Humphrey v. Lane

[This opinion has been published in Ohio Official Reports at 

89 Ohio St.3d 62

.]




               HUMPHREY, APPELLANT, v. LANE ET AL., APPELLEES.
                    [Cite as Humphrey v. Lane, 

2000-Ohio-435

.]
Civil rights—Standard under Section 7, Article I of the Ohio Constitution for
        reviewing a generally applicable religion-neutral state regulation that
        allegedly violates a person’s right to free exercise of religion—Hair length
        of Native American corrections officer—Least restrictive means of
        furthering state’s compelling interest not shown.
Under Section 7, Article I of the Ohio Constitution, the standard for reviewing a
        generally applicable, religion-neutral state regulation that allegedly violates
        a person’s right to free exercise of religion is whether the regulation serves
        a compelling state interest and is the least restrictive means of furthering
        that interest.
            (No. 99-206—Submitted October 13, 1999 at the Pickaway County
                               Session—Decided May 24, 2000.)
     APPEAL from the Court of Appeals for Hocking County, No. 98-CA-004.
                                  __________________
        {¶ 1} This case involves a clash between appellant Wendall Humphrey’s
sincerely held religious beliefs, which include a belief in maintaining long hair, and
the grooming policy of his employer, the Ohio Department of Rehabilitation and
Correction (“ODRC”).         This conflict commenced when appellee Janis Lane,
Warden of the Hocking Correctional Facility, notified Humphrey that he would be
terminated from his position as a corrections officer because he refused to cut his
hair to collar length, as required by the ODRC grooming policy.
        {¶ 2} Humphrey is a Native American and wears his hair long as a part of
his practice of Native American Spirituality. Humphrey was born on a reservation
but was adopted by a Christian family and raised as a Christian. After he became
                            SUPREME COURT OF OHIO




an adult, Humphrey’s adopted parents told him that he had parents and siblings
living on an Indian reservation. Humphrey came to embrace his Native American
heritage, enrolling as a member of the Shoshone-Bannock Tribe and studying
Native American beliefs and practices. Humphrey has practiced the religious
customs of Native American Spirituality since 1990.
       {¶ 3} As part of his religious practice, Humphrey began growing his hair
long in 1990. Humphrey believes that as a part of walking the “red road,” the sacred
Native American path of spirituality, he must keep his hair long. Humphrey
believes that a man’s hair is a part of his spiritual essence and should be cut only
on certain occasions, such as when he is in mourning.
       {¶ 4} Humphrey has been employed at Hocking Correctional Facility
(“Hocking”) since 1988. ODRC first issued the grooming policy relevant in this
case in 1992. The relevant portion, virtually unchanged since then, now reads:
       “IV. Policy:
       “It is the policy of the Department of Rehabilitation and Correction that
employees of the Department present a professional and dignified image,
commensurate with their responsibilities, in order to instill confidence on the part
of the public and establish respect from those under the supervision of the
department.
       “V. Procedures:
       “A. Uniformed Personnel
       “***
       “2. Hairstyle shall not interfere with the wearing or proper positioning of
the uniform cap. Hair shall be styled above the eyebrow in the front. Certain
hairstyles may be considered incompatible with a professional and dignified
appearance.




                                         2
                                 January Term, 2000




        “a. Male employees’ hair shall be evenly cut and neatly groomed. Hair must
be cut in such a style that it does not cover the entire ears on the side and is collar
length or shorter in the back.
        “***
        “c. Female employees [sic] hair may not be worn below the shoulders and
must be off the collar when wearing the uniform cap. Female employees with hair
longer than shoulder length may pull it back, pin it up, etc., to achieve this.”
        {¶ 5} ODRC does not contend that the grooming policy is necessary as a
safety or security measure. As the policy itself states, it exists so that employees
will project “a professional and dignified image, * * * in order to instill confidence
on the part of the public and establish respect from the inmates.” ODRC Director
Reginald Wilkinson testified regarding the importance of the policy:
        “[The grooming policy] is essential to the esprit de corps, image, discipline
and security at these institutions. The purpose of the policy is to create a unified
appearance among uniformed personnel, which personnel directly supervis[e] and
interac[t] with the inmate population. A uniform, professional image is essential to
projecting an image of monolithic, indivisible authority to inmates from the
uniformed prison staff.”
        {¶ 6} Despite the goal of indivisible authority, the grooming policy differs
for uniformed personnel, nonuniformed personnel, and noninstitutional personnel,
and for men and women. Only male uniformed employees are required to cut their
hair “in such a style that it * * * is collar length or shorter in the back.”
        {¶ 7} Humphrey was opposed to the grooming policy from the outset in
1992. When informed that he would have to cut his hair in order to remain at the
Hocking Correctional Facility, he filed a charge of discrimination with the Ohio
Civil Rights Commission in June 1992. In resolution of that charge, Humphrey
agreed to wear his hair underneath his uniform cap while on duty. He has continued
to wear his hair in that manner while on duty.




                                            3
                             SUPREME COURT OF OHIO




       {¶ 8} There is no evidence that Humphrey’s hairstyle has interfered with
his ability to properly perform his job as a corrections officer. There is no evidence
that the inmates disrespected Humphrey or that his hair adversely affected esprit de
corps. At no time has a prison official told Humphrey that his hair length is a source
of disruption for coworkers or inmates at Hocking. ODRC admits that there has
never been a problem with Humphrey’s job performance.
       {¶ 9} On January 14, 1997, Lane issued a memorandum to all staff at
Hocking, reminding them of the grooming policy and requiring compliance by
January 30, 1997. Lane sent the memorandum on the heels of a finding by the
United States District Court for the Southern District of Ohio that the ODRC policy
did not violate the religious freedom of the particular plaintiff in Blanken v. Ohio
Dept. of Rehab. & Corr. (1996), 

944 F.Supp. 1359

. That case was decided in large
part because the plaintiff’s hairstyle was so extreme that it could not be hidden
under a uniform cap. Lane wrote in the memorandum that the court “determined
that ODRC’s interest in maintaining security and discipline in the institution is a
compelling interest which justifies requirements to maintain hair lengths.”
       {¶ 10} Humphrey did not cut his hair, and thus became subject to the
disciplinary process, including oral and written reprimands. He was scheduled for
a predisciplinary conference, the notice for which advised Humphrey that he was
subject to further disciplinary action, including termination of employment. The
conference was scheduled for March 14, 1997, but was never held because
Humphrey was on medical leave at the time.
       {¶ 11} On May 28, 1997, Humphrey filed a complaint for declaratory
judgment and injunctive relief and a motion for a preliminary injunction in the
Hocking County Court of Common Pleas. After a June 6, 1997 hearing, the trial
court granted Humphrey’s motion for preliminary injunction on June 11, 1997. A
trial on the merits was held on August 28, 1997. On February 6, 1998, the trial
court granted judgment in Humphrey’s favor.




                                          4
                                 January Term, 2000




         {¶ 12} In arriving at its decision, the trial court employed the constitutional
analysis set forth by this court in In re Milton (1987), 

29 Ohio St.3d 20

, 29 OBR
373, 

505 N.E.2d 255

, and State v. Whisner (1976), 

47 Ohio St.2d 181

, 

1 O.O.3d 105

, 

351 N.E.2d 750

. Under those decisions, the state cannot infringe on a sincerely
held religious belief unless it shows a compelling state interest and also shows that
the interest was furthered by the least restrictive means available. The court made
factual determinations that Humphrey’s religious beliefs were sincerely held and
that the aims of the grooming policy could be achieved by Humphrey simply
tucking his hair beneath his uniform cap. The trial court found that the ODRC did
not employ the least restrictive means to further the compelling state interest at
issue.
         {¶ 13} The court of appeals reversed the trial court. The appellate court
held that the trial court had applied the wrong constitutional standard to the policy
at issue. The court of appeals stated that the ODRC did not need to show a
compelling state interest. Instead, the court found the standard enunciated by the
United States Supreme Court in Oregon Dept. of Human Resources, Emp. Div. v.
Smith (1990), 

494 U.S. 872

, 

110 S.Ct. 1595

, 

108 L.Ed.2d 876

, to be applicable. In
Smith, the court held that generally applicable, religion-neutral laws that have an
incidental effect of burdening religious practice need not be justified by a
compelling state interest. Applying the Smith standard, the court of appeals found
that the grooming policy was generally applicable and religion-neutral, and thus
did not violate the United States and Ohio Constitutions.
         {¶ 14} Further, the appellate court held that even if the compelling-state-
interest test applied, the ODRC’s compelling state interest outweighed the burden
placed upon Humphrey’s religious practices and that the grooming policy was the
least restrictive means of furthering its compelling interests.
         {¶ 15} This cause is now before the court upon the allowance of a
discretionary appeal.




                                            5
                             SUPREME COURT OF OHIO




                               __________________
       Porter, Wright, Morris & Arthur, Kathleen M. Trafford and Constance M.
Greaney, for appellant.
       Betty D. Montgomery, Attorney General, Mary Beth Foley, Assistant
Attorney General, Edward B. Foley, pro hac vice, State Solicitor, and David M.
Gormley, Associate Solicitor, for appellees.
       Carrie M. Cassady and Linda K. Fiely, urging reversal for amicus curiae,
Ohio Civil Service Employees Association, AFSCME Local 11, AFL-CIO.
       Kevin J. Hasson, Eric W. Treene and Roman P. Storzer, pro hac vice, urging
reversal for amicus curiae, Becket Fund for Religious Liberty.
                               __________________
       PFEIFER, J.
       {¶ 16} We hold that under Section 7, Article I of the Ohio Constitution, the
standard for reviewing a generally applicable, religion-neutral state regulation that
allegedly violates a person’s right to free exercise of religion is whether the
regulation serves a compelling state interest and is the least restrictive means of
furthering that interest. We further hold that the grooming policy in this case, while
in furtherance of a compelling state interest, did not employ the least restrictive
means of furthering that interest.
       {¶ 17} The First Amendment to the United States Constitution states:
       “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.”
       {¶ 18} The Ohio Constitution contains a section devoted entirely to the
freedom of religion, which it describes in detail:
       “All men have a natural and indefeasible right to worship Almighty God
according to the dictates of their own conscience. No person shall be compelled to




                                          6
                                 January Term, 2000




attend, erect, or support any place of worship, or maintain any place of worship,
against his consent; and no preference shall be given, by law, to any religious
society; nor shall any interference with the rights of conscience be permitted. No
religious test shall be required, as a qualification for office, nor shall any person be
incompetent to be a witness on account of his religious belief; but nothing herein
shall be construed to dispense with oaths and affirmations. Religion, morality, and
knowledge, however, being essential to good government, it shall be the duty of the
general assembly to pass suitable laws to protect every religious denomination in
the peaceable enjoyment of its own mode of public worship, and to encourage
schools and the means of instruction.” Section 7, Article I.
        {¶ 19} Verbiage does not indicate commitment to an ideal. The one phrase
in the United States Constitution regarding the freedom of religion is one of the
most powerful statements in human history. Ohio’s more detailed description of
the right does not by itself prove that Ohio’s framers created a broader freedom of
religion than exists in the United States Constitution. However, the words of the
Ohio framers do indicate their intent to make an independent statement on the
meaning and extent of the freedom. Whether that statement creates a relevant
difference is the question we face today.
        {¶ 20} In employing our comparison we are not doing a mere word count,
but instead are looking for a qualitative difference. The Ohio Constitution does
have an eleven-word phrase that distinguishes itself from the United States
Constitution: “nor shall any interference with the rights of conscience be
permitted.” The United States Constitution states that Congress shall make no law
“prohibiting the free exercise [of religion].” We find the phrase that brooks no
“interference with the rights of conscience” to be broader than that which proscribes
any law prohibiting free exercise of religion. The Ohio Constitution allows no law
that even interferes with the rights of conscience.         The federal Constitution
concerns itself with laws that prohibit the free exercise of religion. By its nature




                                            7
                              SUPREME COURT OF OHIO




the federal Constitution seems to target laws that specifically address the exercise
of religion, i.e., not those laws that tangentially affect religion. Ohio’s ban on any
interference makes even those tangential effects potentially unconstitutional.
        {¶ 21} The United States Supreme Court’s interpretation of the federal
Constitution makes it clear that “the right of free exercise does not relieve an
individual of the obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes).’ ” Smith, 

494 U.S. at 879

, 

110 S.Ct. at 1600

, 

108 L.Ed.2d at 886

, quoting United States v. Lee (1982), 

455 U.S. 252, 263

, 

102 S.Ct. 1051, 1058

, 

71 L.Ed.2d 127, 136, fn. 3

 (Stevens, J., concurring). Under the
standard enunciated by the court in Smith, the relevant issues are whether the
regulation at issue is religion-neutral and whether it is generally applicable. If those
elements are fulfilled, then the regulation does not violate the Free Exercise Clause.
        {¶ 22} It was the Smith decision that marked the divergence of federal and
Ohio protection of religious freedom. Not until Smith did the difference in the
constitutional clauses become relevant.         This court has traditionally mirrored
federal jurisprudence as to protection of religious freedom. In State v. Whisner
(1976), 

47 Ohio St.2d 181, 217-218

, 

1 O.O.3d 105, 124-125

, 

351 N.E.2d 750, 771

,
this court followed federal jurisprudence in enunciating a compelling-state-interest
test in Ohio. Citing Wisconsin v. Yoder (1972), 

406 U.S. 205, 233

, 

92 S.Ct. 1526, 1542

, 

32 L.Ed.2d 15, 35

, this court held:
        “What is required is a finding ‘that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise
Clause.’ 

Id.,

 at page 214 [

92 S.Ct. at 1532

, 

32 L.Ed.2d at 24

]. Moreover, even if
the state can establish the requisite degree of interest, it must yet demonstrate that
such interests cannot otherwise be served in order to overbalance legitimate claims
to the free exercise of religion.” (Footnote omitted.)




                                            8
                                 January Term, 2000




        {¶ 23} The Smith decision made it clear that earlier federal jurisprudence
on free exercise claims should not be relied upon when contemplating religion-
neutral, generally applicable laws. However, we have made it clear that this court
is not bound by federal court interpretations of the federal Constitution in
interpreting our own Constitution. As this court held in Arnold v. Cleveland (1993),

67 Ohio St.3d 35

, 

616 N.E.2d 163

, paragraph one of the syllabus:
        “The Ohio Constitution is a document of independent force. In the areas of
individual rights and civil liberties, the United States Constitution, where applicable
to the states, provides a floor below which state court decisions may not fall. As
long as state courts provide at least as much protection as the United States Supreme
Court has provided in its interpretation of the federal Bill of Rights, state courts are
unrestricted in according greater civil liberties and protections to individuals and
groups.”
        {¶ 24} We have considered the difference between the Ohio and federal
Constitutions in regard to the Establishment Clause. As this court has previously
stated, “[t]here is no reason to conclude that the Religion Clauses of the Ohio
Constitution are coextensive with those in the United States Constitution, though
they have at times been discussed in tandem. * * * The language in the Ohio
provisions is quite different from the federal language. * * * We reserve the right
to adopt a different constitutional standard pursuant to the Ohio Constitution,
whether because the federal constitutional standard changes or for any other
relevant reason.” Simmons-Harris v. Goff (1999), 

86 Ohio St.3d 1, 10

, 

711 N.E.2d 203, 211-212

.
        {¶ 25} As stated above, the Ohio Constitution’s free exercise protection is
broader, and we therefore vary from the federal test for religiously neutral, evenly
applied government actions.        We apply a different standard to a different
constitutional protection. We adhere to the standard long held in Ohio regarding
free exercise claims—that the state enactment must serve a compelling state interest




                                           9
                              SUPREME COURT OF OHIO




and must be the least restrictive means of furthering that interest. That protection
applies to direct and indirect encroachments upon religious freedom.
        {¶ 26} Before we analyze the state action in any case, we must first look at
the beliefs of the person affected by the state action, and how those beliefs are
affected by the state action. To state a prima facie free exercise claim, the plaintiff
must show that his religious beliefs are truly held and that the governmental
enactment has a coercive affect against him in the practice of his religion. Whisner,

47 Ohio St.2d at 200

, 

1 O.O.3d at 115-116

, 

351 N.E.2d at 762

. There seems to be
no dispute that Humphrey has successfully made those showings in this case. The
trial court made express factual findings that Humphrey’s religious beliefs are
sincerely held. The state does not dispute that a central tenet of Native American
Spirituality is that a man’s hair should not be cut unless he is in mourning. Forcing
Humphrey to cut his hair would certainly infringe upon the free exercise of his
religion.
        {¶ 27} Since Humphrey has made his prima facie case, the burden shifts to
the state to prove that the regulation furthers a compelling state interest. Once that
aspect has been satisfied, the state must prove that its regulation is the least
restrictive means available of furthering that state interest.
        {¶ 28} We are satisfied that the state does have a compelling interest in
establishing a uniform and grooming policy for its guards. Maintenance of a prison
system is a central role of government, an area it is uniquely suited for. It is an
undertaking essential to justice and to the safety of the citizenry, but by its nature
is fraught with danger and thus must be tightly controlled. A prison is a dangerous,
potentially explosive environment.
        {¶ 29} ODRC Director Reginald Wilkinson testified that a grooming policy
“is essential to the esprit de corps, image, discipline and security at these
institutions. The purpose of the policy is to create a unified appearance among
uniformed personnel, which personnel directly supervis[e] and interac[t] with the




                                          10
                                  January Term, 2000




inmate population. A uniform, professional image is essential to projecting an
image of monolithic, indivisible authority to inmates from the uniformed prison
staff.”
          {¶ 30} The appearance of an organized, disciplined front could aid in
squelching thoughts of organized unrest by prisoners. Prisons by their nature are
filled with people who have rejected the structure of civilized society, and a
heightened sense of order is necessary to maintain stability. Also, courts have
provided prison administrators “wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional security.” Bell v. Wolfish
(1979), 

441 U.S. 520, 547

, 

99 S.Ct. 1861, 1878

, 

60 L.Ed.2d 447, 474

.
          {¶ 31} The state has sufficiently established that there is a compelling state
interest in establishing uniform and grooming policies for prison workers. The state
must further prove, however, that the policy is the least restrictive means of
furthering that interest.
          {¶ 32} The ODRC states the purpose of the policy within the policy
language: “It is the policy of the Department of Rehabilitation and Correction that
the employees of the Department present a professional and dignified image,
commensurate with their responsibilities, in order to instill confidence on the part
of the public and establish respect from those under the supervision of the
department.” The question is whether the ODRC adopted the least restrictive
means of reaching that goal.
          {¶ 33} We view the resolution of that issue to be a factual determination.
The trial court found as a factual matter that the simple accommodation of allowing
Humphrey to wear his hair pinned under his uniform cap was a less restrictive
means of furthering ODRC’s interest. The trial court saw Humphrey with his hair
tucked beneath his cap and found that Humphrey presented the “professional and
dignified image” required by the policy.          The trial court found that “[i]t is




                                            11
                               SUPREME COURT OF OHIO




impossible to tell that his hair is longer than 1 or 2 inches when worn in this fashion.
It does not appear ragged, unkempt or extreme.”
        {¶ 34} The trial judge also considered testimony concerning whether
Humphrey’s hair affected the attitudes of fellow guards, administrators, and
inmates toward him, and viewed with his own eyes whether the accommodation
was a practical one. The trial court found that a practical accommodation could be
made. We defer to the trial court’s factual finding.
        {¶ 35} In Blanken v. Ohio Dept. of Rehab. & Corr. (1996), 

944 F.Supp. 1359

, the federal case that provided ODRC with a judicial imprimatur to enforce
its grooming policy, the trial judge made a contrary finding regarding the least
restrictive means test. In Blanken, the plaintiff also practiced Native American
Spirituality. Included in his religious practices was a belief that he should not cut
the hairs that grew at the base of his neck. Blanken believed that human hair can
pick up the messages of spirits in the wind, and stated, “because the hairs at the
base of the neck are rooted directly to the spinal column, I believe and it is believed
that these hairs provide a direct link between the spirits in the wind and the human
brain.” 

Id. at 1362

.
        {¶ 36} The trial judge in Blanken determination that “plaintiff’s hair creates
a very unusual appearance. Plaintiff’s long hair grows from a very conspicuous
patch at the base of his neck. * * * The long thin ‘tail’ of plaintiff’s hair is likewise
extraordinary in appearance, and visible, whether or not it is tucked under a cap or
in plaintiff’s collar.” 

Id. at 1370

.
        {¶ 37} In Blanken, the judge determined that no accommodation could be
made because of the extraordinary look of the plaintiff’s hair. The trial judge here
came to a different conclusion based upon a different set of facts operative in this
case. In Blanken, the goal of uniformity of appearance could not be achieved by a
simple accommodation. In this case, it can.




                                           12
                                January Term, 2000




       {¶ 38} We view the two cases not as being at odds, but rather as
complementary. The ODRC grooming policy should include an accommodation
for persons who grow their hair long for religious reasons, allowing them to tuck
their hair under their uniform caps. ODRC could discipline employees who, even
after employing that accommodation, could not achieve the uniform “professional
and dignified” image the policy requires.
       {¶ 39} According to testimony at the trial, ODRC offered that
accommodation beginning in 1992. Employees seeking an exemption to the hair
length policy signed an affidavit saying they were doing so for religious reasons.
Of the ten thousand to twelve thousand employees the ODRC employed in 1992,
only sixteen sought the exemption.
       {¶ 40} Therefore, we hold that the ODRC can further its compelling interest
of a uniform grooming policy through a less restrictive means than the policy it
currently employs. We accordingly reverse the judgment of the court of appeals
and reinstate the trial court’s declaratory judgment and injunction.
                                                                Judgment reversed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG
STRATTON, JJ., concur.
       COOK, J., dissents.
                               __________________
       COOK, J., dissenting.
       {¶ 41} Certainly the Ohio Constitution is a document of independent force,
and it may accord greater civil liberties and protections to our citizens than the
federal Constitution requires. Arnold v. Cleveland (1993), 

67 Ohio St.3d 35

, 

616 N.E.2d 163

, paragraph one of the syllabus. But the essential question in this case
is whether the Ohio Constitution requires courts to subject a generally applicable
law to the most rigorous judicial scrutiny when a plaintiff claims that the law
incidentally burdens his or her religious beliefs or practices. I do not join the




                                         13
                             SUPREME COURT OF OHIO




majority today, because I conclude that our Constitution’s independent recognition
of “rights of conscience” does not justify rejecting the reasoning of the United
States Supreme Court in Oregon Dept. of Human Resources, Emp. Div. v. Smith
(1990), 

494 U.S. 872

, 

110 S.Ct. 1595

, 

108 L.Ed.2d 876

.
       {¶ 42} In Smith, the Supreme Court recognized the general principle that “
‘[c]onscientious scruples have not, in the course of the long struggle for religious
toleration, relieved the individual from obedience to a general law not aimed at the
promotion or restriction of religious beliefs. The mere possession of religious
convictions which contradict the relevant concerns of a political society does not
relieve the citizen from the discharge of political responsibilities.’ ” 

Smith, supra,

494 U.S. at 879

, 

110 S.Ct. at 1600

, 

108 L.Ed.2d at 885-886

, quoting Minersville
School Dist. Bd. of Edn. v. Gobitis (1940), 

310 U.S. 586, 594-595

, 

60 S.Ct. 1010, 1012-1013

, 

84 L.Ed. 1375, 1379

.
       {¶ 43} The answer in each case as to whether an individual’s religious
beliefs may excuse compliance with a generally applicable law depends primarily
on the level of judicial scrutiny deemed appropriate for review of the constitutional
question. Today, the majority decides that Ohio courts shall continue to review
such questions using the most exacting scrutiny in our judicial arsenal—the
“compelling state interest” standard—and declines to align our jurisprudence with
that of the federal courts following Smith.
       {¶ 44} To support its departure from the Supreme Court’s recent free
exercise jurisprudence, the majority cites the textual differences between Ohio’s
Constitution and the First Amendment. And some textual differences certainly
exist. But only last year, this court determined that even though the text of Section
7, Article I of the Ohio Constitution is “quite different” from the First Amendment,
Ohio’s religion clauses are, nevertheless, the “approximate equivalent” of those
found in the Bill of Rights. Simmons-Harris v. Goff (1999), 

86 Ohio St.3d 1, 10

,

711 N.E.2d 203, 211-212

. Accordingly, we adopted the federal Lemon test for




                                         14
                                  January Term, 2000




Establishment Clause claims asserted under the Ohio Constitution because the
Lemon test is “a logical and reasonable method by which to determine whether a
statutory scheme establishes religion.” 

Id. at 10

, 

711 N.E.2d at 211

. See Lemon v.
Kurtzman (1971), 

403 U.S. 602

, 

91 S.Ct. 2105

, 

29 L.Ed.2d 745

. Ohio’s “Free
Exercise” Clause should be analyzed according to the Smith thinking for the same
reason that our Simmons-Harris decision applied Lemon to Ohio’s “Establishment
Clause.” Smith reasoned that the application of the compelling-state-interest test to
all free-exercise claimants is neither logical nor reasonable.
        {¶ 45} We are accustomed to the application of strict scrutiny in the context
of free speech and racial discrimination. When a court strictly scrutinizes racially
discriminatory laws or content-based restrictions on speech, the rigorous judicial
review produces equal treatment and an unrestricted flow of ideas. 

Smith, supra,

494 U.S. at 885-886

, 

110 S.Ct. at 1604

, 

108 L.Ed.2d at 890

. As Justice Scalia noted
for the majority, both of these results are “constitutional norms.” 

Id.

 On the other
hand, “what [strict scrutiny] would produce here—a private right to ignore
generally applicable laws—is a constitutional anomaly.” 

Id. at 886

, 

110 S.Ct. at 1604

, 

108 L.Ed.2d at 890

.
        {¶ 46} Smith noted another anomaly in trying to review free-exercise claims
under the compelling-state-interest standard. There are no legal standards by which
judges can consider, understand, weigh, and/or measure the particular religious
beliefs of each plaintiff. “What principle of law or logic can be brought to bear to
contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?
* * * Repeatedly and in many different contexts, we have warned that courts must
not presume to determine the place of a particular belief in a religion or the
plausibility of a religious claim.” 

Smith, supra,

494 U.S. at 887

, 

110 S.Ct. at 1604

,

108 L.Ed.2d at 891

. Yet the majority here says that a judge must “first look at the
beliefs of the person affected by the state action, and how those beliefs are affected
by the state action. * * * [T]he plaintiff must show that his religious beliefs are




                                            15
                             SUPREME COURT OF OHIO




truly held and that the governmental enactment has a coercive effect against him in
the practice of his religion.” (Emphasis added.)
       {¶ 47} Smith also warned that the application of the compelling-state-
interest standard to free-exercise claimants could impair the state’s ability to
enforce what the citizens intend to be universally applicable rules. As the Smith
court reasoned, “The government’s ability to enforce generally applicable
prohibitions of socially harmful conduct * * * ‘cannot depend on measuring the
effects of a governmental action on a religious objector’s spiritual development.’ ”

Smith, supra,

494 U.S. at 885

, 

110 S.Ct. at 1603

, 

108 L.Ed.2d at 889-890

, quoting
Lyng v. Northwest Indian Cemetery Protective Assn. (1988), 

485 U.S. 439, 451

,

108 S.Ct. 1319, 1326

, 

99 L.Ed.2d 534, 548

. “Any society adopting such a system
would be courting anarchy, but that danger increases in direct proportion to the
society’s diversity of religious beliefs, and its determination to coerce or suppress
none of them.” 

Smith, supra,

494 U.S. at 888

, 

110 S.Ct. at 1605

, 

108 L.Ed.2d at 892

.
       {¶ 48} Of course, the majority’s approach accords with our country’s
tradition of religious freedom.    The compelling-state-interest standard shields
individuals who suffer from those forms of discrimination that inevitably result
from the application of general laws to the diverse members of our increasingly
multicultural society. See 

id.,

494 U.S. at 903

, 

110 S.Ct. at 1613

, 

108 L.Ed.2d at 902

 (O’Connor, J., concurring in judgment). But when we weigh the potential
benefits of reviewing free-exercise claims under the compelling-state-interest
standard against the shortcomings of such an approach, Smith’s analysis seems
more judicious. The Smith court simply determined that strict scrutiny should be
the exception, not the rule—an approach entirely consistent with the limited
application of the compelling-state-interest standard in other legal contexts. City
of Boerne v. Flores (1997), 

521 U.S. 507, 514

, 

117 S.Ct. 2157, 2161

, 

138 L.Ed.2d 624, 635

.




                                         16
                                January Term, 2000




       {¶ 49} Finally, nothing in Smith—if we had adopted its reasoning today—
would have prevented Ohio citizens              from    seeking   specific   religious
accommodations in the General Assembly.            Even Smith’s staunchest critics
concede that legislatures in this country have a long history of granting religious
exemptions to otherwise generally applicable laws. See City of Boerne v. Flores,
supra, 

521 U.S. at 558-559

, 

117 S.Ct. at 2182-2183

, 

138 L.Ed.2d at 662-663

(O’Connor, J., dissenting, discusses the practice of pre-Constitutional legislatures
excusing pacifists such as Quakers and Mennonites from military service). A
system that encourages citizens to pursue legislative accommodations to otherwise
generally applicable laws intrudes less on the legislative sphere than the rigorous
judicial scrutiny of facially neutral laws that today’s decision will surely increase.
                                     Conclusion
       {¶ 50} In Smith, the Supreme Court conceded that its refusal to apply strict
scrutiny could, at times, disadvantage religious minorities whose belief systems are
inadvertently offended by generally applicable laws. 

Smith, supra,

494 U.S. at 890

,

110 S.Ct. at 1606

, 

108 L.Ed.2d at 893

. But the Smith court preferred a deferential
approach to “a system in which each conscience is a law unto itself or in which
judges weigh the social importance of all laws against the centrality of all religious
beliefs.” 

Id.

 Today, the majority chooses the system expressly rejected in Smith.
I respectfully dissent because I see the majority’s compelling-state-interest standard
as “open[ing] the prospect of constitutionally required religious exemptions from
civic obligations of almost every conceivable kind.” 

Id.,

494 U.S. at 888

, 

110 S.Ct. at 1605

, 

108 L.Ed.2d at 892

.
                               __________________




                                          17