Gregersen v. Blume

• Decision Date: 02 September 1987
• Docket Number: No. 16506,16506
• Citation: 743 P.2d 88,113 Idaho 220
• Parties: Marvin D. GREGERSEN, Chief, Bureau of Occupational Licenses, Department of Self-Governing Agencies of the State of Idaho; Board of Barber Examiners, State of Idaho, Plaintiffs-Respondents, v. Bill Oliver BLUME, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 88

743 P.2d 88

113 Idaho 220

Marvin D. GREGERSEN, Chief, Bureau of Occupational Licenses, Department of Self-Governing Agencies of the State of Idaho; Board of Barber Examiners, State of Idaho, Plaintiffs-Respondents, v. Bill Oliver BLUME, Defendant-Appellant.

No. 16506.

Court of Appeals of Idaho.

Sept. 2, 1987.

Rehearing Denied Oct. 6, 1987.

Petition for Review Denied Oct. 30, 1987.

Bill Oliver Blume, defendant-appellant pro se.

Jim Jones, Atty. Gen., by Daniel G. Chadwick, Deputy Atty. Gen., Boise, for plaintiffs-respondents.

BURNETT, Judge.

This appeal presents a religious challenge to the secular authority of the state to regulate a commercial activity. Bill Blume, the proprietor of a business known as "Ye Olde Contract Barber" or "Bill's Barbershop," contends that the State of Idaho is infringing impermissibly upon his constitutionally protected religious beliefs by requiring him to obtain a license and a certificate of registration as a barber. Confronted with Blume's refusal to be regulated, the Idaho Bureau of Occupational Licenses and the Board of Barber Examiners sought and received from the district court a judgment enjoining Blume from practicing his occupation until he complies with state laws. For reasons explained below, we affirm the judgment.

The essential facts are undisputed. For more than twenty years, Blume was registered, and his shop was licensed, as required by chapter 5, title 54, Idaho Code. However, in the spring of 1984, Blume adopted a religious faith called the "New Covenant Theocracy." The central theme of this faith, as described by Blume, is that all the world is a theocracy. God alone is the sovereign, law-giver and judge. The "New Covenant Theocracy" apparently leaves no room for its followers to accept secular authority. Indeed, Blume informs us that any consent to human government would be an act of rebellion against the divine order.

Pursuant to his newly adopted beliefs, Blume decided in 1984 that he would no longer submit to any government regulation of his occupation. He declined to renew his license or certificate of registration. Subsequently, he was convicted twice of misdemeanor offenses for violating the licensure and registration statute, I.C. § 54-501. However, the filing of criminal complaints did not deter Blume from continuing his business. While the second prosecution was pending, this civil action for injunctive relief was brought against him. He responded pro se, asserting an infringement of religious freedom and counterclaiming for damages caused by loss of earnings and emotional distress. On cross-motions for summary judgment, the district court held that no disputed issues of material fact existed and that the state was entitled as a matter of law to the relief it sought. Accordingly, the court permanently enjoined Blume from "barbering in the State of Idaho without first [complying with] ... [c]hapter 5, [t]itle 54, Idaho Code." The court dismissed Blume's counterclaim. This appeal followed.

I

Blume's brief presents an articulate, and in some passages eloquent, expression of his beliefs. He offers not so much a legal argument as an attack upon the rule of law itself. In a discourse drawing upon concepts of theology and political theory, Blume portrays a seemingly irreconcilable conflict between his "New Covenant Theocracy" and "democratic statism." He contends that the First Amendment requires government to be neutral in this conflict--to refrain from compelling any adherent of Blume's faith to follow a secular rule. Of course, any such application of the First Amendment would disable government with respect to Blume or to others who share his beliefs.

Our analysis necessarily is anchored by the very proposition that Blume disputes. It is that the people possess a sovereign power; that in the exercise of this power, they may create institutions of government; and that they may imbue the government with power, as defined by law, to regulate their activities. This proposition lies at the heart of the United States Constitution. It finds vivid expression in the Constitution's opening words: "We the people...."

Through the Constitution, the American people have struck a balance between order and liberty. As our Court has observed: "Individuals must sacrifice a part of their 'liberty' in order to empower a government to regulate through passage and enforcement of laws necessary for the general public welfare." State v. Gibson, 108 Idaho 202, 203, 697 P.2d 1216, 1217 (Ct.App.1985). All of us bear this sacrifice. "Citizens may not choose to receive the benefits of a civilized society without sharing the burdens." State v. Staples, 112 Idaho 105, 107, 730 P.2d 1025, 1027 (Ct.App.1986). Theodore Roosevelt made the point directly when he said, "No man is above the law and no man is below it, nor do we ask any man's permission when we require him to obey it."

But the Constitution is not merely an organ of government; it is also a charter of individual rights. The First Amendment, in its references to religion, embraces two concepts: freedom to believe and freedom to act. "The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903-04, 84 L.Ed. 1213 (1939). Thus, Blume is free to maintain and to express his belief that God is the sole sovereign. However, his actions are subject to some degree of regulation. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Bissett v. State, 111 Idaho 865, 727 P.2d 1293 (Ct.App.1986).

We recognize that Blume rejects this dichotomy between thought and action. He argues that his particular faith commands action. He tells us that he cannot preserve the integrity of his beliefs if he acquiesces to secular authority in any form, even by so simple an act as procuring a barber's registration and license. Although we appreciate the sincerity of Blume's argument, we cannot fashion First Amendment jurisprudence according to the breadth or rigidity of a particular religious doctrine. Instead we must apply objective, general standards to any claim of religious infringement.

II

A First Amendment claim may invoke either the establishment clause or the free exercise clause. The establishment clause prohibits government sponsorship of religion. It requires that government neither aid nor formally establish a religious faith. The free exercise clause is a negative corollary of the establishment clause. It bars the government from prohibiting any religious belief and it requires the government to make some accommodation for religious practices when it pursues secular ends that incidentally affect religion. Blume appears to rest his appeal on both clauses. He attempts to invoke the establishment clause by contending that "democratic statism" is a belief system in competition with theocracy. He urges that government ought not to favor one belief system over the other. He attempts to invoke the free exercise clause by asserting that he cannot effectively practice his religion if he must accept secular regulation as a barber.

We are not persuaded that "democratic statism" is a government-sponsored form of religion within the ambit of the establishment clause. In any event, our focus here is not upon democracy in general but upon the state barbering laws. A law, or scheme of laws, will pass muster under the establishment clause if: (1) it has a secular purpose; (2) it has a primary secular effect; and (3) it does not thrust the government into an excessive entanglement with religion. E.g., Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). We think these tests are satisfied here. The barbering laws, set forth at chapter 5, title 54, Idaho Code, are directed at public health and safety aspects of a commercial activity. Although the laws may incidentally affect Blume's religious beliefs, their primary effect is clearly secular. These laws do not entangle the government with religion except in the rare instance,...