State v. Loudon

• Decision Date: 27 January 1993
• Citation: 857 S.W.2d 878
• Parties: STATE of Tennessee, Appellee, v. Robert G. LOUDON, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 878

857 S.W.2d 878

STATE of Tennessee, Appellee, v. Robert G. LOUDON, Appellant.

Court of Criminal Appeals of Tennessee,

at Jackson.

Jan. 27, 1993.

Petition to Appeal Denied June 1, 1993.

Charles W. Burson, Atty. Gen. & Reporter, Joel W. Perry, Asst. Atty. Gen., Nashville, John W. Pierotti, Dist. Atty. Gen., Terry Harris, Asst. Dist. Atty. Gen., Memphis, for appellee.

James V. Ball, Memphis, for appellant.

OPINION

JONES, Judge.

The appellant, Robert G. Loudon, was convicted of driving a motor vehicle without a license, a Class B misdemeanor, by a jury of his peers. The trial court sentenced the appellant to pay a fine of $108, the amount set by the jury, and to serve thirty (30) days in the Shelby County Correctional Center.

The appellant has presented two issues for review. He contends:

I. Section 55-50-321(c)(1) of the Tennessee Code Annotated requiring a social security number for a driver's license application and renewal is unconstitutional in that it violates the Free Exercise Clause of the First Amendment of the United States Constitution as made applicable to the States by the Fourteenth Amendment and Article I, Section 3 of the Tennessee Constitution.

II. Whether, based on recent law passed by the Tennessee Legislature no longer requiring a social security number for the application and renewal of driver's license, such conviction may be overturned by application of such law retroactively.

The judgment of the trial court is affirmed.

On June 14, 1990, Officer Holly Cooper stopped the appellant for making an illegal left-hand turn. When Officer Cooper asked the appellant for his driver's license, he advised the officer that his license had expired; and he had not renewed it. Cooper prepared a traffic citation and presented it to the appellant. When he refused to sign the citation, he was arrested and transported to the Shelby County Jail. It was stipulated that the appellant did not possess a valid driver's license when he was stopped by Cooper.

The appellant advised Cooper that he could not be arrested because her God was not as big as his God. He referred to her as "an agent of the socialistic government and he felt that it was that type of government that was trying to brand him with this mark." The appellant furnished Cooper with a letter that he had written to the Department of Safety regarding the renewal of his driver's license. The letter, dated December 29, 1988, advised the Department of his change of address and then stated:

I was told to contact you by one Michelle Thomas from the Tennessee Department of Safety (Highway Patrol) office on 6348 Summer in Memphis. She referred me to you. Here is the situation:

Michelle Thomas told me that you would not renew my license without a Socialist Surveillance Number (SSN, sometimes miscalled a "Social Security Number"). That is incorrect; it is illegal for you or any one else to deny me a renewal of my operator license because I neither have nor will get a Socialist Surveillance Number; and so to do will be a violation of Federal laws both civil and criminal, regardless of any "Laws" you may claim to be acting under color of.

I am hereby giving constructive notice of this to you and all of you.

I do not have a SSN because that number is now becoming the mark of the beast against which we are warned in the Bible at Revelation 13:16-18, 14:11, and other places. I have committed my life to follow the Lord Jesus, Christ, and I cannot permit myself to be defiled with your number, as it would surely defile me.

I appeal to you as a loyal citizen to dutiful public servant that you will do your duty and make certain that I have no more trouble from you or your office in renewing my operator's license.

The Department of Safety advised the appellant that it would not renew his license if he persisted in his refusal to furnish the Department with his social security number.

The appellant has possessed a social security number for several years. According to the appellant, the Department of Defense abandoned its identification number and adopted the social security number as its identification number while he was on active duty in the United States Army. The Army obtained a social security number for the appellant in contemplation of the change in identification numbers. Moreover, social security taxes are deducted from the appellant's salary by his employer, Memphis State University. The appellant admits that the University may use his social security number to maintain certain records. The appellant does not object to the use of his social security number for this purpose.

In summary, the appellant had a social security number when he sought to have his driver's license renewed notwithstanding his statement to the Department of Safety that he did not have such a number. The appellant's destruction of his social security card did not remove his social security number from the records of the United States Government.

I.

The First Amendment to the United States Constitution provides in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." This provision, known as the Free Exercise Clause, is enforceable against the states through the Due Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1217 (1940); Paty v. McDaniel, 547 S.W.2d 897, 901-902 (Tenn.1977), rev'd., McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978).

Since the Free Exercise Clause guarantees that a citizen of this Nation can believe and profess the religious doctrine of the citizen's choice, "[t]he door [of this Clause] stands tightly closed against any governmental regulation of religious beliefs as such." Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965, 969 (1963) (Emphasis added). Thus, a government can neither compel an affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78, 86-88, 64 S.Ct. 882, 886-887, 88 L.Ed. 1148 (1944), employ its taxing powers to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), impose special disabilities on the basis of religious views or religious status, McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978), nor lend its power to one side or the other in controversies over religious authority or dogma. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-725, 96 S.Ct. 2372, 2380-2388, 49 L.Ed.2d 151, 162-172 (1976). However, the United States Supreme Court has consistently held that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " Employment Div. Dept. of Human Resources v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876, 886 (1990), quoting United States v. Lee, 455 U.S. 252, 263, n. 3, 102 S.Ct. 1051, 1058, n. 3, 71 L.Ed.2d 127, 136, n. 3 (1982) (Stevens, J., concurring). As the Court said in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595, 60 S.Ct. 1010, 1012-1013, 84 L.Ed. 1375, 1379 (1940):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. (footnotes omitted).

In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Court held that a mother could be prosecuted under the child labor laws for using her children to dispense literature regardless of her religious motivation. In Braunfield v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (plurality opinion), the Court upheld Sunday-closing laws notwithstanding a claim that the laws burdened the religious practices of citizens whose religious tenets required them to refrain from work on other days of the week. In Gillette v. United States, 401 U.S. 437, 461, 91 S.Ct. 828, 842, 28 L.Ed.2d 168, 187 (1971), the Court sustained the military selective service system even though there was a claim that the system violated the Free Exercise Clause because it conscripted citizens who opposed a particular war on religious beliefs. In United States v. Lee, 455 U.S. at 258-261, 102 S.Ct. at 1055-1057, 71 L.Ed.2d at 133-135, the Court ruled that the Amish were required to collect and pay social security taxes even though the Amish faith prohibited participation in governmental support programs. In Hernandez v. Commissioner, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989), the Court rejected a claim that the payment of federal income tax made the citizen's religious activities more difficult.

In the landmark case of Sherbert v. Verner, supra, the United States Supreme Court ruled that a person must establish that the religious beliefs asserted by a citizen constitute a "religion within the meaning of the First Amendment." If this is shown, the state must demonstrate that there is a compelling state interest that justifies a substantial infringement of the litigant's First Amendment rights. However, the Court has subsequently held that the compelling state interest prong is not applicable when the accused seeks an exemption from an act that is designated as a criminal offense. Employment Div. Dept. of Human Resources v. Smith, supra. The Court said in Smith:

We conclude today that the sounder approach, and the approach in accord with...