Metropolitan News-Enterprise


 Wednesday, September 21, 2005


Page 1


C.A. Rejects Religious Objection to Photos on Drivers’ Licenses


By KENNETH OFGANG, Staff Writer/Appellate Courts


The requirement that a photograph appear on a driver’s license does not violate the constitutional rights of a person whose religious beliefs prohibit being photographed, the Court of Appeal for this district ruled yesterday.

Affirming Los Angeles Superior Court Judge David Yaffe’s denial of a writ of mandate sought by a member of the Molokan faith, Div. Five said the governmental interests protected by the requirement outweigh any burden on petitioner Jack Peter Valov’s rights.

Orthodox Molokans, Valov asserted, believe that being photographed is contrary to the Biblical injunction against “graven images.” The Molokan faith, which reportedly has about 20,000 adherents, about 5,000 of them in the United States, dates back to a 17th Century split in the Russian Orthodox Church.

Prior to 2003, Valov was one of a number of Californians whom the Department of Motor Vehicles granted religious exemption from the photograph requirement. A DMV spokesperson said yesterday the department did not keep records on the number of such exemptions that were granted, but that it was “not a large number.”

When Valov attempted to renew his license, he was told that the department would no longer grant exemptions because of public safety and identity theft concerns, leading to his mandate petition.

Book of Exodus

The DMV did not contest that Valov’s objection to being photographed was based on a his religious beliefs, which include a literal interpretation of Exodus 20:4:

“Thou shalt not make unto thee any graven images or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.” 

Valov received his original California license in 1944, 15 years before the Legislature mandated photographs appearing on licenses. In 1964, a Los Angeles Superior Court judge ruled that another member of the Molokan faith was entitled to a religious exemption from the requirement.

While the ruling applied only to the petitioner in that case, the DMV decided to apply it to others with the same religious beliefs, before reversing that decision prior to Valov’s 2003 renewal attempt. Joe M. Barrett, a DMV official who formerly commanded the Northern California Division of the California Highway Patrol, in a declaration submitted in opposition to Valov’s petition, explained that law enforcement now uses photographic images as a biometric identifier.

“At the present time, the photograph is the most reliable, accurate, and timely means of identification,” the official explained, for officers in the field. The lack of a license bearing a photograph, Barrett declared, delays identification and places officers and motorists at increased risk.

The photograph requirement is also used to fight terrorism, fraud and identity theft, he continued, which is why photographs are compared whenever an application for a duplicate license or identification card is made. Licenses bearing photographs, Barrett added, are the primary means used by check cashing and vehicle rental businesses to verify identity.

Claims Rejected

Justice Sandy Kriegler, writing for the Court of Appeal, said Valov’s constitutional claims fail under both the state and federal constitutions.

He cited last year’s ruling in Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527. The case held that a state law requiring certain health insurance and disability plans that provide coverage for prescription drugs to pay for contraceptives does not violate the First Amendment rights of employers who provide employee health coverage but are religiously opposed to contraception.

The photo requirement, like the contraceptive coverage statute, imposes a religiously neutral, generally applicable requirement.

“There can be no serious dispute that mandating the inclusion of a licensee’s identifying photograph is a rational means of achieving the legitimate governmental purposes of promoting highway safety, discouraging fraud, and deterring identity theft,” the justice wrote, rejecting Valov’s claim of a “religious gerrymander.”

Kriegler distinguished Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, in which the court struck down an ordinance dealing with animal slaughter,  which was challenged by members of the Santeria religion, which practices animal sacrifice. Noting that the ordinance exempted kosher slaughter and excluded other forms of animal killing, the high court found that the city had specifically targeted Santeria, even while disclaiming any such intent.

That was not the case with the license photo requirement, Kriegler said.

“Nothing in this record supports the inference of a covert targeting of Valov’s religious practices,” the justice wrote. “Unlike the ordinances in Lukumi, the Vehicle Code provides no exemptions to the photograph requirement.  Thus, Valov cannot show that persons advancing nonreligious reasons (or religious reasons different from Valov’s) receive an exemption.”

The jurist noted that claims similar to Valov’s have been rejected by the highest courts of Colorado and South Dakota, and by the Maryland attorney general.

“While we are aware of some pre-9/11 decisions in other jurisdictions that found free exercise violations based on religious objections to driver’s license photographs, we find them unpersuasive,” the justice wrote.

Those courts, including the Indiana Supreme Court and the Eighth U.S. Circuit Court of Appeals, “had no occasion to assess whether contemporary counter-terrorism concerns justify the refusal to accommodate religious objections to identifying photographs,” the justice wrote.

Attorneys on appeal were Paul Orloff for Valov and Deputy Attorneys General Elizabeth Hong and Brian D. Vaughan for the DMV.

The case is Valov v. Department of Motor Vehicles, 05 S.O.S. 4362.


Copyright 2005, Metropolitan News Company