Saturday, October 10, 2009

Kentucky vs. the Amish: A Study in Religious Accommodation

Peter Smith, a religion blogger affiliated with the local Courier Journal newspaper, recently published a blog post dealing with a minor controversy brewing here in Kentucky. At issue is whether or not the Swartzentruber Amish sect should be required to adorn their horse-drawn buggies with orange safety reflectors as per Kentucky law.1 Specifically, a group of Amish is claiming in a case before the Kentucky Court of Appeals that, among other things, the free exercise of their religion and their freedom of association are being impinged upon by the law. This is based on the Amish preference for modesty and their contention that the wearing of brightly covered clothes (and apparently plastic reflectors) is too worldly and immodest.2 They further reject the use of the reflectors on the grounds that displaying such a "symbol" would undermine their implicit trust that God will keep them safe from harm. Similarly, the freedom of association claim is based on their contention that other Amish folks would shun them if they agreed to use the reflectors.

The Amish are making two other claims as well: That the reflector law is being unevenly and inequitably applied and that their right to free speech is being violated by the law. The final claim is based on their contention that the vehicle one chooses to drive constitutes a form of expression because it makes a statement about the driver. Therefore, they claim, compelling the driver to display a safety reflector represents an infringement of their right to free speech.

Over the years, Amish sects all around the country have had success in suing their way out of laws they don't care for. In one such case, Yoder v Wisconsin (1972), the U.S. Supreme Court found that Amish children are not necessarily bound by laws requiring compulsory school attendance if such school attendance is counter to the "sincerely held religious beliefs" of their parents, thereby helping to lay the groundwork for the modern homeschooling movement and numerous other free exercise rulings.3 In other cases, they've claimed religious exemptions from various other legal necessities, such as building codes requiring the installation of smoke detectors.4 The ACLU often tends to side with the Amish in these cases, as it has in the current case going on here in Kentucky.

The issue of unfair and uneven application of the reflector law would, in my opinion, be the most pressing matter in the case. After all, given that the law applies not only to Amish buggies but also to vehicle incapable of traveling over 25 mph, if the plaintiffs were able to show a disproportionately high number of buggies being ticketed (as opposed to tractors, etc.) then they could plausibly claim to be the victims of discrimination. As for the claims of undue burdens on religious exercise and free speech, I think precedent may not work entirely in the favor of the Amish. Previous rulings have found that in some cases both free speech and religious expression may be subordinate to broader concerns of public safety.5 Even under the now-defunct Religious Freedom Restoration Act, which sorely narrowed the the ability of the government to burden free exercise, Congress held that laws existing for "furtherance of a compelling government interest" could curtail free exercise so long as such laws work towards this interest in the least restrictive way possible.6

Surely the enactment and enforcement of traffic laws in order to provide for the safety of motorists represents a "compelling government interest". After all, there were 39,800 traffic-related fatalities in the U.S. in 2008, and although Amish buggies no doubt accounted for an infinitesimally small percentage of these deaths, the principle behind the use slow moving vehicle reflectors is easy to understand.7 The question, in my mind, is not whether laws mandating the use of SMV placards serve a compelling government interest, but rather whether these laws are unduly burdensome to the Amish.

Freedom of conscience and the freedom to practice one's religion are rightly held in high esteem in the United States. The ascetic lifestyle of the Amish represents a normally harmless personal choice that does not, in general, disrupt society at large. It is clearly not the aim of the government of Kentucky in general or the SMV placard law in particular to attack the Amish way of life. Rather, the SMV placard law is meant to protect the lives of the Amish and other Kentucky motorists. Doing away with the SMV placards entirely seems like an untenable proposition, given that they serve a specific, necessary purpose that extends beyond their use on Amish buggies. Creating an exception in state law whereby all slow moving vehicles except those operated by the Amish would likewise create problems. After all, if we have two identical horse-drawn carts, but one is driven by a Amish man and the other is not, mightn't the non-Amish driver feel unduly burdened to have to purchase and mount an SMV while his fellow driver does not? Clearly mandating the use of some sort of warning device for slow moving vehicles is prudent. Perhaps if we look specifically at the objections of the Swartzenruber Amish to the SMV reflectors, a solution will become more readily apparent.

According to the legal brief filed on the behalf of the Swartzentruber Amish, their primary objection to the SMV placards is that they are "garish" in appearance & coloration and that they represent secular symbols to which the Amish are opposed.8 Kentucky's government is at least nominally secular, and therefore I can't fathom any reasonable jurisprudence that would suggest that "trust in God", no matter how sincere, is an adequate argument for failing to display the SMV placard, any more so than trust in God would constitute plausible grounds for disabling a motor vehicle's running lights. That being said, it doesn't seem at all unreasonable to suggest that a compromise be reached in which Amish buggies could be adorned with somewhat less "garish", but nonetheless effective, reflective materials.

This was in fact the outcome of a virtually identical case in Ebensburgh, PA just a few years ago that involved the same Amish sect and made essentially the same hybrid free expression/free speech claim.9 In this case, an appellate court in Pennsylvania found that there are equally effective pieces of safety equipment (e.g. gray/white retroflective tape)that do not run counter to Amish customs that can serve an alternative to the orange SMV placard. Why such a compromise has not immediately been suggested by the Commonwealth's Attorney in the Kentucky case is beyond me.

It was just such middle ground - the balance between freedom of conscience and the rule of law - that underpinned the governmental philosophy of the Founders. In the current national climate of vitriol and polemic, we should strive more than ever towards these noble ideals.

1. See KRS 189.810-830. (
Kentucky Criminal Law Manual, pp. 340-341). The reflector law does not apply solely to Amish buggies, but rather to any vehicle other than bicycles which is incapable of exceeding 25 miles per hour.

2. The full legal brief can be found online here. To quote the brief, the Amish claim that the use of the orange reflectors is "completely antithetical and antagonistic to their religious values."

3. The
Yoder case dealt specifically with laws requiring school attendance beyond the eighth grade. A brief summary of the case can be found online here. A longer discussion of Yoder can be found in the excellent book God vs. the Gavel - Religion and the Rule of Law by Marci Hamilton, especially pp 216-225

4. This is the subject of the ongoing
Yoder v. Morristown suit in New York State.

5. For example, male members of the Sikh religion are required by their faith to wear a sacred dagger, called a kirpan, at all times. Courts in some states, such as New York and California, have found that while the kirpan cannot be banned outright, restrictions on their wearing can nonetheless be imposed. In New York, for example, Sikh boys can wear a kirpan at school only if it has been bolted into its sheath such that it cannot be drawn, and no Sikh in the U.S. can wear a kirpan inside a federal building. See pp 114-117 of Hamilton's
God vs. the Gavel for a further discussion of this issue.

6. City of Boerne v. Flores (1997) partially overturned the RFRA on the grounds that, by enacting the RFRA, Congress overstepped its power to enforce as defined in the Fourteenth Amendment. The logic behind this decision is that the RFRA altered the Freedom of Exercise clause when Congress had no right to do so. To quote Justice Anthony Kennedy, "Congress does not enforce a constitutional right by changing what the right is."

7. Figures are from a National Safety Council press release. It should be noted, however, that traffic fatalities in the U.S. are trending downward.

8. Refer to the complaint brief, esp. pp 9-12.

9. The ruling in the Ebensburgh case can be found here.


Jay said...

It would seem to me that the compelling reasoning behind identifying slow moving vehicles is as much to protect the occupants of other vehicles from becoming involved in an accident with the slow moving ones, which changes the argument from a religious freedom issue to a public safety issue.

The Amish do not seem to be claiming that they are trusting that God will keep others safe from harm, so in an odd way they could be seen as impinging on the religious freedom of others by refusing to employ the reflectors.

Skippy the Skeptic said...

Deeply religious folks sometimes seem to have incredibly skewed priorities, to wit sacrificing their safety and the safety of others because they think God hates the color orange.

I didn't touch on it much in the post, but I'm also concerned about the idea of expanding the Constitutional definition of "speech" to the include the statements one makes about oneself by way of the vehicle one drives. Broadly speaking I'm almost always in favor of expanding free speech, but the whole "vehicles as speech" argument is reaching a bit.

What if someone were to claim that the law forbidding weapons in federal buildings violated their free speech because the act of wearing a gun transmits a message (and therefore constitutes speech) about the wearer?

Bah, I dunno, I don't want to risk falling down the slippery slope rabbit hole here, but it seems like the whole "choice of vehicle as speech" claim needs to be eyed very critically.

Jay said...

This is an instance where one has to consider what "speech" meant in the social context of the writing of the first amendment. I feel relatively comfortable in asserting that it didn't include any concept of reflective safety markers on Amish carriages.

Skippy the Skeptic said...

Drawing the line at what does and doesn't constitute speech is incredibly difficult because it's so easy to imagine ultra-tricky "what-if" scenarios. I can envision situations in which something like a vehicle might constitute speech, at least in a sense, but at the same time it seems self-evident that you can't define every single thing a person does and/or owns as self-expression.

Robin said...

The Swartzentruber Amish did in fact offer the alternative of using reflective tape and lanterns. Also, an expert witness testified at the trial that the reflective tape was more effective than the triangles. The government refused to compromise. Take a look at the briefs filed in the appeal. They are open to the public and contain the facts.

Skippy the Skeptic said...

I'm aware that the Amish in the Kentucky case suggested the retroflective tape. As mentioned in my post, retroflective tape was ultimately the solution to a similar case in Pennsylvania. In fact, I remarked on how odd it was that the Kentucky State Attorney wasn't willing to play ball with the alternative safety equipment.

Robin said...

Sorry, didn't mean to suggest that you weren't stating the facts. I'm glad you wrote this blog. Just suggesting taking a look at the briefs filed on behalf of the Amish. Lots of information there.

Skippy the Skeptic said...

Ah, well then I apologize for coming across as snappy in my last reply.

On an issue such as this it seems like there's not much reason -not- to compromise, although I still have my misgivings about wild expansions of what constitutes "speech".