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Carmichael v.United States

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Horen v. Com., 23 Va. App. 735, 479 S.E. 2d 553 (1997)

Discriminatory enforcement.

 Decision by state to prosecute individuals for certain crimes may not be based on unjustifiable standard such as race, religion or other arbitrary classification; thus, if accused can prove that facially neutral law is being applied in discriminatory manner, he or she has equal protection claim. U.S.C.A. Const.Amend.  

 Statute prohibiting possession of parts of wild birds "except as specifically permitted by law" excepted some uses, while excluding bona fide religious use by Native American couple convicted of possession of owl feathers, and thus was not religiously neutral, requiring state to show that statute was necessary to advance compelling government interest and did so in the least restrictive manner, where state law permitted possession of owl feathers by taxidermists, academics, researchers, museums, and educational institutions, and federal law specifically allowed for possession and use of eagle feathers in Native American religion, while there was no specific exception for possession of owl feathers for religious use under either state code or federal law. U.S.C.A. Const.Amend. 1; Const. Art. 1, § 16; Code 1950, §§ 29.1-415 to 29.1- 422, 29.1-521, subd. A, par. 10; 50 C.F.R. § 22.22.

 "Where the state creates a mechanism for legitimate individualized exceptions but fails to include religious uses among these legitimate exceptions, discriminatory intent may be inferred…  Failure to make allowance for bona fide religious uses tends to exhibit hostility, not neutrality, towards religion. When state creates mechanism for legitimate individualized exceptions to application of law that substantially burdens free exercise of religion but fails to include religious uses among these legitimate exceptions, discriminatory intent may be inferred. U.S.C.A. Const.Amend. 1; Const. Art 1, § 16.

 Failure to make allowance for bona fide religious uses tends to exhibit hostility, not neutrality, towards religion. U.S.C.A. Const.Amend. 1. 

 "Substantial burden" is imposed on free exercise of religion when governmental action compels party to affirm belief he or she does not hold, discriminates on basis of religious beliefs, inhibits dissemination of particular religious beliefs, or compels party to forego religious practices. U.S.C.A. Const.Amend. 1. 

 Prosecution under subsection of Wildlife Code penalizing possession of parts of wild birds, including feathers, except as specifically permitted by law, substantially interfered with religious practice of couple of Iroquois descent by forcing them to choose between fidelity to religious belief and punishment, thereby bringing unlawful coercion to bear on their choice, and, thus, statute imposed "substantial burden" on free exercise of couple's religion under Religious Freedom Restoration Act (RFRA), where owl feathers, having special significance to couple's ancestral tribe, were essential to religious practices and other items seized, including owl wings, prayer rattle, and feathered dream catcher, were hallmarks of faith akin to Bible, cross, and religious statuary. U.S.C.A. Const.Amend. 1; Religious Freedom Restoration Act of 1993, § 3, 42 U.S.C.A. § 2000bb-1; Code 1950, § 29.1-521, subd. A, par. 10.