State v. Hickman/Hickman

No. 37 October 8, 2015 1
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
SHANNON MAE HICKMAN,
Petitioner on Review.
(CC CR1001094; CA A150127; SC S061896 (Control))
STATE OF OREGON,
Respondent on Review,
v.
DALE RYAN HICKMAN,
Petitioner on Review.
(CC CR1001093; CA A150126; SC S061902)
En Banc
On review of an order of the Court of Appeals.*
Argued and submitted October 8, 2014.
Bronson D. James, Portland, argued the cause for peti-
tioners on review and filed the briefs for petitioner on review
Shannon Mae Hickman.
Ryan E. Scott, Scott & Huggins Law Offices, Portland,
filed the brief on behalf of the petitioner on review Dale
Ryan Hickman.
Cecil Reniche-Smith, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With her on the brief were Anna M. Joyce, Solicitor
General, and Ellen F. Rosenblum, Attorney General.
Timothy R. Volpert, Davis Wright Tremaine LLP, Portland,
filed a brief on behalf of amicus curiae The American Civil
Liberties Union of Oregon. With him on the brief were
Kimberly L. McCullough and Kevin Diaz.
______________
*  Appeal from Court of Appeals Order of Summary Affirmance dated August 20,
2013. Appeal from Clackamas County Circuit Court, Robert D. Herndon, Judge.
2 State v. Hickman/Hickman
LINDER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Case Summary: Defendants were charged with second-degree manslaughter
by neglect or maltreatment after they failed to provide medical care for their son
David, who died nine hours after he was born prematurely. Defendants argued
that, according to Article I, sections 2 and 3, of the Oregon Constitution, because
their faith instructed them to rely on God for healing and to eschew conventional
medicine, they could not be convicted of second-degree manslaughter unless the
state proved that they “knew” that David would die if they failed to seek medical
treatment for him. Held: Article I, sections 2 and 3, of the Oregon Constitution
do not require the state to prove that defendants acted with knowledge—instead
of with criminal negligence, as required by the statute defining second-degree
manslaughter—when defendants contend that their conduct was motivated by
their sincerely held religious beliefs.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 358 Or 1 (2015) 3
LINDER, J.
Defendants Dale and Shannon Hickman were con-
victed of second-degree manslaughter (ORS 163.125) after
they declined to seek medical treatment for their son David,
who died about nine hours after he was born prematurely.
Defendants are members of the Followers of Christ Church.
That church encourages its members to rely on God to heal
sickness and injury, and considers resorting to conventional
medicine as a failure in faith. At trial, defendants argued
that, because they withheld medical treatment from David
based on their religious beliefs, the Oregon Constitution
requires the state to prove that they acted “knowingly”—that
is, they knew that David would die if they relied on prayer
alone and, despite that knowledge, failed to seek medical
treatment for him. The trial court disagreed and allowed
the state to proceed on a theory of “criminal negligence,”
consistently with the statute defining second-degree man-
slaughter by neglect or maltreatment. The Court of Appeals
summarily affirmed. We granted review to consider whether
the state must prove that a criminal defendant acted with
“knowledge” that an unlawful result would follow when that
defendant’s conduct was motivated by a sincerely held reli-
gious belief. For the reasons explained below, we conclude
that it does not.
I
Defendants Dale and Shannon Hickman have been
lifelong members of the Followers of Christ Church. That
church—drawing from the Christian Bible’s descriptions
that Jesus and his disciples, rather than doctors, healed
the sick and disabled—instructs its members to rely on
“faith healing” and to eschew conventional medicine. For
the Followers of Christ, faith healing entails prayer, anoint-
ing the sick with olive oil, or the laying on of hands. Those
practices derive most directly from a passage in the New
Testament, which provides:
“Is anyone among you in trouble? He should turn to
prayer. Is anyone in good heart? He should sing praises. Is
one of you ill? He should send for the elders of the congrega-
tion to pray over him and anoint him with oil in the name
of the Lord. The prayer offered in faith will save the sick
4 State v. Hickman/Hickman
man, the Lord will raise him from his bed, and any sins
he may have committed will be forgiven. Therefore confess
your sins to one another, and pray for one another, and then
you will be healed.”
James 5: 13-16 (The New English Bible (1970 ed)). Accord-
ingly, other than visiting a dentist and an optometrist, at
the time of trial defendants had never seen a doctor for
the purpose of receiving medical treatment or advice.1 But
defendants did not reserve the faith healing practice for
themselves—they also used it to address their children’s
medical ailments. That decision—to pray for their chil-
dren’s health and well-being instead of taking them to the
doctor—is what gave rise to the circumstances that led to
this case.
Shannon was between 30 and 32 weeks pregnant
when she began experiencing labor pains.2 As was custom
in the Followers of Christ community, Shannon went to
her parents’ home to deliver the child. Three women in the
Followers of Christ community attended to the birth. Dale,
along with several other family members, was also present
in the birthing room. According to Shannon, the delivery
was quick but was similar to that of her daughter, who
had been born at full-term and without complication. After
David was born, several women from the church—including
David’s grandmothers and great-aunts—cared for him. To
keep David warm, they took him into the bathroom, where
they had the heater turned on high, and wrapped him in
towels and blankets that they had warmed in the dryer.
They “downsized” diapers and a beanie hat to fit him and
fed him using an infant spoon to pour breast milk into his
mouth.
1
Dale had, however, been physically examined by a doctor so that, in accor-
dance with federal law, he could qualify to receive a Commercial Driver License.
See 49 CFR §§ 391.41 and 391.43 (describing medical requirements to qualify for
Commercial Driver License).
2
According to doctors who testified at trial, a term pregnancy is between
37 and 42 weeks, with the average at 40 weeks. Shannon did not know her exact
due date because she had not been to a doctor to determine when David had been
conceived. She testified that, based on her menstrual cycle, which had been irreg-
ular, she believed that her due date was anywhere between October 31, 2009 and
December 25, 2009. She chose November 20, 2009, the midpoint between those
two dates, as the due date to announce to others.
Cite as 358 Or 1 (2015) 5
Despite knowing that David was around two months
premature, neither defendant—according to their testi-
mony—thought that David was or would soon be in physi-
cal distress. Aside from David’s tiny size—he weighed three
pounds and seven ounces—defendants believed that he was
healthy: They testified that he had a strong cry, his whole
body was pink, and he was able to pump his arms vigor-
ously. But David was not healthy and was not thriving. He
died a mere nine hours after he was born.
Although the medical examiner initially suspected
that David had died from sepsis caused by Group B strep-
tococcus, the laboratory results did not support that conclu-
sion. Instead, the Oregon State Medical Examiner’s office
determined that the cause of David’s death was staphylo-
coccus pneumonia, with other significant conditions being
pulmonary immaturity and chorioamnionitis. The medical
examiner found no evidence of sepsis, congenital anomalies,
or asphyxiation. Drawing from different aspects of the med-
ical examiner’s report, the parties presented two different
theories for the cause of David’s death.
According to defendants, David was lively, pink,
and vigorous until moments before he died. In those final
moments, David’s great-aunts were caring for him while
defendants were asleep. One of the aunts awoke Dale after
they noticed that David was “fading,” both in color and in
the muscle tone of his face. As one of them described it,
David had “[j]ust a different look in his face,” which led
them to believe that he was “going very quickly.” Dale ran
into the room where one of his aunts was holding David and
anointed David’s head with olive oil and began to pray. He
noticed that David was taking short breaths, was minimally
responsive, and was lighter in color, so he took David into
the bedroom where Shannon still lay. At that point, it was
“in the back of [Dale’s] mind” that David would not survive.
He sat in a chair by the bed, held David in his arms, and
prayed. According to Shannon, when she sat up and looked
at David, he “didn’t look like the baby [she] had seen a couple
of hours before.” He was pale and, from the time he entered
the room until he died, she believed she heard him breathe
only once or twice. Over the next few minutes, David turned
blue, then gray. Dale believed that it was about five to 10
6 State v. Hickman/Hickman
minutes from the time his aunts woke him until David died;
Shannon believed it was about five minutes.
In defendants’ view, David’s symptoms were consis-
tent with early-onset sepsis, an infection in the bloodstream
that is often fatal. Although defendants recognized that the
medical examiner’s laboratory results did not support that
conclusion, they argued that both Shannon and David had
physical symptoms that supported a finding of early-onset
sepsis. First, they pointed to the medical examiner’s con-
clusion that chorioamnionitis was an “other significant con-
dition” contributing to David’s death. Chorioamnionitis is
a condition that affects the mother and can cause preterm
labor. Specifically, it is an infection of the two layers of the
amniotic sac—the chorion and the amnion—that can spread
and infect the unborn child. If the infection spreads to the
child, it can lead to early-onset sepsis. Second, defendants
relied on another doctor’s testimony that infants who have
early-onset sepsis can appear to a lay person to be in perfect
health, but then suddenly “drop off the cliff” and die shortly
thereafter, as defendants contend happened with David.
According to the state, defendants’ theory that
David was perfectly healthy and then suddenly developed
symptoms within 15 minutes of his death made “no biologi-
cal sense.” Instead, the state urged that David struggled to
stay alive from the moment he was born, due to complica-
tions that resulted from his prematurity. The state’s expert
witnesses testified that an infant born at 30- to 32-weeks
gestational age has a greater than 90 percent chance of
survival if he receives medical treatment; however, without
medical treatment, he has “zero” chance of surviving. That
is so because preterm infants have underdeveloped organs.
Specifically, an infant born at 30- to 32-weeks gestational
age, like David, is likely to have pulmonary immaturity,
i.e., underdeveloped lungs, compounded by a lack of body fat
to regulate the infant’s temperature. Infants born at that
gestational age also might not have developed the ability to
suck and swallow, causing them to have trouble eating on
their own.
Doctors who testified for the state were able to
watch a video of David that family members recorded about
Cite as 358 Or 1 (2015) 7
one hour after he was born. The doctors noticed that, in
that video, David’s chest was retracting, a sign that he was
having to rely heavily on his chest muscles to breathe; they
also noticed that he was grunting, indicating that he was
continually trying to open his airways. Both retractions
and grunting are classic signs of respiratory distress. The
doctors observed that David had a strong cry, but that did
not alter their assessment that he was in obvious distress,
because a strong cry does not necessarily indicate strong
lungs. The doctors conjectured that, as the night progressed,
David would have shown more signs of respiratory distress:
tachypnea, i.e., fast breathing, as well as more retracting
and grunting. Then, at some point, he would have grown too
tired, and his fast breathing would have turned into slow
breathing, and eventually apnea, or periods without breath-
ing at all. As long as David continued breathing, he would
have been receiving enough oxygen to remain pink; but as
soon as his breathing slowed down, he would have lost color.
The state’s doctors believed that, for an infant at David’s
gestational age, that process would not have taken just 15
minutes, as defendants contended; rather, it would have
taken hours.
In the state’s doctors’ view, defendants failed to heed
obvious signs of David’s distress. In particular, defendants
did not properly respond to the facts that David was born
two months prematurely; that he was not able to adequately
feed; and that, at the very least, he eventually turned blue
and gray, had labored breathing, and was minimally respon-
sive. Although defendants contended that they did not have
time to dial 9-1-1 once David started to “fade,” the state’s
doctors disagreed, stating that, at that point, defendants
could not have known how long David was going to be able
to survive. If defendants had called 9-1-1 at the moment
that David was born, when they noticed that he was born
prematurely, medical professionals immediately would have
been able to give David antibiotics to ward off any infection
resulting from Shannon’s chorioamnionitis; to monitor and
regulate David’s temperature and breathing; and to feed
David intravenously. If David had received that treatment,
one doctor estimated that David would have had a 99 per-
cent chance of survival.
8 State v. Hickman/Hickman
At the least, the state’s doctors testified, defendants
should have called an ambulance later in the night, once
David started “fading.” Defendants themselves acknowl-
edged that the nearest fire station was less than a five-
minute drive from Shannon’s parents’ home in a non-
emergency vehicle. And doctors for the state explained that
several Oregon hospitals have newborn transport teams
that respond within mere minutes when they receive a 9-1-1
call regarding a newborn. Those teams travel in an ambu-
lance that is essentially a mobile neonatal intensive care
unit, and they are capable of doing almost everything in the
field that doctors can do in a hospital. The state’s doctors
believed that, if defendants had called 9-1-1 immediately
after defendants noticed a change in David’s health, the fire
station’s paramedics could have kept David alive until the
more specialized ambulance arrived, at which point David
would have been able to receive the same kind of medical
treatment that he would have received in a neonatal inten-
sive care unit.
Finally, according to the state’s doctors, the treat-
ment that defendants provided to David was simply not ade-
quate to address his medical needs as a premature infant.
One doctor opined that wrapping David in towels warmed
in the dryer was “primitive” and a bad idea in place of what
could have been done. Further, it was obvious to the doctors
that David had feeding problems. The fact that the church
women had to pour milk into David’s mouth using a baby
spoon—instead of feeding him through a bottle—suggested
that he had not yet developed the suck and swallow reflex.
Doctors testified that a full term baby initially will drink
four ounces of milk. During the autopsy, the medical exam-
iner found one milliliter (less than one ounce) of milk in
David’s stomach.
At trial, defendants testified that they had been
members of the Followers of Christ church for their entire
lives. Regarding medical concerns, both place their faith
in God and refuse to resort to conventional medicine. In
Shannon’s words, “We do what the Bible tells us, and we
put God first and ask for faith. If we don’t have the faith,
then we seek medical treatment because it is not there, you
know.” And according to Dale, their faith is “everything” to
Cite as 358 Or 1 (2015) 9
them. Both of them testified that, looking back on David’s
death, they would not have done anything differently. They
maintained that they did not believe that anything was
medically wrong with David after he was born, despite his
prematurity. And by the time they realized that David was
having medical complications, they believed that it was too
late—that he would have died before an ambulance could
have responded.
II
A
With that factual backdrop, we turn to the proce-
dural posture of the issue before us. Because that procedural
posture—specifically, the way in which defendants have
framed their arguments from the trial court and since—
bears significantly on our ultimate disposition, it is helpful
to discuss it in some detail.
The state charged defendants with second-degree
manslaughter under ORS 163.125, alleging that each was
criminally negligent in causing David’s death through
neglect or maltreatment. In essence, the state alleged that
defendants failed to be aware of the substantial and unjus-
tifiable risk that David, without medical treatment, would
die and, further, that their failure to recognize that risk was
a gross deviation from the standard of conduct that a rea-
sonable person in their position would have observed.3 To
prove that defendants were criminally negligent, the state
presented testimony from medical experts who all agreed
that David’s distress was obvious from the moment he was
born prematurely and that medical care to address his dis-
tress was not only readily available, but also would almost
surely have been successful in saving him.
Defendants themselves did not raise or inject their
religious beliefs into their defense theory. Instead, defen-
dants relied on their testimony that, by all appearances,
3
Under ORS 161.085, which we later quote, criminal negligence “means that
a person fails to be aware of a substantial and unjustifiable risk that the result
will occur or that the circumstance exists.” The standard is an objective one: “The
risk must be of such nature and degree that the failure to be aware of it consti-
tutes a gross deviation from the standard of care that a reasonable person would
observe in the situation.” Id.
10 State v. Hickman/Hickman
David was a healthy, thriving baby for nearly nine hours,
and that he declined precipitously only minutes before he
died. Their essential theory was that no reasonable person
in their position would have understood David to be at risk
of dying, and that by the time it became apparent that he
was in critical distress, too little time remained to take any
steps that could reasonably have saved him. Under their fac-
tual theory, then, defendants’ religious beliefs were beside
the point; a reasonable person—regardless of his or her reli-
gious beliefs—would not have recognized that David was in
danger of dying and, as a result, would not have done any-
thing differently.
Defendants’ religious beliefs were relevant given
the state’s theory of the case, however. Even with the state’s
medical experts’ testimony, a looming question remained:
Why? Why would any parent, seeing his or her three-and-
a-half pound newborn child in the obvious distress that the
experts described, not call for medical help? One answer
could have been to believe defendants’ explanation—things
did not happen the way the experts claimed they did.
Another answer could have been the one that the state’s evi-
dence provided—defendants, due to their religious beliefs,
were unwilling to heed or were otherwise blind to the risk
that David would die and were unwilling to seek medical
care to prevent his death.
Although defendants did not raise or assert their
religious beliefs in their factual defense to the charges,
they did rely on those beliefs to legally defend against the
charges by attempting to hold the state to a heightened
burden of proof on mental state. In particular, before trial,
defendants demurred to the indictment and, later, moved
to dismiss it, arguing that the indictment failed to state a
crime because it alleged that defendants acted with “crim-
inal negligence,” rather than with “knowledge” that David
would die as a result of their failure to provide medical
care for him. Relying on this court’s decision in Meltebeke
v. Bureau of Labor and Industries, 322 Or 132, 903 P2d 351
(1995), defendants argued that Article I, sections 2 and 3,
of the Oregon Constitution require the state to prove that
defendants “knew” that their religiously motivated conduct
would produce an unlawful result. The trial court, however,
Cite as 358 Or 1 (2015) 11
disagreed. It therefore declined to dismiss the indictment or
to require the state to allege that defendants acted “know-
ingly,” and the case proceeded to trial.
After the state presented its case-in-chief, defen-
dants moved for judgment of acquittal, again arguing that,
according to Meltebeke, the state should have been held to
the additional burden of proving that defendants “knew”
that David would die if they failed to seek medical treat-
ment for him. Because the state had not proven beyond a
reasonable doubt that defendants acted with that “knowl-
edge,” defendants argued, they should be acquitted of
second-degree manslaughter. The trial court denied defen-
dants’ motion.
At the close of trial, the state argued that the jury
should find defendants guilty of second-degree manslaugh-
ter. Consistently with the statute defining that crime,4 the
state contended that defendants acted with criminal negli-
gence by failing to immediately call 9-1-1 when David was
born two months prematurely, and also by failing to call
9-1-1 once they noticed that his health was rapidly declin-
ing, which the state maintained happened in time for med-
ical assistance to have come to David’s aid. The trial court
instructed the jury that, in the context of this case, to act
with criminal negligence meant to
“fail[ ] to be aware of a substantial and unjustifiable risk
that the death of David Hickman would occur. The risk
must be of such nature and degree that the failure to be
aware of it constitutes a gross deviation from the stan-
dard of care that a reasonable person would observe in a
situation.”
Defendants objected to that instruction. Renewing their
argument under Meltebeke and Article I, sections 2 and 3,
of the Oregon Constitution, they contended that the jury
should be instructed instead:
“In order to find [defendants] guilty of Manslaughter in
the Second Degree, the State must prove that [defendants]
acted with knowledge that his or her act would bring
4
We set out that statute in full later in our opinion.
12 State v. Hickman/Hickman
about the death of David Hickman. Knowledge requires
an awareness on the part of the accused that the death of
David Hickman would occur as a result of [defendants’] act
or failure to act.”
The trial court overruled defendants’ objection and declined
to give their requested jury instruction. After delibera-
tion, the jury returned a unanimous guilty verdict for each
defendant.
Defendants appealed, raising inter alia the same
argument that they had raised before and during trial—i.e.,
that under Meltebeke, the trial court should have required
the state to prove that defendants “knew” that David would
die as the result of their failure to obtain medical treatment
for him. During the pendency of their appeal, the Court of
Appeals announced its decision in State v. Beagley, 257 Or
App 220, 305 P3d 147 (2013), another case involving a faith
healing prosecution. In that case, the parents had been
prosecuted for, and convicted of, criminally negligent homi-
cide, ORS 163.145, after they did not seek medical treat-
ment for their 16-year-old son, causing him to die of kid-
ney failure. Id. at 222-23. Similarly to defendants in this
case, the Beagleys argued that they had withheld medical
treatment from their son because their religious beliefs
instructed them to do so. Id. at 222, 225. As a result, the
Beagleys argued, under Meltebeke and Article I, sections 2
and 3, of the Oregon Constitution, the state was obligated
to prove that they “knew” their son would die if they did not
take him to the hospital. Id. at 225.
The Court of Appeals rejected the Beagleys’ argu-
ments. It first described this court’s decision in Meltebeke:
“Meltebeke involved a civil sanction imposed by the
Bureau of Labor and Industries (BOLI) on an employer
who was accused of religious discrimination by ‘creat-
ing an intimidating and offensive working environment’
after insistently proselytizing an employee. The employer
appealed, arguing that proselytizing was an exercise of his
religion and, for that reason, protected under Article I, sec-
tions 2 and 3, of the Oregon Constitution, as well as the
First Amendment to the United States Constitution. After
concluding that the BOLI rule was not facially unconsti-
tutional, the court held that BOLI could not enforce the
Cite as 358 Or 1 (2015) 13
rule unless it could prove that the employer knew that
his conduct would result in forbidden discrimination. The
court carefully noted, however, that ‘[c]onduct that may be
motivated by one’s religious beliefs is not the same as con-
duct that constitutes a religious practice. The knowledge
standard is considered here only in relation to the latter
category.’ ”
Id. (internal citations omitted). The court then stated that it
did not understand Meltebeke’s distinction between religious
conduct and religious practice, noting that “[t]he practice of
abstaining from alcohol, for example, is both directly man-
dated by some religions, and it is also frequently observed
by nonadherents for nonreligious reasons.” Id. at 225-26
(emphasis in original). Nevertheless, the court reasoned, it
did not have to resolve that conundrum in the case before
it, because “allowing a child to die for lack of life-saving
medical care is clearly and unambiguously—and, as a mat-
ter of law—conduct ‘that may be motivated by one’s reli-
gious beliefs.’ ” Id. at 226. The court further distinguished
Meltebeke by noting that it involved civil sanctions, and that
nothing in the opinion indicated that its holding would apply
to a criminal prosecution. Id. After addressing and rejecting
the Beagleys’ other arguments, the court affirmed their con-
victions. Id. at 233.
After the court issued its decision in Beagley, defen-
dants in this case narrowed the scope of their appeal and
agreed that, as to this issue, Beagley was controlling at
the Court of Appeals level. Accordingly, to expedite possi-
ble review by this court, defendants requested that their
appeal be summarily affirmed. The Appellate Commissioner
granted summary affirmance, and the Court of Appeals
denied reconsideration. As already noted, on defendants’
petition, we allowed review to determine whether, as defen-
dants have framed the issue, “a religious practice, in this
case faith healing, can be criminally sanctioned on less than
a knowing mental state pursuant to this [c]ourt’s holding in
Meltebeke v. BOLI.”
B
Before this court, the parties and the American Civil
Liberties Union (ACLU), as amicus curiae, dispute whether
14 State v. Hickman/Hickman
Meltebeke applies in the context of this case.5 Defendants
urge that, in keeping with stare decisis and to maintain sta-
bility in our free exercise jurisprudence, we should conclude
that Meltebeke’s knowledge requirement applies in the con-
text of this case. They further assert that we should reject
the Court of Appeals’ distinction, in Beagley, between civil
sanctions and criminal prosecutions. If anything, defen-
dants contend, the constitution should provide at least the
same, if not greater, protection when a person faces criminal
penalties for engaging in religiously motivated conduct that
produces an unlawful result.
Both the state and amicus argue that Meltebeke’s
holding rests on a faulty reading of Smith v. Employment
Division, 301 Or 209, 721 P2d 445 (1986),6 and accord-
ingly, Meltebeke’s rule should be cast into doubt. But even
if Meltebeke withstands close scrutiny, both the state and
amicus agree that Meltebeke should be limited to its facts.
They urge this court to decline to extend its holding to the
context of this case.
After urging that Meltebeke should not control the
outcome of this case, the state and amicus turn to the text,
context, and history of Article I, sections 2 and 3, for guidance
on how to approach the analysis in this context. Drawing
from the dictate in Article I, section 2, that “[a]ll men shall
be secure in the Natural right, to worship Almighty God
according to the dictates of their own consciences,” (empha-
sis added), both the state and amicus argue that the framers
intended the free exercise clauses to protect the individual
right to worship. However, when an individual’s religiously
motivated conduct interferes with another person’s rights or
5
The parties and amicus do, however, agree about one thing: This court
should abandon Meltebeke’s distinction between conduct that constitutes a reli-
gious practice and conduct that is merely religiously motivated. See Meltebeke,
322 Or at 153 n 19 (“Conduct that may be motivated by one’s religious beliefs
is not the same as conduct that constitutes a religious practice.”). That distinc-
tion was dictum in Meltebeke, and this case does not require us to explore it any
further. For purposes of this opinion, we use the terms “conduct” and “practice”
synonymously, and no legal significance attends to our use of one term instead of
the other.
6
Vacated by 485 U.S. 660, 100 S. Ct. 1444, 99 L. Ed. 2d 753 (1988); federal
grounds adhered to in 307 Or 68, 763 P2d 146 (1988); overruled on federal grounds
by 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).
Cite as 358 Or 1 (2015) 15
interests (such as the health and well-being of a dependent
child), the state and amicus urge that the individual’s pro-
tected free exercise interests end.
Finally, the state argues that, even if this court
were to conclude that Article I, sections 2 and 3, protect reli-
gious conduct that affects third parties, a law that is neutral
toward religion and religious practices on its face and in its
policies passes constitutional muster. That is so, according
to the state, because the framers of the constitution, while
concerned with protecting religious freedom, were also con-
cerned with ensuring that the government remains neu-
tral toward religion. To require the state—when a criminal
defendant asserts that his or her acts were motivated by
religion—to prove a higher mental state than that prescribed
by the statute defining the crime would, in the state’s view,
amount to the state showing a preference for religion over
nonreligion. That result would be antithetical to the framers’
intent, according to the state. Thus, the state urges that this
court should decline to apply a knowledge standard to the
context of this case.
III
Having set out the arguments presented to us for
consideration, we turn to our analysis of the applicable law.
As we most recently described in State v. Brumwell, 350 Or
93, 108, 249 P3d 965 (2011), when analyzing freedom of reli-
gion claims under Article I, sections 2 and 3,7 this court has
distinguished between applying rules that expressly target
religion, on the one hand, and applying generally applica-
ble and neutral rules to religiously motivated conduct, on
the other hand. With regard to rules that specifically target
religion, we apply “exacting” scrutiny to ensure that they
comport with the commands of Article I, sections 2 and 3.
See Brumwell, 350 Or at 108 (citing Cooper v. Eugene Sch.
Dist. No. 4J, 301 Or 358, 369, 372, 723 P2d 298 (1986)). With
regard to rules that are generally applicable and neutral
7
Article I, section 2, of the Oregon Constitution provides: “All men shall be
secure in the Natural right, to worship Almighty God according to the dictates
of their own consciences.” Article I, section 3, provides: “No law shall in any case
whatever control the free exercise, and enjoyment of religeious [sic] opinions, or
interfere with the rights of conscience.”
16 State v. Hickman/Hickman
toward religion, however, the only issues for us to consider
are whether there was “statutory authority to make such
a regulation,” or whether we should grant “an individual
claim to exemption on religious grounds.” Cooper, 301 Or at
368-69.
A
The threshold question, then, is whether the laws at
issue in this case specifically target religion, or are neutral
and generally applicable. The law defining second-degree
manslaughter—the crime with which defendants in this
case were charged—provides:
“(1)  Criminal homicide constitutes manslaughter in
the second degree when:
“* * * * *
“(c)  A person, with criminal negligence, causes the
death of a child under 14 years of age or a dependent per-
son, as defined in ORS 163.205, and:
“* * * * *
“(B)  The person causes the death by neglect or mal-
treatment, as defined in ORS 163.115.”
ORS 163.125. “Criminal negligence,” in turn,
“means that a person fails to be aware of a substantial
and unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and
degree that the failure to be aware of it constitutes a gross
deviation from the standard of care that a reasonable per-
son would observe in the situation.”
ORS 161.085. Finally, “neglect or maltreatment” means “a
failure to provide adequate food, clothing, shelter or medi-
cal care that is likely to endanger the health or welfare of
a child under 14 years of age or a dependent person.” ORS
163.115(6)(b) (emphasis added).
On their face, those statutes neither discriminate
against nor target religion or a particular religious sect.
Rather, the crime of second-degree manslaughter by neglect
or maltreatment applies on equal terms and with equal force
to any parent or guardian who fails to be aware of a substan-
tial and unjustifiable risk that withholding basic necessities
Cite as 358 Or 1 (2015) 17
from a child will result in that child’s death. Further, the
statutes make no mention of religion or religious motiva-
tions. Accordingly, we readily conclude—and defendants do
not argue otherwise—that the statutes at issue are gener-
ally applicable and neutral on their face.
Defendants have, however, shown that, even though
the statutes are generally applicable and neutral, they do
burden defendants’ free exercise of religion. For defendants,
to seek advice and treatment from a medical doctor means
that they have failed to have faith. They take literally the
Bible’s prescription to “pray for one another, and then you
will be healed.” James 5: 16. However, “neglect or maltreat-
ment,” as used in the statute defining second-degree man-
slaughter, includes a “failure to provide adequate * * * med-
ical care.” ORS 163.115. Defendants are thus faced with a
profound dilemma: Rely on prayer to heal their seriously ill
child, in keeping with the tenets of their faith, and poten-
tially face criminal sanction; or take their sick child to the
doctor in compliance with Oregon’s criminal laws, and con-
travene their religious upbringing and faith.
Yet, defendants do not now argue—and as we dis-
cussed above, never have argued—that, because their con-
duct was religiously motivated, they are fully exempt from
prosecution under the second-degree manslaughter statute.
Instead, defendants have argued, from trial and consis-
tently since, that the second-degree manslaughter statute
should apply to them differently because their conduct was
religiously motivated. That is, they have consistently main-
tained that, according to this court’s decision in Meltebeke,
the state should be held to the higher burden of proving
that they “knew” that David would die if they relied on faith
healing alone and failed to seek medical treatment for him.
B
The issue before us, then, is not whether and under
what circumstances religiously motivated conduct is entitled
to an exemption from a generally applicable and neutral law.
Nor is the issue before us the more specific one of whether
the defendants in this case are entitled to an exemption
from prosecution for second-degree manslaughter. The issue
18 State v. Hickman/Hickman
instead is more narrow: Did the state have to prove—and
the jury have to find—that defendants acted with knowledge
of the result of their conduct? We turn, then, to Meltebeke to
consider whether that case stands for the proposition that
defendants would have it stand for—viz., to impose sanc-
tions on religiously motivated conduct, the state must prove
the culpable mental state of “knowledge,” even if a lesser cul-
pable mental state is prescribed by the generally applicable
and neutral law that applies to the case.
In Meltebeke, an employee filed a complaint with
the Bureau of Labor and Industries (BOLI), claiming that
his employer had unlawfully discriminated against him on
the basis of religion. Meltebeke, 322 Or at 136. He alleged
that, for the few weeks that he worked for his employer, the
employer had persistently proselytized him. Id. at 134-36.
He also alleged that, although his employer’s proselytizing
severely upset him and negatively affected his work perfor-
mance, he did not feel free to complain to his employer or
ask him to cease discussing religious topics, out of fear that
it would jeopardize his employment. Id. at 136. BOLI deter-
mined that the employer had violated BOLI’s administra-
tive rule, which provided:
“Harassment on the basis of religion is a violation of
ORS 659.030.[8] Unwelcome religious advances and other
verbal or physical conduct of a religious nature constitute
religious harassment when:
“* * * * *
“(3)  such conduct has the purpose or effect of unrea-
sonably interfering with the subject’s work performance
or creating an intimidating, hostile or offensive working
environment.”
Id. at 139 (citing In the Matter of Sapp’s Realty, Inc., 4 BOLI
232, 273 (1985)). In its written order, BOLI clarified that,
when determining whether an employer had created an
8
Former ORS 659.030(1) (1995), renumbered as ORS 659A.030 (2011), provided:
“[I]t is an unlawful employment practice:
“* * * * *
“(b)  For an employer, because of an individual’s * * * religion * * * to dis-
criminate against such individual in compensation or in terms, conditions or
privileges of employment.”
Cite as 358 Or 1 (2015) 19
“intimidating, hostile or offensive working environment,” it
would evaluate the employer’s conduct from a “reasonable”
employee’s perspective—that is, BOLI would assess whether
a reasonable employee would feel harassed by the employer’s
conduct. In the Matter of James Meltebeke, 10 BOLI 102, 115
(1992). Under that reasonable person standard, BOLI con-
cluded that the employer’s “religious conduct was sufficiently
pervasive to alter the conditions of the employee’s working
environment and had the effect of creating an intimidating
and offensive working environment.” Id. at 116.
The employer unsuccessfully appealed BOLI’s final
order to the Court of Appeals, arguing that BOLI’s rule
implementing former ORS 659.030 (1995), on its face, vio-
lated Article I, sections 2 and 3, of the Oregon Constitution.
See Meltebeke, 322 Or at 137-38 (describing procedural his-
tory). Alternatively, the employer argued that BOLI’s rule,
as applied to him, violated those constitutional provisions.
Id. The employer renewed those arguments on review to this
court. Id. at 138. In analyzing the employer’s claim, this court
first determined that BOLI’s rule was part of a scheme that
generally regulated employment discrimination and was
facially nondiscriminatory because “it applie[d] equally to
all employers and thereby [did] not choose among religions or
beliefs.” Id. at 148. This court then turned to the employer’s
as-applied challenge. It noted that BOLI had, at least implic-
itly, found that the employer’s conduct—proselytizing—
constituted a “religious practice.” Id. at 151. Further, BOLI
had found as a factual matter that the “[e]mployer had no
knowledge that his religious practice created an intimi-
dating, hostile, or offensive working environment.” Id. The
question for the court, then, was whether, in those circum-
stances, the employer was entitled to a defense based on
Article I, sections 2 and 3. Id.
The court answered that question in the affirma-
tive. It cited Smith, which it read to create—implicitly, if
not explicitly—a new constitutional rule: “A person against
whom a sanction is to be imposed for conduct that constitutes
a religious practice must know that the conduct causes an
effect forbidden by law.” Meltebeke, 322 Or at 151 (emphasis
in original). In other words, Meltebeke understood Smith as
20 State v. Hickman/Hickman
at least implicitly importing a constitutional free exercise-
based requirement that, to be held accountable for one’s
religiously motivated conduct, one must actually know that
his or her conduct violated some rule or law. Id. at 151-52.
Because BOLI had found that the employer in Meltebeke
did not actually know that he was creating a hostile work
environment, the court held that he could not be held liable
for employment discrimination under former ORS 659.030
(1995). Id. at 153. In effect, this court in Meltebeke concluded
that the employer was not entitled to an absolute defense
based on his religious practice, but was entitled to a quali-
fied defense that required an employee complaining of reli-
gious harassment to show that the employer had acted with
a heightened mental state (knowledge) that the statute did
not require.
At the outset, the state and amicus urge us to con-
clude that Meltebeke does not control the outcome of this case.
Amicus, for its part, argues that this court in Meltebeke did
not purport to announce a broadly applicable constitutional
rule, but instead, announced a rule that was limited to the
factual circumstances before it. The state raises a similar
argument, and adds that Meltebeke can further be distin-
guished because the court, in that case, was faced with an
as-applied challenge to a civil administrative rule and, just
as the Court of Appeals concluded in Beagley, this court
said nothing in Meltebeke to suggest that its holding was
intended to apply to criminal prosecutions.
We find those arguments difficult to square with
this court’s broad pronouncement in Meltebeke that “[a] per-
son against whom a sanction is to be imposed for conduct
that constitutes a religious practice must know that the con-
duct causes an effect forbidden by law.” Meltebeke, 322 Or at
151 (emphasis in original). For one thing, that rule speaks
of “a sanction,” not “a civil sanction.” More importantly,
though, this court in Meltebeke stated that the knowledge
rule derived from our decision in Smith. At issue in Smith
was the constitutionality of an unemployment compensation
statute as applied to a discharged worker—a statute that
did not impose a “sanction” at all, but instead withheld a
government benefit from the unemployed worker. See ORS
657.176 (disqualification from unemployment compensation).
Cite as 358 Or 1 (2015) 21
Meltebeke itself does not suggest that its holding is limited
to the facts before it. And given that Meltebeke drew from
a perceived holding in Smith—a case involving a benefit
denial—and applied the same rule to a case involving a
civil sanction, there is no reason to conclude that Meltebeke’s
holding is limited to cases that, like Meltebeke, involve civil
sanctions. In other words, there is no basis to conclude that
Meltebeke’s holding does not extend as well to this context,
i.e., a case involving a criminal sanction.
The question that remains, then, is whether Meltebeke
was correctly resolved in the first instance. In addressing
that question, we acknowledge that stare decisis cautions
us against overruling precedent. See Farmers Ins. Co. v.
Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (“We will not
depart from established precedent simply because the ‘per-
sonal policy preference[s]’ of the members of the court may
differ from those of our predecessors who decided the earlier
case.” (Citing G.L. v. Kaiser Foundation Hospitals, Inc., 306
Or 54, 59, 757 P2d 1347 (1988).)). Still, stare decisis does
not shield our decisions from later scrutiny, especially when
we are dealing with matters of constitutional significance.
See Mowry, 350 Or at 694 (“[T]here is a[n] * * * important
need to be able to correct past errors because this court is
the body with the ultimate responsibility for construing
our constitution, and if we err, no other reviewing body can
remedy that error.” (Internal citations and alteration marks
omitted.)).
Indeed, in Couey v. Atkins, 357 Or 460, 485-86, 355
P3d 866 (2015), we recently summarized three “categories”
of errors that would warrant our reconsideration of constitu-
tional decisions: (1) rulings that amount to dicta; (2) rulings
that are “clearly incorrect” because they have no grounding
in the constitutional provision’s text or context; and (3) rul-
ings that cannot be reconciled with this court’s other cases.
In this case, the state has advanced an argument that falls
into the second category of errors that we discussed in
Couey. That is, the state has argued that Meltebeke should
not control the outcome of this case because the “knowl-
edge” requirement adopted in Meltebeke derives from the
court’s faulty interpretation of Smith, and not from the text
of Article I, sections 2 and 3, itself. We agree. Smith, as we
22 State v. Hickman/Hickman
will explain, did not hold—certainly not explicitly, but not
implicitly either—that whether the government may impose
a sanction for conduct that constitutes a religious practice
depends on a showing that the person sanctioned knew that
the conduct would cause an effect forbidden by law.
Smith arose because an employee (Smith) was fired
from his position as an alcohol abuse counselor when his
employer learned that he had ingested peyote after hours
as part of a Native American religious ceremony. Smith, 301
Or at 212. Because Smith’s employer provided alcohol and
drug abuse counseling services, it had a strict anti-drug pol-
icy, of which Smith was aware. Id. at 211-12. After he was
fired, Smith filed a claim with the Employment Division to
receive unemployment compensation. Id. at 212. The divi-
sion denied his claim based on its administrative rule that
disqualified a claimant from receiving unemployment com-
pensation if the claimant was discharged because the claim-
ant had “willful[ly] violat[ed] * * * the standards of behavior
which an employer has the right to expect of an employee.”
Id. at 215 (quoting OAR 471-30-038(3)). And because Smith
knew that his employer enforced a strict anti-drug policy,
the division concluded that he had “willfully violated” that
standard of behavior. Id. at 212.
Smith appealed, arguing that the division’s denial
of his claim violated his free exercise rights under Article I,
sections 2 and 3, of the Oregon Constitution, because he had
ingested peyote as part of a religious ceremony. Id. This court
determined that the division’s rule was generally applicable
and neutral, because it applied to any person who had been
fired for misconduct, regardless of the person’s motivation
for engaging in that misconduct. Id. at 214-15. The division’s
rule, therefore, did not specifically target religion or religious
exercise. Id. at 215. This court then reasoned that Smith
had not shown that the division’s administrative rule had
burdened his free exercise of religion; instead, Smith had
shown that his employer’s policy of firing any employee who
used drugs—no matter the employee’s motivation for doing
so—had burdened his free exercise of religion. Id. at 216.
The court then concluded: “[I]t was not the government that
disqualified [Smith] from his job for ingesting peyote. And
the rule denying unemployment benefits to one who loses his
Cite as 358 Or 1 (2015) 23
job for what an employer permissibly considers misconduct,
conduct incompatible with doing the job, is itself a neutral
rule.” Id. This court thus concluded that the division’s rule
comported with Article I, sections 2 and 3. Id.
This court’s decision in Smith, then, did not turn on
whether Smith knew that he was violating his employer’s
anti-drug policy; rather, Smith’s “knowledge” was relevant
only to whether he had engaged in misconduct that dis-
qualified him from benefits under the statutory unemploy-
ment compensation scheme. The court mentioned Smith’s
knowledge in passing—as the factual predicate for Smith’s
administrative disqualification. That disqualification then
set up the constitutional issue of whether Smith was never-
theless entitled to benefits because his peyote use was inte-
gral to his practice of his religion. The court’s conclusion
that Smith was not entitled to those benefits turned on the
generally applicable and neutral nature of the administra-
tive rule. Smith’s knowledge of his employer’s policy had
no bearing on the constitutional analysis. When this court
later, in Meltebeke, said that Smith attributed constitutional
significance to Smith’s knowledge of his employer’s policy,
Meltebeke, 322 Or at 151, the court in Meltebeke simply got
Smith wrong.
Significantly, Meltebeke offered no rationale of its
own for imposing a “knowledge” requirement—that is, a
requirement that, to impose a sanction for a religious prac-
tice that violates the law, the person to be sanctioned must
first know that the conduct causes an effect that is unlaw-
ful. Nor have defendants in this case advanced any argu-
ment about why requiring proof of knowledge rather than
criminal negligence in this case would have any ground-
ing in the free exercise principle they invoke. Said another
way, defendants have not explained why knowledge is con-
stitutionally relevant to their free exercise claim. Nor is
its relevance apparent. When pressed on the issue at oral
argument, defendants’ counsel responded that a knowledge
requirement would better protect sincere religious beliefs
than a criminal negligence standard because, with crimi-
nal negligence, the jury must evaluate a defendant’s conduct
from the perspective of a “reasonable person.” In the context
of these charges, counsel asserted, the jury necessarily had
24 State v. Hickman/Hickman
to evaluate whether defendants’ religious conduct—faith
healing—was a “reasonable” practice. In counsel’s view,
asking whether defendants knew that David would die as
a result of their conduct would avoid giving the jury discre-
tion to evaluate the reasonableness of defendants’ religious
practice.
That argument, however, rests on a faulty premise.
The criminal negligence standard, applied in the context of
this case, directed the jury to determine whether the defen-
dants “fail[ed] to be aware of a substantial and unjustifi-
able risk” that David would die if they failed to seek medical
treatment for him. See ORS 161.085 (defining criminal negli-
gence). Further, the risk must have been “of such nature and
degree that the failure to be aware of it constitute[d] a gross
deviation from the standard of care that a reasonable per-
son would [have] observe[d] in the situation.” Id. (emphasis
added). So framed, the inquiry was not whether defendants’
religiously motivated conduct was reasonable; instead, the
inquiry was whether a reasonable person would have been
aware of the risk of David’s death. Counsel’s concern that
the criminal negligence standard under the statute requires
the jury impermissibly to make a value judgment on defen-
dants’ religious beliefs or practices is unfounded. Nor are
we able to see how requiring a mental state of knowledge
instead of criminal negligence in this context advances the
constitutional principle that defendants invoke.
Consequently, we disavow our holding in Meltebeke
to the extent that it relied on Smith. Smith provided no
authority to require knowledge on the part of the employer
in Meltebeke that his religiously motivated conduct had a
harassing effect on his employee before the employer could,
consistently with free exercise principles, be civilly sanc-
tioned for that harassment. And Meltebeke itself provided no
rationale for the rule it announced apart from its reliance on
Smith. We have no occasion in this case to decide whether or
under what circumstances the religious nature of a person’s
conduct may provide either an absolute or a qualified defense
to a civil or criminal law that, on generally applicable and
neutral terms, forbids the conduct or the effect of the con-
duct. Nor do we have occasion to decide whether Meltebeke,
although incorrectly reasoned, might have reached the same
Cite as 358 Or 1 (2015) 25
or a similar result (limiting BOLI’s authority to impose a
sanction) on some different rationale. In this case, the only
issue before us is whether, under Meltebeke, the state was
required by free exercise principles to prove that defendants
acted or failed to act with a knowing, rather than criminally
negligent, mental state. We hold that it was not.
IV
As we stated in Brumwell and reiterate in this case,
parties who present an as-applied challenge to a generally
applicable and neutral law must make “an individual claim to
exemption [from that law] on religious grounds.” Brumwell,
350 Or at 108 (citing Cooper, 301 Or at 368-69). Defendants
have not requested a religious exemption from the second-
degree manslaughter statute. Instead, they have—from pre-
trial and consistently since—argued that, under Meltebeke,
the state bears the burden of proving a culpable mental state
higher than that required by ORS 163.125. This case does
not present—and accordingly we decline to consider—the
broader question of when a generally applicable and neutral
law must yield to an individual’s claim for exemption on reli-
gious grounds. We conclude that the trial court did not err
in refusing to give defendants’ requested jury instruction.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.