Moreover, a survey of authorities from other jurisdictions disproves Valov's assertion that only Molokans believe that the biblical injunction against graven images proscribes believers from being photographed. In Johnson v. Motor Vehicle Division, Etc. (1979) 197 Colo. 455 [ 593 P.2d 1363], appellants were members of a religious organization known as the Assembly of YHWHHOSHUA, who "believe[d] that the Bible directs that they not allow any photograph to be taken of them." Just like Valov, "[t]hey base their belief on a literal interpretation of the second commandment, as pronounced in Exodus 20:4. . . ."
Three courts have considered claims by licensees who objected on religious grounds to similar photograph requirements. Two courts ruled that the state's refusal to exempt the objecting licensees served a compelling state interest, see Dennis v. Charnes, 571 F. Supp. 462 (D.Colo. 1983); Johnson v. Motor Vehicle Div., 197 Colo. 455, 593 P.2d 1363 (1979), and one court ruled that such a refusal does not serve a compelling state interest. See Bureau of Motor Vehicles v. Pentecostal House, 269 Ind. 361, 380 N.E.2d 1225 (1978).
Even if the plaintiff produces evidence that the restriction burdens his free exercise of religion, I conclude as a matter of law that the state has a compelling interest in requiring that a driver's license applicant be photographed. The Colorado Supreme Court in Johnson v. Motor Vehicle Div., 197 Colo. 455, 593 P.2d 1363 (1979) defined this interest as the need of police officers instantaneously to identify vehicle operators during traffic stops. Photographic identification is a central purpose for issuing drivers' licenses and exceptions would subvert that purpose.
First, Young Life does not contend that unemployment taxation is offensive to the tenets of belief subscribed to by the Young Life organization or its members. Cf. Johnson v. Motor Vehicle Division, 197 Colo. 455, 593 P.2d 1363 (1979), cert. denied 444 U.S. 885 (members of religious sect whose beliefs forbade their being photographed challenged statutory requirement that a driver's license bear a photograph of the licensee). Second, Young Life concedes that the church exemption in Colorado's unemployment tax statute is not constitutionally mandated.
In order to satisfy the prayer of the plaintiff, this court must find that the trial court erred in granting defendants' motion to dismiss for failure to state a claim. The trial court relied on Johnson v. Motor Vehicle Div., 197 Colo. 455, 593 P.2d 1363 (1979) cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116, to conclude, as a matter of law, that the state has a compelling interest in requiring photographs for driver's licenses. In the Johnson case, the Colorado Supreme Court dealt with a fact situation that is virtually identical to that present here and based upon those facts the court held that the compelling interest in having drivers' licenses with photographs was the need for police officers to be able to identify, instantly, the operators of vehicles at traffic stops.
Whether the state may compel individuals who wish to have a driver's license to submit to a facial photograph has split the courts. Valov v. Dep't of Motor Vehicles, 132 Cal. App. 4th 1113 (2005) (upholding the photograph requirement against religious challenge); Johnson v. Motor Vehicle Div., Dep't of Revenue, 593 P.2d 1363 (Colo. 1979) (same); In re Miller, 684 N.Y.S.2d 368 (1998) (rejecting religious challenge to photograph requirement on a state hunting license); South Dakota v. Arnold, 379 N.W.2d 322 (S.D. 1986) (upholding drivers' license requirement against religious challenge), but see Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc., 380 N.E.2d 1225 (Ind. 1978) (concluding that alternatives were available to the license photograph requirement). The closest First Circuit case is Alexander v. Trustees of Boston Univ., 766 F.2d 630 (1st Cir. 1985), where the Court reversed an injunction against Boston University that had prevented the University from denying aid to applicants who had refused on religious grounds to complete Department of Education forms that required them to certify their compliance with the Military Selective Service Act, which mandated registration.
While no court, to our knowledge, has directly dealt with a state driving license requirement per se, and the free exercise of religion, several courts have upheld licensure provisions from constitutional attack. See Dennis v. Charnes, 571 F. Supp. 462 (D.Colo. 1983); Johnson v. Motor Vehicle Division, 197 Colo. 455, 593 P.2d 1363 (1979), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979); and State ex rel. O'Sullivan v. Heart Ministries, 227 Kan. 244, 607 P.2d 1102 (1980), appeal dismissed, 449 U.S. 802, 101 S.Ct. 47, 66 L.Ed.2d 6 (1980). But see, Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd, 472 U.S. ___, 105 S.Ct. 3492, 86 L.Ed.2d 383 (1985); and Bureau of Motor Vehicles v. Pentecostal House, 269 Ind. 361, 380 N.E.2d 1225 (1978), which found photograph requirements for driver's licenses to be an unconstitutional burden.
¶ 99 Colorado appellate courts have consistently analyzed similar free exercise claims under the United States and Colorado Constitutions, and have regularly relied on federal precedent in interpreting article II, section 4. See, e.g.,Ams. United, 648 P.2d at 1072; Conrad, 656 P.2d at 670; Young Life, 650 P.2d at 526; People in Interest of D.L.E., 645 P.2d 271, 275–76 (Colo.1982); Johnson v. Motor Vehicle Div., 197 Colo. 455, 458, 593 P.2d 1363, 1364 (1979); Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 416, 509 P.2d 1250, 1253 (1973); Zavilla v. Masse, 112 Colo. 183, 187, 147 P.2d 823, 825 (1944); In re Marriage of McSoud, 131 P.3d 1208, 1215 (Colo.App.2006); In the Interest of E.L.M.C., 100 P.3d 546, 563 (Colo.App.2004); see also Paul Benjamin Linton, Religious Freedom Claims and Defenses Under State Constitutions, 7 U. St. Thomas J.L. & Pub. Pol'y 103, 116–17 (2013) (observing that “a claim or defense that would not prevail under the Free Exercise Clause of the First Amendment would not likely prevail under article II, section 4, either”).
The free exercise question would arise only if the statute or rule refused to recognize a religious objection. See Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd by equally divided court without opinion, 105 S.Ct. 3492 (1985) (holding that states must recognize a religious objection to photo requirement);Bureau of Motor Vehicles v. Pentecostal House, 269 Ind. 361, 380 N.E.2d 1225 (1978) (state must recognize religious objection); Johnson v. Motor Vehicle Division, Etc., 593 P.2d 1363 (Colo. 1979) (state need not recognize religious objection); Dennis v. Charnes, 571 F. Supp. 462 (D. Colo. 1983) (state need not recognize religious objection). This affirmance does not constitute agreement by the United States Supreme Court with the court below inasmuch as affirmance was by an evenly divided vote.
Such public health and safety considerations override any claim that the licensing process itself infringes upon any religious belief or practice. Cf., Johnson v. Motor Vehicle Division, 197 Colo. 455, 593 P.2d 1363 (1979). Compare Roloff, 556 S.W.2d at 856-57.