Jensen, v. Quaring - Oral Argument

ORAL ARGUMENT OF RUTH ANNE E. GALTER, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments next in Jensen against Quaring.

Ms. Galter, you may proceed whenever you are ready.

Mr. Galter: Thank you, Mr. Chief Justice, and may it please the Court, this case is here on the State of Nebraska's petition for certiorari to the Eighth Circuit Court of Appeals.

Nebraska contends that the lower court erred in mandating an exception solely on religious grounds to Nebraska's requirement that a photograph appear on the respondent's driver's license.

The lower court found two compelling interests in ready and instantaneous identification of licensed drivers as well as the security of financial transactions.

It nevertheless held that the photograph requirement as applied to Mrs. Quaring was not the least restrictive alternative to accomplish the state's objectives.

We submit that the lower court erred in two respects.

First, we submit that it failed to apply a qualitative and comparative analysis to the interests of the state and Mrs. Quaring.

Secondly, we contend that it incorrectly applied the least restrictive alternative test, in that the lower court's conclusion rests on the faulty premise that a few exceptions do not undermine the state's legislative purpose.

In short, we are asking the Court to clarify the holdings in Thomas versus Review Board and in Sherbert versus Verner to provide a qualitative analysis of the degree of abridgement of religious freedom in terms of its actual interference with an essential practice of religion.

We feel this is significant for the reason that the lower court specifically found that there was no coercion of action which is contrary to a free exercise claim.

The first question in any free exercise analysis is, is there a burden.

Our focus is how much of a burden exists upon Mrs. Quaring.

In that analysis, we must look to the degree of infringement or, if you will, the centrality of her belief and the degree which the state's regulation infringes upon that central core belief.

We have also evaluated it in terms of the right to drive.

As set forth in our brief, we have indicated that we do not feel that Mrs. Quaring's interest in the right to a driver's license is on the same level as those interests presented in Thomas versus Review Board and in Sherbert.

In essence, the interest or the benefits at issue in those cases were unemployment compensation benefits to which the individuals were otherwise entitled.

We feel that the right to a driver's license is a highly regulated state activity.

It is subject always to the police power of the state, subject always to reasonable regulations which relate to its purpose.

In other words, we may suspend or revoke for repeated infractions.

We may impose restrictions in terms of financial responsibility.

It is subject to a whole host of state regulation.

Unidentified Justice: Age, is that not another factor?

Mr. Galter: Age?

Unidentified Justice: Age.

Mr. Galter: Yes, Your Honor, age is a factor.

Unidentified Justice: What are the limits in Nebraska?

Mr. Galter: At the age of 16 you may obtain a regular driver's license.

Unidentified Justice: On the other end, is there a limit?

Mr. Galter: You must demonstrate a proficiency and knowledge of the rules of the road, traffic regulations.

You must demonstrate a certain degree of visual acuity.

You must also demonstrate your manual ability to actually operate a motor vehicle.

You will take a license--

Unidentified Justice: But there is no cutoff on the age?

Mr. Galter: --At the present time, no, but there are repeated examinations for dexterity, visual ability, and so on, particularly for elderly drivers.

Unidentified Justice: When does the examination... at what age does the examination begin?

Mr. Galter: Depending upon what type of license you are applying for--

Unidentified Justice: Just an ordinary--

Mr. Galter: --The ordinary driver's license is age 16.

You may get a learner's permit at 15.

Unidentified Justice: --No, but on the other end.

Mr. Galter: You are reexamined every four years.

Unidentified Justice: A medical examination?

Mr. Galter: The visual.

Unidentified Justice: I know, but how about the medical?

Some states have a medical examination after a certain age.

Mr. Galter: No, we do not.

As a general rule we do not, but generally examiners will take into account any physical handicap, and if there is a discernible one to the examiner, that will then be noted on the driver's license.

Unidentified Justice: What is Mrs. Quaring's faith?

Mr. Galter: Mrs. Quaring believes a... her belief is a personally held one.

She does not belong to an organized religion as such, and the church to which she does occasionally attend does not subscribe to the same belief that she does.

Unidentified Justice: But I gather the state concedes that it is Christian in nature.

Is that true?

Mr. Galter: The state has conceded that it is a religious belief.

Unidentified Justice: Well, Christian?

Mr. Galter: A Judaic Christian belief founded in the Old Testament.

I believe as well the lower court's opinion indicated a Judaic background for this belief.

Unidentified Justice: There is no issue whether the belief is sincerely held, is there?

Mr. Galter: No, Your Honor.

Unidentified Justice: May I ask, Ms. Galter, if you could explain a little bit more to me about the administrative burden the state alleges to be present.

I think the brief indicates that 93 different county commissioners would have to administer the exceptions, and yet the respondent cites testimony showing that the current practice is to require people seeking exemptions to apply to the central office.

Mr. Galter: In response to your first question, the administrative burden that we set forth would be that the applications are made on a local basis.

There are 93 counties in Nebraska.

Applications are made... actually I believe there are 95 examining stations.

The county treasurers and their clerical staff in each of those counties actually administer the photograph.

The applications would be made locally.

The testimony below does indicate that the applications for exemptions that have been made have been made to the central office.

However, in implementing an administrative scheme of statewide applicability, it would be necessary to train all of those individuals in terms of processing the applications and making the determination.

It would be unfeasible for an individual in Scott's Bluff, Nebraska, to travel in excess of 300 miles to present their side of the case, unless one simply had a statement on the application itself which would in our estimation result in exemption on demand, simply saying, we chose not to be photographed for our religious belief.

Unless one goes to such a very narrow informational statement on an application, you do have exemption on demand.

Our concern with the administrative burden is that we would have in excess of 100 people making a determination as to what is or is not religious.

The problem that we foresee is that given the fact that we are recognizing very narrowly held beliefs, that the risk of prejudice and the risk of inconsistency would be very high, and those are legitimate reasons for according the state's interest a higher weight, if you will, the risk of prejudice and inconsistency together with the inability of those individuals to determine a very personal belief as opposed to one that is easily recognized.

Unidentified Justice: Well, I suppose in considering exemptions from the draft, for example, based on sincerely held personal beliefs, the same kind of determination is made at a variety of localities, is it not?

Mr. Galter: That's correct.

We feel that the implications for this are magnified also by the fact that all 50 states now require or will require as of January photographic licenses, and together with the fact that the numbers of people who would be making this determination on a day by day basis is extremely difficult, as the record below reflects.

Professor Turner indicated that indeed it was a very difficult task to determine what is religious.

Perhaps it might be easier if we were dealing in context of organized religion.

For example, as in Thomas and Sherbert, we were dealing with Sabbatarians, and that is a very easily recognized religious precept.

It is much more difficult when someone simply has a personal belief that someone may not be familiar with or have enough historical background to make a fair determination, and we submit that the risk of inconsistent treatment across Nebraska as well as the nation is a very significant factor in the determination.

Unidentified Justice: That hasn't prevented the extension of a similar privilege in the case of the draft, has it?

Mr. Galter: No.

No, it has not.

Unidentified Justice: When did Nebraska begin to require a photograph on the driver's license?

Mr. Galter: I believe in 1977.

Unidentified Justice: And when did they first begin to require an automobile driver's license?

Long before your time, I am sure.

Mr. Galter: I don't know the answer to that.

I am sorry.

The evidence reflects that from 1977 on, as the testimony of the superintendent of the state patrol indicated, the licenses were phased in over a four-year period.

We have the renewal every four years.

I think it is significant that his testimony reflects that as those licenses were phased in, the counterfeiting, which had been a problem prior to the photographic licenses, the counterfeiting diminished, as did the purchase of alcohol by minors.

And in that respect I think one of the potential dangers which we can articulate as a state is that Nebraska has just raised the legal drinking age from 19 to 21.

We are a university town, if you will, and I think there will be a high incentive for young people to perhaps fraudulently obtain nonphotographic licenses in order to obtain alcohol.

There is also increasing federal pressure on various states to raise their drinking age in terms of the use of highway funds.

I think we can articulate a very real danger in that regard, that there would be a potential for abuse, and it would be virtually impossible to determine this security.

Unidentified Justice: Couldn't you respond to that by just limiting the exclusion for this purpose to adults, I mean, to those over 21, saying you have a special interest there?

This case doesn't raise that question, does it?

Mr. Galter: No, it does not.

Unidentified Justice: She is older, I gather.

Mr. Galter: Yes, she is.

One could posit an equal protection argument on that.

The other side of that would be whether or not the state's interest in preventing purchase of alcohol is sufficient, although you would then also be discriminating on those... against those individuals in terms of security.

Unidentified Justice: Surely if you say that interest is sufficient to deny everybody the right not to be photographed, it ought to be at least sufficient to deny those under 21 the right.

Mr. Galter: I am saying you could pass that legislation.

I think you would raise other problems that would perhaps not be the same problems.

Unidentified Justice: Exactly what is the state... spell out for me if you would, please, in a practical sense what function does the photograph serve?

Mr. Galter: The photograph serves... its primary function is instantaneous identification.

Law enforcement officers at routine traffic stops immediately know that the person that they are stopping or encountering or whatever is in fact the person displayed upon the license.

It is an instantaneous identifier.

Tangentially, it also serves purposes of identification for cashing checks, purchasing alcohol, admission to certain other things.

But the primary identification value is in law enforcement.

Unidentified Justice: Counsel, why is the state interested in the financial transactions of cashing checks?

Mr. Galter: The state offers its protection in terms of criminal statutes, in terms of theft by deception, forgery, passing bad checks, and so on.

The state has an interest in the integrity of the commercial system.

To the extent that--

Unidentified Justice: Yes, but what has the driver's license to do with that, really?

Anybody can get a driver's license.

Mr. Galter: --The driver's license serves as a secondary piece of identification.

Unidentified Justice: Because of the photograph.

Mr. Galter: The photograph serves as the identification.

Unidentified Justice: A passport would do the same thing, wouldn't it?

Mr. Galter: Yes, another photograph would, if it were properly validated by a state or a federal regulatory authority, so that it had validity.

I don't believe a simple photograph would serve the same function.

Unidentified Justice: I will confess I am a little puzzled by your reliance on financial transaction integrity to support the photograph on a driver's license.

Mr. Galter: I think the main emphasis is for law enforcement and the identification of drivers.

It does serve corollary purposes, and to that extent those also are compelling, and I believe the lower court so found, that the--

Unidentified Justice: Am I not correct that in some parts of Asia there are sects who will not permit people to photograph them?

Mr. Galter: --I am not personally familiar.

That may very well be.

Unidentified Justice: And if you had a large number of people in Nebraska, would that create additional problems for you, or would you be here making the same argument?

Mr. Galter: I would be here making the same argument, because, yes, I think it does create problems.

We also feel that the lower court was in error in applying the least restrictive alternative analysis to indicate that if we have only a very few exceptions, it doesn't significantly undermine the state's interest.

The faulty rationale is that if we had a larger number, we might not very well be able to make the exception without running afoul of the establishment clause.

The court's decision below has the strange result of giving more protection to a very unusual doctrinaire belief, if you will, that does not fit well within established notions of religion.

So I think if we had 15,000 people or 500 people making the same request, the analysis would change.

And we submit that ought not be the test that is applied.

The decision ought not turn on the few number of people that request the exemption.

As a practical matter, the state could always make an exception if only one or two asked for it.

It wouldn't seriously undermine the integrity.

But what we are most concerned with is, we are concerned with this case, we are concerned with future cases.

Counsel is aware in Nebraska of individuals who now do not want to sign their driver's license on religious grounds.

There are individuals who do not want a social security number on religious grounds.

Unidentified Justice: Would this same rule in your view be applied if Nebraska or some agency of the federal government in Nebraska or in the Eighth Circuit required a photograph for identification for government employment or for a passport?

The same standards would apply across the board, would they not?

Mr. Galter: Yes, I believe they would.

It also depends on the purpose, and when you have government requiring them for different reasons, the driver's license serves an identification purpose for enforcement.

We also as state employees have photographic ID's for security reasons, and that is why we would like to posit a test which really examines on the one hand the degree of infringement of an individual's essential practice of religion.

We submit the state has not interfered with the practice of Mrs. Quaring's religion.

She is free to worship as she pleases.

She may decorate her home, and avoid all indications of things in creation.

To answer your question, on the other hand, we need to examine the interests of government.

We have identification as one.

We have, as the Justice Department has pointed out, a programmatic interest in universal applicability of laws.

The use of numbers, for example.

Fifteen states now utilize a social security number as the driver's license number.

And given the widespread use of computerization, those numbers are the only way in which this information is accessed.

That also brings up driving records, which are very important to a law enforcement officer when he stops.

If he has that information available to him at a central location, he knows if he is looking at a repeated offender.

The interests of government are much broader than just the photograph.

The government has a very strong interest in uniform applicability, and I believe that was set forth rather clearly in United States versus Lee, in which an exemption was not granted to the Amish because they had elected to enter a commercial activity, and the viability of the system as a whole was important.

And that is what we are positing, that you look at the very degree of burden on Mrs. Quaring, and we submit that, yes, we have not allowed her to have a driver's license.

On the other hand, we have not interfered so strongly with the practice of her belief that the government must give way and make an exception.

The government's interest is--

Unidentified Justice: What would happen if somebody applied for a driver's license, chauffeur's license?

Mr. Galter: --And did not want their photograph taken?

Unidentified Justice: Yes.

I mean, you are saying that didn't affect the livelihood.

That would affect the livelihood.

Mr. Galter: Yes, it would, most definitely, but we also do not have a problem in lifetime revocations of licenses, and I would agree with you that the analysis is different, but I think if we look at the interest of the license, and as we pointed out in Dixon versus Love in indicta, it has been indicated that perhaps a driver's license is not so important as our social welfare benefits, which is a subsistence question.

In your example, the chauffeur might have to make a lifestyle adjustment, but those are not sufficient reasons.

Economic disadvantage or inconvenience is not a sufficient reason to grant the exemption.

Unidentified Justice: What happens when you are arrested?

You couldn't be booked, could you?

Mr. Galter: No, and that was one of the things that we would point out.

It is a sliding scale analysis.

It truly is.

You do not want the picture on your license.

But if in fact Mrs. Quaring were involved in an accident and taken to the police station, I doubt very much that the state would be forced to forego the photograph on her mug shot.

I don't mean to be facetious, but it is a sliding scale analysis.

The state's interest then becomes very high.

We submit that now the state's interest is very high, and the burden on Mrs. Quaring is not so central.

We are not interfering with the practice.

And I think it is significant that the lower court specifically found no coercion of action.

And given those reasons, we feel that the test to be applied is consistent with Thomas and Sherbert.

We feel that it can be clarified in terms of an analysis of the comparative burdens and the comparative costs.

Unidentified Justice: Well, Ms. Galter, it really isn't Ms. Quaring's driving privilege that is being infringed, is it?

It is her free exercise of religion.

Mr. Galter: That is the respondent's claim.

Unidentified Justice: Isn't that quite a valid claim?

Mr. Galter: The burden on Mrs. Quaring, if you will... we submit that there is not a right to drive, but yes--

Unidentified Justice: The burden is on her free exercise.

Mr. Galter: --The burden is on her free exercise, but what we are urging the Court to examine is how much, how much are we interfering with the actual practice?

I would--

Unidentified Justice: Well, but you are asking the Court to do something that I don't think it has been doing in earlier cases.

If you concede the sincerity of the religious belief or practice, do we really go beyond that and say how important is that really to the average person?

That is not the test, is it?

Mr. Galter: --I believe the test would be... the initial question is, is there a burden, and then--

Unidentified Justice: On what?

Mr. Galter: --The burden on--

Unidentified Justice: On her free exercise of her religion.

Mr. Galter: --On free exercise of her religion.

But the Court has been willing in other cases, such as Braunfeld versus Brown, to say even though there is a burden, and even though it is inconvenient, and even though it is expensive, the state's interest is so compelling that the individual's interest must give way.

So, yes, I think the Court has been looking at a balancing test, and perhaps we are only asking for a more refined balancing test.

Unidentified Justice: Well, what is the state's interest in denying the exemption?

It isn't just the fact that the state wants to have a program of ready identification.

I guess your position is, it is the administrative burden.

Mr. Galter: It is the administrative burden as the state's broader interest in achieving universal application and extending that rationale into social security numbers, signatures, and so on.

Unidentified Justice: Well, but of course the state doesn't have a uniform photo identification system now because it has already been demonstrated that the state has exceptions today, for temporary learner's permits and other... out-of-state permits and the kind of thing that don't require a photograph today.

Mr. Galter: We have exceptions.

However, those exceptions bear a rational relationship for the reasons that they were carved out.

We submit that it is well within the legislature's authority to make the determination to grant those limited exceptions.

For example, the learner's permits are only valid if they are accompanied by a regularly licensed driver who has a photograph on his or her license.

The temporary permits are for those individuals who are out-of-state and of necessity could not be photographed in Nebraska.

They are short-term in nature.

When that individual returns to the state, he then obtains a regular license.

We submit that the legislature has the ability to make that determination.

Having once made that determination, by contrast, it chose not to grant a religious exemption.

That may have been a better course of action, but we are not required to do that, and that is a legislative determination.

And we feel that it is unconstitutional to force the state to grant an exception solely on religious grounds.

And the other exemptions may be explained on a rational basis as within the authority of the legislature.

The notion--

Unidentified Justice: Ms. Galter, is any part of the state's argument based on the idea that where you have a fairly minimal time period of confrontation between the licensing authority and the applicant, that the state may find itself in a position of just having to give in on a lot of claims that are either spurious or borderline spurious?

Mr. Galter: --I am not sure I understand your question.

Unidentified Justice: Well, if people who perhaps have ulterior motives and really aren't all that interested in religious claims find out that you can get a driver's license with no photograph on it, that you will get a lot of applications based on stated religious belief that in fact doesn't exist but may be very difficult to disprove.

Mr. Galter: Exactly.

I believe it is exemption on demand, and I think the incentive for counterfeiting and the incentive for abuse will increase, and the testimony below reflected that the purchase of alcohol was one of those, and yes, I think that is exactly one of the reasons that we are articulating that the exemption would be on demand.

There would be no way for local licensing authorities to make the determination.

We also submit that given the establishment clause, it would be an impermissible inquiry on such a broad scale.

I would like to reserve the rest of my time.

Unidentified Justice: Very well.

Mr. Lansworth.

ORAL ARGUMENT OF THOMAS C. LANSWORTH, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Lansworth: Mr. Chief Justice, and may it please the Court, in answer to the question from Chief Justice Burger with regard to when the licensing photograph requirement took effect, that began in January of 1978.

Mrs. Quaring at that time was driving on a license that was issued under the prior statute, which did not require a photograph, and she continued to do that, as the evidence at trial indicated, for a period of four years.

This woman then, because of her religious belief, was placed in a situation where she drove her farm vehicles and her automobile on what essentially was an expired license, with the completed examination certificate indicating that she had passed the examination stapled to it.

I mention that simply--

Unidentified Justice: Then it is pretty clear she considered violating the law less important than violating her subjective religious belief.

Mr. Lansworth: --I think, Your Honor, that--

Unidentified Justice: Is that a fair statement?

Mr. Lansworth: --Excuse me?

Unidentified Justice: Is that a fair statement of the situation?

Mr. Lansworth: I think that what I would draw from that is that she had such a high level of concern about the situation in which she was placed that she went to the trouble of doing the next best thing in her mind.

And that is, she had passed the examination.

She had qualified under all of the substantive requirements in order to obtain a renewed driver's license at that time, but she was not able to get a renewed driver's license because her religious beliefs prevented her from submitting to being photographed.

Mrs. Quaring and her husband operate a large farming operation in central Nebraska, where they live under what might truly be called the wide open spaces.

The ability to drive a motor vehicle in those circumstances is essential to her ability to continue to work as both a farmer and in her part-time employment as a bookkeeper in a small town that is located approximately ten miles from where she and her husband farm.

She operates both the automobiles and various vehicles in the farming operation.

She needs to be able to drive.

I think that as far as whether or not this is a question of whether she is just simply trying to impose some kind of thorn in the side of the state, I don't think that is an issue here.

She is not a woman who has ever before found herself in a court of law.

The evidence indicates that this is the first time that she has ever been confronted with a legal problem, not only in general, but specifically with regard to whether or not she presents any danger to the state's interest with regard to licensing motor vehicle operators.

She has never been the recipient of any kind of traffic citation.

Unidentified Justice: Would you agree that... what is your view on whether Nebraska's need for photographs on these licenses is a compelling state interest?

Mr. Lansworth: We have... my personal position on that is that I find it difficult to see that that is a compelling state interest.

Since the lower courts were--

Unidentified Justice: You think it would not make it easier for people to have fraudulent licenses?

Mr. Lansworth: --I think it is a step that... the photograph makes it more difficult to create fraudulent licenses, but the testimony by the superintendent of the Nebraska State Patrol at trial indicated that that event still happens, that there are still fraudulent licenses that are being made.

And I think that as far as the questions with regard to whether or not spurious claims might be made so that people can somehow have fraudulent identifications, I doubt that people would want an identification to go out and write bad checks, if that is the states' concern, that did not have a photograph.

My suspicion would be that the fraudulent licenses that exist have pictures on them of the people who are carrying them, but the other information has been somehow counterfeited, and it is not the photograph that is the subject of counterfeiting in this kind of situation.

Unidentified Justice: On the identification, is there any faster one than a photograph?

Mr. Lansworth: Is there any faster method of identification?

Unidentified Justice: Yes.

Mr. Lansworth: I think that probably there is not.

However, I don't think that it is simply a question of speed of identification when we are dealing with the burdens being placed on Mrs. Quaring's free exercise rights under the First Amendment.

In addition, I think that a person who--

Unidentified Justice: We are not talking about that.

We were talking about the state's interest.

Mr. Lansworth: --Yes, Your Honor.

Unidentified Justice: And you do agree that that is the best way to facilitate identification?

Mr. Lansworth: I think that it is probably the fastest way.

I am not sure that it is any better than the physical description that appeared on the previous license form.

Unidentified Justice: Well, would you mind physically describing me?

No, of course not.

0 [Generallaughter.]

Mr. Lansworth: In that situation, I think I would prefer a photograph.

Unidentified Justice: Right.

0 [Generallaughter.]

Mr. Lansworth: But I don't think that a preference for a photograph--

Unidentified Justice: Has Mrs. Quaring ever applied for a passport?

Mr. Lansworth: --No, she has not, that I am aware of.

Unidentified Justice: And you know a photograph is required for those.

Would she be challenging the federal procedure for photographs on passports if she wanted to go to--

Mr. Lansworth: If she were to make application for a passport, my suspicion is that her position with regard to the photograph on that document would be the same with regard... as it is with regard to the driver's license.

Unidentified Justice: --How about for federal employment which required in a particular agency a photograph?

Mr. Lansworth: For Mrs. Quaring, as the individual, particular individual who is involved in this case, her position would be that she cannot allow herself to be photographed.

So, in any situation in which someone would impose a photographic requirement, her position would be the same as it has been with regard to the driver's license.

And I would... it seems to me that the interests involved in those photographs is going to vary from situation to situation.

But with regard to the state's interest that is involved in the photograph on the driver's license, it seems clear to me, particularly from the record in this case, that with the exemptions that already exist under the statute, and with regard to whether or not Mrs. Quaring as an individual presents any threat to those interests, with or without a photograph, I think the record is clear that she does not.

Unidentified Justice: Well, Mr. Lansworth, do you concede that the government's interest in obtaining a photograph or passport or some ready identification for security reasons in a secure area might be weighty, or weightier than the state's interest for driver's license purposes?

Mr. Lansworth: I think it would be different.

Whether or not it is weightier, I think, would depend upon the particular situation in which the requirement might arise, and also we are dealing in this particular case with a--

Unidentified Justice: Well, those are the suggested circumstances, the passport or the photograph required for employment in a secure area.

Mr. Lansworth: --It is my understanding that there is a possibility of an exemption to a photograph on passports.

I am not a frequent traveler, so I am not personally aware of whether that in fact is the law.

With regard to the security photograph, if that was the uniform system that had been established, and if it was equally applicable to all, and that it was a necessity for entrance to a secure area, or something of that nature, then I think it would be weightier in that situation than the license photograph--

Unidentified Justice: You have your Sack Air Force Base in your state.

Mr. Lansworth: --That's correct.

Unidentified Justice: What is your response to that situation?

Mr. Lansworth: If a photograph was required for entrance at Sack Air Force Base?

Unidentified Justice: I don't think it's if.

I think it is required.

Mr. Lansworth: I think that may be the case.

You are right, Your Honor.

Unidentified Justice: Let me ask another question, if you place a great deal of weight on the existence of other exemptions in the Nebraska system.

Mr. Lansworth: I think that the weight that I place on that is because of the reason that that indicates to me that the addition of Mrs. Quaring to that group of people who is on the highways and streets of Nebraska without a photograph on their driver's license is not going to have any impact upon the achievement of the state's interests that are being served by that photograph.

Unidentified Justice: Of course, aren't each and every one of those exemptions rather minor?

They are temporary in nature, and--

Mr. Lansworth: I think generally speaking most of them would fit that description, except there is a category--

Unidentified Justice: --There is a certain element of impossibility with respect to some of them, anyway.

Mr. Lansworth: --I think with regard to... the temporary permit I believe is the one that is issued to persons who are outside of the state at the time that their renewal comes due.

The others, however, are not temporary in the sense of a period of days or--

Unidentified Justice: How about a learner's permit?

That doesn't go on forever.

Mr. Lansworth: --The learner's permit, Your Honor, I believe, is issued for a year at a time.

It is issued generally to a 15-year-old who then learns to drive before reaching the age of 16, and being able to obtain a regular driver's license.

That is... I guess I don't consider that a year is a short period of time with regard to driving on the streets and highways without a photographic license.

Unidentified Justice: Well, it is shorter than the period of time that a normal Nebraska driver's license runs, though, isn't it?

Mr. Lansworth: Yes, Your Honor.

The normal period of time is four years.

Unidentified Justice: If she were here today, or in the courts in Nebraska, and newspaper photographers took a picture of her as she was leaving the courthouse, could she enjoin the publication of that in your view?

Mr. Lansworth: No, Your Honor.

I don't believe that she could.

I think the First Amendment would protect the newspaper's right to publish that photograph.

I think that if she were here today, she would attempt to avoid that event, and as a matter of fact, one of the reasons that she is not here today is that possibility.

But I think her position and her testimony at trial indicates that... a question very similar to that was asked of her at trial, and her response, as I recall it, was that she would attempt to avoid that event, but that if it occurred, it would be distressing to her with regard to her religious beliefs, but it would not be to her the kind of religious burden that being forced to submit to a photograph in order to obtain this particular state extended privilege would be.

Unidentified Justice: In other words, you are saying that her religious belief, her rights under the religion clauses are subordinate to the First Amendment rights of others to take her picture if they want to?

Mr. Lansworth: I think that in the question that you posed with regard to a news photograph being taken of her, you don't have involved in that situation any governmental action that is burdening her exercise.

Rather, you have the competing interests of two private parties, both of whom have, it seems to me, equal footing under the First Amendment with regard to the activities that we are talking about.

Unidentified Justice: Mr. Lansworth, what about a person whose religious, sincerely held religious belief is that one should not have one's social security number used for identification purposes, or should not have a social security number at all, and wants a symbol substituted?

Would you think that that would fall in the same category as your client's--

Mr. Lansworth: Your Honor, I would think that it could fall in the same category.

There are a number of situations that have arisen in the courts around the country that involve just that issue, as I know you are aware.

It seems to me that the answer to whether or not one can be exempted from the requirement of the social security number has to do with what the interests being served by that number are as they are asserted by the government in that situation, and also it has to do with whether or not the facts in a given situation demonstrate that whatever the system being served by that number is, whether it will be able to function without that.

Unidentified Justice: --Do you think that part of the balance that the Court must make is the presence or absence of economic or other motives to cause people to claim the exemption?

Mr. Lansworth: I think that the decisions of the Court certainly in recent years have indicated a concern with that motivation, and I think that is a legitimate concern.

The Court has repeatedly said, or at least discussed from cases beginning as long ago as Sherbert through the recent decisions in Thomas and Lee what happens if people... if we grant exemptions and people are then placed in a situation where they can be exempted from paying the taxes, and I think that is a legitimate concern.

And I think that is a concern that I find very difficult to see in this particular case.

It is very, very hard for me to see what in the world is the incentive for someone to spuriously request an exemption from a photograph.

Unidentified Justice: Well, I think Ms. Galter suggested one, which is young people who want to buy liquor under age.

That might be one.

Mr. Lansworth: I think that might be one, and I would agree that she has suggested that, but there is certainly no evidence to suggest that that is a real possibility in this case, and there is certainly no evidence in this case to suggest that Mrs. Quaring presents any law enforcement difficulty.

I realize that the Court does not simply look at Mrs. Quaring.

But again, I think that with regard to the illegal purchase of alcohol, that the person who is seeking to do that would most likely want to have a photograph on their license that looks like them, and that they might want to counterfeit their age, for example, on the license rather than their appearance.

It has been my experience, longer ago now, I guess, than I wish, that--

Unidentified Justice: That is the way you worked it?

0 [Generallaughter.]

Mr. Lansworth: --that retailers usually were very strict about requiring identification, and if there was anything fishy or questionable about someone's identification, they would refuse to do business with them, particularly in a young person purchasing alcohol situation.

So it is difficult for me to see that granting an exemption in this case would create a situation where that kind of transaction would really be a threat to the interests that are served by the state here.

I think that the argument that the state officials, the petitioners in this case have made would require the Court to reverse what it has said in cases such as Sherbert versus Verner or Thomas versus Review Board.

The Court has not indicated that it is willing to consider that, as far as I understand the decisions of the Court.

And the burdens that were placed upon the exercise of the individuals' religious beliefs in those cases it seems to me are nearly identical to what they are here.

The Court did not examine the quality of the burden.

Rather, it examined the quality of the state's interest and whether or not that interest could be served by some means that is less restrictive of the religious believer's free exercise of his or her beliefs.

To suggest that you have to somehow evaluate whether or not the burden is big or small or heavy or light I think is really begging the question.

The analysis that this Court has traditionally followed throughout its decisions in free exercise cases is that you determine whether there is a burden upon the exercise of the religion.

You determine whether or not there is some compelling state interest served by that requirement that is burdensome to the exercise, and finally, whether or not that interest can be served in some way that is less restrictive of the exercise of a religious belief.

The lower courts, both the lower courts in this particular case have found that there exists a burden on a religious exercise.

They have also found that there exist compelling or important, as the Eighth Circuit opinion said, interests that are served by the photographic requirement here, but they have also both made specific findings that those interests can be served in some means less restrictive.

In this particular case, that less restrictive means is an exemption from the photographic requirement.

Unidentified Justice: Is that your approach to the case?

You accept the findings on the first two prongs, that there is an important state interest being the second one?

Mr. Lansworth: We have taken that position in this court.

Yes, Your Honor.

As I said, personally, it is difficult for me to see that it is compelling, but since the decision extended the exemption to Mrs. Quaring, that was the--

Unidentified Justice: So the case gets down to a less restrictive alternative then.

Mr. Lansworth: --That's correct.

Unidentified Justice: All right.

Would you tell me again how... the purpose of the photo identification, as I understand it, is instant identification in a law enforcement situation.

And how is that interest served equally well without the photograph?

Mr. Lansworth: It is not served equally well without the photograph, but what we are talking about here is an overall program of identification, and the overall program of identification can be served equally well and achieved equally well with a limited number of exceptions.

Unidentified Justice: That then turns on the number of people accepted.

Is that right?

The fact that there is only one exception, why, you would always be able to be entitled to it, I suppose.

Mr. Lansworth: I think that the fewer the number, the less problem you have with continuing the programmatic interest, but I wouldn't make that the test if that is your question.

Unidentified Justice: Well, it seems to me that that is the test under your argument.

Maybe I don't follow it completely.

If you are acknowledging that there isn't a substitute way of achieving the state purpose of instant identification or prompt identification, what you have to say is, well, it really isn't all that important if we only exempt a handful of people.

And therefore it turns entirely, I think, on the number of people who are exempted, which would differentiate this case, I suppose, from the numbers case.

Or maybe there are a lot of people who have this particular faith.

I don't really know.

Mr. Lansworth: Mrs. Quaring's particular faith?

Unidentified Justice: Yes.

Mr. Lansworth: The record in this case indicated that one of the career persons in this Motor Vehicle Division was aware of her claim and perhaps one other one during his tenure.

So I think that this is a situation where the numbers are certainly small.

I do not believe that the Court has said that numbers is the test.

But I think that numbers are one of the measures with regard to--

Unidentified Justice: Well, I know the Court hasn't said it, but I think that is what you are saying.

That is what I am trying to ask you about.

I am trying to really be sure I understand precisely what your position is.

Mr. Lansworth: --I think numbers... the number of exemptions which might be possible is one measure of whether or not the impact will be so great upon the state's ability to achieve its interests that--

Unidentified Justice: I suppose another thing is, she is a law-abiding citizen, you say, so it is not very important.

Mr. Lansworth: --That's correct, but I think there are situations where numbers are not the only situation or the only consideration.

For example, the Court's decision in the recent Lee case is one of those where the Court has indicated in that opinion that it is very concerned with regard to any kind of exemption from taxing systems within... certainly on the national level.

And I think that that is a situation in which numbers would not be the determinant, and the Court, if it didn't directly state that, I think it clearly indicated that there are some types of programmatic interests that are so universal in nature, particularly the tax system being one such example, that we are not going to entertain exemptions to them other than those that Congress itself creates.

Unidentified Justice: Do you think the exemption for the Amish in the Lee case would have been more or less burdensome than the exemption here?

There were more Amish than there were here.

Mr. Lansworth: I think it could have... that the... in terms of the numbers involved?

Unidentified Justice: Well, actually, there they contributed their own social security system, so... I had some difficulty understanding how that was really all that burdensome in that case.

Mr. Lansworth: I think that my reaction to the facts in the Lee case was similar to what I in fact remember you writing, Your Honor, which is that it was difficult to see how this was going to impact in any negative way upon the social security system, but I think that the Court had another consideration in mind in that opinion, which was that if you begin to make exceptions to any kind of national tax system in a nation such as ours where tax systems operate on a primarily voluntary payment system, that you are leading into a very troubled area.

I think that was a consideration that led the Court in that case on the facts of that case to come to the result they came to in that opinion.

In conclusion, Your Honors, I guess I would simply say again that the lower courts in both instances in this case have applied the analysis that has been stated by this Court throughout its free exercise decisions, and that this Court should affirm that result.

Thank you.

Chief Justice Burger: Do you have anything further, Ms. Galter?

ORAL ARGUMENT OF RUTH ANNE E. GALTER, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Galter: Briefly, Your Honor.

For purposes of clarification of the record, to the extent that this Court deems it important that the legislature has carved out exemptions, there is reference made to exceptions for limited permits with restricted or minimal ability.

That is not correct, and it is not supported in the record.

And at Page 91 of the record you will find that limited or restricted permits are not particularly well defined in the record, but those operator's licenses do have photographs on them.

So that is one exception that is incorrectly characterized in the record below.

In closing, we would stress that the least restrictive alternative test ought be examined in terms of the overall objective sought to be accomplished, and if one looks at this in a means-end analysis, the end result is identification.

The means is a photograph.

It is conceded that the photograph is the only identifier which will achieve that goal as well.

In examining whether or not we make an exemption, we have to be very careful about looking at just one or two exemptions, and look at the future impact of granting, Number One, exemptions on demand, and other kinds of exemptions, such as numbers or signatures or photographs on security documents or security cards for--

Unidentified Justice: May I ask again, does your case, do you think, depend on there being all these other problems around the corner, numbers and signatures and so forth?

Supposing we somehow knew, which of course we don't, that there are no other religious claims going to be made other than the claim to be exempt from the photographic problem, and we could figure out some way to say those cases are all different, maybe because there are a lot more people or something?

Would you still make the same argument, just concentrating on photo?

Mr. Galter: --Concentrating on photographs alone--

Unidentified Justice: Yes.

Mr. Galter: --yes, we would.

The state's interest is very high in having an instantaneous identifier.

The other interest in government, and I think perhaps it is an interest for religious freedom, is not having 100 odd officials across the State of Nebraska determining whether or not someone really holds a religious belief.

Unidentified Justice: Couldn't you solve that by saying no exemption shall be granted except by the governor or somebody, you know, have a special... one person to grant the exemption?

I don't know if... aren't they rare enough that you are not going to have these things every day?

Mr. Galter: I don't think they are rare enough, and I think the incentive for an increased number is going to be present.

I think you are going to have more requests, and it would be unworkable to have the central... if the central--

Unidentified Justice: Well, say no exemption until you fill out the following 97 forms and take a visit through your house to show you have got no pictures at home, and about 19 different things you have to do to get the exemption, and until you fulfill all those requirements you don't get the license.

Couldn't you put the burden on the applicant?

Mr. Galter: --One could.

One could also make the application much more difficult.

It is not possible in a geographic state as Nebraska to do these other than at local levels, and the intrusion, the... aside from the high cost to government of implementing an administrative mechanism to implement this, I think the very high degree of intrusion into people's beliefs at that level is impermissible, and I think that we ought not do that.

Unidentified Justice: What if you required them to bring in their high school yearbook and show that their picture wasn't in it?

0 [Generallaughter.]

Mr. Galter: One could post a number of requirements.

Unidentified Justice: It seems to me this one is singularly easy to prove.

Maybe I am wrong.

But it seems to me it is unlike a lot of others, because I can't imagine there being too many people that you can't tell whether they have sometimes consented to have a photograph taken of themselves.

Mr. Galter: It would be possible on one or two or three, but to implement that kind of a program in 93 counties presents a tremendous cost to the State of Nebraska, and it is a tremendous intrusion of government into people's lives.

Unidentified Justice: Ms. Galter, in hindsight, if you had just granted this one exception, you wouldn't have had any of this trouble if nobody knew about it, would you?

0 [Generallaughter.]

Mr. Galter: I am afraid there are more coming.

I don't think we can--

Unidentified Justice: Well, they are not here yet.

Mr. Galter: --They are not here yet, Your Honor.

Any other questions?

Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.