Timothy Marc Horen v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
TIMOTHY MARC HOREN
v. Record No. 2835-95-3
COMMONWEALTH OF VIRGINIA OPINION BY
CHIEF JUDGE NORMAN K. MOON
DIANE PATRICIA HOREN JANUARY 14, 1997
v. Record No. 2836-95-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
James J. Knicely (Samuel Swindell; Knicely &
Cotorceanu; Kratman, Pethybridge & Swindell,
on briefs), for appellants.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Timothy Horen and Diane Horen were convicted of possession
of wild bird feathers and parts in violation of Code
1
§ 29.1-521(10). The dispositive question is whether the
application of Code § 29.1-521(10) to prohibit the possession of
lawfully obtained owl feathers for the practice of the Horens'
Native American religion violates their constitutional right to
the free exercise of religion.
1
Code § 29.1-521(10) in relevant part makes it a Class three
misdemeanor for any person to "possess . . . at any time or in any
manner, any wild bird . . . or any part thereof, except as
specifically permitted by law and only by the manner or means and
within the numbers stated." The term "wild birds" is not defined
in the Virginia Code; however, "all species of wild birds" are
included within the definition of "wildlife" in Title 29.1.
We find that Code § 29.1-521(10) is not a religiously
neutral statute, that it substantially burdens the free exercise
of the Horens' religion, and that the Commonwealth failed to
prove that application of it to the Horens advances a compelling
state interest or does so in the least restrictive manner.
Therefore, we hold that under the facts and circumstances of this
case the application of Code § 29.1-521(10) to the Horens
violates their constitutional right to the free exercise of their
religion and their rights under the Religious Freedom Restoration
Act.
On February 10, 1995, responding to an anonymous complaint
that the Horens had hybrid wolf pups and wild bird parts at their
residence, Officer Steve Bullman, a State Game Warden, and
Officer Bill Parker conducted an undercover investigation.
Bullman and Parker, dressed in plain clothes, approached Mrs.
Horen, a Native American medicine woman and member of the
Southeastern Cherokee Confederacy, at her home and pretended to
be interested in purchasing wolf pups. Mrs. Horen explained that
she did not have any pups at present but that she would take the
gentlemen's addresses and phone numbers and contact them when she
did.
Bullman and Parker accompanied Mrs. Horen into her home.
Inside, they observed a variety of Native American objects which
had adorning feathers. The officers also observed two sets of
wings and two sets of bird feet, later identified as owl feet and
wings. Subsequently, these items were seized, and the Horens
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were charged with violations of Code § 29.1-521(10).
The circuit court held a pretrial evidentiary hearing on the
Horens' motions to dismiss the indictments on free exercise and
other constitutional grounds. The Horens produced evidence
regarding the significance of the owl feathers in the practice of
their Native American religion. In addition to the Horens'
testimony, George Branham Whitewolf also testified on the Horens'
behalf. Whitewolf identified himself as a Lakota, or Sioux,
Indian. He testified that he is the spiritual leader for the
Monocan Tribe in Virginia and that he has practiced the Native
American religion for forty-eight years. Whitewolf indicated
that he has been a Native American religion advisor for the
Virginia prison system and was appointed by President Clinton to
serve as a religious advisor to a committee to rewrite the Native
American Religious Freedom Act.
The Horens and Whitewolf testified that feathers and other
bird parts are significant objects in the Native American
religion because they represent the spirit of the bird from which
they come. Mrs. Horen testified that certain essentials of the
Native American religion, such as prayer, cleansing,
purification, consecration and healing practices require feathers
or other bird parts. Whitewolf testified that "Mrs. Horens'
religious beliefs are consistent with the Native American
religion. Different feathers mean different things to different
tribes. For example, I wouldn't touch an owl feather. To me an
owl is a symbol of death, and I wouldn't want anything to do with
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an owl. But in other tribes, the owl is revered. The feathers
are a must for Indians." Mrs. Horen testified that owl feathers
are of special significance to her tribe and that because they
are the feathers of soaring birds, "they carry prayers to the
Creator; as night hunters, they fly noiselessly and see well in
the dark; and as night messengers of death, their feathers are
strong medicine."
Whitewolf also testified that the Horens could not get a
permit to have feathers because the Horens are not members of a
federally recognized tribe. Whitewolf explained that there is a
feather bank in Colorado which is supposed to be the only place
to obtain feathers and that he is one of only one hundred and
twenty people who are not members of federally recognized tribes
that have permits to have feathers. Whitewolf stated that he
acquired his permit before the federal government decided to
limit permits to people who belong to a federally recognized
tribe. 2
Mr. Horen testified that the owl is a bird revered by the
Iroquois from whom the Horens are descended. Mr. Horen also
testified that they do not believe in killing these birds because
this would dishonor the Creator. Mr. Horen explained he believes
that if you find a feather it is a gift from the Creator and
before picking up the feather you must perform a ceremony
indicating your respect. Mr. Horen stated that the feathers and
2
See also United States v. Abeyta, 632 F. Supp. 1301,
1302-04 (D.N.M. 1986).
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owl parts seized from his home were from two dead owls he
discovered along roadsides and that he and his family found some
of the feathers while walking in the woods.
The Horens' motions to dismiss on free exercise, free
speech, equal protection, and due process grounds were denied.
In denying the motions, the trial court stated its belief that
the protection of fowl was a compelling governmental interest and
that the imposition of a Class three misdemeanor for mere
possession was the least restrictive means of accomplishing this
goal. The court also refused to permit the Horens to present
evidence about the religious significance of their possession of
the seized items. The Horens were permitted to put on the record
in restricted form a statement that the items seized had
religious significance. However, they were not allowed to
explain the religious significance of the seized items. The
circuit court also refused to give the Horens' proposed jury
instructions elaborating on federal and state constitutional and
statutory defenses.
Free Exercise
The Free Exercise Clause of the United States Constitution,
Article I, U.S. Const. amend. I, the Constitution of Virginia,
Va. Const., art. I, § 16, and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. § 2000bb(b)(2) (1994), prohibit state
imposition of substantial burdens on the exercise of religion
unless the state advances a compelling government interest which
is furthered in the least restrictive manner.
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In Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990), the United States Supreme
Court found that a religiously neutral law of general application
that substantially burdens the free exercise of religion will
survive free exercise challenge where the law rationally advances
a legitimate state interest. However, where a law that
substantially burdens the free exercise of religion is not
"neutral," the government must prove that the law is necessary to
advance a compelling government interest and does so in the least
restrictive manner. Sherbert v. Verner, 374 U.S. 398 (1963);
Wisconsin v. Yoder, 406 U.S. 205 (1972).
We find that Code § 29.1-521(10) is not a religiously
neutral law. In relevant part, Code § 29.1-521(10) makes it a
class three misdemeanor for any person to "possess . . . at any
time or in any manner, any wild bird . . . or any part thereof,
except as specifically permitted by law and only by the manner or
means and within the numbers stated." (Emphasis added).
Possession of owl feathers is permitted under Virginia law by
taxidermists, academics, researchers, museums, and educational
institutions. See Code §§ 29.1-415 through 29.1-422. Further,
federal law specifically allows for the possession and use of
eagle feathers in the Native American religion. See C.F.R.
§ 22.22 (1984). However, at the time of trial there was no
specific exception for the possession of owl feathers for
religious use under either Code § 29.1-521(10) or under federal
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law. 3 Consequently, while allowing for a variety of legitimate
secular uses of owl feathers, Code § 29.1-521(10) inexplicably
denies an exception for bona fide religious uses and thereby
draws specific subject matter distinctions in regulating the use
of feathers.
Where the state creates a mechanism for legitimate
individualized exceptions but fails to include religious uses
among these legitimate exceptions, discriminatory intent may be
inferred. Ballweg v. Crowder Contracting Co., 247 Va. 205,
212-13, 440 S.E.2d 613, 618 (1993). Failure to make allowance
for bona fide religious uses "tends to exhibit hostility, not
neutrality, towards religion. . . ." Bowen v. Roy, 476 U.S. 693
(1986); Ballweg, 247 Va. at 213, 440 S.E.2d at 618. In Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, the United States
Supreme Court, found that "[t]he Free Exercise Clause ``protect[s]
religious observers against unequal treatment.'" 113 S. Ct.
2217, 2232 (1993). Accordingly, the Court held that because the
city ordinance made exceptions for other religiously and
secularly motivated animal killings, it could not be
characterized as a law of neutral applicability. 113 S. Ct. at
2232. Like the ordinance in Hialeah, Code § 29.1-521(10) makes
3
Federal law did provide for the possession of eagle feathers
for religious purposes. 50 C.F.R. § 22.22 (1984). However,
appellants' expert testified that because appellants' Native
American heritage was from a tribe not federally recognized, he
did not believe they would qualify for even this type of permit.
See 50 C.F.R. § 22.22(a)(3),(5) (1983); 50 Fed. Reg. 39,047
(September 26, 1985); 50 C.F.R. §§ 10.13, 13.12(b) (1985); 50
C.F.R. 21.11-11-21.41 (1989).
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exceptions for some uses while excluding bona fide religious uses
and therefore is not a religiously neutral statute.
Consequently, Code § 29.1-521(10) must be examined under the
"compelling interest" test as set forth in Sherbert. Finding
that Code § 29.1-521(10) is not a religiously neutral statute and
therefore must pass the compelling interest test, we do not reach
the issue of whether this case involves an instance in which the
burdening of the free exercise of religion is coupled with the
burdening of another constitutionally protected right.
Even if we were to find that Code § 29.1-521(10) was a
neutral law of general applicability, application of the
compelling interest test would nonetheless be required under the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb(b)(2)
(1994) (hereinafter "RFRA"). Responding to Smith, Congress
passed the RFRA in 1993. The RFRA was designed to "restore the
compelling state interest test . . . and to guarantee its
application in all cases where free exercise of religion is
substantially burdened." Id. at § (b)(1).
The RFRA provides:
(a) IN GENERAL -- Government shall not
substantially burden a person's exercise of
religion even if the burden results from a
rule of general applicability, except as
provided in subsection (b).
(b) EXCEPTION -- Government may
substantially burden a person's exercise of
religion only if it demonstrates that
application of the burden to the person --
(i)
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