State v. Bontrager

• Decision Date: 17 October 1996
• Docket Number: No. 6-95-16,6-95-16
• Citation: 683 N.E.2d 126,114 Ohio App.3d 367
• Parties: The STATE of Ohio, Appellee, v. BONTRAGER, Appellant.
• Court: Ohio Court of Appeals

Page 367

114 Ohio App.3d 367

683 N.E.2d 126

The STATE of Ohio, Appellee, v. BONTRAGER, Appellant.

No. 6-95-16.

Court of Appeals of Ohio Third District, Hardin County.

Decided Oct. 17, 1996.

Eric L. Overstreet, Assistant City Law Director, for appellee.

Scott A. Smith, Westerville, for appellant.

Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, Christopher Jones and Noelle D. D'Allura, Assistant Attorneys General, Environment Enforcement Section, Ohio Department of Natural Resources.

SHAW, Judge.

Defendant-appellant brings this appeal from the judgment and sentence of the Hardin County Municipal Court following a no contest plea in which defendant was found guilty of violating Ohio Adm.Code 1501:31-15-11(D), the failure to wear hunter orange while hunting during the deer gun-hunting season. Also charged at the same time was defendant's brother.

Defendant is a member of the Old Order Amish faith in Hardin County, Ohio. On November 28, 1994, defendant was hunting on his father's farmland during the deer gun-hunting season without wearing a hunter-orange-colored hat, cap, vest, or jacket. Defendant claims he was without any of these items because he believed, first, that to wear the hunter orange would cause him to violate his religious beliefs and second, that hunting on family-owned private property did not require the application of the hunter-orange clothing rule.

After defendant initially entered a not guilty plea, the municipal court judge considered a motion to dismiss on affidavits submitted by defendant, ruled for the state and assigned the matter for trial. Thereafter, defendant changed his plea to no contest and was found guilty of deer gun hunting while not wearing hunter orange. Defendant then filed this appeal, asserting the following assignments of error:

"I. Defendants' convictions for failure to comply with Ohio Administrative Code Section 1501:31-15-11(D) were in violation of the Constitutions of the United States and the State of Ohio;

"A. The trial court erred in failing to dismiss the charges against Defendants for violation of Ohio Administrative Code Section 1501:31-15-11(D) where that regulation imposes a substantial burden upon Defendants' ability to exercise their religion and the regulation is not the least restrictive means of furthering a compelling governmental interest;

"B. The trial court erred in failing to dismiss the charges against Defendants for violating Ohio Administrative Code Section 1501:31-15-11(D) where the regulation does not bear a rational relationship to a legitimate governmental interest;

"C. The trial court erred in failing to dismiss the charges against Defendants for violating Ohio Administrative Code Section 1501:31-15-11(D) where that regulation violates the provisions of Article 1, Section 7 of the Ohio Constitution mandating the General Assembly to enact laws which protect every religious denomination in the peaceable enjoyment of its own mode of public worship."

The specific provisions defendant asserts to have been violated include, first, the First Amendment to the United States Constitution:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *."

The second provision is the Section 7, Article I, Ohio Constitution:

"All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. * * * 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 public worship * * *."

The third provision is Ohio Adm.Code 1501:31-15-11(D):

"It shall be unlawful for any person to hunt deer or coyotes during the primitive weapons deer hunting season, statewide primitive weapons deer hunting season, or the deer gun season unless such a person is visibly wearing a hat, cap, vest, or jacket that is colored hunter orange."

I. Free Exercise Under the Ohio Constitution

The proper standard to review this regulation is the tripartite test enunciated by the United States Supreme Court and later adopted by the Ohio Supreme Court. This test is first, whether a defendant's religious beliefs are sincerely held; second, whether the regulation at issue infringes upon a defendant's constitutional right to freely engage in the religious practices; and third, whether the state has demonstrated a compelling interest for enforcement of the regulation and that the regulation is written in the least restrictive means. See Sherbert v. Verner (1963), 374 U.S. 398, 403-407, 83 S.Ct. 1790, 1793-1796, 10 L.Ed.2d 965, 969-972; State v. Schmidt (1987), 29 Ohio St.3d 32, 34, 29 OBR 383, 384-385, 505 N.E.2d 627, 628-629; State v. Whisner (1976), 47 Ohio St.2d 181, 1 O.O.3d 105, 351 N.E.2d 750, paragraph one of the syllabus.

A. The Sincerity of Defendant's Religious Beliefs

The test to ascertain the sincerity of defendant's religious beliefs 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." United States v. Seeger (1965), 380 U.S. 163, 166, 85 S.Ct. 850, 854, 13 L.Ed.2d 733, 737. Although this is an encompassing definition, satisfaction requires more than a personal or philosophical belief. Wisconsin v. Yoder (1972), 406 U.S. 205, 216, 92 S.Ct. 1526, 1533-1534, 32 L.Ed.2d 15, 25-26. The belief at issue here is that the Amish must be separate from this world, not associate with nonbelievers and remain self-sufficient, existing without the intrusion of or reliance on the outside world. Thus, what the non-Amish community views as necessities--cars, indoor plumbing, phones, electricity, or other modern conveniences--are disregarded by the Amish. Another example of this separateness is the Amish practice of refraining from fashionable or brightly colored clothing, in favor of blue or black.

In the case before us, defendant is a practicing member of the Amish religion, has been willing to subject himself to state prosecution, and has maintained this appeal. Further, according to the affidavits submitted by defendant, the wearing of bright colors can lead to sanctions imposed by the church. Thus, the sincerity of defendant's religious belief is not questioned.

B. The Infringement on Defendant's Right to Free Exercise

As stated in Sherbert, supra, 374 U.S. at 404, 83 S.Ct. at 1794, 10 L.Ed.2d at 970, when one is forced to "choose between following the precepts of [the] religion and forfeiting [governmental] benefits, on one hand, and abandoning one of the precepts of [the] religion in order to accept work, on the other hand," free exercise of religion has been impaired. See, also, Yoder, supra, 406 U.S. at 218, 92 S.Ct. at 1534-1535, 32 L.Ed.2d at 26-27. In other words, government cannot condition benefits or privileges on conduct which causes an individual to violate religious beliefs.

In this case, hunting is clearly a government-sponsored benefit or privilege. It occurs only according to legislative grant, see R.C. 1531.02 (wild animals are owned by the state in trust for the benefit of all persons and such animals may be taken only upon legislative permission), and is a privilege for which the legislature, upon granting, may prescribe the terms and conditions, State v. Hanlon (1907), 77 Ohio St. 19, 21, 82 N.E. 662, 663. The state also appears to consider hunting a recreational activity, as one who hunts, traps, fishes, swims, or engages in other recreational pursuits with the permission of another, without paying any fees other than to the state or state agency, is termed a "recreational user." R.C. 1533.18.

However, in Sherbert, supra, and subsequent cases applying the Sherbert test, it is apparent the interests protected in those cases are not equivalent to the hunting privilege at issue here. In Sherbert, supra, 374 U.S. at 406-409, 83 S.Ct. at 1795-1797, 10 L.Ed.2d at 971-974, for instance, the court found that disqualifying Saturday Sabbatarians from state-paid unemployment compensation forced an impermissible modification of religious beliefs. Sherbert had to choose between not observing the Sabbath day and working or observing the Sabbath and risking unemployment without any state benefits as the state considered a Saturday Sabbath observation an absence without "good cause." This decision has been followed in subsequent unemployment compensation cases. See, e.g., Frazee v. Illinois Dept. of Emp. Sec. (1989), 489 U.S. 829, 109 S.Ct. 1514, 103 L.Ed.2d 914; Hobbie v. Unemp. Appeals Comm. of Florida (1987), 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190; Thomas v. Review Bd. (1981), 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624. The Sherbert test was also applied in Wisconsin v. Yoder, supra, 406 U.S. at 218, 92 S.Ct. at 1534-1535, 32 L.Ed.2d at 26-27, where a compulsory-education mandate was excepted for those of the Old Order Amish faith because following the rule placed the Amish at odds with fundamental principles of their religion and disregarding it imposed state criminal sanctions.

On the other hand, more frequent application of the Sherbert test by the Supreme Court has not occurred and, in effect, Sherbert has been limited to unemployment compensation claims and Yoder. In other situations, the Supreme Court has regularly ruled against free exercise claims. See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn. (1988), 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (challenging federal forest service plans); O'Lone v. Estate of Shabazz (1987), 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (challenging state prison regulations); Goldman v. Weinberger (1986), 475 U.S. 503, 106 S.Ct. 1310 89 L.Ed.2d 478 (challenging federal military regulations); United States v. Lee (1982), 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (challenging federal tax...