Freeman v. Department of Highway Safety

Decision Date13 February 2006
Docket NumberNo. 5D03-2296.,5D03-2296.
Citation924 So.2d 48
PartiesSultaana Lakiana Myke FREEMAN, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
CourtFlorida District Court of Appeals

Appeal from the Circuit Court, Orange County, Janet C. Thorpe, J Howard S. Marks, Kevin Scott Miller, Wendy S. Temple, of Graham, Builder, Jones, Pratt & Marks, L.L.P., Winter Park, and Randall C. Marshall, Legal Director, ACLU Foundation of Florida, Inc., Miami, for Appellant.

Charles J. Crist, Jr., Attorney General, and Jason Vail, Assistant Attorney General, Tallahassee, for Appellee.

ON MOTION FOR REHEARING

THOMPSON, J.

We grant the Appellant's motion for rehearing, withdraw our opinion of 2 September 2005, and substitute the following in lieu thereof.

Sultaana Lakiana Myke Freeman ("Freeman") timely appeals two separate orders that uphold a decision of the Florida Department of Highway Safety and Motor Vehicles ("Department") to cancel her driver's license because she refused to have her picture taken without her veil. The first order is a partial summary judgment rendered on her claims of due process, privacy, and free speech violations. The second order followed a nonjury trial on her claims that the Department violated Floridas Religious Freedom Restoration Act of 1998 ("FRFRA") by requiring that she be photographed without her veil to obtain a Florida drivers license and violated her constitutional right to free exercise of her religion.1 Although Freeman has raised several issues on appeal, we find only two merit discussion.2 The first concerns Freeman's allegation that requiring her to be photographed without her veil violates FRFRA. The second argument is that requiring her to be photographed without a veil violates her claim of equal protection. Finding no violation of Freeman's constitutional rights, we affirm. See Warner v. City of Boca Raton, 887 So.2d 1023 (Fla.2004).

FACTS

Sultaana Freeman was born in Washington, D.C. in 1967. She was raised by Christian parents in Illinois and attended public schools and college in that state. Freeman earned a degree in music and business administration in 1989. She converted to the Islamic religion in January 1997 and changed her name from Sandra Michele Keller to Sultaana Lakiana Myke. She began regularly veiling her face in November or December 1997, based upon her study of the Qur'an3 and Sunnah.4 She was permitted to wear her veil for her Illinois drivers license photograph. After marrying her husband, a landscaping contractor, in October 1997, Freeman moved to Florida to live with him in Winter Park. Freeman did not seek a Florida drivers license until 21 February 2001.

Florida law mandates that Florida driver's licenses bear a "fullface" photograph of the license holder. Section 322.14(1)(a), Florida Statutes (2003), requires the Department to "issue to every applicant qualifying therefor, a driver's license as applied for, which license shall bear thereon a color photograph or digital image of the licensee." Likewise, section 322.142, entitled "Color photographic or digital imaged licenses," states:

(1) The department shall, upon receipt of the required fee, issue to each qualified applicant for an original driver's license a color photographic or digital imaged driver's license bearing a fullface photograph or digital image of the licensee. A space shall be provided upon which the licensee shall affix his or her usual signature, as required in s. 322.14, in the presence of an authorized agent of the department so as to ensure that such signature becomes a part of the license.

(Emphasis added).

When Freeman presented herself for her Florida license photograph wearing her traditional Muslim headdress that included a veil, the clerk was confused whether she should be allowed to wear the veil in the photograph. The clerk asked his bureau chief whether the woman should be photographed wearing "headgear." The clerk did not tell the supervisor that Freeman was wearing a veil. The bureau chief, without further questioning or viewing Freeman, said yes. The license was issued with the photograph of Freeman wearing the veil. The bureau chief testified that the photograph was taken with the veil in place "by mistake." Freeman presented her Illinois driver's license and her social security card as identification to obtain the license.5

Ten months after the license was issued and some three months after 11 September 2001, the Department sent Freeman a letter stating that she was to present herself for a photograph without her veil, or it would cancel her license. Freeman testified that taking a photograph without her veil "is just not an option." She firmly believes that Islam mandates that she wear the veil in situations such as this, i.e., the taking of a photograph. She contends the Department was clearly making her choose between violating her religious tenets or sacrificing her driver's license. As evidence of her commitment to veiling, Freeman introduced into evidence a brochure entitled "Why I Veil" that she had authored several years earlier. Freeman believes that photographs of the human face and animals are prohibited and does not allow photographs of faces in her home. Her daughter plays with faceless dolls and if an item from the grocery store has a face on it, Freeman blacks it out with a marker.

Both sides presented experts on the Islamic faith who testified about the necessity of wearing a veil under the Islamic faith. Dr. El Fadl testified for the Department that Islamic law accommodates exceptions to the practice of veiling because of "necessity." This includes medical necessity, identification for burial purposes, identification for purposes of receiving bequests or inheritance, and identification for the purpose of writing wills to be accepted by a judge. Dr. El Fadl also testified that the primary purpose of veiling is to avoid sexual enticement, attraction, or seduction. When considering whether there is an exception to veiling, the person must consider whether the state has made its "best efforts" to accommodate the belief, and whether the belief will endanger anyone else's safety. Further, where the Department had accommodated the belief by having a female photographer and no males present, a Muslim woman could have her license photograph taken. He pointed out that, even in Saudi Arabia, women are required to have fullface photographs for their passports and for exam taking.

Professor Saif Ul-Islam is a professor at the University of Central Florida and was qualified as an expert witness for Freeman. He testified that he has been a practicing Muslim for 27 years and has studied the Qur'an, the Sunnah, and other religious texts. He is an Imam, a local religious leader, who gives religious sermons in his community. He teaches the Qur'an, the Sunnah, and other religious texts and teaches local Muslims how to follow Muslim practices. He testified that Muslim women must veil themselves and that numerous passages in the Qur'an and the Sunnah refer to the veiling of Muslims and requires a Muslim woman to veil. He did not believe the doctrine of necessity, found in Islamic law, applied to removing the veil to take a driver's license photograph.

The trial court entered an extensive order denying Freeman the right to have her picture taken with her veil. It is from that order and the previous summary judgment that Freeman appeals.

FLORIDA'S FRFRA

We first address Freeman's claim that the Department violated the FRFRA by revoking her license and requiring her to be photographed without her veil in order to obtain a driver's license.

The FRFRA was enacted as a result of the decision by the United States Supreme Court that changed the standard for evaluating claims filed pursuant to the Free Exercise Clause.6 In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (Smith II), the Supreme Court addressed the effect of peyote use during religious services upon the right of discharged employees to collect unemployment benefits. Two discharged employees from a private drug rehabilitation organization were fired because they ingested peyote as part of their sacramental services. They were denied unemployment compensation because it was found that they had been discharged for work-related "misconduct." They argued that the decision violated their right to the free exercise of their religion. The United States Supreme Court had requested the Oregon Supreme Court to clarify whether the ingestion of peyote was a violation of Oregon criminal law. Employment Div., Dep't of Human Resources of Oregon v. Smith, 485 U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753 (1988) (Smith I). The Oregon Supreme Court held that although the claim of the discharged employees was considered under the Free Exercise Clause of the United States Constitution, the Free Exercise Clause did not entitle the employees to violate state drug laws. Smith v. Employment Div., Dept. of Human Resources, 307 Or. 68, 763 P.2d 146, 148 (1988). The court held that using peyote for sacramental use did not exempt them from criminal penalties. Id. The U.S. Supreme Court in Smith II then held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling government interest. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). This was a departure from its previous rulings, which held that, to balance the Free Exercise Clause against generally applicable state laws, the state had to show a compelling interest as set forth in Sherbert v. Verner, 374 U.S. 398, 407-408, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); ...

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