Mitchell County v. Matthew Hoover Zimmerman ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 10–1932
Filed February 3, 2012
MITCHELL COUNTY,
Appellee,
vs.
MATTHEW HOOVER ZIMMERMAN,
Appellant.
Appeal from the Iowa District Court for Mitchell County, Bryan H.
McKinley, Judge.
The defendant seeks discretionary review of a district court ruling
affirming the denial of his motion to dismiss a citation for violation of a
Mitchell County road protection ordinance. REVERSED AND
REMANDED.
Colin C. Murphy, Mason City, for appellant.
Mark L. Walk, Mitchell County Attorney, Osage, for appellee.
2
MANSFIELD, Justice.
Members of the Old Order Groffdale Conference Mennonite Church
are forbidden from driving tractors unless their wheels are equipped with
steel cleats. A Mitchell County road protection ordinance forbids driving
such vehicles on the highways. The question we must decide is whether
the ordinance violates the religious rights of these church members
under either the United States or the Iowa Constitution.
Although the issue is a close one, we conclude the ordinance as
applied to church members violates the Free Exercise Clause of the First
Amendment of the United States Constitution. 1 For the reasons stated
herein, we find the ordinance is not of general applicability because it
contains exemptions that are inconsistent with its stated purpose of
protecting Mitchell County’s roads. We also find the ordinance does not
survive strict scrutiny because it is not the least restrictive means of
serving what is claimed to be a compelling governmental interest in road
protection. We therefore reverse and remand for entry of an order of
dismissal.
I. Facts and Procedural History.
On February 1, 2010, Matthew Zimmerman was cited for operating
a Massey Ferguson tractor in violation of a Mitchell County road
protection ordinance. The tractor had steel cleats or “lugs” on its wheels.
The lugs, which comprise “the bar that makes contact with the highway
as the tractor moves forward,” were several inches long and
approximately an inch wide, and were attached to a rubber belt mounted
on the wheel.
1We do not reach the question whether the ordinance violates the Iowa
Constitution.
3
The ordinance in question was adopted by Mitchell County in
September 2009. Its stated purpose is “to protect Mitchell County hard
surfaced roads.” The ordinance provides:
No person shall drive over the hard surfaced roadways,
including but not limited to cement, concrete and blacktop
roads, of Mitchell County, or any political subdivision
thereof, a tractor or vehicle equipped with steel or metal tires
equipped with cleats, ice picks, studs, spikes, chains or
other projections of any kind or steel or metal wheels
equipped with cleats, ice picks, studs, spikes, chains, or
other projections of any kind.
Mitchell County, Iowa, Mitchell Cnty. Road Prot. Ordinance (Sept. 22,
2009).
Zimmerman moved to dismiss the citation on the ground that his
constitutional rights to free exercise of religion under the First
Amendment to the United States Constitution and article I section 3 of
the Iowa Constitution had been violated. A hearing was held before a
magistrate, who found Zimmerman guilty of violating the ordinance and
denied the motion. Zimmerman appealed the ruling to the district court.
Because no recording of the hearing before the magistrate was available,
a new hearing was held.
Eli Zimmerman, a fellow member of the Old Order Groffdale
Conference Mennonite Church, testified at the district court hearing in
support of the motion to dismiss. He explained the use of steel wheels is
a religious practice and a church rule of the Old Order of Groffdale
Mennonite Conference. Zimmerman cited Romans 12:2 as the biblical
passage from which the rule derives. 2 The practice of using steel wheels
2According to the King James Bible, this passage reads:
And be not conformed to this world: but be ye transformed by the
renewing of your mind, that ye may prove what is that good, and
acceptable, and perfect, will of God.
4
on tractors dates back at least forty years. The church determined farm
tractors could be used in addition to the traditional horse and buggy, but
would have to be refitted with steel wheels to maintain small-scale
farming and a close-knit community. If a church member drove a tractor
that did not have steel wheels, he or she would be barred from the
church. The steel wheel rule helps insure that tractors are not used for
pleasure purposes and thereby displace the horse and buggy.
Zimmerman testified that it is permissible for church members to
hire other persons to drive them for business purposes in vehicles with
rubber tires. Also, a church member could hire someone with a rubber-
tired tractor to haul his or her farm wagons to market. 3 However, this
leads to “a lot of inconveniences.” In addition, a church member could
use horses for hauling purposes, if it were possible to make a living doing
so. In short, it has long been a religious requirement of the Old Order of
Groffdale Mennonite Conference that any motorized tractor driven by a
church member be equipped with steel wheels. According to
Zimmerman, “The religious practice, it has to be steel hitting the surface,
[be] it soil, [be] it highway, [be] it concrete.”
The prohibition on driving motorized vehicles with rubber tires is
not the only church rule affecting modern conveniences. Zimmerman
testified that the use of radio, television, and computers is also forbidden
in his religious community.
________________________________
Romans 12:2 (King James) (emphasis added). The New American Standard Version
translates this passage as follows:
And do not be conformed to this world, but be transformed by the
renewing of your mind, so that you may prove what the will of God is,
that which is good and acceptable and perfect.
Romans 12:2 (New American Standard) (emphasis added).
3The wagons may have rubber tires because people do not ride on them.
5
Over the years, to minimize possible road damage, the steel cleats
and lugs have been made wider and have been mounted on rubber belts
to provide cushioning. In Mitchell County, the Mennonites use county
roads mainly when they need to haul their produce to the produce
market. Both parties conceded that for some time the Mennonites and
the County had peacefully coexisted, and the County did not object to
the Mennonites’ use of steel wheels. However, in 2009, the County
embarked on a $9 million road resurfacing project, where the existing
roads were “white-topped,” or covered with concrete. The County had
never used this new method of repaving before.
Two Mitchell County officials testified at the hearing that the steel
wheels have damaged their newly white-topped roads by causing cracks
and taking paint off them. Photos introduced by the County showed
some cracks as well as markings where the steel wheels had come into
contact with the road surface. As explained by the county engineer,
“Because the steel is harder than the aggregates in that material—in the
concrete surfaces and the asphalt surfaces, . . . it will wear that surface
off.” 4
Accordingly, in September 2009, the County adopted its road
protection ordinance. The ordinance provides that violators are subject
to a maximum fine of $500 or 30 days in jail, or both, and a civil penalty
may also be imposed “equal to the amount necessary to repair the
damage to the road.”
Under existing state law, no tire on a vehicle moved on a highway
is allowed to have “any block, stud, flange, cleat, or spike or any other
protuberances of any material other than rubber,” except for:
4Zimmerman maintained that the steel lugs only caused “white marks” that
“disappear[] as soon as it rains a little bit.”
6
1. Farm machinery with tires having protuberances
which will not injure the highway.
2. Tire chains of reasonable proportions upon any
vehicle when required for safety because of snow, ice, or
other conditions tending to cause a vehicle to skid.
3. Pneumatic tires with inserted ice grips or tire studs
projecting not more than one-sixteenth inch beyond the
tread of the traction surface of the tire upon any vehicle from
November 1 of each year to April 1 of the following year,
except that a school bus and fire department emergency
apparatus may use such tires at any time.
Iowa Code § 321.442 (2009). However, a Mitchell County supervisor
testified that “the penalty there is only a $10 fine, which . . . isn’t
prohibitive really, . . . so we enacted . . . this ordinance to protect our
roads.” The County concedes that its ordinance, which expressly states
“Iowa Code § 321.442 shall continue to remain in full force and effect,” is
intended to mirror the Iowa Code provision substantively, while imposing
a stiffer sanction for violations. Mitchell Cnty. Road Prot. Ordinance.
The district court overruled Matthew Zimmerman’s motion to
dismiss. It found “the use of steel wheels on tractors is a matter of
religious conviction for members of the GC church.” It also determined
that the Mitchell County ordinance
substantially burdens this religious practice. . . . These
tractors are used to do field work, transport grain and
produce to market, and are shared amongst neighbors and
family members. All of these activities require that the
tractors be driven on hard surfaced county roads. While it is
admitted that other practices could be adopted to
accomplish these same tasks, this ordinance will
substantially burden the Mennonites . . . by requiring them
to find other modes of transporting both their goods to
market and their tractors to fields.
However, the court held the Mitchell County ordinance was both
neutral and generally applicable. It was not motivated by religious
animosity but “to protect Mitchell County’s investment in resurfacing
7
their roads,” and “it treats secular and religious conduct equally.” The
court therefore sustained the ordinance against Zimmerman’s First
Amendment challenge, citing Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108
L. Ed. 2d 876 (1990). 5
The district court then turned to Zimmerman’s arguments based
on article I section 3 of the Iowa Constitution. The court held that even
if, hypothetically, that provision required the ordinance to be supported
by a compelling state interest, such an interest had been established
here. As the court stated, “protecting the integrity of the county’s roads”
from damage is a compelling state interest, and the ordinance is “the
least restrictive means” because it only disallows steel wheeled vehicles
“on the hard surfaced roads.”
We granted Zimmerman’s application for discretionary review.
II. Standard of Review.
We review constitutional claims de novo. Zaber v. City of Dubuque,
789 N.W.2d 634, 636 (Iowa 2010).
III. The First Amendment Claim.
Zimmerman contends the district court erred in denying his
motion to dismiss based on the First Amendment to the United States
Constitution. The First Amendment provides:
5Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) in
response to the Supreme Court’s ruling in Smith. Pub. L. No. 103-141, 107 Stat. 1488.
Under RFRA, “[g]overnment shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability” unless the
government “demonstrates that application of the burden to the person—(1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive means
of furthering that . . . interest.” 42 U.S.C. § 2000bb–1 (2006). In City of Boerne v.
Flores, the Supreme Court held RFRA unconstitutional as applied to the states. 521
U.S. 507, 536, 117 S. Ct. 2157, 2172, 138 L. Ed. 2d 624, 649 (1997).
8
Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assembly, and to
petition the Government for a redress of grievances.
U.S. Const. amend. I (emphasis added). The highlighted language, the
Free Exercise Clause, was part of the original Federal Bill of Rights and
was made applicable to the states through the Fourteenth Amendment in
Cantwell v. Connecticut. 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed.
1213, 1217–18 (1940).
In America, one has “the right to believe and profess whatever
religious doctrine one desires.” Smith, 494 U.S. at 877, 110 S. Ct. at
1599, 108 L. Ed. 2d at 884. Yet the Free Exercise Clause does not
guarantee the government’s absolute noninterference with religion.
Two landmark cases under the Free Exercise Clause were Sherbert
v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), and
Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).
In Sherbert, the United States Supreme Court held that a Seventh Day
Adventist could not be denied unemployment benefits because she
refused to work on Saturday for religious reasons. 374 U.S. at 409–10,
83 S. Ct. at 1797, 10 L. Ed. 2d at 973–74. The Court found a
substantial burden on the free exercise of her religion because the
appellant was “force[d] to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning one of
the precepts of her religion in order to accept work, on the other hand.”
Id. at 404, 83 S. Ct. at 1794, 10 L. Ed. 2d at 970. The Court then turned
to whether “some compelling state interest” justified this “substantial
infringement of appellant’s First Amendment right” and found none. Id.
at 406–07, 83 S. Ct. at 1795, 10 L. Ed. 2d at 972. Therefore, the Court
concluded, “South Carolina may not constitutionally apply the eligibility
9
provisions so as to constrain a worker to abandon his religious
convictions respecting the day of rest.” Id. at 410, 83 S. Ct. at 1797, 10
L. Ed. 2d at 974.
In Yoder, the Court decided that Wisconsin’s compulsory school
attendance law could not be applied to members of the Old Order Amish
religion whose religion forbids school attendance after the eighth grade.
406 U.S. at 207–08, 234, 92 S. Ct. at 1529–30, 1542, 32 L. Ed. 2d at 20–
21, 36. The Supreme Court seemed to say that government could not
compel conduct that interferes with the practice of a legitimate religious
belief except based upon “interests of the highest order.” Id. at 214–15,
92 S. Ct. at 1533, 32 L. Ed. 2d at 24–25. Ultimately, it rejected the
state’s contention that “its interest in its system of compulsory education
is so compelling that even the established religious practices of the
Amish must give way.” Id. at 221, 92 S. Ct. at 1536, 32 L. Ed. 2d at 28.
A decade later, however, the Supreme Court observed that when a
citizen engages in a commercial activity, it may not be possible for him or
her to avoid, on religious grounds, the effects of laws regulating that
activity:
Congress and the courts have been sensitive to the
needs flowing from the Free Exercise Clause, but every
person cannot be shielded from all the burdens incident to
exercising every aspect of the right to practice religious
beliefs. When followers of a particular sect enter into
commercial activity as a matter of choice, the limits they
accept on their own conduct as a matter of conscience and
faith are not to be superimposed on the statutory schemes
which are binding on others in that activity.
United States v. Lee, 455 U.S. 252, 261, 102 S. Ct. 1051, 1057, 71 L. Ed.
2d 127, 134–35 (1982), superseded by statute on other grounds,
Exemption Act of 1988, Pub. L. No. 100–647, Title VIII, § 8007(a)(1), 102
Stat. 3781.
10
In Lee, a member of the Old Order Amish objected to the payment
of employer Social Security taxes. He maintained that his faith already
imposed an obligation on members to provide for fellow members. Both
payment and receipt of Social Security benefits, he contended, were
religiously forbidden. The Supreme Court did not dispute these points.
Id. at 257, 102 S. Ct. at 1055, 71 L. Ed. 2d at 132. It acknowledged,
rather, that there was a conflict between the Amish faith and the
requirements of the Social Security system. But the Court cited “the
broad public interest in maintaining a sound tax system” and found it
would be difficult to “accommodate the comprehensive social security
system with myriad exceptions flowing from a wide variety of religious
beliefs.” Id. at 259–60, 102 S. Ct. at 1056–57, 71 L. Ed. 2d at 134. “The
tax imposed on employers to support the social security system must be
uniformly applicable to all, except as Congress provides explicitly
otherwise.” Id. at 261, 102 S. Ct. at 1057, 71 L. Ed. 2d at 135. Hence,
the Court rejected Lee’s free exercise claim.
This case arguably bears some similarities to Lee. The tenets of
Zimmerman’s religion require him to engage in a commercial activity, i.e.,
hauling farm products, on a different basis from others. But the
highways belong to everyone, and there is a public interest in preserving
and protecting those highways.
Eight years after Lee, in Smith, the Supreme Court made clear that
the First Amendment’s Free Exercise Clause does not prohibit a state
from enforcing “a neutral, generally applicable regulatory law,” and cited
Lee as its “most recent decision” involving such a law. Smith, 494 U.S. at
878–80, 110 S. Ct. at 1600–01, 108 L. Ed. 2d at 885–86. A regulatory
law that is both neutral and generally applicable passes constitutional
muster under the Smith line of authority, even though it may require
11
performance of an act—or abstention from conduct—in contradiction to
an individual’s religious beliefs. Id. 6 Smith distinguished Yoder on the
ground it was not purely a free exercise case but involved an additional
right—“the right of parents . . . to direct the education of their children.”
Id. at 881, 110 S. Ct. at 1601, 108 L. Ed. 2d at 887. Smith distinguished
Sherbert as an unemployment case. Id. at 882–84, 110 S. Ct. at 1602–
03,108 L. Ed. 2d at 888–89.
On the other hand, laws that are not neutral or of general
applicability require heightened scrutiny. They “must be justified by a
compelling governmental interest and must be narrowly tailored to
advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531–32, 113 S. Ct. 2217, 2226, 124 L. Ed. 2d
472, 489 (1993).
Smith and Lukumi illustrate the two poles of Federal Free Exercise
Clause analysis. In Smith, the individuals were denied unemployment
benefits because they had been fired for using peyote, in violation of a
neutral and generally applicable regulatory law. 494 U.S. at 874–76, 110
S. Ct. at 1597–98, 108 L. Ed. 2d at 882–84. The Supreme Court found
no violation of their free exercise rights. Id. at 886–87, 110 S. Ct. at
1604, 108 L. Ed. 2d at 890–91. By contrast, in Lukumi, the church
challenged ordinances that targeted the killing of animals for “sacrifice”
but not for food. 508 U.S. at 527–28, 113 S. Ct. at 2223–24, 124
L. Ed. 2d at 486–87. The Supreme Court concluded that “each of
Hialeah’s ordinances pursues the city’s governmental interests only
against conduct motivated by religious belief,” id. at 545, 113 S. Ct. at
6We applied Smith in Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637,
640 (Iowa 1991) (holding an injunction against a trespassing protester did not violate
the protester’s free exercise rights).
12
2233, 124 L. Ed. 2d at 498, applied strict scrutiny, and found the
ordinances did not pass a strict scrutiny test, id. at 546–47, 113 S. Ct. at
2233–34, 124 L. Ed. 2d at 498–99. Mitchell County argues that its
ordinance is a neutral and generally applicable regulatory law and,
therefore, Smith is the more relevant precedent. 7
In Smith, the Supreme Court did not define general applicability or
expressly distinguish it from neutrality, but merely referenced “neutral
law of general applicability” and “neutral, generally applicable law” as
valid limits on free exercise. 494 U.S. at 880–81, 110 S. Ct. at 1600–01,
108 L. Ed. 2d at 886–87. Smith did not explore the details of general
applicability because it dealt with a uniformly applicable law that
contained no exemptions. 8 Lukumi provided some clarification of the
contours of general applicability but, because of the extreme degree of
gerrymandering involved, did not provide sufficient specificity to guide
lower courts in cases where fewer exemptions are allowed. See Lukumi,
508 U.S. at 543, 113 S. Ct. at 2232, 124 L. Ed. 2d at 497 (“In this case
we need not define with precision the standard used to evaluate whether
a prohibition is of general application, for these ordinances fall well below
the minimum standard necessary to protect First Amendment rights.”).9
7The County also argues that the use of steel wheels is a “rule” rather than a
“religious belief or practice.” We disagree. Eli Zimmerman testified that the use of steel
wheels is a longstanding church requirement and that someone who does not follow
that precept “will be barred from the church.” See Lukumi, 508 U.S. at 531, 113 S. Ct.
at 2225, 124 L. Ed. 2d at 489 (observing that “ ‘religious beliefs need not be acceptable,
logical, consistent, or comprehensible to others in order to merit First Amendment
protection’ ”) (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714,
101 S. Ct. 1425, 1430, 67 L. Ed. 2d 624, 631 (1981))).
8The Oregon law at issue was a criminal law forbidding possession of a
controlled substance unless prescribed by a medical practitioner. Smith, 494 U.S. at
874, 110 S. Ct. at 1597, 108 L. Ed. 2d at 882.
9Hialeah enacted a series of ordinances with a long list of carefully crafted
exemptions that allowed for just about every conceivable secular form of animal killing
while precluding similar activity in a religious context. See Lukumi, 508 U.S. at 535–37,
113 S. Ct. at 2227–29, 124 L. Ed. 2d at 491–93. Collectively these ordinances “f[e]ll
13
Lukumi did make clear that although neutrality and general applicability
were overlapping concepts they were nevertheless distinct, and therefore
a law could fail the separate test of general application even if it satisfied
the neutrality criteria. See id. at 542, 113 S. Ct. at 2231–32, 124
L. Ed. 2d at 496 (referring to general applicability as a “second
requirement of the Free Exercise Clause” and devoting Section IIB of the
opinion to a separate analysis of this issue). Lukumi separated the
neutrality and general applicability criteria which in Smith were loosely
treated as a single inquiry. Still, the Lukumi Court recognized the two
requirements were “interrelated,” and “failure to satisfy one requirement
is a likely indication that the other has not been satisfied.” Id. at 531,
113 S. Ct. at 2226, 124 L. Ed. 2d at 489.
A. Facial Neutrality. We must first determine whether the
ordinance is facially neutral. The most basic requirement of neutrality is
“that a law not discriminate on its face.” Id. at 533, 113 S. Ct. at 2227,
124 L. Ed. 2d at 491. “A law lacks facial neutrality if it refers to a
religious practice without a secular meaning discernable from the
language or context.” Id. Here the ordinance reads as follows:
No person shall drive over the hard surfaced roadways,
including but not limited to cement, concrete and blacktop
roads, of Mitchell County, or any political subdivision
thereof, a tractor or vehicle equipped with steel or metal
tires equipped with cleats, ice picks, studs, spikes, chains
or other projections of any kind or steel or metal wheels
equipped with cleats, ice picks, studs, spikes, chains or
other projections of any kind.
Mitchell Cnty. Road Prot. Ordinance. The ordinance’s language is devoid
of any religious references. Furthermore, Mitchell County gave the
ordinance the official title of the “Mitchell County Road Protection
________________________________
well below the minimum standard” required by the Free Exercise Clause. Id. at 543,
113 S. Ct. at 2232, 124 L. Ed. 2d at 497.
14
Ordinance.” Id. (emphasis added). Moreover, the first section of the
ordinance, entitled “Purpose,” states:
The purpose of this ordinance is to protect Mitchell County
hard surfaced roads, including but not limited to cement,
concrete and blacktop roads, from damage caused by a
tractor, vehicle or implement equipped with steel or metal
tires equipped with cleats, ice picks, studs, spikes, chains or
other projections of any kind or steel or metal wheels
equipped with cleats, ice picks, studs, spikes, chains or
other projections of any kind.
(emphasis added). Thus, we agree with the district court that “[t]he
language of the statute refers to the use of steel wheels in a secular and
nonreligious context.” Therefore, the ordinance is facially neutral.
B. Operational Neutrality. Our next inquiry is whether the
ordinance is operationally neutral. Because the Supreme Court has
recognized that “[f]acial neutrality is not determinative,” we must
examine the ordinance for “governmental hostility which is masked, as
well as overt.” Lukumi, 508 U.S. at 534, 113 S. Ct. at 2227, 124
L. Ed. 2d at 491 (recognizing that “[o]fficial action that targets religious
conduct for distinctive treatment cannot be shielded by mere compliance
with the requirement of facial neutrality”). We look beyond the language
of the ordinance to determine whether there is “impermissible targeting”
of the Old Order of Groffdale Mennonite Conference. Id. at 535, 113 S.
Ct. at 2228, 124 L. Ed. 2d at 491–92 (referring to a “ ‘religious
gerrymander’ ” (citation omitted)). In other words, we ask whether
“religious practice is being singled out for discriminatory treatment.” See
id. at 538, 113 S. Ct. at 2229, 124 L. Ed. 2d at 493.
We agree with the district court that religious practice is not being
intentionally discriminated against. The record supports the district
court’s conclusion that Mitchell County enacted the ordinance, not to
persecute members of a particular faith, but to protect its $9 million
15
investment in newly repaved roads. The ordinance was passed by
Mitchell County only after its engineers detected apparent damage
caused to the roads by steel wheels. That damage had not occurred prior
to 2009 because the repaving project that year was the first time the
“white-topping” method had been used by the County. Moreover, the
prohibitions of the ordinance essentially buttress existing state law
requirements. See Iowa Code § 321.442.
At the same time, we must recognize the ordinance was adopted
specifically to address use of the resurfaced concrete roads by steel wheel
tractors. This is not a case where new activity brushed up against a
preexisting ordinance, but where an ordinance was passed to deal with a
longstanding religious practice. See Yoder, 406 U.S. at 219, 226, 235, 92
S. Ct. at 1535, 1538, 1543, 32 L. Ed. 2d at 27, 31, 36 (noting that “[t]he
requirement for compulsory education beyond the eighth grade is a
relatively recent development in our history,” whereas the Old Order
Amish faith has a “history of three centuries”).
C. General Applicability. We now turn to the more difficult
question whether the ordinance is “generally applicable.” Lukumi found
that Hialeah’s ordinances violated the principle of general applicability
because “the secular ends asserted in defense of the laws were pursued
only with respect to conduct motivated by religious beliefs.” 508 U.S. at
524, 113 S. Ct. at 2222, 124 L. Ed. 2d at 484. The Court further made
clear that an ordinance could violate the principle of general applicability
even if religious conduct were not the only activity it prohibited, so long
as religious adherents ultimately bore most of the burden of compliance.
See id. at 535–37, 113 S. Ct. at 2228–29, 124 L. Ed. 2d at 492–93
(noting that “almost the only conduct subject to Ordinances . . . is the
religious exercise” and “[t]he net result of the gerrymander is that few if
16
any killings of animals are prohibited other than Santeria sacrifice” while
“most other killings fall outside the prohibition”). The Court emphasized
that Hialeah’s ordinances imposed restrictions on Santeria worshippers
the city was not willing to impose in other contexts, noting that this was
the “precise evil . . . the requirement of general applicability is designed
to prevent.” Id. at 545–46, 113 S. Ct. at 2233, 124 L. Ed. 2d at 498. The
Court objected to Hialeah’s “devalu[ation of] religious reasons . . . by
judging them to be of lesser import than nonreligious reasons.” Id. at
537, 113 S. Ct. at 2229, 124 L. Ed. 2d at 493. It recognized that
although “[a]ll laws are selective to some extent, . . . categories of
selection are of paramount concern when a law has the incidental effect
of burdening religious practice.” Id. at 542, 113 S. Ct. at 2232, 124
L. Ed. 2d at 496.
The Lukumi Court found that the Hialeah ordinances were
underinclusive in terms of serving the purposes they were designed for—
protecting public health and preventing cruelty to animals—in that they
“fail[ed] to prohibit nonreligious conduct that endangers these interests
in a similar or greater degree than Santeria sacrifice does.” Id. at 543,
113 S. Ct. at 2232, 124 L. Ed. 2d at 497. This underinclusion was held
to be substantial because the overwhelming majority of activity that the
ordinances targeted was religious. See id. Two types of
underinclusiveness were identified: (1) secular activities that equally
threatened the purposes of the ordinances but were not prohibited (and
therefore were approved by silence), and (2) some equally deleterious
secular activities that were granted express approval. See id.
Thus, according to Lukumi, the Free Exercise Clause appears to
forbid the situation where the government accommodates secular
interests while denying accommodation for comparable religious
17
interests. Hialeah could not constitutionally treat religious sacrifice as
less worthy of protection than secular animal killings that posed the
same type and degree of potential harm.
Smith dealt with a law containing no exemptions. The ordinances
in Lukumi had a wide array of exemptions. Because there has been no
subsequent word from the Supreme Court on the meaning of “general
applicability,” other courts have had to wrestle with its definition in
specific cases. 10 Lukumi tells us that underinclusion is problematic
when it is “substantial, not inconsequential.” Id. Other courts have had
to refine the meaning of these rather general terms.
One prominent discussion of general applicability was authored by
Supreme Court Justice Alito when he served on the Third Circuit. See
Fraternal Order of Police Newark Lodge v. City of Newark, 170 F.3d 359(3d Cir. 1999). In Fraternal Order, Sunni Muslim police officers refused
to comply with department regulations requiring them to shave their
beards for the purpose of establishing uniform appearance to the public
and morale within the police force. Id. at 366. This regulation did not
allow for a religious exemption but did permit two secular exemptions,
one for a very limited number of officers who could not shave for medical
reasons and one for undercover officers. Id. at 360. The court found the
undercover exemption did not undermine the purpose of the rule and
therefore did not impact its general applicability. Id. at 366. However,
the secular medical exemption was considered sufficiently parallel to the
requested religious exemption such that if the former were
10In Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307, 158 L. Ed. 2d 1 (2004), the
Supreme Court upheld the State of Washington’s failure to make state scholarship aid
available for students pursuing theology degrees. The Court held the Lukumi line of
cases was inapplicable because the state simply had made a decision not to fund
certain activity and imposed “neither criminal nor civil sanctions on any type of
religious service or rite.” Locke, 540 U.S. at 720, 124 S. Ct. at 1312, 158 L. Ed. 2d at 9.
18
accommodated, the latter must also be in order to maintain general
applicability. Id. at 364–66. The City of Newark was not able to explain
why “religious exemptions threaten important city interests but medical
exemptions do not.” Id. at 367. Therefore, heightened scrutiny applied
and the city was required to grant the requested religious
accommodation. 11
The Third Circuit followed a two-step analysis to evaluate the
potential underinclusiveness or nongenerality of the challenged
ordinance. It first identified the governmental purposes that the
ordinance was designed to promote or protect and then asked whether it
exempted or left unregulated any type of secular conduct that threatened
those purposes as much as the religious conduct that had been
prohibited. Id. at 366–67. If a law allowed secular conduct to undermine
its purposes, then it could not forbid religiously motivated conduct that
did the same because this would amount to an unconstitutional “value
judgment in favor of secular motivations, but [against] religious
motivations.” Id. at 366. However, if the governmental entity could show
that exempted secular conduct was sufficiently different in terms of its
impact on the purpose of the law, the exemption would not render the
law underinclusive. Id. (noting that “the Free Exercise Clause does not
require the government to apply its laws to activities that it does not have
an interest in preventing”).
Fraternal Order makes it clear that not every secular exemption
automatically requires a corresponding religious accommodation. The
undercover police exemption did not undermine the purposes of the no-
11In a footnote, the Third Circuit noted that “Smith and Lukumi speak in terms of
strict scrutiny,” but it assumed that “an intermediate level of scrutiny applies since this
case arose in the public employment context.” Fraternal Order, 170 F.3d. at 366 n.7.
19
beard policy, and therefore, had it been the only exemption, general
applicability would not have been violated and no religious
accommodation would have been required (assuming that there was a
rational basis behind the ordinance). Thus, the central question under
Fraternal Order is whether the secular exemptions threaten the statutory
purposes to an equal or greater degree than a religious exemption.
Although there may be many secular exemptions to a statute, if none of
them undermines the statutory purpose, then even their cumulative
weight does not establish underinclusiveness. Yet, in Fraternal Order,
only a single narrow health exception was held to be sufficient to
establish a violation of general applicability, thus triggering heightened
scrutiny, because it was deemed to threaten the secular purpose.
The Third Circuit has applied its Fraternal Order precedent in
several subsequent decisions. In Tenafly Eruv Ass’n v. Borough of
Tenafly, the court found that the free exercise rights of Orthodox Jews
were likely violated when Tenafly prohibited them from affixing “lechis”
(thin black strips designating an “eruv” where pushing and carrying is
permitted on the Sabbath) to utility poles while allowing other materials
such as house numbers to be affixed. 309 F.3d 144, 152, 178 (3d Cir.
2002). The exemptions undermined the borough’s apparent purpose of
preventing visual clutter. Id. at 172. In Blackhawk v. Pennsylvania, the
court held that Pennsylvania violated the Free Exercise Clause by
refusing a fee waiver to a Native American who kept a bear for ceremonial
purposes when the law, among other things, categorically exempted zoos
and nationally recognized circuses from such fees. 381 F.3d 202, 210–
11, 214 (3d Cir. 2004) (Alito, J.). Although the state argued that
exemptions could be justified because they provided a tangible benefit to
Pennsylvania wildlife, the court found the challenged fee provisions
20
substantially “underinclusive” with respect to this alleged benefit. Id. at
211–12. In sum, the court concluded:
A law fails the general applicability requirement if it burdens
a category of religiously motivated conduct but exempts or
does not reach a substantial category of conduct that is not
religiously motivated and that undermines the purposes of
the law to at least the same degree as the covered conduct
that is religiously motivated.
Id. at 209.
The Eleventh Circuit applied similar reasoning in holding that a
limited secular exemption failed the general applicability test. In Midrash
Sephardi, Inc. v. Town of Surfside, the town passed a zoning ordinance
“ ‘to provide for retail shopping and personal service needs of the town’s
residents and tourists’ ” with the goal of protecting “retail synergy” in the
business district. 366 F.3d 1214, 1233, 1235 (11th Cir. 2004) (citation
omitted). The ordinance excluded religious assemblies from the area, but
an exemption was allowed for private clubs and lodges. Id. at 1235. The
court found this policy to be underinclusive with respect to the town’s
goal of retail synergy because it was “pursued only against religious
assemblies, but not other non-commercial assemblies, thus devaluing
the religious reasons for assembling.” Id. at 1234. Echoing the
reasoning in Fraternal Order, the court found that these limited
exceptions “violate[d] the principles of neutrality and general applicability
because private clubs and lodges endanger Surfside’s interest in retail
synergy as much or more than churches and synagogues.” Id. at 1235.
As in Fraternal Order, only a single categorical secular exemption was
enough to establish underinclusiveness and require heightened scrutiny.
In another case, a federal district court found a University of
Nebraska policy with three categorical secular exemptions was not of
general applicability and therefore subjected it to strict scrutiny which it
21
ultimately failed. See Rader v. Johnston, 924 F. Supp. 1540 (D. Neb.
1996). The university had a parietal rule for freshmen that required
them to live on campus, but allowed exemptions for students who were
nineteen years or older, married, or living with their parents. Id. at
1546. These categorical exemptions, combined with a general
discretionary exemption, together covered more than one third of all
freshmen. Id. at 1553. Nonetheless, the university refused to grant an
exemption to a religious student who wanted to live off campus at a
Christian Student Fellowship house because he believed that on-campus
dorms were immoral and would endanger his spiritual life. Id. at 1544–
45. This decision was found to violate Rader’s free exercise rights and
the university was ordered to refrain from enforcing its policy against
him. Id. at 1558; see also Stinemetz v. Kan. Health Policy Auth., 252 P.3d
141, 154–56 (Kan. Ct. App. 2011) (holding that the First Amendment
Free Exercise rights of a Jehovah’s Witness Medicaid beneficiary were
violated when she was denied a request for an out-of-state bloodless liver
transplant because, although the regulations generally did not cover out-
of-state services, they allowed for individual exemptions on a case-by-
case basis); Horen v. Commonwealth, 479 S.E.2d 553, 557 (Va. Ct. App.
1997) (finding a violation of the First Amendment Free Exercise Clause
when a Native American medicine woman and her husband were
convicted of illegal possession of owl feathers and the statute exempted
possession of such feathers by “taxidermists, academics, researchers,
museums, and educational institutions”).
By contrast, federal courts have generally found laws to be neutral
and generally applicable when the exceptions, even if multiple, are
consistent with the law’s asserted general purpose. Thus, in Stormans,
Inc. v. Selecky, the Ninth Circuit upheld certain Washington regulations
22
requiring pharmacists to fill all prescriptions over a pharmacist’s
objection that providing the Plan B contraceptive would violate her
religious beliefs. 586 F.3d 1109, 1115–17 (9th Cir. 2009), abrogated on
other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
129 S. Ct. 365, 376, 172 L. Ed. 2d 249, 262 (2008). Although the
regulations contained exemptions where the customer did not pay,
supplies were limited, or the pharmacist had a legitimate belief the
prescription was fraudulent, the court reasoned that these exceptions did
not undermine the goal of “increasing safe and legal access to
medications” and thus did not affect the general applicability of the rules.
Id. at 1135. In Swanson ex rel. Swanson v. Guthrie Independent School
District No. I-L, the Tenth Circuit upheld a school district policy
forbidding part-time attendance even though it allowed secular
exemptions for fifth-year seniors and special education students. 135
F.3d 694, 697, 701 (10th Cir. 1998). The plaintiffs there were parents
who wanted their child to learn Christian principles at home but who
wished to send their homeschooled daughter to the local public school
part-time so she could benefit from classes such as foreign languages,
music, and science that her parents felt less competent to teach. Id. at
696. The policy against part-time attendance applied equally to all
homeschooled children, regardless of the reason for home schooling. Id.
at 698. Although the court emphasized this last point in rejecting the
plaintiffs’ claim, it also noted the exemptions in the law (fifth-year seniors
and special education students) were consistent with the school district’s
overall purpose of not taking on students for whom there was no
corresponding state aid. Id. at 698 n.3. Because state aid was based on
the number of full-time students in the district, and only the two
exempted categories of part-time students were counted as full-time for
23
state-aid purposes, there were no exemptions for students who did not
qualify for state aid, and general applicability was met. Id; see also
Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 242 (3d Cir. 2008) (finding
a homeschooling law to be neutral and of general applicability because it
imposed the same standards on everyone who was being homeschooled);
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253,
266 (3d Cir. 2007) (indicating that “the relevant comparison for purposes
of a Free Exercise challenge to a regulation is between its treatment of
certain religious conduct and the analogous secular conduct that has a
similar impact on the regulation’s aims”). 12
With the foregoing authorities in mind, we turn to the ordinance at
issue. Zimmerman contends the Mitchell County ordinance is not
generally applicable because it carries over exceptions from Iowa Code
section 321.442 that undermine the ordinance’s purpose and
demonstrate its underinclusivity. 13 The state law exemptions are as
follows:
1. Farm machinery with tires having protuberances
which will not injure the highway.
12We do not want to convey the impression that post-Lukumi cases are
monolithic. In Primera Iglesia Bautista Hispana of Boca Raton v. Broward County, cited
by the district court below, the Eleventh Circuit seemed to indicate that a regulation or
ordinance would be considered generally applicable unless it burdened “almost only”
religious uses. 450 F.3d 1295, 1309 (11th Cir. 2006). That case involved statutory
interpretation of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
The zoning regulation there contained no exemptions. Id. at 1310.
13Asnoted above, the ordinance provides that “Iowa Code § 321.442 shall
continue to remain in full force and effect and no provision of that Code Section shall be
deemed to have been eliminated by this ordinance.” Mitchell Cnty. Road Prot.
Ordinance. Hence, Zimmerman argues—and the County does not dispute—that the
exemptions set forth in section 321.442 are also preserved as exemptions in the
Mitchell County ordinance. We need not address whether state law would preempt the
ordinance if it sought to prohibit uses permitted under section 321.442. See Iowa
Const. art. III § 38A; Iowa Code § 321.235; City of Davenport v. Seymour, 755 N.W.2d
533, 538–39 (Iowa 2008).
24
2. Tire chains of reasonable proportions upon any
vehicle when required for safety because of snow, ice, or
other conditions tending to cause a vehicle to skid.
3. Pneumatic tires with inserted ice grips or tire studs
projecting not more than one-sixteenth inch beyond the
tread of the traction surface of the tire upon any vehicle from
November 1 of each year to April 1 of the following year,
except that a school bus and fire department emergency
apparatus may use such tires at any time.
Iowa Code § 321.442. Zimmerman asserts these exceptions “undermine
the County’s purpose of preventing damage to the roads.”
Upon our review, we find the County’s ordinance lacks sufficient
general applicability to bring this case under Smith. Section 321.442(1)
is not a problem; it exempts farm machinery tires with protuberances,
but only so long as they “will not injure the highway.” Such an exception
is consistent with the stated purpose of protecting the County’s roads.14
One could argue that sections 321.442(2) and (3) do not defeat the
general applicability of the ordinance either. Although they allow the use
of tire chains, ice grips, or tire studs, the exemptions are limited in scope
(“reasonable proportions,” “not more than one-sixteenth inch beyond the
tread of the traction surface of the tire”), and except for buses and
emergency vehicles, in timing (“when required for safety because of snow,
ice, or other conditions,” “from November 1 of each year to April 1 of the
following year”). One could construct an argument, therefore, that the
ordinance really serves a mixed purpose: It protects the roads from
damage except when necessary for safety reasons.
Yet we believe the effort ultimately fails. School buses are allowed
to use ice grips and tire studs year round. It is difficult to see how this
secular exemption serves either of the foregoing dual purposes.
14Although Zimmerman maintained at the hearing that the steel lugs did not
harm the county’s roads, he did not argue that this exemption applied.
25
Moreover, the County declined in September 2009 to regulate various
other sources of road damage besides steel wheels. Rather, it chose to
prohibit only a particular source of harm to the roads that had a
religious origin. For example, although state law contains various limits
on the overall weight of vehicles and also limits weight per inch of tire
width, see Iowa Code §§ 321.440(2), .463, Mitchell County elected not to
cover these matters in its ordinance.
The underinclusion of the ordinance undermines its general
applicability. See Blackhawk, 381 F.3d at 209 (noting that a law “fails
the general applicability requirement if it burdens a category of
religiously motivated conduct but exempts or does not reach a
substantial category of conduct that is not religiously motivated and that
undermines the purposes of the law to at least the same degree as the
covered conduct that is religiously motivated” (emphasis added)). We are
convinced the underinclusion is “substantial, not inconsequential.”
Lukumi, 508 U.S. at 543, 113 S. Ct. at 2232, 124 L. Ed. 2d at 497. 15
D. Application of Strict Scrutiny. Of course, an ordinance can
fail the general applicability test and still not amount to a Free Exercise
violation. However, the ordinance must then “undergo the most rigorous
of scrutiny.” Id. at 546, 113 S. Ct. at 2233, 124 L. Ed. 2d at 498. That
is, it “must advance ‘ “interests of the highest order” ’ and must be
narrowly tailored in pursuit of those interests.” Id. (citation omitted).
The County has the burden to show that the ordinance serves a
compelling state interest and is the least restrictive means of attaining
15The County argues this case is unlike Blackhawk and Fraternal Order because
there are no exemptions: The ordinance “does not permit anyone to use steel wheels on
the road.” But the ordinance is not directed at “steel wheels,” nor could it be, if the
County wanted it to be considered “neutral.” The ordinance is directed at metal
projections of any kind, and it provides for exemptions.
26
that interest. See Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450
U.S. 707, 718, 101 S. Ct. 1425, 1432, 67 L. Ed. 2d 624, 634 (“The state
may justify an inroad on religious liberty by showing that it is the least
restrictive means of achieving some compelling state interest.”). 16
The district court found that the County has a compelling interest
“in protecting the integrity of the county’s roads. This interest not only
includes the economic costs of repairing roads, but also the safety and
drivability of the roads for all.” We do not decide this issue. See United
States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (recognizing a
compelling governmental interest in preserving the bald eagle population
despite a claim that possession of eagles was necessary to the practice of
the Sioux faith); Satawa v. Bd. of Cnty. Road Comm’rs, 687 F. Supp. 2d
682, 699–700 (E.D. Mich. 2009) (holding that highway safety concerns
amounted to a compelling state interest justifying the denial of a permit
for a Nativity display on a median in the center of a major traffic artery);
but see Blackhawk, 381 F.3d at 213–14 (stating it is “doubtful” whether
“maintaining the fiscal integrity” of a permit fee system is a compelling
16Assuming without deciding that the church members must show the
ordinance places a substantial burden on their religion, that requirement has been met
here. Although Eli Zimmerman testified it is “possible” to comply with the ordinance
and still follow his religion, this would require the Mennonites to pursue one of two
impractical alternatives: Either they would have to use horses and buggies to haul their
produce to market (if they even had enough horses) or they would have to hire persons
of another faith to do their hauling. We agree with the district court’s finding “from the
record that the Mitchell County ordinance substantially burdens this religious
practice.” See Sherbert, 374 U.S. at 404, 83 S. Ct. at 1794, 10 L. Ed. 2d at 970 (finding
an unconstitutional burden even though South Carolina did not require the appellant
to give up her Saturday Sabbath Day but merely denied her unemployment benefits
because “the pressure upon her to forego that practice is unmistakable”); see also
Thomas, 450 U.S. at 717–18, 101 S. Ct. at 1432, 67 L. Ed. 2d at 634 (“Where the state
conditions receipt of an important benefit upon conduct proscribed by a religious faith,
or where it denies such a benefit because of conduct mandated by religious belief,
thereby putting substantial pressure on an adherent to modify his behavior and to
violate his beliefs, a burden upon religion exists. While the compulsion may be indirect,
the infringement upon free exercise is nonetheless substantial.”).
27
state interest); United States v. Hardman, 297 F.3d 1116, 1127 (10th Cir.
2002) (stating that “a desire for federal funds is not a compelling
interest”).
We are not persuaded, however, that the ordinance is narrowly
tailored to achieve the stated objective of road preservation. The
photographic evidence does show examples of cracking and marking
that, according to the County’s witnesses, resulted from the steel lugs.
The county engineer testified that steel wheels hasten deterioration of the
County’s roads. He said that “the steel is harder than the aggregates . . .
in the concrete surfaces and the asphalt surfaces, and it will wear that
surface off.” On the other hand, the County agreed that Mennonite
tractors had driven over hard-surfaced county roads, including both
concrete and asphalt roads, for years before the ordinance was enacted.
The county engineer admitted that various factors lead to road
deterioration, 17 and he could not quantify the impact of steel wheels on
the County’s normal schedule of road repair or resurfacing. 18
Given the lack of evidence of the degree to which the steel lugs
harm the County’s roads, the undisputed fact that other events cause
road damage, and the undisputed fact that the County had tolerated
steel lugs for many years before 2009, it is difficult to see that an
outright ban on those lugs is necessary to serve a compelling state
interest. A more narrowly-tailored alternative might allow steel wheels
on county roads in some circumstances, while establishing an effective
mechanism for recouping the costs of any necessary road repairs if
17For example, he admitted that one of the newly white-topped roads has
experienced longitudinal cracking even though no steel wheels have been driven on it.
18Although both we and the parties use the shorthand “steel wheels,” the
attachments are more accurately described as lugs, cleats, or slats. Eli Zimmerman
testified that they have been redesigned and placed over rubber to reduce their potential
to cause damage.
28
damage occurs. Indeed, an adjoining county reached an agreement with
the Mennonite community to accept a financial deposit in a trust
arrangement to cover possible road damage, in lieu of banning steel
wheels. See www.co.howard.ia.us/bosinfo/minutesarchive.htm (minutes
of December 7, 2009 Board of Supervisors Meeting); Jean Caspers-
Simmet, Howard County Crafts Agreement Over Steel-Wheel Tractors, Agri
News, Dec. 1, 2009, http://www.agrinews.com/howard/county/crafts/
agreement/over/steelwheel/tractors/story-1056.html. As the United
States Supreme Court has indicated in a statutory case arising under the
Religious Freedom Restoration Act, the compelling interest test must
focus on “the harms posed by the particular use at issue here.” Gonzales
v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432–33,
126 S. Ct. 1211, 1221–22, 163 L. Ed. 2d 1017, 1032–33 (2006) (finding
the compelling interest test would not sustain application of the
Controlled Substances Act to approximately 130 American members of a
Christian Spiritist sect who used hoasca, a tea containing a
hallucinogen, for communion).
A comparison can be drawn between the present case and a series
of cases that have arisen over state-law requirements for special signage
on slow moving vehicles. In State v. Hershberger, 444 N.W.2d 282 (Minn.
1989), cert. granted, judgment vacated, 495 U.S. 901, 110 S. Ct. 1918,
109 L. Ed. 2d 282 (1990), and State v. Miller, 549 N.W.2d 235 (Wis.
1996), members of the Old Order Amish faith challenged state laws that
required their horse-drawn buggies to display fluorescent red and orange
“slow moving vehicle” signs.
Hershberger was a pre-Smith case. There the court applied a
compelling state interest test and acknowledged for purposes of the case
that highway safety was a compelling interest, but invalidated the sign
requirement after concluding that the use of silver reflective tape and
29
lighted red lanterns, as proposed by the church members, would
adequately address the same safety concerns. Hershberger, 444 N.W.2d
at 288–89. In Miller, interpreting the Wisconsin Constitution rather than
the United States Constitution, the court also applied a compelling state
interest test. Similar to the Minnesota court, the Wisconsin court
concluded that “the State has failed to demonstrate that public safety on
the highways cannot be served by the Respondents’ proposed less
restrictive alternative of the white reflective tape and the red lantern.”
Miller, 549 N.W.2d at 242.
While the analogy between those cases and the present steel
wheels case is not a perfect one, the same basic analytical framework
applies here. The question here is whether the County’s goal of road
preservation can be accomplished less restrictively without banning the
tractors used by the Mennonites. On this record, we believe it can be.
We therefore hold that the application of the Mitchell County road
protection ordinance to Matthew Zimmerman violates his rights of free
exercise of religion under the First Amendment to the United States
Constitution. We need not and do not reach the question whether
Zimmerman’s rights under article I section 3 of the Iowa Constitution
have also been violated.
IV. Conclusion.
Cases involving religious rights present challenging issues. Here, a
conflict has arisen between longstanding religious practice and a
county’s legitimate desire to protect its investment in roads. On this
record, we find the religious rights prevail.
We reverse and remand to the district court for entry of an order of
dismissal.
REVERSED AND REMANDED.