State v. Miller

• Decision Date: 19 June 1996
• Docket Number: No. 94-0159,94-0159
• Citation: 202 Wis.2d 56,549 N.W.2d 235
• Parties: , 65 USLW 2005 STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Emanuel D. MILLER, Enos S. Hershberger, David E. Yoder, Eli M. Zook, Eli E. Swartzentruber, Eli J. Zook, Levi E. Yoder and Jacob J.D. Hershberger, Defendants-Appellants, United States of America, Defendant-Appellant-Respondent.
• Court: Wisconsin Supreme Court

Page 235

549 N.W.2d 235

202 Wis.2d 56, 65 USLW 2005

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Emanuel D. MILLER, Enos S. Hershberger, David E. Yoder, Eli M. Zook, Eli E. Swartzentruber, Eli J. Zook, Levi E. Yoder and Jacob J.D. Hershberger Defendants-Appellants United States of America, Defendant-Appellant-Respondent.

No. 94-0159.

Supreme Court of Wisconsin.

Argued May 29, 1996.

Decided June 19, 1996.

For the plaintiff-respondent-petitioner the cause was argued by Maureen McGlynn Flanagan, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendants-appellants there was a brief by Kristina E. Williamson and Reinstra & Van Dyk, S.C., New Richmond; Kyle D. White, St. Paul, MN and Philip G. Villaume, Bloomington, MN and oral argument by Kristina E. Williamson and Kyle D. White.

For the defendant-appellant-respondent there was a brief by Frank W. Hunger, Assistant Attorney General; Peggy Ann Lautenschlager, United States Attorney; Michael Jay Singer and Patricia A. Millett, Civil Division, Department of Justice, Washington, D.C. and Pamela J. Marple, Federal Programs Br., Civil Division, Department of Justice, Washington, D.C. and oral argument by Patricia A. Millett.

Amicus Curiae brief was filed by Marc D. Stern and the American Jewish Congress, New York, NY of the Coalition for the Free Exercise of Religion.

JANINE P. GESKE, Justice.

This is a review of a published decision of the court of appeals, State v. Miller et al., 196 Wis.2d 238, 538 N.W.2d 573 (Ct.App.1995). Claiming infringement of their rights of religious freedom, Miller and the other seven Amish defendants (Respondents) appealed a circuit court order imposing forfeitures on them for failing to comply with Wis.Stat. § 347.245 (1993-1994), by not displaying the red and orange triangular slow-moving vehicle (SMV) emblem on their horse-drawn buggies. The court of appeals, relying on federal statutory and constitutional grounds, held that § 347.245 was unconstitutional as applied to the eight Amish defendants because the State failed to prove that the SMV symbol was the least restrictive alternative available that would satisfy the State's interest in traffic safety. Miller, 196 Wis.2d at 243, 538 N.W.2d 573. We agree with the ultimate conclusion reached by the court of appeals, although we base our holding on the guarantees contained in the Wisconsin Constitution that the right to worship "according to the dictates of conscience" shall not be interfered with or infringed. Wis.Const. art. I, § 18.

I. FACTS

The facts are not in dispute. The Respondents are all members of the Old Order Amish faith. Between January 1st and June 30th of 1993, the eight Respondents were individually issued citations for failure to display the SMV emblem on the rear of their horse-drawn buggies as required under Wis.Stat. § 347.245(1). ¹ They assert that their religious convictions do not allow them to display the symbol which they object to for three reasons: (1) the fluorescent red and orange colors are too "loud and bright;" (2) it is a "worldly symbol" prohibited by their faith's requirement of separateness; and (3) as Amish, they cannot place their faith in a human symbol above that in God. It is important to note that there is no dispute as to the sincerity of the Respondents' religious beliefs or the burden imposed on them by the SMV statute. As further explained in the discussion section of this opinion, the Respondents face a crisis of conscience in being forced to choose between the rules of their faith that forbid display of the SMV symbol and Wis.Stat. § 347.245 which requires them to do so. As an alternative to the SMV symbol, all the buggies involved were equipped with a red lantern and white reflective tape outlining the perimeter of the rear of the buggy. ²

In April of 1993, the Respondents filed motions to dismiss the citations on the grounds that the statutory requirement violated their rights of conscience under Article I, section 18 of the Wisconsin Constitution. ³ Circuit Court Judge for Clark County, Michael W. Brennan ordered the eight citations joined. At the motion hearing and trial to the court on November 18, 1993, the circuit court permitted the Respondents to orally amend their motion by adding a federal constitutional claim based on the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, enacted two days earlier. ⁴

The circuit court found that the Amish defendants were sincere in their religious beliefs and that the free exercise of their beliefs was burdened by § 347.245(1). However, the court denied the defendants' motion because it found that the State's compelling interest in traffic safety was not met by the proffered alternative warning method which it deemed "irregular and non-enforceable." Subsequently, the court of appeals reversed the circuit court's order holding that the statute was unconstitutional as applied to the Amish because "the State has not demonstrated that the SMV emblem is the least restrictive means of furthering the State's interest in traffic safety." Miller, 196 Wis.2d at 252, 538 N.W.2d 573.

II. CLARIFICATION OF KING

Although we reach the same conclusion as did the court of appeals, we do not follow the same path. The court of appeals stated that its "resolution of this case rests on a constitutional as well as a statutory basis." Miller, 196 Wis.2d at 247, 538 N.W.2d 573. Both of these bases however were federal (the First Amendment and RFRA), as the court of appeals concluded that the scope of its review of freedom of religion claims was limited to federal jurisprudence under its interpretation of our holding in King v. Village of Waunakee, 185 Wis.2d 25, 517 N.W.2d 671 (1994). On the contrary, we reject such limitations to review of this vital liberty, and note that our holding in this case is based on the protections embodied in Art. I, § 18 of the Wisconsin Constitution. ⁵

The court of appeals began its analysis with a discussion of this court's recent decision in King, 185 Wis.2d 25, 517 N.W.2d 671. The appellate court accurately notes that in the King opinion we commented that Art. 1, § 18 of the Wisconsin Constitution is our state's "equivalent" of the Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution and that they serve the "same dual purpose of prohibiting the establishment of religion by the state and protecting a person's free exercise of it." Miller, 196 Wis.2d at 245, 538 N.W.2d 573 (citing King, 185 Wis.2d at 52, 54-55, 517 N.W.2d 671). However, we disavow the conclusion reached by the court of appeals that our opinion in King "requires that [Wisconsin courts] construe Article I, § 18 in the same manner as the Free Exercise Clause of the First Amendment." Miller, 196 Wis.2d at 245, 538 N.W.2d 573.

In King we were faced with the question of whether the town of Waunakee's annual holiday display, which contains a nativity scene, violated the Establishment Clause of the First Amendment. King, 185 Wis.2d at 31, 517 N.W.2d 671. Accordingly, we conducted our analysis by applying federal constitutional principles within the context of United States Supreme Court precedent. Id. at 31-52, 517 N.W.2d 671. It was only after concluding that the display did not violate the federal Establishment Clause that we addressed the issue in light of our state constitution.

Initially, we point out that King did not involve a challenge based on the right of conscience, but rather the question of whether the display of a creche in a municipality's holiday display constituted an endorsement of the Christian religion in violation of the Establishment Clause of the First Amendment. See King, 185 Wis.2d at 37, 517 N.W.2d 671. Further, in that case, the counsel for the plaintiffs conceded that this court must look to the federal case law, even when interpreting the state establishment provision. Id. at 55, 517 N.W.2d 671.

The majority opinion in King should be understood in the framework of what was not said as well as what was said. Nowhere in King did we hold that Article I, § 18 is subsumed by the First Amendment. Although we quoted with approval the court of appeals' comment that because both clauses serve the same dual purpose we will interpret our provision "in light of United States Supreme Court cases," that statement should not be read as an abandonment of our long-standing recognition that the language of the two documents is not the same. Some questions cannot be fully illuminated by the light of federal jurisprudence alone, but may require examination according to the dictates of the more expansive protections envisioned by our state constitution.

Contrary to the reading ascribed to the King majority by both the dissent in that opinion (King, 185 Wis.2d at 59-60, 517 N.W.2d 671) and the court of appeals in this instance (Miller, 196 Wis.2d at 245, 538 N.W.2d 573), we did not repudiate a reading of the Wisconsin Constitution which provides stronger protection of religious freedom than that envisioned in the federal constitution. ⁶ In fact, we explicitly stated that we reached our conclusion given the specific facts in King, "even assuming that" our state establishment provision might be " 'less flexible' than the First Amendment." King, 185 Wis.2d at 54, 517 N.W.2d 671 (quoting State ex rel. Reynolds v. Nusbaum, 17 Wis.2d 148, 149, 115 N.W.2d 761 (1962)).

This court has previously commented that the portions of Art. I, § 18, dealing with the freedom of conscience,

operate as a perpetual bar to the state, ... from the infringement, control, or interference with the individual rights of every person.... They presuppose the voluntary exercise of such rights by any person or body of persons who may desire, and by implication guaranty protection in the freedom of such exercise.

State ex rel. Weiss v. District Board, 76 Wis. 177, 210-11, 44 N.W. 967 (1890). In recognition of the...