# Witters v. Commission for the Blind

> Washington Supreme Court · April 20, 1989 · 112 Wash. 2d 363

URL: https://www.frixlaw.com/law-library/cases/9597952

## Case

- **Full name:** Larry Witters, Appellant, v. the Commission for the Blind, Respondent
- **Court:** Washington Supreme Court
- **Decided:** April 20, 1989
- **Citations:** 112 Wash. 2d 363; 771 P.2d 1119
- **Precedential status:** Published
- **Opinion:** Dissent by Dolliver
- **Judges:** Andersen, Brachtenbach, Callow, Dolliver, Dore, Durham, Pearson, Smith, Utter
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9597952

## How later opinions describe it (automated extraction)

- rejecting an equal protection challenge where the classification at issue served the Legislature’s interest in complying with constitutional requirements

## Opinion text

Dolliver, J.
(dissenting) — By holding Larry Witters ineligible to receive funds to develop his employment skills merely because he made the personal choice to pursue a religious career, the court denies Witters his religious freedom as protected by the free exercise clause of the United States Constitution and diminishes his rights as a citizen.
*391 In 1979 Larry Witters, who is legally blind, applied for vocational rehabilitation funds from the Washington State Commission for the Blind (Commission). See RCW 74.18-.030; Laws of 1983, ch. 194, § 3, p. 1050. The public assistance code in former RCW 74.16.181 stated the purpose of such funding was to "assist visually handicapped persons to overcome vocational handicaps and to obtain the maximum degree of self-support and self-care." See RCW 74.18.130; Laws of 1983, ch. 194, § 13, p. 1052.
Witters was found medically eligible for the Commission's funds and a hearing examiner held Witters' career goal of being a pastor, missionary, or youth director would, or could, lead to gainful employment which would meet the purpose of the program. The Commission, however, denied Witters the funds claiming the state constitution prohibited funding education of a religious nature.
On remand from the United States Supreme Court, which unanimously held there was no violation of the establishment clause of the First Amendment, the majority reaffirms the Commission and rules that even though Witters meets the purpose and the physical requirements of the program he is ineligible because the religious instruction needed for his career choice violates the Washington establishment clause, Const. art. 1, § 11. In reaching this result, the court is in direct conflict with the free exercise clause of the First Amendment.
I do not believe the state constitution ever meant to prohibit the individual choice of an adult in such a case as this (see dissent by Utter, J.). But even assuming the majority interpretation of the meaning of "religious instruction" is correct, it cannot supersede the free exercise clause. See Reynolds v. Sims, 377 U.S. 533, 584 , 12 L. Ed. 2d 506 , 84 S. Ct. 1362 (1964).
Witters chooses to carry out his religious beliefs by studying theology and becoming a minister. He became eligible for aid because of a physical handicap and is still eligible for that reason. Witters does not ask for an exception to the general rule of eligibility. He only asks the general rule to *392 be applied with equality, not for his choice of training to be disqualified because of its religious content.
While it is clear the majority believes there is no infringement of Witters' free exercise right, it neither offers any reasoning for such a conclusion based on the facts in this case, nor does it distinguish the federal cases which reach the exactly opposite conclusion.
Witters wants to become a minister, missionary, or youth leader to carry out his religious beliefs. The majority says Witters is not being denied benefits because of conduct arising from his religious beliefs. Majority, at 371. The argument that being a minister is a "career or calling" and is not a religious act within the protection of the free exercise clause has already been rejected by the Supreme Court. As Justice Brennan wrote in his eloquent concurrence:
The [Tennessee] court stated that " [i]t is not religious belief, but the career or calling [of ministry], by which one is identified as dedicated to the full time promotion of the religious objectives of a particular religious sect, that disqualifies." . . .
The characterization of the exclusion [of ministers or priests as delegates to a constitutional convention] as one burdening appellant's "career or calling" and not religious belief cannot withstand analysis. Clearly freedom of belief protected by the Free Exercise Clause embraces freedom to profess or practice that belief, even including doing so to earn a livelihood. One's religious belief surely does not cease to enjoy the protection of the First Amendment when held with such depth of sincerity as to impel one to join the ministry.
(Footnotes omitted.) McDaniel v. Paty, 435 U.S. 618, 630-31 , 55 L. Ed. 2d 593 , 98 S. Ct. 1322 (1978) (Brennan, J., concurring).
Although it is true the training to become a minister is an act prompted by belief and as such does not have the absolute protection that pure belief does (Cantwell v. Connecticut, 310 U.S. 296, 303-04 , 84 L. Ed. 1213 , 60 S. Ct. 900 , 128 A.L.R. 1352 (1940)), to say it does not fall within the protection of the free exercise clause is to deny the *393 reality of the motivation which impels one to become a minister or missionary. Witters wishes to practice his religion by making it his full-time vocation. It defies common sense, not to mention the Constitution of the United States, to say such an act is not within the sphere of the free exercise clause.
The final step in the majority's analysis is its claim that, while denial of vocational funds may make Witters' goal financially difficult or impossible, this denial does not violate the free exercise clause. The court cites Justice Douglas who stated that individuals cannot demand a sum of money from government in order to better exercise their religious scruples. Sherbert v. Verner, 374 U.S. 398, 412 , 10 L. Ed. 2d 965 , 83 S. Ct. 1790 (1963) (Douglas, J., concurring).
For understandable reasons the majority fails to continue the quote, since Justice Douglas goes on to say:
Those considerations, however, are not relevant here. If appellant is otherwise qualified for unemployment benefits, payments will be made to her not as a Seventh-day Adventist, but as an unemployed worker. Conceivably these payments will indirectly benefit her church, but no more so than does the salary of any public employee. Thus, this case does not involve the problems of direct or indirect state assistance to a religious organization — matters relevant to the Establishment Clause, not in issue here.
Sherbert , at 412-13.
Witters "otherwise qualifies". Payment should be made to him not as a ministry student, but as a visually handicapped student.
In another example of the importance of what it did not write rather than what was written, the majority totally ignores a line of cases which unmistakably hold an indirect burden on religion in the form of withholding benefits is an infringement on the right of free exercise. In Sherbert , for example, the Supreme Court stated " [i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege." (Footnote omitted.) Sherbert *394 v. Verner, supra at 404 . This is not an isolated instance. As the Court said in a recent case:
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
Thomas v. Review Bd., 450 U.S. 707, 717-18 , 67 L. Ed. 2d 624 , 101 S. Ct. 1425 (1981). Accord, Hobie v. Unemployment Appeals Comm'n, 480 U.S. 136 , 94 L. Ed. 2d 190 , 107 S. Ct. 1046 (1987).
Although acts protected by the free exercise clause are subject to regulation, the burden is on the government agency to prove a compelling state interest and to show its regulation is the least restrictive alternative. The State has offered no proof the complete denial of Witters' education was the least restrictive approach possible.
The only reason given for denying Witters his education is the need for greater separation of church and state than is provided under the First Amendment, which the majority believes can be found in the Washington Constitution. Majority, at 372-73. This is not enough. In a case originating in the state of Missouri, a student group wanted to use university facilities for religious activity. The Supreme Court found that once a public forum is created the First Amendment protection of free speech requires there be no discrimination based on the religious content of the speech. The Court ruled it was a compelling interest of the state to meet the requirements of the establishment clause, but that an equal access policy adequately met that requirement. Widmar v. Vincent, 454 U.S. 263 , 70 L. Ed. 2d 440 , 102 S. Ct. 269 (1981).
The importance of Widmar to the case before this court is that the Court did not find it a compelling reason that the State wanted greater separation of church and state *395 under its state constitution than was required by the federal establishment clause. In the words of the Supreme Court:
Arguing that the State of Missouri has gone further than the Federal Constitution in proscribing indirect state support for religion, the University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution.
. . . [T]he state interest asserted here — in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution — is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently "compelling" to justify content-based discrimination against respondents' religious speech.
(Footnotes omitted.) Widmar v. Vincent, supra at 275-76 .
Just as in Widmar , creating greater separation of church and state under our constitution than is required by the establishment clause of the federal constitution may be a rational reason, but it is not a compelling reason for the state when it comes in direct conflict with the free exercise clause of the First Amendment. Accord, McDaniel v. Paty, 435 U.S. 618 , 55 L. Ed. 2d 593 , 98 S. Ct. 1322 (1978).
In an age of government benefits, balancing separation of church and state and freedom of religion is complex and cannot be done by placing our state establishment clause above the federal free exercise clause. Professor Tribe describes the principles involved:
Whenever both religion clauses are potentially relevant, as in McDaniel [v. Paty, supra], the dominance of the free exercise clause follows from the principles underlying both clauses. For both clauses embody a broad concept of the relationship between religion and the state, which must be modified to adapt to changing conceptions both of religion and of government. If individuals and groups are to enjoy meaningful religious freedom, the protection afforded by the free exercise *396 clause must vary with the extent of governmental regulation and subsidy in society generally. The opinions of the Framers offer general guidance, expressed in such core values as voluntarism and separatism. In the context of these general values, we must consider whether a nation committed to religious pluralism must, in the age of the affirmative state, make active provision for maximum diversity; we must ask whether, in the present age, religious tolerance must cease to be simply a negative principle and must become a positive commitment that encourages the flourishing of conscience. Whenever tension is perceived between free exercise and non-establishment, "... a value judgment [is required] as to which is to become dominant. . . — the one premised on a vital civil right, or the one premised on . . . eighteenth century political theory. The resolution [is] preordained — to pose the conflict is to resolve it." Even if one takes a more charitable view of the political theory underlying the opposed position, it seems doubtful that sacrificing religious freedom on the altar of anti-establishment would do justice to the hopes of the Framers— or to a coherent vision of religious autonomy in the affirmative state.
(Footnote omitted.) L. Tribe, American Constitutional Law § 14-8, at 1204 (2d ed. 1988).
There are two recent Supreme Court cases concerning free exercise where either a plurality or majority applied a lower test of "a reasonable means for a legitimate purpose" standard in justifying the government imposing a burden on a person's religious freedom as opposed to the compelling reason and least restrictive alternative test of the earlier cases. The facts of these cases, however, are entirely different from those in this case. The regulations were facially neutral with regard to religion, and the religious acts did not trigger the government measures. Bowen v. Roy, 476 U.S. 693, 703 , 90 L. Ed. 2d 735 , 106 S. Ct. 2147 (1986) (statutory requirement that social security number be furnished as condition of eligibility for benefits under food stamp and aid to families with dependent children programs does not violate free exercise clause, notwithstanding belief that use of number would impair child's *397 spirit); Lyng v. Northwest Indian Cemetery Protective Ass'n,_U.S__, 99 L. Ed. 2d 534, 546 , 108 S. Ct. 1319, 1325 (1988) (free exercise clause does not prohibit government from permitting timber harvest in or road construction through portion of national forest traditionally used for religious purposes by three Indian tribes). See also L. Tribe, supra at 1262-63.
In this case the statute as applied is not facially neutral. It has only one exclusion, as indicated in the policy statement by the Commission, which is for those who use the funds "in pursuit of a career or degree in theology or related areas." Here a religious classification triggers the disqualification, and under these circumstances, even the recent cases would apply the strict scrutiny test of requiring a compelling state interest. See Hobbie v. Unemployment Appeals Comm'n, supra, 94 L. Ed. 2d at 198 , 107 S. Ct. at 1049 .
Witters has met his burden of showing an infringement on his right of free exercise. The State has not met its burden of showing a compelling reason why it should be able to infringe on that right. To require Witters to abandon his religious vocation in order to retain his funding as a handicapped person — to require him to make such a choice — is to deprive him of the full benefits of citizenship. It is just such a diminishing of citizenship that the free exercise clause was meant to prevent. I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9597952. Public record. Not legal advice.