The pre- Smith standard required a particularized evaluation. See, e.g., Quaring v. Peterson, 728 F.2d 1121, 1126-27 (8th Cir. 1984) (applying Sherbert and Yoder by evaluating whether a government interest in requiring driver's license photographs is compelling as applied to a particular free-exercise claimant), aff'd by an equally divided court, 472 U.S. 478, 105 S.Ct. 3492, 86 L.Ed.2d 383 (1985). The pre- Smith standard applicable in Olsen, Rush, and DEA is the same standard applicable to Olsen's current claim.
In re Jenison, 375 U.S. 14, 84 S.Ct. 63, 11 L.Ed.2d 39 (1963) (per curiam).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, 86 L.Ed.2d 383 (1985) (per curiam affirmance by an equally divided Court).Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366-67 (3rd Cir. 1999) (Alito, J.).
the history of the human race and is incapable of compression into a few words"); see also Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) (judges filed two concurrences and two dissenting opinions in a case attempting to define religion in order to determine whether a religious school's policy of racial discrimination was religious or social or political in nature), cert. denied, 434 U.S. 1063 (1978). In Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972), the Supreme Court held that religious beliefs are distinct from philosophical and personal choices but failed to provide a test or a definition against which lower courts could hold the religious claims of petitioners to determine whether the claims warrant constitutional protection. Many courts have felt compelled by the distinction made in Yoder to establish a definition of religion. See United States v. Ward, 989 F.2d 1015, 1017 (9th Cir. 1992); Quaring v. Peterson, 728 F.2d 1121, 1123 (8th Cir. 1984), aff'd, 472 U.S. 478 (1985); Africa, 662 F.2d at 1031. We, however, had declined to do so until now.
A. Decisions of the Supreme Court of the United States Sustaining Congressional Legislation Against A Claim That The Legislation Violated TheFree Exercise Clause.CASE CITATION 476 U.S. 693 475 U.S. 503 471 U.S. 290 470 U.S. 598 461 U.S. 574 455 U.S. 252 432 U.S. 63 419 U.S. 7 415 U.S. 361 401 U.S. 437 380 U.S. 163 340 U.S. 857 322 U.S. 78 245 U.S. 366 194 U.S. 279 136 U.S. 1 133 U.S. 333 98 U.S. 145 B. Decisions of the Supreme Court of the United States Sustaining State Action Against A Claim That The Action Violated The Free Exercise Clause 392 U.S. 236 345 U.S. 395 343 U.S. 306 325 U.S. 561 321 U.S. 158 310 U.S. 586 293 U.S. 245 C. Decisions of the Supreme Court of the United States InvalidatingState Action As A Violation of the Free Exercise Clause 472 U.S. 478 450 U.S. 707 435 U.S. 618 426 U.S. 696 406 U.S. 205 374 U.S. 398 367 U.S. 488 344 U.S. 94 340 U.S. 290 326 U.S. 501 326 U.S. 517 321 U.S. 573 319 U.S. 624 319 U.S. 105 319 U.S. 103 310 U.S. 296U.S. COURT OF APPEALS
The district court sentenced Slabaugh to two years in prison, execution of which was suspended, three years of probation, forfeiture of the $500 bribe and a $50 fine. Slabaugh maintained his objection to the taking of his photograph on religious grounds. The district court then conducted an evidentiary hearing to consider Slabaugh's motion for exemption, and held, applying the balancing test set out 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, 86 L.Ed.2d 383 (1985) (per curiam affirmance by an equally divided Court), that the government's compelling public safety interest in having a photograph exceeded Slabaugh's right to free exercise of religion. Slabaugh, 655 F. Supp. at 468.
On appeal, David Blackwell, director of the Missouri Department of Corrections, Division of Adult Institutions, and Donald Wyrick, warden of the Missouri State Penitentiary, defendants below, do not dispute that Hill's desire to grow a beard is founded upon a sincerely held religious belief. See Quaring v. Peterson, 728 F.2d 1121, 1123 (8th Cir. 1984), aff'd by an equally divided Court sub nom. Jensen v. Quaring, ___ U.S. ___, 105 S.Ct. 3492, 86 L.Ed.2d 383 (1985). Rather, Blackwell and Wyrick maintain that the beard regulation is reasonably justified by legitimate concerns for prison security, and further that the prison officials' response to their legitimate concerns for prison security is not exaggerated. Based upon the record evidence, we agree with Blackwell's and Wyrick's contentions.
It is even more difficult to harmonize the dicta in Smith with precedent from this Circuit. In Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd by an equally divided Court, 472 U.S. 478, 105 S.Ct. 3492, 86 L.Ed.2d 383 (1985) (per curiam), the court determined that Nebraska's requirement that applicants for a driver's license submit to having color photographs taken and affixed to the license unconstitutionally burdened the plaintiff's free exercise of her religious beliefs. Allowing her to receive her license without a photograph was found to be a reasonable accommodation of her religion.
Lukumi Babalu Aye, 508 U.S. at 546-48, 113 S.Ct. at 2234; Quaring v. Peterson, 728 F.2d 1121, 1127 (8th Cir. 1984), summarily aff'd per cur., 472 U.S. 478, 105 S.Ct. 3492, 86 L.Ed.2d 383 (1985). "[A] law cannot be regarded as protecting an interest `of the highest order'.
Second, defendant must show that the photograph requirement infringes upon his religious beliefs. Quaring v. Peterson, 728 F.2d 1121, 1123-25 (8th Cir. 1984), aff'd sub nom. Jensen v. Quaring, 472 U.S. 478, 105 S.Ct. 3492, 86 L.Ed.2d 383 (per curiam by an equally divided court, Justice Powell taking no part in the decision). However, these factors in and of themselves do not automatically entitle defendant to an exemption from the photograph requirement on first amendment grounds.
"Although a religious belief requires something more than a purely secular philosophical or personal belief . . . courts have approved an expansive definition of religion." Quaring v. Peterson, 728 F.2d 1121, 1123 (8th Cir. 1984) aff'd, 472 U.S. 478, 105 S.Ct. 3492, 86 L.Ed.2d 383 (1985) (citations omitted). See also Wisconsin v. Yoder, 406 U.S. at 215-16, 92 S.Ct. at 1533-34 (1972); Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C. Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969).