedom) to national defense (conscription and conscientious objection, including the need to raise an army versus rights to object to individual participation), and other areas of important mutual concern.
(6) Congress passed the Religious Freedom Restoration Act, 42 U.S.C., § 2000bb, to establish the compelling interest test set forth in prior federal court rulings, but in City of Boerne v. Flores, 117 S.Ct. 2157 (1997), the United States Supreme Court held the act unconstitutional stating that the right to regulate was retained by the states.
SECTION III. The purpose of the Alabama Religious Freedom Amendment is to guarantee that the freedom of religion is not burdened by state and local law; and to provide a claim or defense to persons whose religious freedom is burdened by government.
SECTION IV. As used in this amendment, the following words shall have the following meanings:
(1) DEMONSTRATES. Meets the burdens of going forward with the evidence and of persuasion.
(2) FREEDOM OF RELIGION. The free exercise of religion under Article I, Section 3, of the Constitution of Alabama of 1901.
(3) GOVERNMENT. Any branch, department, agency, instrumentality, and official (or other person acting under the color of law) of the State of Alabama, any political subdivision of a state, municipality, or other local government.
(4) RULE. Any government statute, regulation, ordinance, administrative provision, ruling guideline, requirement, or any statement of law whatever.
SECTION V. (a) Government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Government may burden a person's freedom of religion only if it demonstrates that application of the burden to the person:
(1) Is in furtherance of a compelling governmental interest; and
(2) Is the least restrictive means of furthering that compelling governmental interest.
(c) A person whose religious freedom has been burdened in violation of this section may assert that violation as a claim or defense in a judicial, administrative, or other proceeding and obtain appropriate relief against a government.
SECTION VI. (a) This amendment applies to all government rules and implementations thereof, whether statutory or otherwise, and whether adopted before or after the effective date of this amendment.
(b) Nothing in this amendment shall be construed to authorize any government to burden any religious belief.
(c) Nothing in this amendment shall be construed to affect, interpret, or in any way address those portions of the First Amendment of the United States Constitution permitting the free exercise of religion or prohibiting laws respecting the establishment of religion, or those provisions of Article I, Section 3, of the Constitution of Alabama of 1901, regarding the establishment of religion.
SECTION VII. (a) This amendment shall be liberally construed to effectuate its remedial and deterrent purposes.
(b) If any provision of this amendment or its application to any particular person or circumstance is held invalid, that provision or its application is severable and does not affect the validity of other provisions or applications of this amendment.
Section 2. An election upon the proposed amendment shall be held in accordance with Sections 284 and 285 of the Constitution of Alabama of 1901, as amended, and the election laws of this state.
Section 3. The appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot and shall set forth the following description of the substance or subject matter of the proposed constitutional amendment: "Proposing an amendment to the Constitution of Alabama of 1901, to prohibit the burdening of the free exercise of religion unless government demonstrates that it has a compelling interest in doing so and that the interest is achieved by the least restrictive means.
President and Presiding Officer of the Senate
Speaker of the House of Representatives
SB604
Senate 09-APR-1998
I hereby certify that the within Act originated in and passed the Senate, as amended.
McDowell Lee
Secretary
CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy of the foregoing petition and brief upon the below named counsel for the DPS by depositing the same in the United States mail, postage prepaid, in an envelope addressed to him at his correct mailing address:
Robert E. Morrow
Alabama Department
of Public Safety, Legal Unit
P.O. Box 1511
Montgomery,
Alabama 36102-1511
Dated this the
30th day of July, 1999.
_______________________________
Lowell H. Becraft, Jr.
End Notes:
[1] The designation, "Opinion," refers to the April 9, 1999, opinion of the Court of Civil Appeals in this case and the page number therein where the particular quote appears.
[2] See generally Alabama Digest 2d, "Constitutional Law," key #84.
[3] While there are certain religious liberty provisions in Art. 1, §3 of the Alabama Constitution, there has been precious little litigation construing this part of the constitution. In fact, the annotations indicates that this Court has addressed this part of the Alabama Constitution in only 13 cases; see Frolickstein v. Mobile, 40 Ala. 725 (1867); Smith v. State, 50 Ala. 159 (1874); Sparrenberger v. State, 53 Ala. 481 (1875); Snider v. State, 59 Ala. 64 (1877); Describes v. Wilmer, 69 Ala. 25 (1881); Dixon v. State, 76 Ala. 89 (1884); State v. Ala. Educ. Foundation, 231 Ala. 11, 163 So. 527 (1935); Kilgrow v. Kilgrow, 268 Ala. 475, 107 So.2d 885 (1958); State v. Toolen, 277 Ala. 120, 167 So.2d 546 (1964); Opinion of the Justices, 291 Ala. 301, 280 So.2d 547 (1973); Ala. Educ. Ass'n. v James, 373 So.2d 1076 (Ala. 1979); Trinity Presbyterian Church v. Tankersley, 374 So.2d 861 (Ala. 1979); and Hilley v. Hilley, 405 So.2d 708 (Ala. 1981). Only 7 of these ante-date the 1901 Constitution.
[4] It is interesting to note that while the Alabama Attorney General was arguing in his case against Janet Reno that the United States could not dictate to the states, another Alabama agency, the DPS, argued the opposite here.
[5] This would be true even if Congress adopted laws forcing the states to enacts such laws.
[6] The Court in Dunn also declared that the "The right to travel is an ‘unconditional personal right,' a right whose exercise may not be conditioned," Id., at 341.
[7] That which is argued here likewise applies to the next issue regarding the application of the new Amendment No. 622 to this case; the new amendment requires use of the "least restrictive means" test.
[8] Nebraska officials' actions in padlocking a church were found violative of the First Amendment in McCurry v. Tesch, 738 F.2d 271 (8th Cir. 1984).
[9] A number of other courts have expressed disagreement with the rationale of Smith; see Rourke v. N.Y.S. Dep't. of Corr. Services, 159 Misc.2d 324, 603 N.Y.S.2d 647 (N.Y.Sup.Ct. 1993), aff'd 201 A.D.2d 179, 615 N.Y.S.2d 470 (N.Y.App.Div.3d Dep't. 1994); First Covenant Church of Seattle v. City of Seattle, 120 Wash.2d 203, 840 P.2d 174 (1992). Another just ignored it; see Society of Jesus of New England v. Boston Landmarks Comm'n., 409 Mass. 38, 564 N.E.2d 571, 574 (1990).
[10] The decision in this appeal was written by Justice Ginsburg when she was sitting on that appellate court.
[11] Rev. 13:18, N.I.V.: "This calls for wisdom. If anyone has insight, let him calculate the number of the beast, for it is a man's number. His number is 666."
[12] In Alabama,
this power has been described as those laws designed to protect the health,
safety and welfare of the people of this state; see Birmingham Mineral
R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 603 (1893)(the police
power embraces "the protection of the lives, health, and property of her
citizens, the maintenance of good order, and the preservation of good morals");
Wolf v. Smith, 149 Ala. 457, 42 So. 824, 826 (1906); Jones v.
State, 17 Ala.App. 444, 85 So. 839, 840 (1920)("This [police] power
is properly exercised in preserving the health, morals, or safety of the
public"); and Carter v. State, 243 Ala. 575, 11 So.2d 764 (1943).
A wide variety of laws have been held beyond the scope of the police powers;
see Town of Greensboro v. Ehrenreich, 80 Ala. 579, 2 So. 725 (1887);
City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67 (1905)(license
imposed on companies giving trading stamps held unconstitutional); State
v. Goldstein, 207 Ala. 569, 93 So. 308 (1922)(law preventing the taking
of profits from sale of necessities held beyond this power); City of
Mobile v. Rouse, 233 Ala. 622, 173 So. 266 (1937)(law making criminal
giving haircuts below price set by ordinance held unconstitutional); Lisenba
v. Griffin, 242 Ala. 679, 8 So.2d 175 (1942); Alabama Independent
Service Station Ass'n. V. McDowell, 242 Ala. 424, 6 So.2d 502 (1942)(law
preventing gifts, rebates and discounts for oil sales held outside the
police power); Bulova Watch Co. v. Zale Jewelry Co., 274 Ala. 270,
147 So.2d 797 (1962)(law regulating sales of watches held unconstitutional);
San Ann Tobacco Co., Inc. v. Hamm, 283 Ala. 397, 217 So.2d 803 (1968)(law
preventing sales of cigarettes below cost held unconstitutional); and Estell
v. City of Birmingham, 291 Ala. 680, 286 So.2d 872 (1973)(law preventing
scalping of tickets for football games held unconstitutional).