State v. Swartzentruber, 11413

• Decision Date: 11 December 1989
• Docket Number: No. 11413,11413
• Parties: The STATE of Ohio v. SWARTZENTRUBER.
• Court: Ohio Court of Common Pleas

Page 1

52 Ohio Misc.2d 1

556 N.E.2d 531

The STATE of Ohio v. SWARTZENTRUBER.

No. 11413.

Wadsworth Municipal Court, Ohio.

Dec. 11, 1989.

Norman E. Brague, Wadsworth, for State.

Richard J. Marco, Sr. and Daniel J. Marco, Medina, for defendant.

KIMBLER, Judge.

This cause is before the court on a motion to dismiss. The defendant, Jacob Swartzentruber, claims that R.C. 1531.02, as applied to him, is unconstitutional. That section makes it a crime to violate an administrative regulation adopted by the Division of Wildlife. Ohio Adm.Code 1501:31-15-02(U) requires that deer hunters wear "hunter orange" while deer hunting with guns. Violation of this rule is a violation of R.C. 1531.02. It is a fourth degree misdemeanor, punishable by up to thirty days in jail and a fine up to $250.

On November 29, 1988, the defendant was deer hunting with a gun on private property in Homer Township. He was on the land with the permission of the landowner. He was not wearing "hunter orange" garments. He is a practicing member of a group of Amish known as "Swartzentruber Amish." They are a member of the Old Order Amish and are reputedly the most conservative of the Amish in Ohio. They believe that the Bible prohibits the wearing of bright colors. This belief is based on their interpretation of I Peter 3:3 and I Tim. 2:9.

The Bishops of the Swartzentruber Amish have adopted the "Ordnung" or church rules for their church. The Amish believe these rules to be authorized by the Bible. These rules prohibit the wearing of bright colors, but, approximately fifteen years ago, the Bishops ruled that Amish hunters could wear the color red while hunting. The qualification, however, was that the color red had to be an article of clothing that had other utilitarian purposes.

Although hunting is not a necessity to the Amish, they do hunt for enjoyment, for food, and to protect their crops. In this respect, it helps to perpetuate their lifestyle. Only deer hunting with guns requires the wearing of "hunter orange." Deer may be hunted by bow without the wearing of "hunter orange." Other animals may be hunted by any means without the wearing of "hunter orange."

There is no question that the defendant's refusal to wear "hunter orange" is based upon a sincerely held religious belief.

The defendant's motion raises three constitutional issues:

1. Does Ohio Adm.Code 1501:31-15-02(U) exceed the grant of rule-making power conferred by the agency's enabling legislation?

2. Is Ohio Adm.Code 1501:31-15-02(U) an unconstitutional exercise of the state's police power?

3. Does Ohio Adm.Code 1501:31-15-02(U) violate the Free Exercise Clause of the First Amendment to the United States Constitution?

State v. Switzer (1970), 22 Ohio St.2d 47, 51 O.O.2d 69, 257 N.E.2d 908, discusses whether a grant of authority to an administrative agency constitutes an unlawful delegation of power.

In that case, the court concluded that "the control over fish and game is a proper subject for delegation of legislative power." Id. at 51, 51 O.O.2d at 72, 257 N.E.2d at 911.

In State, ex rel. Corrigan, v. Seminatore (1981), 66 Ohio St.2d 459, 20 O.O.3d 388, 423 N.E.2d 105, the court re-emphasized its holding in Switzer by stating that a public agency may have implied powers as well as expressed powers relating to its specific functions.

R.C. 1531.08 pertains to the power of the Chief of the Division of Wildlife. That section states that the chief may regulate the taking of wild animals in number, quantity, length, or manner.

In this case, the court finds that the requirement that a hunter wear "hunter orange" relates to the manner in which deer may be hunted, or taken, by gun. As such, Ohio Adm.Code 1501:31-15-02(U) does not exceed the rulemaking authority of the Chief of the Division of Wildlife.

The next issue is whether the regulation bears a real and substantial relation to the public health, safety, morals, or general welfare. Cincinnati v. Correll (1943), 141 Ohio St. 535, 26 O.O. 116, 49 N.E.2d 412.

In this case, the state justifies the need for the regulation as being the protection of hunters from being shot by other hunters while they are hunting.

It could be argued that there is no public component to Ohio Adm.Code 1501:31-15-02(U) because the general public is no more or less safe if a hunter wears or refuses to wear hunter orange. This court, however, does not agree with that analysis.

An analogy can be drawn to R.C 4513.263, which requires operators of motor vehicles to wear seat belts. The Court of Appeals for Portage County found that statute to be a constitutional exercise of the police power. State v. Batsch (1988), 44 Ohio App.3d 81, 541 N.E.2d 475.

In that case, the court noted that there was a substantial relationship to the health and safety of the general public. That relationship existed because oftentimes injured automobile drivers or passengers have to be cared for by public agencies following automobile accidents. Such agencies include ambulance services; hospitals; doctors; and other medical support personnel.

In this case the same relationship exists. In addition, it is not altogether true that other members of the public besides the hunter who is wearing the hunter orange are not protected.

It takes little imagination to realize how a hunter would feel who accidentally shot another person while hunting. Such psychological harm is potentially every bit as serious as physical harm. By making hunters wear orange, the state protects against the public being harmed in such fashion.

Therefore, this court finds that Ohio Adm.Code 1501:31-15-02(U) does bear a real relationship to the public health and safety.

The last issue presented by the motion is the most difficult to resolve. Does Ohio Adm.Code 1501:31-15-02(U) interfere with the defendant's free exercise of his religion?

The First Amendment to the United States Constitution prohibits governmental establishment of religion and also prohibits the government from interfering with the free exercise of religion. Both clauses are made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.

The United States Supreme Court has ruled that in deciding whether a state regulation violates the Free Exercise Clause, a court should consider three issues: (1) is the objection to the regulation based on a sincerely held religious belief; (2) does the government regulation burden the exercise of that religious belief; and (3) if so, is the burden justified by a compelling state interest, which cannot be served by a less intrusive alternative. E.g., Thomas v. Review Board (1981), 450 U.S. 707, 713-719, 101 S.Ct. 1425, 1429-33, 67 L.Ed.2d 624.

In this case, there is no dispute from the state that the defendant's objection to wearing hunter orange is motivated by a sincerely held religious belief.

The next question, whether the regulation burdens the exercise of his religion, is much harder to answer. The defendant argues that it does because he cannot hunt deer and comply with both the regulation and his beliefs. In the defendant's view, any regulation which would require conduct that is against his religious beliefs is unconstitutional, even if the conduct required is only required if he engages in a voluntary act.

It is clear that a state government cannot condition the receipt of certain benefits or privileges upon conduct which violates a person's religious beliefs.

The first case to establish this principle was Sherbert v. Verner (1963), 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965. In that case Sherbert, a Seventh-day Adventist, was denied unemployment benefits by South Carolina because she would not work on Saturdays.

The South Carolina Supreme Court held that since the unemployment statute did not prevent her from exercising her religion, it did not violate the First Amendment. Sherbert v. Verner (1962), 240 S.C. 286, 303-304, 125 S.E.2d 737, 746.

The United States Supreme Court rejected that argument. It noted that Sherbert was put in the position of following her religion...