PUBLISHED OPINION
Case No.: 94-0159
†Petition for
Review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,†
v.
EMANUEL D. MILLER, ENOS S.
HERSHBERGER, DAVID E. YODER,
ELI M. ZOOK, ELI E.
SWARTZENTRUBER, ELI J. ZOOK,
LEVI E. YODER, AND JACOB J. D.
HERSHBERGER,
Defendants-Appellants.
Submitted
on Briefs: June 13, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: August 3, 1995
Opinion
Filed: August
3, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Clark
(If
"Special" JUDGE: Michael
W. Brennan
so
indicate)
JUDGES: Eich, C.J., Dykman and Sundby, JJ.
Concurred:
Dissented: Sundby,
J.
Appellant
ATTORNEYSFor the defendants-appellants the
cause was submitted on the brief of Kristina E. Williamson of Williamson
& Taylor of Roseville, Minnesota, Philip G. Villaume and Kyle
D. White of Philip G. Villaume & Associates of Bloomington,
Minnesota and Kenneth D. Nelson of Apple Valley, Minnesota.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the briefs of Richard R. Lewis, assistant
district attorney of Neillsville, and James E. Doyle, attorney
general and Maureen McGlynn Flanagan, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED August
3, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0159
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
EMANUEL
D. MILLER, ENOS S.
HERSHBERGER,
DAVID E. YODER,
ELI M.
ZOOK, ELI E.
SWARTZENTRUBER,
ELI J. ZOOK,
LEVI
E. YODER, AND JACOB J. D.
HERSHBERGER,
Defendants-Appellants.
APPEAL
from an order of the circuit court for Clark County: MICHAEL W.
BRENNAN, Judge. Reversed and cause
remanded with directions.
Before
Eich, C.J., Dykman and Sundby, JJ.
DYKMAN,
J. Emanuel D. Miller, Enos S.
Hershberger, David E. Yoder, Eli M. Zook, Eli E. Swartzentruber, Eli J. Zook,
Levi E. Yoder and Jacob J.D. Hershberger (hereinafter "appellants")
are members of the Old Order Amish faith.
They appeal from an order directing them to pay a forfeiture for their
failure to display a red and orange triangular slow-moving vehicle (SMV) emblem
on their horse-drawn buggies as required by § 347.245, Stats.[1] Appellants argue that the SMV statute
violates their rights to free exercise of religion guaranteed by the First
Amendment to the United States Constitution[2]
and Article I, § 18 of the Wisconsin Constitution[3]
because the State has not demonstrated that requiring a SMV emblem is the least
restrictive alternative that might be used to further its interest in traffic
safety. We agree and therefore reverse.
BACKGROUND
Appellants
were issued citations for driving their horse-drawn buggies on public roads
without displaying a SMV emblem.
Horse-drawn buggy transportation is an important part of Amish life. The Ordnung[4]
of the local Amish church district prohibits the use of the SMV emblem and
directs appellants to instead use white reflective tape and a lantern at night
and during inclement weather. The Ordnung also requires appellants to drive on
the shoulder of the highway whenever possible.
Failure to comply with the Ordnung is considered a sin and may result in
shunning or excommunication.
Appellants
object to the SMV emblem on three grounds.
First, they contend that the emblem's fluorescent red and orange colors
are too "loud and bright."
Second, they contend that the emblem is a "worldly symbol"
that prevents them from maintaining their strict adherence to nonconformity and
separateness from the world. Third,
they contend that they are unwilling to put their faith in a human symbol as
opposed to God.
The
trial court determined that the State met its burden of demonstrating that its
interest in traffic safety could not be met by the proposed alternative of
white reflective tape combined with a lantern.
In so doing, the court focused on the State's evidence stressing the
need for universal recognition which the SMV emblem provides. Accordingly, the court rejected appellants'
constitutional claims and enforced the citations against them. This appeal followed.
STANDARD OF REVIEW
Before
reaching the merits of this appeal, we must first determine the appropriate
test for deciding whether the SMV statute, as applied to the appellants,
violates their right to free exercise of religion guaranteed by the Wisconsin
and United States Constitutions. Most
recently, the Wisconsin Supreme Court indicated that Article I, § 18 of the
Wisconsin Constitution is the equivalent of the Establishment and Free Exercise
Clauses of the First Amendment to the United States Constitution. King v. Village of Waunakee,
185 Wis.2d 25, 52, 517 N.W.2d 671, 682 (1994).
Older Wisconsin Supreme Court cases had concluded that Article I,
§ 18 provided a greater degree of protection of religious liberty than the
First Amendment. See, e.g., State ex rel. Reynolds v. Nusbaum,
17 Wis.2d 148, 165, 115 N.W.2d 761, 769-70 (1962). In King, however, the supreme court suggested that
even though the language of both the federal and state constitutions differ,
both serve the same dual purpose of prohibiting the establishment of religion
by the state and protecting a person's free exercise of it. King, 185 Wis.2d at 54-55, 517
N.W.2d at 683-84. Consequently, the
court concluded that it must interpret and apply Article I, § 18 in light of
United States Supreme Court cases interpreting the Establishment Clause in the
First Amendment. Id. While King is an
Establishment Clause and not a Free Exercise Clause case, we do not believe
that it is distinguishable on that basis alone. King suggests that the analysis of a free exercise
of religion claim is the same under federal and state constitutional law. Accordingly, we conclude that King
requires that we construe Article I, § 18 in the same manner as the Free
Exercise Clause of the First Amendment.
Until
1990, the United States Supreme Court subjected laws that burdened the free
exercise of religion to the strictest level of scrutiny under which such laws
had to be narrowly tailored to serve a compelling state interest. See, e.g., Wisconsin v. Yoder,
406 U.S. 205 (1972); and Sherbert v. Verner, 374 U.S. 398
(1963). However, this test was
abandoned in Employment Div., Dep't of Human Resources v. Smith,
494 U.S. 872 (1990), where the Court determined that a law that burdens
religious practices need not be justified by a compelling governmental interest
if it is neutral and of general applicability.
Congress
responded to Smith with the passage of the Religious Freedom
Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to bb-4, which restores the
compelling state interest test set forth in Sherbert and Yoder
for controversies involving laws that substantially burden a person's
religious practices. The purpose of
RFRA is to guarantee the application of the compelling state interest test in
all cases where the free exercise of religion is substantially burdened and to
provide a statutory claim or defense to persons whose religious exercise is
substantially burdened by the government.
42 U.S.C. § 2000bb(b). RFRA
provides in pertinent part:
(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—
(1) is
in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental interest.
42
U.S.C. § 2000bb-1.
The
State argues that RFRA is not applicable to this case for two reasons: (1) appellants failed to plead it
before the trial court and therefore it is not reviewable for the first time
before this court; and (2) RFRA is unconstitutional. We disagree.
First,
by its own terms, RFRA applies to all federal and state laws and the
implementation of those laws whether adopted before or after its enactment. 42 U.S.C. § 2000bb-3(a). By use of the word
"implementation," Congress clearly intended that RFRA apply to all
laws and all acts enforcing those laws which occurred prior to its
enactment. Bessard v. California
Community Colleges, 867 F. Supp. 1454, 1459 (E.D. Cal. 1994); Hunt
v. Hunt, 648 A.2d 843, 850 (Vt. 1994).
As the court noted in Bessard, 867 F. Supp. at 1459,
"[e]very published federal decision to consider the issue holds RFRA
completely retroactive." Thus,
appellants are under no obligation to plead this defense. Consequently, we conclude that the
application of RFRA to the instant case is appropriate and consistent with
congressional intent.
Second,
Congress expressly overruled Smith with the passage of RFRA and
the reestablishment of the compelling state interest test for cases involving
the implication of a person's free exercise of religion rights. Thus, our resolution of this case rests on a
constitutional as well as a statutory basis.
At least two courts deciding this issue have already determined that
RFRA is constitutional pursuant to Congress's enforcement powers under § 5 of
the Fourteenth Amendment to the United States Constitution. See Sasnett v. DOC, 891
F. Supp. 1305, 1315-21 (W.D. Wis. 1995); Belgard v. Hawaii, 883
F. Supp. 510, 512-17 (D. Haw. 1995). But
see Flores v. City of Boerne, 877 F. Supp. 355, 357 (W.D.
Tex. 1995) (finding RFRA unconstitutional because it violates the separation of
powers doctrine). Section 5 of the
Fourteenth Amendment provides that Congress shall have the power to enforce by
appropriate legislation the provisions contained in the Fourteenth
Amendment. This enforcement power has
been extended to earlier Amendments. Belgard,
883 F. Supp. at 515-16. We agree with
the analyses set forth in Belgard and Sasnett and
conclude that RFRA violates no federal constitutional principles. Accordingly, we will apply the compelling
state interest test to the instant case.
SMV
STATUTE
To
determine whether the SMV statute, § 347.245, Stats., is unconstitutional as applied to the appellants, we
must first examine whether the appellants have demonstrated that they have
sincerely held religious beliefs which are burdened by the application of the
SMV statute. The burden then shifts to
the State to demonstrate that the SMV statute furthers a compelling state
interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b).
There
is no question but that the appellants have sincerely held religious beliefs which
are burdened by the SMV statute.
Appellants presented testimony showing that they object to the use of a
symbol and the red and orange colors because a basic tenet of their faith is to
remain separate from the world. The
local Ordnung prohibits appellants from using the SMV emblem and their
compliance with it would be regarded a sin.
Consequently, the SMV statute burdens the appellants.[5]
The
State argues, and appellants agree, that the State has a compelling interest in
traffic safety. A compelling interest
encompasses "only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free exercise of
religion." Yoder,
406 U.S. at 215. In other words,
"[a] compelling interest is not just a general interest in the subject
matter but the need to apply the regulation without exception to attain the
purposes and objectives of the legislation." State v. Yoder, 49 Wis.2d 430, 438, 182 N.W.2d 539,
542 (1971), aff'd sub. nom. Wisconsin v. Yoder, 406 U.S.
205 (1972). The primary purpose of the
SMV statute is to ensure traffic safety which is achieved through uniformity,
regularity, and predictability in the signs designating slow-moving vehicles on
the public roads. Public safety and the
protection of human life is a state interest of the highest order.
The
existence, however, of a compelling state interest does not mean that no
constitutional violation has occurred.
To survive strict scrutiny, the State must also show that the SMV
statute is narrowly tailored. In other
words, the State must show that the SMV statute is the least restrictive
alternative. Upon our review of the
evidence, we are convinced that the State has not met this burden.
Two
experts testified on behalf of the State as to the importance of uniformity for
traffic safety. They stressed that
drivers recognize red and orange colors as signifying stopping or warning and
that the triangular shape is significant for color blind persons. The experts explained that the same shape
and colors are used throughout the United States and that no other sign has the
same shape or colors in Wisconsin. The
experts stated that drivers must not only be able to see a vehicle, but must be
able to immediately recognize that vehicle as slow moving. The SMV emblem achieves this goal because it
is universally recognizable. The
experts testified that appellants' alternative would be helpful for viewing the
vehicle, and while white reflective tape is superior to red for identification,
the tape would not warn drivers that the vehicle is slow moving. The State, however, failed to offer evidence
comparing the effectiveness of the SMV emblem with the alternative proposed by
the appellants. In fact, one expert
testified that he had not completed this type of testing.
Additionally,
four Clark County residents testified that they had almost hit horse-drawn
buggies. However, none of the buggies
involved in the near-misses were using the appellants' alternative.
Appellants'
expert, Jack Anderson, testified that not all drivers understand that the SMV
emblem denotes a slow-moving vehicle and noted that the triangular shape is
also used as a warning for stalled trucks.
He also explained that white reflects light four to five times more than
red and that the brighter an object is, the easier it is to see. He opined that a buggy using white
reflective tape is "a lot safer" than one using the SMV emblem
"because it can be seen earlier, more easily, and [in] different conditions." Thus, he concluded that the appellants'
alternative met the State's safety concerns.
In
State v. Hershberger, 462 N.W.2d 393, 397-99 (Minn. 1990) (Hershberger
II), the court determined that the Minnesota SMV statute, as applied to
the Amish, violated the Minnesota Constitution. The court applied the compelling state interest test and
concluded that the State failed to meet its burden of showing that its interest
in public safety could not be achieved through the Amish alternative of using
white reflective tape with a red lantern.
Id. at 399.
Indeed, the proof offered by the State in that case was virtually
identical to that in our case. While
experts testified that the SMV emblem was almost universally recognized as
designating a slow-moving vehicle and county residents testified about their
near-miss incidents involving Amish buggies, id. at 395 (citing State
v. Hershberger, 444 N.W.2d 282, 288 (Minn. 1989) (Hershberger I),
vacated, 495 U.S. 901 (1990)),
the State, however, failed to present evidence of accident incidence
involving vehicles displaying the SMV emblem as contrasted with those not
displaying it. Id. at
399. Thus, the court concluded that the
State failed to meet its burden of proof.
Id.
Similarly,
in People v. Swartzentruber, 429 N.W.2d 225, 228-29 (Mich. Ct.
App. 1988), the court also determined, using the compelling state interest
test, that the Michigan SMV statute, as applied to the Amish, violated their
free exercise of religion rights because the State failed to demonstrate that
the use of the SMV emblem resulted in fewer accidents as compared with those
buggies not displaying it. In that
case, the State also failed to present evidence demonstrating that the white
reflective tape and red lantern alternative was any less safe than the SMV
emblem. Id.
Like
Hershberger II and Swartzentruber, we conclude that
the State has not met its burden in this case by its failure to present
evidence comparing the incidence of accidents involving buggies using the SMV
emblem with those which do not.
Notwithstanding the State's interest in uniformity, appellants have
proffered evidence demonstrating that their alternative is one that is accepted
in other jurisdictions as a means of warning other drivers that appellants are
driving a slow-moving vehicle.
Uniformity is important to traffic safety, nevertheless, uniformity
should not infringe upon an individual's religious rights when the State's
interests may be met by another means.
Absent evidence regarding accident incidence, we will not accept the
State's contention that the SMV emblem is the only means of avoiding buggy
accidents. The main purpose of the SMV
emblem is to prevent accidents by aiding other drivers in identifying that
another vehicle is present. The
appellants' alternative has the same effect.
When fundamental constitutional rights are implicated, the State's rules
must be narrowly tailored to the interest it seeks to further. In this case, the State has not demonstrated
that the SMV emblem is the least restrictive means of furthering its interest
in traffic safety. Accordingly, we
reverse the trial court's order and remand with instructions that the citations
be dismissed.
By the Court.—Order reversed and cause remanded with directions.
No. 94-0159(D)
SUNDBY,
J. (dissenting). I do not accept that
Congress may compel the United States Supreme Court to interpret the Free
Exercise Clause of the First Amendment as Congress believes it should be
interpreted. Therefore, I conclude that
the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to
2000bb-4, is no more than a federal statute.
I believe we remain bound by the interpretation of the Free Exercise
Clause announced by the Supreme Court in Employment Div., Dep't of Human
Resources v. Smith, 494 U.S.
872 (1990). I therefore dissent.
Prior
to Smith, the Supreme Court appeared to require a special showing
when a law of general applicability interfered with the free exercise of an
individual's religion. David M. Smolin,
The Free Exercise Clause, the Religious Freedom Restoration Act, and the
Right to Active and Passive Euthanasia, 10
Issues in Law & Medicine 3, 18 (1994-95). Thus, a law of general applicability governed all citizens,
regardless of their religion, subject to certain exceptions. Id. To determine whether an exception was required, the Court applied
a three-part test. Id. First, the Court would determine whether the
individual had a sincerely-held religious belief. Id. (citing Thomas v. Review Bd. of Ind.
Employment Sec. Div., 450 U.S. 707, 713-16 (1981); Wisconsin v.
Yoder, 406 U.S. 205, 215-16 (1972)).
Second, the Court determined whether the law of general applicability
substantially "burdened" a sincerely-held religious belief. Id. at 18-19 (citing Thomas,
450 U.S. at 717-18; Yoder, 406 U.S. at 217-20). Finally, if the individual showed the
requisite burden on a sincerely-held religious belief, the government had to
grant him or her an exemption from the law unless the government could show it
had a countervailing "compelling interest." Id. at 19.
The
Supreme Court generally interpreted the compelling interest test as requiring a
balancing of the state's interests with the burden on the individual's free
exercise of religion. 10 Issues in Law & Medicine at
19. Under the compelling interest test,
the Supreme Court ruled against a variety of litigants. Id.
Smith upheld the application of Oregon's criminal statute to
respondents' sacramental use of peyote as members of the Native American
Church. 494 U.S. at 890. The majority refused to apply the compelling
interest test and gave a number of reasons for rejecting the test. The author of the majority opinion, Justice
Scalia, interpreted prior cases as requiring that the compelling interest test
be applied in cases involving "hybrid" rights. 10 Issues
in Law & Medicine at 23 (citing Smith, 494 U.S. at
881-82). Thus, Wisconsin v. Yoder
which involved the Free Exercise Clause and substantive due process
rights of Amish parents was reaffirmed.
This
narrowing of the compelling interest test was greeted with horror by many
academics, religious freedom litigators, and organizations concerned with
religious freedom. 10 Issues in Law & Medicine at
36. Because of the number of
institutions and organizations concerned in cases and debates concerning the Free
Exercise Clause, there was a built-in response to Smith which
resulted in the enactment of RFRA, introduced as S. 3254 and H.R. 5377 in the
101st Congress. Id. Congress stated that the purpose of RFRA was
to restore the compelling interest test as set forth in Sherbert v.
Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder. 42 U.S.C. § 2000bb(b)(1). The "least restrictive means" test[6]
is arguably a more stringent test than has ever been employed by the Supreme
Court. 10 Issues in Law & Medicine at 37. Thus, RFRA may be viewed as not merely restoring the compelling
interest test but creating a new, and more restrictive, test. Professor Smolin suggests that RFRA could be
construed in at least four ways. Id.
at 38-39. He suggests that, "[t]he
strained nature of the claim that the `least restrictive means' test is a mere
restoration creates ambiguity as to the standard of review actually created by
RFRA." Id. at
38. Thus, even if we consider that we
are bound by the interpretation of the Free Exercise Clause imposed by
Congress, we would have to resolve these ambiguities before we can decide this
case.
Several
federal courts and at least one state court have addressed RFRA, sometimes in
"hybrid" cases brought pursuant to 42 U.S.C. § 1983. In Sasnett v. DOC,
891 F. Supp. 1305 (W.D. Wis. 1995), District Judge Crabb ruled that § 5 of the
Fourteenth Amendment gave Congress the power to pass legislation protecting the
free exercise of religion to a greater degree than the Supreme Court is willing
to read into the Free Exercise Clause.
Section 5 provides that "Congress shall have power to enforce,
by appropriate legislation, the provisions of this article." (Emphasis added.) This construction gives the word "enforce" a very
strained reach. Section 1983 is
"appropriate legislation" to enforce the Bill of Rights. However, that statute does not attempt to
force any court to construe a Bill of Right's amendment in a way acceptable to
Congress.
Judge
Crabb also addressed what I believe is the crucial infirmity of RFRA; it
violates the principle of federalism embodied in the Tenth and Eleventh
Amendments. Judge Crabb concluded that
RFRA did not "mandate judicial invasion into any core areas of traditional
state prerogative." Sasnett,
891 F. Supp. at 1320. Judge
Crabb suggested that the states were free under the Act to narrowly tailor
their actions to further a compelling state interest. Id. at 1320-21.
In her view, Congress may impose upon the state courts a construction of
the Bill of Rights' amendments which Congress favors. I do not agree that RFRA or any other act which has this effect
"places only a reasonable burden on state autonomy." Id. at 1321. One need not exhaustively examine the
debates of the constitutional convention to conclude that the rights of the
states against the central government were zealously protected by the framers
of the Constitution and the supporters of a federal Bill of Rights. I suggest that adoption of the Fourteenth
Amendment by the federal Congress would have been strongly opposed by the
states had it been understood that § 5 of that amendment gave to Congress the
power to compel state courts to interpret the Bill of Rights' amendments
according to congressional philosophy.
The
holdings of other courts are mixed. In Belgard
v. Hawaii, 883 F. Supp. 510, 513 (D. Haw. 1995), the court took the
novel approach that in enacting RFRA, Congress did not prescribe a decisional
rule as to the interpretation of a constitutional provision but, rather, sought
to protect free exercise rights to an extent greater than the Supreme Court
required. Perhaps Congress can achieve
such a result by enacting a federal statute, but it cannot require the Supreme
Court to interpret the Free Exercise Clause to be congruent with Congress's
construction of that clause.
In
Hunt v. Hunt, 648 A.2d 843, 850 n.4 (Vt. 1994), the court
expressed no opinion as to the constitutionality of RFRA.
In
Francis v. Keane, 888 F. Supp. 568 (S.D.N.Y. 1995), the court
held that RFRA provides a statutory claim or defense to persons whose
religious exercises are substantially burdened by the government. Id. at 572. The court concluded that the defendant
correctional officials were not entitled to summary judgment on the plaintiff
correctional employees' RFRA statutory claims. Id. at 576.
As to the employees' free exercise claim under the New York state
constitution, the court concluded that the defendants could not succeed, at
summary judgment, whether the court applied a compelling state interest test or
a balancing test. Id. at
579. The court, in a comprehensive
footnote, analyzed the treatment that courts have given to RFRA. The court pointed out that some courts apply
the compelling governmental interest test articulated in RFRA to claims brought
under the First Amendment. Id.
at 572 n.5. Other courts have treated
RFRA as a statutory enactment and not an interpretation of the First
Amendment. See id.
I
conclude that we may give weight to the intent of Congress in RFRA but the Act
is not applicable in our decision-making processes either as a statute or an
interpretation of the Free Exercise Clause.
I would therefore consider that we are bound by the interpretations of
the United States Supreme Court and not RFRA.
[1] Section 347.245(1), Stats., provides in part:
[N]o person may operate on a highway, day or night, any
... animal-drawn vehicle ... that usually travel[s] at speeds less then 25
miles per hour or any vehicle operated under a special restricted operator's
license issued under s. 343.135, unless there is displayed on the most
practicable visible rear area of the vehicle or combination of vehicles, a slow
moving vehicle (SMV) emblem as described in and displayed as provided in sub.
(2).
[2] The First Amendment to the United States
Constitution provides in part, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof ...."
[3] Article I, § 18 of the Wisconsin Constitution
provides:
The right of every
person to worship Almighty God according to the dictates of conscience shall
never be infringed; nor shall any person be compelled to attend, erect or
support any place of worship, or to maintain any ministry, without consent; nor
shall any control of, or interference with, the rights of conscience be
permitted, or any preference be given by law to any religious establishments or
modes of worship; nor shall any money be drawn from the treasury for the
benefit of religious societies, or religious or theological seminaries.
[5] The State questions the sincerity of the
appellants' religious beliefs, pointing to evidence that some members of the
Amish faith use the SMV emblem. The
test, however, is to examine the sincerity of the appellants' beliefs and not
what others in similar religious communities might believe.
(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--
(1) is
in furtherance of a compelling governmental interest; and
(2) is
the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000bb-1 (emphasis added).