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 US 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 US 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.