STATE of Minnesota, Respondent, v. Eli A. HERSHBERGER, et al., Appellants.
No. C9-88-2623.
Supreme Court of Minnesota.
Nov. 9, 1990.
462 N.W.2d 393
The form of providing hospital services is changing. Today many hospitals have only a 10 or 20 percent occupancy rate compared to 30 years ago when 90 to 100 percent of inpatient beds were filled. Today Medicare, Medicaid, and private insurers demand that patient care be delivered in a more cost-effective way, that is, on an outpatient basis. Today hospitals derive their revenues more from short-term patients and those who receive ambulatory care than from long-term inpatients. It is reasonable for a hospital to enlarge its outpatient service and to provide care in remote locations which are more accessible to walk-in patients.
Within the spectrum of hospital services, even under the traditional inpatient model, there have always been services that operated at a loss. Other services broke even. Some brought in revenue, and they offset the losses from those services which a community hospital must offer to its public even if it loses money on them. There have always been hospital-based employee physicians staffing the laboratory, radiology, anesthesia and other departments. There have always been outpatient care programs, most visibly in emergency departments. CHS has brought together elements which, if placed under the roof of the main hospital building, would undisputably be tax exempt. It appears to me that they are challenged because they are physically separated from the main hospital.
CHS was formed in order to meet the needs of a changing health care environment and to attract more doctors. Before CHS was organized, there were 11 doctors in the area; now, 14 doctors serve the area as CHS employees. The number of patients has increased and so have revenues. Under its new structure, CHS is financially viable and may survive to serve this rural community. In this light, the two ambulatory care facilities may be more than “reasonably necessary” to accomplish the hospital‘s purposes; they may be essential to this hospital‘s survival.
I believe, therefore, that relator has met the test required by the legislature; thus, I dissent.
WAHL, Justice (dissenting).
I join the dissent of Justice Yetka.
Robert R. Benson, Fillmore County Atty., Preston, and Matthew J. Opat, Asst. Fillmore County Atty., Chatfield, for respondent.
David L. Bishop, Oppenheimer, Wolff & Donnelly, and Judith Cook, Minneapolis, for amicus.
POPOVICH, Chief Justice.
The facts of this case are reported in Minnesota v. Hershberger, 444 N.W.2d 282 (Minn.1989) (Hershberger I). On appeal of that decision to the United States Supreme Court, certiorari was granted, the judgment was vacated, and the case was remanded to this court for reconsideration in light of the decision in Employment Div., Dep‘t of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (Smith II). Minnesota v. Hershberger, 494 U.S. 1046, 110 S.Ct. 1918, 109 L.Ed.2d 282 (1990). By order dated June 8, 1990, we required the parties to address two issues:
- Whether Employment Div., Dep‘t of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), is controlling upon this court‘s application of the free exercise clause of the first amendment of the United States Constitution in this case; and
- Whether
Minn.Stat. § 169.522 (1988) when applicable to these appellants violates rights protected byarticle I, section 16 of the Minnesota Constitution .
I.
At the outset, we must address the state‘s request that this court reconsider our findings in Hershberger I, that the Amish appellants hold a sincere religious belief which forbids use of the SMV symbol, and that a less restrictive alternative to use of the symbol exists. While it is true that the United States Supreme Court‘s vacation of Hershberger I leaves that decision without force or effect, Threlkeld v. Robbinsdale Fed‘n of Teachers, Local 872, AFL-CIO, 316 N.W.2d 551, 552 (Minn.), appeal dismissed, 459 U.S. 802, 103 S.Ct. 24, 74 L.Ed.2d 40 (1982), the record before us remains as it was when we found the Amish appellants to have demonstrated a personal sincere religious belief in conflict with the SMV statute and the state to have failed to demonstrate that use of silver reflective tape in conjunction with lighted red lanterns does not constitute a less restrictive alternative to the SMV symbol. Hershberger I, 444 N.W.2d at 287, 289. Reconsideration of these issues would be proper if the Supreme Court had
II.
While the practical application of Smith II remains to be seen, the Supreme Court appears to have significantly changed first amendment free exercise analysis. The Smith II court held a law of general application, which does not intend to regulate religious belief or conduct, is not invalid because the law incidentally infringes on religious practices. This holding apparently does away with the traditional compelling state interest test for laws burdening the exercise of religion standing alone. 494 U.S. at 876-884, 110 S.Ct. at 1599-1603. The Smith II court limited the compelling state interest test used by this court in Hershberger I to claims involving not the free exercise clause alone, but free exercise in conjunction with other constitutional protections. Id. at 881, 110 S.Ct. at 1601. These so called “hybrid” cases involve free exercise claims that touch on other constitutional protections ranging from parental rights, e.g., Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), to freedom of speech and press. E.g., Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Section 169.522 does not intend to regulate religious conduct or belief. Accordingly, under the first amendment free exercise clause as now interpreted by Smith II, whether the compelling state interest test is applicable apparently depends on whether requiring the Amish to comply with the SMV statute infringes on rights other than the free exercise of religion.
To establish a hybrid case under Smith II, appellants argue the compelled use of the SMV symbol touches on freedoms of assembly, speech, travel and particularly, freedom of association. The Amish community demonstrates the attributes of those associations traditionally deserving constitutional protection. The Amish community embodies “deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one‘s life.” Roberts v. United States Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 3250, 82 L.Ed.2d 462 (1984). The United States Supreme Court has recognized that religious practices of the Amish “pervade[] and determine[] the entire mode of life of * * * adherents.” Yoder, 406 U.S. at 210, 92 S.Ct. at 1530. Buggy and other slow moving vehicle transportation is an integral part of the Amish communal life and worship, so that a statute infringing on such transportation impairs associational freedoms.
While there might be merit in deciding the case and affirming Hershberger I based on associational freedoms also infringed by the statute, thereby distinguishing Smith II, we decline to do so. It is unnecessary to rest our decision on the uncertain meaning of Smith II when the Minnesota Constitution alone provides an
III.
We address now the issue we reserved for another day in Hershberger I: whether
The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.
Section 16 also expressly limits the governmental interests that may outweigh religious liberty. Only the government‘s interest in peace or safety or against acts of licentiousness will excuse an imposition on religious freedom under the Minnesota Constitution. Conversely, the free exercise clause of the first amendment has been interpreted to allow varied government interests to justify such an imposition. See, e.g., Bowen v. Roy, 476 U.S. 693, 707, 106 S.Ct. 2147, 2156, 90 L.Ed.2d 735 (1986) (interest in avoiding case by case inquiries in administration of social security benefits outweighs religious freedom); Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (military‘s interest in uniformity and discipline outweighs individual‘s interest in wearing yarmulke). Because section 16 precludes an infringement on or an interference with religious freedom and limits the permissible countervailing interests of the government, Minnesotans are afforded greater protection for religious liberties against governmental action under the state constitution than under the first amendment of the federal constitution.
The state argues that by expressly including public safety as a restriction on exercise of religious freedoms, section 16 requires us to deny an exemption from the SMV statute for the Amish. The relevant provision of section 16 states:
[T]he liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, * * *.
This analysis is similar to that applied to the claim for religious freedom based jointly on federal and state constitutional protection in State v. Sports & Health Club, 370 N.W.2d 844 (Minn.1985). While we did not expressly base our decision in Sports & Health Club on section 16 grounds, we held an exemption from the state Human Rights Act was not required, notwithstanding that sincere religious beliefs were burdened by the Act, because the state had a compelling interest in prohibiting discrimination and no less restrictive alternative existed. 370 N.W.2d at 853; see also State v. French, 460 N.W.2d 2 (Minn.1990) (plurality) (exemption based on religious grounds required under Minnesota Constitution unless state demonstrates compelling and overriding state interest in statutory purpose and in refusing to grant exemption). Thus, while the terms “compelling state interest” and “least restrictive alternative” are creatures of federal doctrine, concepts embodied therein can provide guidance as we seek to strike a balance under the Minnesota Constitution between freedom of conscience and the state‘s public safety interest.
Religious liberty is a precious right. The Preamble to the Constitution of the State of Minnesota states:
We, the people of the state of Minnesota, grateful to God for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and our posterity, do ordain and establish this Constitution.
The interest in public safety is also fundamental, and serves as a rationale for the very formation of our state government.
The record in this case demonstrates an important attribute of the balancing test we adopt today for purposes of analyzing
The decision of the trial court denying the motion of these appellants to dismiss all pending charges is vacated, and those charges are hereby dismissed.
SIMONETT, Justice (concurring).
I join the court‘s opinion. Because this is the first occasion where our court has considered its liberty of conscience clause in any detail, aside from the plurality opinion in State v. French, 460 N.W.2d 2 (Minn. 1990), I should like to add an observation or two.
Article I, Section 16 of our constitution appears to have originated from quite similar clauses in the early constitutions of states along the eastern seaboard, such as
Section 16 reads in part:
The right of every man to worship God according to the dictates of his own con-
science shall never be infringed * * * nor shall any control of or interference with the rights of conscience be permitted * * *.
Arguably, Section 16 protects only expressions of belief and opinion and is no more than a free speech clause. There is no mention in the foregoing clause of religious practices or the free exercise of religion. Section 16 speaks, however, of the right “to worship God” according to the dictates of one‘s conscience; and the words “to worship,” if read within their historical context, surely must mean the practice of one‘s religion. See M. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv.L.Rev. 1409, 1459 (1990).4 In other words, our state constitution protects a person‘s right to the free exercise of religion according to the dictates of his or her conscience, and that right is not to be infringed upon by the state.
After stating that no preference is to be given by law to any religious establishment or mode of worship, Section 16 goes on,
[B]ut the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state * * *.
This “peace or safety” provision also appears in various formulations in some of the older state constitutions,5 even though the framers of the federal constitution did not use it. The provision is significant. It indicates clearly that a valid secular law which is neutral towards religion in its general application is, nevertheless, not necessarily exempt from the liberty of conscience clause. Thus, rather than a grant of individual freedom, I would read our liberty of conscience clause as an enumeration of a primordial right and a limitation on the power of the state; there was no need to grant affirmatively in the constitution what the people already understood that they had. Accord State v. District Board of School Dist. No. 8, 76 Wis. 177, 210-11, 44 N.W. 967, 978 (1890) (Cassoday, J., concurring).
As the court‘s opinion states, our “peace and safety” clause invites the traditional First Amendment balancing test to reconcile public safety on the highways with Amish religious practices. (Maj. op. at 397.) It seems to me, too, that Section 16‘s emphasis on “the dictates of [one‘s] own conscience” is consistent with a “sincerely held religious belief,” as the United States Supreme Court has employed that phrase in construing the First Amendment; indeed, if anything, the Section 16 language is more emphatic.
There is much to be said in construing Section 16 in harmony with the nation‘s First Amendment whenever that is possible and appropriate.6 Our decision today, it seems to me, says no more than that a secular law of general application is not exempt, as it is under the First Amendment when no other constitutional rights are involved, from examination under our liberty of conscience clause.