IN THE SUPREME COURT OF THE STATE OF IDAHO

 

LAWRENCE D. LEWIS,                              )

)

Plaintiff/Appellant,                     )

)

v.                                                                )          Supreme Court No. 31833

)

STATE OF IDAHO,                                    )          APPELLANT=S

DEPARTMENT OF TRANSPORTATION,  )          SUPPLEMENTAL REPLY

)          BRIEF

Defendant/Respondent.              )

 

                                                                                                        

 

APPELLANT=S SUPPLEMENTAL REPLY BRIEF

                                                                                                          

 

Appeal from the District Court of the First Judicial District

of the State of Idaho, in and for the County of Bonner

                                                           

 

Honorable Steve Verby, District Judge, Presiding

                                                               

 

HON. LAWRENCE G. WASDEN                                 STANLEY D. CROW

Attorney General                                                                  6138 W. Winstead Place

TERRY E. COFFIN                                                      P.O. BOX 972

KAY CHRISTENSEN                                                   Boise, ID 83701-0972

Deputy Attorneys General                                               (208) 345-7561

P.O. Box 83720                   

Boise, ID 83720-0010                                                  HERBERT W. TITUS

(208) 334-2400                                                                      William J. Olson, P.C.

Attorneys for Respondent                                                  8180 Greensboro Drive

Suite 1070

McLean, VA 22102-3860

(703) 356-5070

Attorneys for Appellant    

TABLE OF CONTENTS

 

TABLE OF AUTHORITIES   ii

 

ARGUMENT        1

                  

I.  THE FEDERAL AND IDAHO RELIGIOUS FREEDOM

RESTORATION ACTS CONTAIN SUBSTANTIALLY SIMILAR

       RULES SUPPORTED BY SUBSTANTIALLY IDENTICAL

LEGISLATIVE FINDINGS AND PURPOSES 3

        

A.       Although Strikingly Similar, the Idaho RFRA Imposes an Even

Higher Standard of Protection of the Free Exercise of Religion

Than Does the Federal RFRA        3

 

B.       The Legislative Findings and Purposes of the Two RFRA=s Are

Substantially Identical     4

 

II.    THE UNITED STATES SUPREME COURT=S INTERPRETATION

AND APPLICATION OF THE FEDERAL RFRA IN GONZALES V.

UDV AUTHORITATIVELY AND CONVINCINGLY SHOWS THAT

THE STATE OF IDAHO HAS FAILED TO MEET ITS IDAHO RFRA

BURDEN IN THIS CASE        5

 

A.       The State of Idaho Has Failed to Demonstrate By Clear and

Convincing Evidence a Compelling Governmental Interest to Place

a Substantial Burden Upon Mr. Lewis=s Religious Practice Essential

to Child Welfare or Highway Safety        6

 

B.    On This Record The State=s Interest in Complying With the

Federal Mandate Contained in 42 U.S.C. Section 666(a)(13) Does

Not Meet the Idaho RFRA=s Compelling Governmental Interest

Requirement 9

 

III.        CONCLUSION      11

 

 

 

TABLE OF AUTHORITIES

 

CASE

 

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal,

546 U.S. ---, 163 L.Ed.2d 1017, 2006 LEXIS 1815 (2006) 1,  passim

                   

STATUTES

FEDERAL

 

42 U.S.C. Section 666(a)(13)  9, 10

 

42 U.S.C. Section 2000bb(a)  4

 

42 U.S.C. Section 2000bb(b)(1) 5

 

42 U.S.C. Section 2000bb-1(a) 3

 

42 U.S.C. Section 2000bb-1(b) 3, 6

 

42 U.S.C. Section 2000bb-2(3)         4, passim

 

STATE

 

Idaho Code Section 49-306(2)        1, 2, 9

 

Chapter 4, Title 73, Idaho Code          2

 

Idaho Code Section 73-401(1)        4, 6, 9

 

Idaho Code Section 73-402  2

 

Idaho Code Section 73-402(2)        3

 

Idaho Code Section 73-402(3)        3, passim

 

LEGISLATIVE HISTORY

 

STATE

 

Senate Bill 1394, Statement of Purpose

(Legislative Services Office, Idaho State Legislature)          2, 4, 5

 

Senate Bill 1394, Section 1

(Legislative Services Office, Idaho State Legislature          5, 8

ARGUMENT

 

On February 21, 2006, the United States Supreme Court (hereinafter Athe Supreme Court@) unanimously decided Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. ---, 163 L.Ed.2d 1017, 2006 U.S. LEXIS 1815 (2006) (hereinafter AGonzales v. UDV@), all eight justices joining in Chief Justice Roberts=s opinion.  This case provided the Supreme Court with its seminal opportunity to interpret and apply the federal Religious Freedom Restoration Act (hereinafter Athe federal RFRA@).  Because the Government had conceded that the application of the federal Controlled Substances Act Awould (1) substantially burden (2) a sincere (3) religious exercise,@ the Supreme Court had no occasion to address that aspect of the federal RFRA. See id., 546 U.S. ---, 163 L.Ed.2d at 1030, 2006 U.S. LEXIS at 21.  Instead, it focused almost exclusively upon the task of assessing the statutory burden placed upon the Government to Ademonstrate@ whether Aapplying the Controlled Substances Act in [that] case was the least restrictive means of advancing [any] compelling governmental interest.@  See id., 546 U.S. ---, 163 L.Ed.2d at 1028, 2006 U.S. LEXIS at 16-17.   

In like manner in this case, the Idaho Department of Transportation (Athe State of Idaho@) has not contested whether Mr. Lawrence D. Lewis=s (AMr. Lewis@) sincere religious beliefs and practices have been substantially burdened by the Idaho Code Section 49-306(2) requirement that Mr. Lewis identify himself with a Social Security Number (ASSN@) in order to obtain a driver=s license.  See Respondent=s Brief (AResp. Br.@), pp. 2-4.  Accordingly, the State of Idaho has limited its defense under Chapter 4, Title 73, Idaho Code (Athe Idaho RFRA@^[1]) to the claim that AIdaho Code Section 49-306(2) furthers a compelling government interest@ and Ais the least restrictive means of accomplishing a compelling state interest.@   See Resp. Br., pp. 12-18.  Thus, the RFRA issue in this case, like the one in Gonzales v. UDV, is whether the State of Idaho has carried its statutory burden to Ademonstrate@ that the Idaho Code Section 49-306(2)(a) requirement that an applicant for a driver=s license identify himself by a SSN is Aessential@ to a Acompelling governmental interest,@ and the least restrictive means to achieve that interest.  See Appellant=s Reply Brief (AApp. Reply Br.@), pp. 5-19.

As shown in Part I below, the substantive rules contained in, and the findings and purposes of, the federal and Idaho RFRA=s are substantially the same.  As shown in Part II below, the Gonzales v. UDV opinion convincingly and authoritatively demonstrates that the State of Idaho has failed in this case to meet its burden under Idaho Code Section 73-402 to demonstrate that the substantial burden placed upon Mr. Lewis=s free exercise of religion is justified by a Acompelling governmental interest.@                                 

I.          THE FEDERAL AND IDAHO RELIGIOUS FREEDOM RESTORATION ACTS CONTAIN SUBSTANTIALLY SIMILAR RULES SUPPORTED BY SUBSTANTIALLY IDENTICAL LEGISLATIVE FINDINGS AND PURPOSES.

 

A.          Although Strikingly Similar, the Idaho RFRA Imposes An Even Higher Standard of Protection of the Free Exercise of Religion Than Does the Federal RFRA.

 

The federal and Idaho RFRA=s contain strikingly similar rules protecting religious freedom.  The federal RFRA reads:

Government shall not substantially burden a person=s exercise of religion even if the burden results from a rule of general applicability, except ... only if it demonstrates that application of the burden to the person C (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. [42 U.S.C. Section 2000bb-1(a) and (b). (emphasis added).]

 

The parallel provision in the Idaho RFRA provides even greater protection for the free exercise of religion:

[G]overnment shall not substantially burden a person=s exercise of religion even if the burden results from a rule of general applicability [except] only if it demonstrates that application of the burden to the person is both: (a) Essential to further a compelling governmental interest; (b) The least restrictive means of furthering that compelling governmental interest. [Idaho Code Section 73-402(2) and (3) (emphasis added).]

 

Additionally, the federal and Idaho RFRA=s contain strikingly similar definitions of the burdens placed upon their respective governments to Ademonstrate@ that a government=s interest is sufficient to override a substantial burden upon a persons= free exercise of religion.  The federal RFRA states that A>demonstrates= means meets the burdens of going forward with the evidence and of persuasion.=@  42 U.S.C. Section 2000bb-2(3) (emphasis added).  In keeping with its higher standard of religious liberty protection, the Idaho RFRA states an even higher standard, providing that A>[d]emonstrates means meets the burdens of going forward with evidence, and persuasion under the standard of clear and convincing evidence.@   Idaho Code, Section 73-401(1) (emphasis added).

B.           The Legislative Findings and Purposes of the Two RFRA=s Are  Substantially Identical.                     

 

ARecognizing free exercise of religion as an unalienable right,@ the United States Congress based its RFRA upon the findings, inter alia, that A[g]overnments should not substantially burden religious exercise without compelling justification@ and Athe compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.@  See 42 U.S.C. Section 2000bb(a)(1), (3) and (5).  In like manner, Arecogniz[ing] the free exercise of religion,@  the Idaho State Legislature enacted its Aown RFRA,@ basing it upon the findings, inter alia, that A[g]overnments should not substantially burden religious exercise without compelling justification@ and A[t]he compelling interest test, as set forth in the federal cases of Wisconsin v. Yoder, (1972) and Sherbert v. Verner, 374 U.S. 398, (1963) is a workable test for striking sensible balances between religious liberty and competing government interests.@  See Senate Bill No. 1394, Statement of Purpose,  Paragraph 3, and Section 1, Paragraphs (1), (3) and (5), Legislature of the State of Idaho, Fifty-fifth Legislature, Second Regular Session (2000) (italics added).

In the federal RFRA, Congress stated its purpose to be A(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened....@  See 42 U.S.C. Section 2000bb(b)(1) (italics added).  Likewise, the 2000 Idaho State Legislature stated the purpose of the Idaho RFRA Ato reestablish [the United States Supreme Court=s pre-1990 >compelling interest test=] which the courts must use to determine whether a person=s religious belief should be accommodated when a government action or regulation restricts his or her religious practice.@  See Statement of Purpose, Paragraphs 1 and 2, and Section 1(6), Senate Bill No. 1394, Legislature of the State of Idaho, Fifty-fifth Legislature, Second Regular Session (2000), on file with the Legislative Services Office, Idaho State Legislature.                                                 

 

II.          THE UNITED STATES SUPREME COURT=S INTERPRETATION AND APPLICATION OF THE FEDERAL RFRA IN GONZALES V. UDV AUTHORITATIVELY AND CONVINCINGLY SHOWS THAT THE STATE OF IDAHO HAS FAILED TO MEET ITS IDAHO RFRA  BURDEN IN THIS CASE.

 

A.          The State of Idaho Has Failed to Demonstrate by Clear and Convincing Evidence A Compelling Governmental Interest to Place a Substantial Burden Upon Mr. Lewis=s Religious Practice Essential to Child Welfare or Highway Safety.

 

As is true of the federal RFRA C as found by the Supreme Court in Gonzales v. UDV C the Idaho RFRA has placed the burden of demonstrating a compelling government interest upon the State of Idaho.  Compare 42 U.S.C. Sections 2000bb-2(3) and 2000bb-1(b) and Gonzales v. UDV, 546 U.S. ---, 163 L.Ed.2d at 1030-31, 2006 U.S. LEXIS at 21-24 with Idaho Code Sections 73-401(1) and 73-402(3).    Indeed, the Idaho RFRA expressly places a burden of Aclear and convincing evidence@ of such a compelling governmental interest, whereas the federal RFRA appears to only require that the existence of such a compelling governmental interest be Amore likely than not.@  Compare Idaho Code Section 73-401(1) with 42 U.S.C. Section 2000bb-2(3) and Gonzales v. UDV, 546 U.S. ---, 163 L.Ed.2d at 1030, 2006 U.S. LEXIS at 21-22.  

As the Supreme Court ruled in Gonzales v. UDV, however, even the lower burden fixed by the federal RFRA requires that the federal Government Ademonstrate that the compelling interest test is satisfied through application of the challenged law >to the person= C the particular claimant whose sincere exercise of religion is being substantially burdened.@   Id., 546 U.S. ---, 163 L.Ed.2d at 1031, 2006 U.S. LEXIS at 25 (emphasis added).  Thus, the Supreme Court rejected the federal Government=s Acategorical@ contention that, because of the dangerousness of the drug at issue, and because the drug was classified under Schedule I of the Controlled Substances Act C which allowed no exceptions C the Government had satisfied the federal RFRA compelling governmental interest standard without regard to the Aparticulars of the UDV=s use or [without regard] to the impact of an exemption for that specific use.@  Id., 546 U.S. ---, 163 L.Ed.2d at 1031, 2006 U.S. LEXIS at 25.   According to Gonzales v. UVD, the federal ARFRA, and the strict scrutiny test it adopted, contemplated an inquiry more focused than the Government=s categorical approach@ (id.), the statute having adopted the Supreme Court=s more particularized approach in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972):

In each of those cases, this Court looked beyond the broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants.   [Gonzales v. UDV, 546 U.S. ---, 163 L.Ed.2d at 1031, 2006 U.S. LEXIS at 25-26.]

 

Thus, the Supreme Court ruled that the federal RFRA required the federal Government to demonstrate with particularity how its generalized interests would be specifically impeded by the granting of an exemption to the individual religious claimant before the court.  Id., 546 U.S. ---163 L.Ed.2d at 1031-32, 2006 U.S. LEXIS at 25-27.       

As is true of the federal RFRA, the Idaho RFRA has expressly adopted Athe compelling interest test, as set forth in the federal cases of Wisconsin v. Yoder ... and Sherbert v. Verner [as the] workable test for striking sensible balances between religious liberty and competing government interests.@  Senate Bill No. 1394, Section 1(6), Legislature of the State of Idaho, Fifty-fifth Legislature, Second Regular Session - 2000 (Legislative Services Office, Idaho State Legislature) (emphasis and italics added).   Thus, the Idaho RFRA has tied its Acompelling governmental interest@ standard to the authoritative interpretation and application of that standard by the Supreme Court.

As in Gonzales v. UDV, the State of Idaho has attempted to justify the substantial burden placed upon Mr. Lewis=s free exercise of religion by a similar Acategorical approach,@^[2] asserting that its interests in Asupport of its children@ and Athe health, safety and welfare of the traveling public@ are Acompelling governmental interests.@  See Resp. Br., pp. 14-16.  But the language of the Idaho RFRA, like the text of the federal RFRA, requires more than such a generalized claim.  Compare Idaho Code Section 73-402(3)(a) (AGovernment may substantially burden a person=s exercise of religion only if it demonstrates that application of the burden to the person is  [e]ssential to further a compelling governmental interest (emphasis added).@) with 42 U.S.C. Section 2000bb-2(3) (AGovernment may substantially burden a person=s free exercise of religion only if it demonstrates that application of the burden to the person ... is in furtherance of a compelling governmental interest (emphasis added).@)   

Hence, consistent with the Supreme Court=s reading of 42 U.S.C. Section 2000bb-2(3) in Gonzales v. UDV, 546 U.S. ---, 163 L.Ed.2d at 1031, 2006 U.S. LEXIS at 25-27, this Court ought to read the identical text in the Idaho RFRA to require the State of Idaho to Ademonstrate@ that it has a Acompelling governmental interest@ to substantially burden Mr. Lewis=s free exercise of religion claim not to be identified by a SSN in making application for, or otherwise with regard to obtaining, a driver=s license.  Moreover, this Court should require the State of Idaho to show by Aclear and convincing evidence@  that it is Aessential@ that Mr. Lewis conform to the Idaho Code Section 49-306(2)=s requirement that he Astate@ an SSN on his application for a driver=s license, or otherwise identify himself by an SSN, in order for the State of Idaho to protect its allegedly Acompelling@ interests in child support and public safety upon the state=s roads and highways.   See Idaho Code Sections 73-401(1) and 73-402(3)(a).  As pointed out in Mr. Lewis=s Reply Brief, the State of Idaho has utterly failed to meet its statutory burden in this case.  See App. Reply Br., pp. 12-16.

B.          On This Record The State=s Interest in Complying with the Federal Mandate Contained in 42 U.S.C. Section 666(a) (13) Does Not Meet the Idaho RFRA=s Compelling Governmental Interest Requirement.

 

In Gonzales v. UDV, the Government attempted to meet the compelling governmental interest requirement of the federal RFRA by Aassert[ing] an interest in compliance with the 1971 United Nations Convention on Psychotropic Substances,@ contending that it Ahas a compelling interest in meeting its international obligations by complying with the Convention.@   Id., 546 U.S. ---, 163 L.Ed.2d at 1036, 2006 U.S. LEXIS at 37.   The Supreme Court rejected this claim on the ground that Athe Government did not even submit any evidence addressing the international consequences of granting any exemption for the UDV,@ noting that Aunder RFRA invocation of ... general interests, standing alone, is not enough.@ Id., 546 U.S. ---, 163 L.Ed.2d at 1036, 2006 U.S. LEXIS at 39 (Italics original). 

In like manner, in this case the State of Idaho has attempted to meet the compelling governmental interest requirement of the Idaho RFRA, claiming that it has a Acompelling state interest in complying with [the] federal law[]@ that requires a state to Arecord@ on a driver=s license application the SSN of a license applicant.  See Resp. Br., pp. 13-14.  See also 42 U.S.C. Section 666(a)(13).   Just as was the case with the federal government in Gonzales v. UDV, the State of Idaho did not Asubmit any evidence addressing the ... consequences of granting an exemption for [Mr. Lewis],@ having assumed that Ainvocation of [the state=s] general interests, standing alone is enough.@  Compare Gonzales v. UDV, 546 U.S. ---, 163 L.Ed.2d at 1036, 2006 U.S. LEXIS at 39 with Resp. Br., pp. 13-14, 15, and 17. 

But such a generalized interest cannot satisfy the Idaho RFRA requirement that the State have a compelling interest in Asubstantially burden[ing]@ Mr. Lewis religious conscience and practice, as provided for in Idaho Code Section 73-402(3)(a).  Additionally, as Mr. Lewis pointed out in his Reply Brief the federal mandate requiring the recording of an SSN on a driver=s license application is not absolute, but is subject to a procedure whereby the State of Idaho may obtain an exemption.  See App. Reply Br., pp. 5-6.   As the Supreme Court pointed out in Gonzales v. UDV, the presence of authority to Awaive@ what would otherwise be mandated by federal statute reinforces the conclusion that the Government has not met its statutory Aobligation to shoulder its burden under [the federal] RFRA@ that it has a compelling governmental interest to place a substantial burden upon a person=s religious practice.  See Id., 546 U.S. ---, 163 L.Ed.2d at 1032-33, 2006 U.S. LEXIS at 28-29.

 

III.          CONCLUSION

For the additional reasons stated herein, and for the reasons stated in his opening and reply briefs, Mr. Lewis respectfully requests this Court to reverse the District Court=s Decision on Judicial Review and remand this case to the District Court with the specific instructions set forth in Mr. Lewis=s Reply Brief.

Respectfully submitted,

 

                                          

Stanley D. Crow

6138 W. Winstead Place

P.O. Box 972

Boise, ID 83701-0972

(208) 345-7561

 

Herbert W. Titus

William J. Olson, P.C.

8180 Greensboro Drive

Suite 1070

McLean, VA 22102-3860

(703) 356-5070

 

Attorneys for Plaintiff/Appellant

Lawrence D. Lewis