as: 728 F.2d 1121)
United States Court of Appeals,
J. QUARING, Appellee,
"Pete" PETERSON, Director of the Department of
Vehicles, State of
William Edwards, Deputy Director of the
State of Nebraska, Appellants.
Oct. 10, 1983.
March 1, 1984.
driver's license applicant brought action against Nebraska officials seeking to
compel them to issue valid driver's license, notwithstanding her refusal to be
photographed therefor. The United States District Court for the District of Nebraska,
Warren K. Urbom, Chief Judge, enjoined the Nebraska officials from refusing to
issue the license, and the officials appealed. The Court of Appeals, Bright, Circuit
Judge, held that: (1) Nebraska driver's licensing requirement that applicants
submit to having color photograph taken for affixing on the license unconstitutionally
burdened subject applicant's free exercise of her sincerely held religious beliefs,
supported by historical and biblical tradition and implemented in her daily life,
that the taking of her photograph would violate the Second Commandment's express
forbidding of the making of any graven image or likeness of anything in creation,
and (2) requiring that applicant receive her license without complying with photograph
requirement was reasonable accommodation of her religion and did not violate establishment
Fagg, Circuit Judge, dissented and filed opinion.
Constitutional Law 84.1
Most Cited Cases
State may justify limitation on religious liberty by showing that it is least
restrictive means of achieving compelling state interest. U.S.C.A. Const.Amend.
Most Cited Cases
Constitutional Law 84.5(16)
Most Cited Cases
Nebraska driver's licensing requirement that applicant submit to having color
photograph taken for affixing on the license unconstitutionally burdened subject
applicant's free exercise of her sincerely held religious beliefs, supported by
historical and biblical tradition and implemented in her daily life, that the
taking of her photograph would violate the Second Commandment's express forbidding
of the making of any graven image or likeness of anything in creation. U.S.C.A.
Const.Amend. 1; Neb.Rev.St. § 60-406.04.
Most Cited Cases
Constitutional Law 84.5(16)
Most Cited Cases
Permitting Nebraska driver's license applicant to receive license for which she
was otherwise qualified, even though, due to her sincerely held religious beliefs,
she refused to permit her photograph to be taken and affixed on the license, was
reasonable accommodation of religion and, as such, did not violate establishment
clause. U.S.C.A. Const.Amend. 1; Neb.Rev.St. § 60-406.04. *1122 Paul L. Douglas,
Atty. Gen., Ruth Anne E. Galter, Asst. Atty. Gen., Lincoln, Neb., for the State
of Nebraska, its Agencies, and its Officers.
C. Lansworth, for Bauer, Galter & Geier, Lincoln, Neb., for appellee.
Frances J. Quaring sought a Nebraska driver's license but refused to have her
photograph taken and affixed to the license as required by Nebraska law. For this
reason, Nebraska Department of Motor Vehicles officials Peterson and Edwards (Nebraska
officials) refused Quaring's application for a driver's license. Quaring then
brought suit against the Nebraska officials seeking to obtain a court order requiring
them to issue her a valid driver's license. She contended that her religious convictions
prevented her from being photographed and that the refusal by the Nebraska officials
to issue her a driver's license violated her first amendment right to the free
exercise of her religion. The district court [FN1] agreed with Quaring's contention
and enjoined the Nebraska officials from refusing to issue her a driver's license
notwithstanding her refusal to be photographed.
The Honorable Warren K. Urbom, Chief Judge, United States District Court for the
District of Nebraska.
The Nebraska officials bring this appeal, arguing that 1) the statute requiring
driver's licenses to contain a photograph of the licensee does not burden Quaring's
exercise of her religion, 2) that even if the photograph requirement burdens her
religion, the state's interests outweigh that burden, 3) that no less restrictive
alternative would adequately serve the state's interests, and 4) that excepting
Quaring from the photograph requirement on the basis of her religion would violate
the establishment clause. We reject these arguments and affirm the district court.
Under Nebraska law, driver's licenses issued after January 1, 1978 must, with
several exceptions, [FN2] contain a color photograph of the licensee. See Neb.Rev.Stat.
§ 60-406.04 (Reissue 1978). Quaring meets the requirements for obtaining a driver's
license except that she refuses to allow her photograph to appear on her license.
For this reason, she has been unable to obtain a driver's license
The statute does not require photographs of the licensee on learner's permits,
school permits, farm machinery permits, special permits for those with restricted
or minimal driving ability, and temporary licenses for Nebraska residents who
are outside Nebraska when their licenses expire.
§ 60-406.04 (Reissue 1978).
*1123 Quaring's refusal to have her photograph taken is based on religious convictions.
She believes in a literal interpretation of the Second Commandment, which states,
Thou shalt not make unto thee any graven image or likeness of anything that is
in heaven above, or that is in the earth beneath, or that is in the water under
Exodus 20:4; Deuteronomy 5:8. Quaring believes that the Commandment is violated
by creating a likeness of God's creation.
belief extends beyond her refusal to allow her photograph to appear on her driver's
license. She believes the Second Commandment forbids her from possessing any image
having a likeness of anything in creation. She possesses no photographs of her
wedding or family, does not own a television set, and refuses to allow decorations
in her home that depict flowers, animals, or other creations in nature. When she
purchases foodstuffs displaying pictures on their labels, she either removes the
label or obliterates the picture with a black marking pen.
Quaring is not a member of an organized church, she considers herself a Christian
and attends a Pentecostal church in a nearby town with her family. She also participates
in nondenominational Bible study groups. According to Quaring, Pentecostals do
not share her belief that the Second Commandment forbids the making of photographs
or images. Rather, her belief stems principally from her own study of the Bible.
unsuccessfully attempting to obtain an exemption from the photograph requirement,
Quaring brought suit against the director and deputy director of the Nebraska
Department of Motor Vehicles under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, alleging
a deprivation of her right to the free exercise of religion. The district court
ruled that the state's photograph requirement, as applied, violates Quaring's
right to the free exercise of religion, and ordered Nebraska officials to issue
her a driver's license.
Quaring's exercise of her religious beliefs directly conflicts with Nebraska's
requirement that driver's licenses contain a photograph of the licensee. Although
the photograph requirement plainly serves a legitimate and important state interest,
it may not be applied in a manner that unduly burdens Quaring's free exercise
of her religion. See Thomas v. Review Board, 450 U.S. 707, 717, 101 S.Ct. 1425,
1431, 67 L.Ed.2d 624 (1981). Before the state may refuse to issue Quaring a driver's
license, "[I]t must appear either that the State does not deny the free exercise
of religious belief by its requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise
Clause." Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32 L.Ed.2d
A. Quaring's Religious Beliefs.
a threshold requirement, Quaring must demonstrate that her refusal to be photographed
is grounded upon a sincerely held religious belief. See Stevens v. Berger, 428
F.Supp. 896, 899 (E.D.N.Y.1977). Although a religious belief requires something
more than a purely secular philosophical or personal belief, Wisconsin v. Yoder,
supra, 406 U.S. at 215-16, 92 S.Ct. at 1533-34, courts have approved an expansive
definition of religion. See United States v. Seeger, 380 U.S. 163, 165-66, 85
S.Ct. 850, 853-54, 13 L.Ed.2d 733 (1965) (test is whether "a given belief that
is sincere and meaningful occupies a place in the life of its possessor parallel
to that filled by the orthodox belief in God"); see also International Society
for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir.1981); 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). See generally Freeman, The
Misguided Search for the Constitutional Definition of "Religion", 71 Geo.L.J.
Quaring's beliefs, though unusual in the twentieth century, are religious in nature.
*1124 The Second Commandment, the basis for her beliefs, expressly forbids the
making of "any graven image or likeness" of anything in creation. Exodus 20:4;
Deuteronomy 5:8. Quaring's refusal to allow herself to be photographed is simply
her response to a literal interpretation of the Second Commandment, not unlike
the response of the Old Order Amish to the Epistle of Paul to the Romans. In Wisconsin
v. Yoder, supra, the Supreme Court noted that the daily life and religious practices
of the Amish were a response to a literal interpretation of Paul's exhortation
to "be not conformed to this world," and held that their refusal to send their
children to school beyond the eighth grade was religious in nature. 406 U.S. at
216, 92 S.Ct. at 1533. Cf. Stevens v. Berger, supra, 428 F.Supp. at 902. Moreover,
Quaring's literal interpretation of the Second Commandment receives some support
from historical and biblical tradition. At trial, Dr. John Turner, a professor
of religious studies, testified that Quaring's beliefs can be analogized to the
Hebrew concept that images of things in creation are an attempt to capture God
and His creations, and that such an attempt is forbidden. [FN3]
In cases involving the religion clauses, courts sometimes cite authoritative works
recognizing certain religious beliefs as supplemental evidence of the religious
nature of a litigant's beliefs. See, e.g., United States v. Seeger, 380 U.S. 163,
85 S.Ct. 850, 13 L.Ed.2d 733 (1964); Stevens v. Berger, supra. Although the Nebraska
officials do not seriously contest the sincerity and religious nature of Quaring's
beliefs, we have briefly surveyed the literature discussing the Second Commandment's
prohibition against the making of likenesses of God's creation. The Commandments,
including the Second Commandment, remain fundamental tenets of the Jewish (and
the Christian) faith, as they were of the ancient Jewish faith, and within Judaism
have been the subject of extensive interpretation and commentary. Some of that
interpretation and commentary of the Second Commandment lends support to Quaring's
personal interpretation. For example, included in early Hebrew religious beliefs
were views prohibiting the reproduction of images: The Bible (Ex. 20:4) forbade
the "graven image" in the most explicit fashion, more categorically and comprehensively
than the mere likeness. Hence, while the representation of human or animal figures
on a plane surface was condoned or permitted most of the time during the periods
in question, greater difficulties were constantly raised with regard to three-
dimensional sculptures in the round. Indeed, in some Orthodox circles, even
making an impression with a seal bearing the human or animal form was considered
religiously objectionable, since by doing so a man actually "made" a graven image,
even though not for worship or veneration. 14 Ency. Judaica 1059 (1971). (Emphasis
added). Even modern-day interpretation of Jewish law lends some support to views
similar to Quaring's. Writing in a Hebrew-language publication, Rabbi Menashe
Klein, Dean of Yeshiva Beth Shearim, Brooklyn, New York (a school for advanced
Hebrew studies), argues that a person has a right to prevent others from taking
his picture against his will. 7 RESPONSA MISHNE HALACHOTH § 114 (1977). Rabbi
Klein observes that while the dominant position in Jewish law, as well as custom
and practice, permits the photographing of human beings, an authoritative, albeit
minority, position prohibits photographs of humans, especially of the face. To
support his position, Rabbi Klein cites the work of the noted Polish authority
Rabbi Malkiel Zevi Halevi Tennenbaum, who in 3 RESPONSA DIVREI MALKI'EL § 58 (1897),
opines that the taking of pictures violates the Second Commandment. Rabbi Klein
also cites the work of the German scholar Rabbi Jacob Emden (1697-1776) in 1 RESPONSA
SHE'ELAT YAVEZ § 170, who reports that his father, Rabbi Zevi Hirsch Ashkenazi,
Chief Rabbi of Hamburg and later of Amsterdam, opposed any portraits of himself.
Rabbi Klein concludes, therefore, in his 1977 Responsum that one who, out of sincerity
and piety, wishes to conduct himself in accordance with this stringent view of
the Second Commandment may do so. Accordingly, others must respect that person's
freedom of religious expression and refrain from taking his photograph against
his wishes. (The court expresses its appreciation to Professor Dov I. Frimer,
Director, Institute of Jewish Law, Touro College School of Law, Huntington, New
York, who supplied the court with the text and a translation of Rabbi Klein's
Although members of the Pentecostal group with whom Quaring associates do not
share her belief in a literal interpretation of the Second Commandment, that does
not lessen the religious nature of her convictions. As the Supreme Court recently
[T]he guarantee of free exercise is not limited to beliefs which are shared by
all *1125 of the members of a religious sect. Particularly in this sensitive area,
it is not within the judicial function and judicial competence to inquire whether
the petitioner or his fellow [adherent] more correctly perceived the commands
of their common faith. Courts are not arbiters of scriptural interpretation
Thomas v. Review Board, supra, 450 U.S. at 715-16, 101 S.Ct. at
1430-31. Although Quaring's beliefs might seem unreasonably doctrinaire to many,
that "does not mean that they can be made suspect before the law." United States
v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1943).
is also clear that Quaring sincerely holds her religious beliefs. As the district
trial [Quaring] appeared ready to support her interpretation of the Bible, based
on her knowledge of several portions of the Old Testament. In addition, [her]
behavior in every way conforms to the prohibition as she understands it: her home
contains no photographs, television, paintings, or floral-designed furnishings,
and, as she testified, she goes so far as to remove or obliterate pictures on
Because Quaring's beliefs are based on a passage from scripture, receive some
support from historical and biblical tradition, and play a central role in her
daily life, they must be characterized as sincerely held religious beliefs.
The Burden on Quaring's Religion.
examined the religious nature and sincerity of Quaring's beliefs, we next turn
to the question whether Nebraska's photograph requirement infringes upon those
beliefs. Although the Nebraska officials correctly point out that the photograph
requirement in no way compels Quaring to act in violation of her conscience, the
Supreme Court has noted that "this is only the beginning, not the end, of our
inquiry." See Sherbert v. Verner, 374 U.S. 398, 403-04, 83 S.Ct. 1790,
1793-94, 10 L.Ed.2d 965 (1963). Under the proper analysis, a burden upon religion
exists when "the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, * * * thereby putting substantial pressure on
an adherent to modify his behavior and to violate his beliefs." Thomas v. Review
Board, supra, 450 U.S. at 717-18, 101 S.Ct. at 1431-32.
a burden upon Quaring's free exercise of her religion exists in this case. The
state refuses to issue Quaring a driver's license unless she agrees to allow her
photograph to appear on the license, a condition that would violate a fundamental
precept of her religion. Moreover, in refusing to issue Quaring a driver's license,
the state withholds from her an important benefit. Quaring needs to drive a car
for numerous daily activities, which include managing a herd of dairy and beef
cattle, helping her husband manage a thousand-acre farming and livestock operation,
and working as a bookkeeper in a community ten miles from home. By requiring Quaring
to comply with the photograph requirement, the state places an unmistakable burden
upon her exercise of her religious beliefs.
burden on Quaring is indistinguishable from the burden placed upon a Sabbatarian
by the state in Sherbert v. Verner, supra. In that case, the Supreme Court
held that in denying unemployment benefits to a member of the Seventh-Day Adventist
Church who refused to work on Saturdays, the Sabbath of her faith, the state violated
her right to the free exercise of religion. 374 U.S. at 402, 83 S.Ct. at 1792.
Assessing the burden of the denial of benefits on the Sabbatarian's exercise of
her religion, the Court commented,
[denial] forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of her
religion [not working on Saturdays] in order to accept work, on the other hand.
at 404, 83 S.Ct. at 1794. Similarly, Nebraska's photograph requirement puts Quaring
to the choice of following an important precept of her religion or forgoing the
important privilege of driving a car.
C. Balancing the State's Interest Against the Burden on Religion.
Although Nebraska's photograph requirement burdens Quaring's exercise of her
religious beliefs, that does not in itself entitle her to an exemption. Not all
burdens upon religion violate the free exercise clause. See United States v.
Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982). The
state may justify a limitation on religious liberty by showing that it is the
least restrictive means of achieving a compelling state interest. Thomas v.
Review Board, supra, 450 U.S. at 718, 101 S.Ct. at 1432. In articulating the
standard the state must meet, the Supreme Court has said that "only those interests
of the highest order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion." Wisconsin v. Yoder, supra, 406
U.S. at 215, 92 S.Ct. at 1533.
The Nebraska officials argue that Quaring's interest in exercising her religion
must be subordinated to the state's more compelling interest in requiring that
driver's licenses contain a photograph of the licensee. In weighing the competing
interests, we examine not only the substantial state interests that the photograph
requirement generally serves, but also whether an exemption to the requirement
would impair the state's ability to achieve its objective. Wisconsin v. Yoder,
supra, 406 U.S. at 221, 92 S.Ct. at 1536; see also United States v. Lee,
supra, 455 U.S. at 259, 102 S.Ct. at 1056 (court must inquire whether accommodating
exercise of religion will unduly interfere with fulfillment of government interest);
L. Tribe, American Constitutional Law § 14-10, at 855 (1978) (crucial issue in
free exercise cases is state's interest in denying exemption, not in maintaining
underlying rule or program). To prevail, the Nebraska officials must demonstrate
that their refusal to exempt Quaring from the photograph requirement serves
a compelling state interest. [FN4]
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
v. Charnes, 571 F.Supp. 462 (D.Colo.1983);
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
of Motor Vehicles v. Pentecostal House, 269 Ind. 361, 380 N.E.2d 1225 (1978).
In justifying their refusal to grant Quaring an exemption to the photograph requirement,
the Nebraska officials advance several state interests. First, they point out
that by ensuring that only persons with valid driver's licenses operate motor
vehicles, the state promotes a compelling interest in public safety. Cf. Delaware
v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660 (1979). They
contend that only driver's licenses containing a photograph of the licensee can
provide police officials with an accurate and instantaneous means of identifying
a motorist. For this reason, at least 47 states require photographs of the licensee
to appear on driver's licenses. [FN5] The Nebraska officials contend that an exemption
to the photograph requirement would undermine the state's interest in ensuring
that only licensed motorists drive on its roads.
Notably, however, one of the Nation's most populous states, New York, does not
require photographs on driver's licenses.
Although quick and accurate identification of motorists surely constitutes an
important state interest, we disagree with the Nebraska officials' contention
that the state's interest is so compelling as to prohibit selective exemptions
to the photograph requirement. Indeed, Nebraska law already exempts numerous motorists
from having a personal photograph on their license. At trial, the associate director
of the Department of Motor Vehicles testified that photographs of the licensee
are not required on learner's permits, school permits issued to farmers' children,
farm machinery permits, special permits for those with restricted or minimal driving
ability, or temporary licenses for individuals outside the state whose old licenses
have expired. In addition, motorists licensed in the few states that do not require
photograph licenses *1127 presumably drive through Nebraska on occasion, and those
persons would be unable to present driver's licenses containing their photographs.
Because the state already allows numerous exemptions to the photograph requirement,
the Nebraska officials' argument that denying Quaring an exemption serves a compelling
state interest is without substantial merit.
Nebraska officials also argue that the state's compelling interest in ensuring
the security of financial transactions justifies their refusal to exempt Quaring
from the photograph requirement. Again, we disagree. Although a photograph license
obviously serves an important state interest in facilitating the identification
of persons writing checks or using credit cards, granting Quaring an exemption
will not undermine that interest. Many people already engage in financial transactions
without the benefit of a photograph license for identification: some are exempt
from the photograph requirement, and some do not have any license because they
do not drive. Issuing Quaring a license without her photograph places her in the
same position as these people. In any event, the state may still achieve its interest
in ensuring the security of financial transactions because people may freely refuse
to do business with Quaring if she is unable to present adequate identification.
Finally, the Nebraska officials argue that the administrative burden of considering
applications for exemptions from the photograph requirement also constitutes a
compelling state interest. They point out that establishing uniform criteria for
granting exemptions will be difficult because 95 testing centers in Nebraska issue
driver's licenses. They also argue that the religious nature of the claimed exemption
will exacerbate this problem. The state would have to probe into the sincerity
and religious nature of an applicant's belief, and applicants could easily show
religious grounds as the basis for their objection to the photograph requirement.
The Nebraska officials fear that unless the state establishes an elaborate and
expensive mechanism to consider requests for religious exemptions, exemptions
to the photograph requirement will be available virtually on demand
Although Nebraska plainly has an interest in avoiding the administratively cumbersome
task of considering applications for religious exemptions, its interest is not
compelling. A state's interest in avoiding an administrative burden becomes compelling
only when it presents administrative problems of such magnitude as to render the
entire statutory scheme unworkable. See Sherbert v. Verner, supra,
374 U.S. at 408-09, 83 S.Ct. at 1796-97. The record contains no evidence, however,
that allowing religious exemptions to the photograph requirement will jeopardize
the state's interest in administrative efficiency. Persons seeking an exemption
from the photograph requirement on religious grounds are likely to be few in number.
Indeed, few persons will be able to demonstrate the sincerity of their religious
beliefs by showing that they possess no photographs or pictures. Furthermore,
the few persons who make legitimate requests for exemptions from the photograph
requirement will cause the Nebraska officials little inconvenience. Because persons
requesting an exemption for religious beliefs based on the Second Commandment
can easily demonstrate the sincerity and valid nature of their belief as Quaring
offered to do, the state need not be greatly burdened by requests for an exemption.
At least on this record, the Nebraska officials have not demonstrated that giving
an exemption for photographs to Quaring and others holding similar beliefs will
cause any undue administrative burden. Thus, none of the interests the Nebraska
officials advance are sufficient to justify the burden upon Quaring's religious
D. Establishment of Religion.
Nebraska officials argue that providing an exemption for Quaring on the basis
of her religion creates an impermissible establishment of religion. We disagree.
In some cases, the free exercise clause requires a state to make a reasonable
accommodation of religion. See O'Hair v. Andrus, 613 F.2d 931, 935 (D.C.Cir.1979).
Such *1128 accommodation does not constitute an establishment of religion. See
Thomas v. Review Board, supra, 450 U.S. at 719-20, 101 S.Ct. at 1432-33;
Sherbert v. Verner, supra, 374 U.S. at 409, 83 S.Ct. at 1796.
for the reasons set forth in this opinion, we affirm the district court's issuance
of an injunction requiring the Nebraska officials to issue Quaring a driver's
license without requiring her to be photographed.
FAGG, Circuit Judge, dissenting.
respectfully dissent. The interest advanced by the state statute is, in my opinion,
of sufficient magnitude to justify an indirect burden on Quaring's free exercise
of religion. The majority, while recognizing that a photographic license requirement
"plainly serves a legitimate and important state interest," concludes that granting
Quaring special dispensation from the requirement will not unduly hinder the state's
accomplishment of its legitimate objective. I cannot agree.
photographic license requirement advances the state's interest in public safety
on the streets and highways by providing police officers in the field with an
accurate and instantaneous means of identifying motorists. Significantly, a police
officer arriving at the scene of an accident or stopping a vehicle in connection
with a traffic violation or suspected criminal activity is assured that the individual
displaying the license is in fact the individual to whom the license was issued.
As noted in the majority opinion, the fact that 47 of the 50 states require a
photographic driver's license indicates the unique advantage derived from this
majority does not attempt to advance any less restrictive means of accomplishing
the state's compelling interest in "quick and accurate identification of motorists."
Rather, the majority states that in weighing the competing interests involved,
it is necessary to consider whether granting "selective exemptions" to the state's
requirement would impair the state's ability to achieve its objective. This approach
simply ignores or casts aside the state's legitimate interest in assuring instantaneous
identification for all of its regular license holders. I am convinced that accommodation
of Quaring's religious practice by issuance of a driver's license lacking a photographic
identifier would "unduly interfere with fulfillment of the governmental interest."
United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 1056, 71 L.Ed.2d 127
(1982). "The ready certainty inherent in photographic identification would be
lost." Johnson v. Motor Vehicle Division, 197 Colo. 455, 593 P.2d 1363, 1365 (1979).
To downplay the impact of granting selective exemptions to regular license holders,
the majority attaches significance to the fact that Nebraska exempts certain categories
of permittees and temporary licensees from the photograph requirement; however,
the limitations placed upon these provisional operators deny any meaningful comparison
with the state's regular license holders.
have no quarrel with the majority's observation that Quaring may experience daily
inconvenience because she cannot drive a motor vehicle. Her difficulties, however,
are not insurmountable and she is not the only person that has been faced with
the need to make life-style adjustments precipitated by nonconformity with driver's
license requirements. Not insignificantly, and as the majority notes, Quaring's
religious beliefs are "unusual in the twentieth century" and "the photographic
requirement in no way compels Quaring to act in violation of her conscience."
I cannot say that the state's legitimate requirement of a photographic identifier
has placed impermissible pressure on Quaring to modify her behavior and violate
her beliefs to the end of obtaining driving privileges upon the roadways of Nebraska.
are a cosmopolitan nation made up of people of almost every conceivable religious
preference. * * * Consequently, it cannot be expected, much less required, that
legislators enact no law regulating conduct that may in some way result in * *
* *1129 disadvantage to some religious sects * * *." Braunfeld v. Brown, 366 U.S.
599, 606, 81 S.Ct. 1144, 1147, 6 L.Ed.2d 563 (1961). In my view the state's compelling
interest in having a photographic verification of identity upon its driver's licenses
outweighs the incidental burden on Quaring's free exercise of religion. This is
an instance where a religious belief must yield to the common good. I would reverse.
West 2002 No Claim to Orig. U.S. Govt. Works
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