Thursday, September 29, 2005

Valov v. DMV (Cal. Ct. App. - Sept. 20, 2005)

Rack this one up to another casualty of the War on Terror. Sorry, Molokans. We've elected to crush a central religious liberty. But don't feel bad. We're doing the same to a lot of other faiths too. So at least you've got company.

I actually didn't know anything about the Molokan faith before reading this opinion; indeed, I had never even heard of them. So did a little google action, and it turns out that this is a fundamentalist sect that split from the Russian Orthodox Church in the 1550s, during the rein of Ivan the Terrible. Sounds like they had a not-great time in Tsarist Russia, and were apparently (according to Wikipedia) beat, tortured, killed, imprisoned, and exiled. Nowadays there are 200 Molokan churches, 150 of which are in Russia. And 25,000 or so Molokans in the United States. Anyway, nice to read about you, all you Molokans out there. Pleasure to meet you.

Oh, yeah. And sorry about your religious liberty. But that's what happens to "crazy" religious beliefs, don't you know. You guys ain't powerful enough to protect yourself through the political system. And weren't not that interested in protecting your nutty beliefs in the judiciary either, notwithstanding the First Amendment. So, here, Molokans -- those nutballs! -- believe pretty strongly in the Second Commandment, which (so sayeth Exodus 20:4) "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is on the earth beneath, or that is in the water below." I -- being the lapsed Catholic who didn't pay much attention in CCD that I am -- always thought that one was about "graven images"; particularly, those of God. But apparently it's about creating any likeness of anything in heaven or on earth. Which, according to the Molokans, means no pictures. Or anything. Including themselves. And, by the way, once I think about it, it seems to me they may well be right. At least from a textualist perspective. Which is a pretty interesting comment on textualism, by the way.

Thing is, though, most of us (the "sane" ones, not you sick Molokans) don't read the thing that way. And -- and this will come as a shock, I know -- our legislatie enactments generally protect only the "right" interpretation of the Bible, not your "crazy" version. So, for example, the Legislature often closes stores up and don't allow the sale of alcohol on Sundays. That's totally constitutional. 'Cause it's secular. Get it? But the crazy tenants of your absurd religion; well, you've only got 25,000 members. That ain't enough votes.

Of course, in the old days, there used to be a little something called the First Amendment. And the judiciary was pretty interested in protecting it. Including religious freedom. So, for example, in 1963, there was a guy named John Shubin who was a Molokan who, consistent with his religious faith, didn't want his picture taken for his driver's license. Now, in California, we didn't even have pictures on driver's licenses when we started issuing these things in 1944. But in 1959, we started adding them. So Shubin brings a lawsuit in 1963 alleging that compelling him to add his picture would violate the First Amendment. And he wins. So he gets a license that doesn't have his picture on it. So sayeth the California judiciary. You can put other stuff on it, of course, to identify him. But no pictures. And, even though this decision technically applies only to Shubin (since he was the only one who brought suit), it's still judicial precedent, and so the DMV -- consistent with the decision -- creates an administrative regime where it doesn't require pictures for those whose religious beliefs in this area similarly preclude pictures. Who, basically, read Exodus 20:4 -- or any other religious tract -- the same way as Shubin.

But that was all before The Towers Fell. Thanks to Shubin, Jack Valvov -- also a Molovan -- had been issued a number of previous driver's licenses without his picture. But, in 2003, when he goes to renew, the DMV tells him to forget it. He's gotta choose: Violate his religious beliefs or refuse to drive. Valvov, like Shubin before him, believes this violates the First Amendment. So sues. But now it's 2005. We've "come a long way, baby." The California Court of Appeal, in this decision by Justice Kriegler, holds that he's gotta choose, and that the DMV's practice of compelling Volvov to have his picture taken if he wants a license doesn't violate the First Amendment.

Why the change? One need go no further than Justice Kriegler's own words: "[I]t is undeniable that public safety concerns -- specifically, counter-terrorism interests -- changed drastically after September 11, 2001. Terrorist attacks after September 11, 2001 further testify to the need for such heightened saftey concerns. . . . While we are aware of some pre-9/11 decisions that found free exercise violations based on religious objections to driver's license photographs, we find them unpersuasive." It's the War on Terror, my man. Part of that means you lose your religious freedom. Nope, that doesn't play right into their hands. That's instead the American Way. Tough titties for you. I guess you gotta go back to Russia -- or some other country -- if you want to exercise your religious. Here, it's either violate the Second Commandment or ride the bus.

As you can probably tell, I'm a bit skeptical of this result. Part of Justice Kriegler's opinion results from an application of Employment Division v. Smith, a case that I pilloried even in my youth -- see, e.g., 104 Harv. L. Rev. 198 (1990) (written by yours truly) -- and that Congress had the good sense to legislatively overrule, at least in the federal context. And part is a factual reaction to the War on Terror and the perceived need to compel people like Valov to violate their religious principles so the Constitution can persist. (What?!) Like many people, I don't find either of these components particularly persuasive.

Don't think this only affects that 25,000 "crazy" Molovans, by the way. The same principle applies not only as a matter of First Amendment doctrine, but also all the other "nutty" religions that have a similarly "whacko" view of the Second Commandment (i.e., who hold a religious belief different than "ours"). As Justice Kriegler notes, the Amish, Pentacostal Christians, certain Islamic sects, and a variety of other religious groups hold a similarly demented view of what the Second Commandment and/or their God requires. Tough. The bus for all of you. P.S. - Just try to open a checking account, get on a plane, buy beer, or do just about anything else without a driver's license. Good luck. And, yeah, maybe we could solve this problem by using fingerprints or descriptions or something like that. But we don't feel like it. Tough for all of you again.

I'm not going to make any affirmative points here. I'm just going to let my sarcasm speak for itself. Sorry if that means this ain't a very intellectual post. But it's all I've got in me right now.

Final word: Happy Birthday to my daughter Sierra, who turned four today. You're awesome.