The issuance of a motor vehicle operator's license may not be refused to a person solely on the ground that he refuses to submit to a photograph, when that refusal is based solely upon religious beliefs.

CONSTITUTIONAL LAW: MOTOR VEHICLES: DRIVER'S LICENSE: The issuance of a motor vehicle operator's license may not be re- fused to a person solely on the ground that he refuses to submit to a photograph, when that beliefs. refusal is based solely upon religious OPINION NO. 25 January 4, 1973 Honorable Morris G. Westfall Representative - 140th District Highway 32 Halfway, Missouri 65663 Dear Representative Westfall: F \LED J_5 This opinion is in response to your request for an of- ficial opinion of the Attorney General upon the following question: "May the Department of Revenue refuse to issue a motor vehicle operator's license to a person whose religious beliefs pre- clude his submission to the taking of a photograph of the licensee as required by Sec. 302 .181, RSMo, but who otherwise satisfies all requirements for the issu- ance or renewal of a motor vehicle oper- ator's license." Section 302.181, RSMo 1969, as amended, Laws , 1971, page , House Bill No. 365, Section 1, which became effective July 1, 1972, provides, in part, as fol lows: "1. The chauffeur ' s license and motor vehicle operator ' s license issued under the provisions of this chapter shall be in such form as the director shall pre- scribe but the license shall be a card made of plastic or other comparable material. All licenses shall bear the licensee's social security or tax ident- ifying number, if the licensee has one, Honorable Morris G. Westfall and if not, then a number assigned to the licensee by the director, the expir- ation date of the license, the name, date of birth, residence address, and a brief description and colored thotograph of the licensee, and either a acsimile of the signature of the licensee or a space upon which the licensee shall write his usual signature with pen and ink im- mediately upon receipt of the license. No license shall be valid until it has been so signed by the licensee ... . "2. All film involved in the production of photographs for chauffeur's license and motor vehicle operator's license shall become the property of the department of revenue. * "4. The department of revenue may issue a temporary license without the photograph to out-of-state applicants, members of the armed forces, and in those situations where for any other reason the department finds it necessary ; provided, however, where such temporary license is issued it shal l be valid only until the applicant shall have had time to appear and have his picture taken and a license with his photograph is- sued." (Emphasis added). You state that your request for the opinion is made so as to determine whether the state may constitutionally require all applicants for a license to submit to a photograph and, if the state may so constitutionally require their submission, that you would then anticipate introducing legislation at the Seventy-Seventh General Assembly, State of Missouri, to pro- vide certain specific exemptions. In your request, you stated the fact s in the following manner: "Pursuant to Section 302.181, to obtain a motor vehicle operator' s license , all licensees are required to have their photo- graph taken . A settlement of Amish Menno- -2- Honorable Morris G. Westfall nitcs in the Pol k J.JJU Dallas County areas believe that it is contrary to God ' s will for them to have their picture taken . They base their belief on the following scripture: "Thou shal t not make unto thee any graven image or any l ikeness of anyt hin·g that is in heaven above or that is in the earth beneath or that is in the ~a t cr under the earth . Exodus 20 : 4 " Thus , unless some exception is made on re- ligious grounds , it will not be possible for this group to legally operate their automobiles." I n answering your inquiry, we have been guided principally by two opinions of the Supreme Court of United States. The first, Sherbert v. Verner, 374 U. S. 398 , 10 L. Ed.2d 965, 83 S . Ct . 1790 (1963), held that a Seventh-Day Adventist who was dis- charged by her employer for refusal to work on Saturday , which was the Sabbath Day of her f&ith , and was subsequently refused unemployment compensation by the state employment security com- mission because of her refusal to work on Saturdays , constituted an impermissible restriction upon the free exercise of her reli- gion . The second case, Wisconsin v. Yoder , 406 U. S . 205, 32 L. Ed . 2d 15 , 92 S. Ct . 1526 (1972) , reversed the conviction of members of the Old Order Amish Religion and the Conservative Amish Mennonite Church , for violation of Wisconsin ' s compulsory school attendance law which required a child ' s school attendance until age sixteen. The defendants had declined to send their children to public or private school after completion of the eighth grade. The Supreme Court held that the application of t he compulsory school attendance law violated their rights under the free exercise clause of the First Amendment, and that the state's interest in universal education was not sufficient to override the protections afforded to the defendants under the free exercise clause of the First Amendment. The first inquiry is whether the religious belief or prac- tice here asserted i s sufficient to qualify as a religious be- lief or practice entitl ed to constitutional protection . Certain principles have been articulated by which such a determination should be made: -3- Honorable Morris G. Westfall "We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin's compulsory school attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forebears have adhered to for almos t three centuries. In evaluating those claims we must be careful to deter- mine whether the Amish religious faith and their mode of life are, as they claim, in- separable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reason- able state regulation of education if it is based on purely secul ar considerations; to have the protection of the Religion Clauses, the claims must be rooted in reli- gious belief. Although a determination of what is a 'religious' belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allow- ing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claim would not rest on a religious basis . Thoreau ' s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clause ." Wisconsin v. Yoder, 32 L.Ed.2d 15, 25. For the purpose of this opinion, we assume that the religious belief here asserted is sufficient to qualify as a religious belief or practice entitled to constitutional protection. Here, the state regulation is clearly within its power to promote the health, safety and general welfare, however, even so , there are areas of conduct which are within the protection -4- Honorable Morris G. Westfall of the First Amendment to the Constitution of the United States of America. "Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State's control, but it argues that ' actions,' even though religiously grounded, are outside the protection of the First Amendment. But our decisions have re- jected the idea that rel igiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when relig- iously based, are often subject t o regula- tion by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Govern- ment in the exercise of its delegated powers. See, e.g., Gillette v United States, 401 US 437, 28 LEd 2d 168, 91 S Ct 828 (1971); Braunfeld v Brown, 366 US 599, 6 L Ed 2d 563, 81 S Ct 1144 (1961); Prince v Massa- chusetts, 321 US 158, 88 L Ed 645, 64 S Ct 438 (1944); Reynolds v United States, 98 US 145, 25 LEd 244 (1878). But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus be- yond the power of the State to control, even under regulations of general applicability. E.g., Sherbert v Verner, 374 US 398, 10 L Ed 2d 965, 83 S Ct 1790 (1963); Murdock v Pennsylvania, 319 US 105, 87 LEd 1292, 63 S Ct 870, 146 ALR 81 (1943); Cantwell v Connecticut, 310 US 296, 303-304, 84 L Ed 1213, 1217, 1218, 60S Ct 900, 128 ALR 1352 (1940). This case, therefore, does not be- come easier because respondents were convicted for their 'actions ' in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. Cf . Lemon v Kurtzman, 403 US 602, 612, 29 L Ed 2d 745, 755, 91 S Ct 2105 (1971)." Wisconsin v. Yoder, 32 L.Ed.2d 15, 27-28. -5- Honorable Morris G. Westfall The statutory requir ement , wltllc neutral on i t s face , may still be violative of First Amendment freedoms. "Nor can this ca ~;e be disposed of on the grounds that Wisconsin ' s requ irement fo r school attcndanc~ to age 16 applies uni - formly to all c i tjzcns of t he State and does not , on· i ts ... ace , <l1scriminate against religions or a particular religion, or that it is motivated hy legitimate secular con- cerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for govern- mental neutrality if it unduly burdens the free exercise of religion . Sherbert v Verner; cf. Walz v Tax Comm. , 397 US 664, 25 LEd 2d 697, 90S Ct 1409 (1970) . The Court must not i gnore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Cl·ause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise .... " Wisconsin v. Yoder, 32 L.Ed.2d 15, 28 . Thus, for the requirement to stand , "it must appear, either that the State does not deny the free exercise of religious be- lief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protec- tion under the Free Exerc ise Clause." Wisconsin v . Yoder, 32 L.Ed.2dl5, 24. Does the state requirement of submission to a photograph in order to obtain a motor vehicle operator ' s license impose a bur- den upon the free exercise of religious belief under these facts? Application of principles by which such a determination should , be made as set forth in Sherbert v. Verner, supra , compel the conclusion that such requirement does impose such a burden . As stated by Mr. Justice Brennan. "We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion. We think it is clear that it does. -6- Honorable Morris G. Westfall In a sense the consequences of such a dis- qualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appel- lant to work a six-day week. But this is only the beginning, not the end, of our in- quiry. For '[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitution- ally invalid even though the burden may be characterized as being only indirect.' Braun- feld v Brown, supra (366 US at 607). Here not only is it apparent that appellant's de- clared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forgo that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the pre- cepts of her religion in order to accept work, on the other hand. Governmental imposi- tion of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." Sherbert v. Verner, 10 L.Ed.2d 970-971. It is clear that a motor vehicle operator's license, its issuance and retention, involves sufficiently important interest of the licensees, that such issuance or suspension, must satisfy relevant constitutional limitations. Bell v. Burson, 402 U.S. 535, 29 L.Ed.Zd 90, 91 S.Ct. 1586 (1971). It is unimportant whether the license is considered to be a "right," "entitlement," or "privilege." Sherbert v. Verner, supra; Bell v. Burson, supra. We conclude, as did the Supreme Court of the United States that: "The door of the Free Exercise Clause stands tightly closed against any governmental reg- ulation of religious beliefs as such, Cant- well v Connecticut, 310 US 296, 303, 84 L ed -7- Honorable Morris G. Westfall 1213, 1217, 60S Ct 900 128 ALR 1352. Govern- ment may neither compel affirmation of a re- pugnant belief, Torcaso v Watkins, 367 US 488, 6 L ed 2d 982, 81 S Ct 1680; nor penal-, ize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 US 67, 97 Led 829, 73 S Ct 526; . . . On the other hand, the Court has re- jected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for 'even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restric- tions.' Braunfeld v. Brown, 366 US 599, 603, 6 L ed 2d 563, 566, 81 S Ct 1144. The con- duct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See , e.g., Reynolds v. United States, 98 US 145, 25 L ed 244; Jacobson v. Massachusetts, 197 US 11, 49 L ed 643, 25 S Ct 358; Prince v Massachusetts, 321 US 158, 88 Led 645, 64 S Ct 438; Cleveland v United States, 329 US 14, 91 L ed 12, 67 S Ct 13." Sherbert v. Verner, 374 U.S. 398, 402-403, 10 L.Ed.Zd 965, 969-970, 83 S.Ct . 1790 (1963). The religious conduct here asserted on religious principles does not pose a substantial threat to public safety, peace or order. The second inquiry is whether an incidential burden on the free exercise of religion may be justified by compelling state interest in the regulation of a subject within the state's con- stitutional power to regulate. The test to be applied has been stated in the following manner: " ... It is basi~ that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering paramount inter- ests, give occasion for permissible limita- tion,' .. " Sherbert v. Verner, 374 U.S. 398, 406. -8- Honorable Morris G. Westfall Clearly, such requirement, i.e., submission to a photograph relates not at all to a person's qualification or responsibility as a holder of a motor vehicle operator's license. We think it is abundantly clear that prior decisions of the Supreme Court of the United States would find that the state interest here in- volved was insufficient to support the burden imposed upon the free exercise of religion. Sherbert v . Verner, sg~rS; State of Wisconsin v. Yoder, 406 U.S. 205, 32 L.Ed.2d I s, .Ct. 1526 (197 2). CONCLUSION Therefore, for the foregoing reasons, we conclude that the issuance of a motor vehicle operator's license may not be re- fused to a person solely on the ground that he refuses to sub- mit to a photograph, when that refusal is based solely upon re- ligious beliefs. The foregoing opinion, which I hereby approve, was prepared by my assistant, Gene E. Voigts. Very truly yours, "'>I- e~ .. JOHN C. DANFORTII Attorney General -9 -