Religion Versus Government Regulation: A Never Ending Battle
by Stuart Lieberman
Can the government take action that prohibits individuals from practicing their religion? How about zoning or land use decisions that may impact upon religious activity? How about decisions that affect what stores are open on what days, and what can be sold in those stores? The answer is maybe, depending on the kind of action taken by the government. If the government takes action that is designed to prevent people from exercising religious beliefs, that conduct is almost always not allowed. However, if the government attempts to regulate religious conduct, in certain instances such prohibitions are upheld and in other instances the prohibitions are found to be illegal and a violation of the First Amendment of the United States Constitution. This is a problematic legal area. Recently in the case of Black Hawk v. Commonwealth of Pennsylvania, a case decided by the United States Court of Appeals for the Third Circuit sitting in Philadelphia, the Court was asked to consider whether a government regulation requiring persons to hold special permits and pay certain fees in order to keep wild bears withstood constitutional muster. Upon reviewing the ordinances in dispute, the Court found that the law was illegal and that the State could not require a Native American Indian to either pay the fees or obtain special permits. The Defendant, Black Hawk, practiced an ancient Indian ritual that required him to maintain black bears. According to his religious beliefs these bears would energize Black Hawk and provide him with certain powers and abilities. Black Hawk had maintained bears and had been charged certain permit fees by Pennsylvania. While he paid those fees for a number of years, he ultimately refused to pay alleging that he required the bears to conform to his religious beliefs and that the law making him pay for permits was a violation of his right to practice his religion. A Federal Trial Court found that the State could not impose these obligations. This lead to an appeal to the Third Circuit Court of Appeals. That Court explained that in order for these kinds of State laws to be upheld, they must be neutral and generally applicable. A law is neutral if it does not target religiously motivated conduct either on its face or through its application. In this particular case, the Court found that the fee requirement failed the general applicability requirement for two reasons: First, the Court found that the law creates a set of exemptions, so that in some cases, with really little good reason, the fee is waived. Moreover, the Court observed that the prohibitions were suspect because persons who simply pay minimal fees, around $50.00, could maintain exotic animals. Thus, the Court found that the asserted interest in not allowing individuals to harbor wild animals was questionable since after the payment of a minimal fee, the State had no problem allowing individuals to do just that. In addition, the Court found that the State's assertions were also questionable because there is a nationally recognized circus exemption which allows such circuses to maintain these animals. The State asserted that this exemption provided a tangible benefit for Pennsylvania's wildlife. However, the Court found that the State failed to explain how circuses provide tangible benefits for Pennsylvania's wildlife. So the First Amendment right to freedom of religion in many instances will take priority over regulatory controls. The government needs to stay out of regulations that impact upon religion. The closer the government comes to the religious line in the sand, the closer it comes to getting into legal trouble. | 
