Dear all,

I found this interesting case report from the Virginia Court of
Appeals that I found while researching a current court case in Wyoming
on a similar matter on which I will report at a later date.

I would be interested in hearing of similar prosecutions and cases
from elsewhere.

Those interested in this and other matters related to wild birds
should look at the Michigan State University College of Law: Animal
Legal & Historical Web Center at: http://www.animallaw.info/.


Virginia Court of Appeals

Horen v. Commonwealth
Virginia
479 S.E. 2d 553 (Va. 997)
Case Details

Summary: Native American medicine woman and her husband convicted of
illegally possessing wild bird feathers in violation of Virginia
statute. The Virginia Court of Appeals held that the statute violates
RFRA because it does not provide a scheme to possess feathers for
religious purposes, as it does for other purposes. Thus, the statute
was not religiously neutral because it discriminated based on content.
The state did not employ the least restrictive means in advancing its
compelling interest. For further discussion on the federal Bald and
Golden Eagle Protection Act, see Detailed Discussion of Eagle Act.

Judge Moon, Chief Judge delivered the opinion of the court.


Opinion of the Court:

Timothy Horen and Diane Horen were convicted of possession of wild
bird feathers and parts in violation of Code § 29.1-521(A)(10). [FN1]
The dispositive question is whether the application of Code §
29.1-521(A)(10) to prohibit the possession of lawfully obtained owl
feathers for the practice of the Horens' Native American religion
violates their constitutional right to the free exercise of religion.

FN1. Code § 29.1-521(A)(10) in relevant part makes it a Class three
misdemeanor for any person to "possess ... at any time or in any
manner, any wild bird ... or any part thereof, except as specifically
permitted by law and only by the manner or means and within the
numbers stated." The term "wild birds" is not defined in the Virginia
Code; however, "all species of wild birds" are included within the
definition of "wildlife" in Title 29.1.

We find that Code § 29.1-521(A)(10) is not a religiously neutral
statute, that it substantially burdens the free exercise of the
Horens' religion, and that the Commonwealth failed to prove that
application of it to the Horens advances a compelling state interest
or does so in the least restrictive manner. Therefore, we hold that
under the facts and circumstances of this case the application of Code
§ 29.1-521(A)(10) to the Horens violates their constitutional right to
the free exercise of their religion and their rights under the
Religious Freedom Restoration Act.

On February 10, 1995, responding to an anonymous complaint that the
Horens had hybrid wolf pups and wild bird parts at their residence,
Officer Steve Bullman, a State Game Warden, and Officer Bill Parker
conducted an undercover investigation. Bullman and Parker, dressed in
plain clothes, approached Mrs. Horen, a Native American medicine woman
and member of the Southeastern Cherokee Confederacy, at her home and
pretended to be interested in purchasing wolf pups. Mrs. Horen
explained that she did not have any pups at present but that she would
take the gentlemen's addresses and phone numbers and contact them when
she did.

Bullman and Parker accompanied Mrs. Horen into her home. Inside, they
observed a variety of Native American objects which had adorning
feathers. The officers also observed two sets of wings and two sets of
bird feet, later identified as owl feet and wings. Subsequently, these
items were seized, and the Horens were charged with violations of Code
§ 29.1-521(A)(10).

The circuit court held a pretrial evidentiary hearing on the Horens'
motions to dismiss the indictments on free exercise and other
constitutional grounds. The Horens produced evidence regarding the
significance of the owl feathers in the practice of their Native
American religion. In addition to the Horens' testimony, George
Branham Whitewolf also testified on the Horens' behalf. Whitewolf
identified himself as a Lakota, or Sioux, Indian. He testified that he
is the spiritual leader for the Monocan Tribe in Virginia and that he
has practiced the Native American religion for forty-eight years.
Whitewolf indicated that he has been a Native American religion
advisor for the Virginia prison system and was appointed by President
Clinton to serve as a religious advisor to a committee to rewrite the
Native American Religious Freedom Act.

The Horens and Whitewolf testified that feathers and other bird parts
are significant objects in the Native American religion because they
represent the spirit of the bird from which they come. Mrs. Horen
testified that certain essentials of the Native American religion,
such as prayer, cleansing, purification, consecration and healing
practices require feathers or other bird parts. Whitewolf testified
that "Mrs. Horen's religious beliefs are consistent with the Native
American religion. Different feathers mean different things to
different tribes. For example, I wouldn't touch an owl feather. To me
an owl is a symbol of death, and I wouldn't want anything to do with
an owl. But in other tribes, the owl is revered. The feathers are a
must for Indians." Mrs. Horen testified that owl feathers are of
special significance to her tribe and that because they are the
feathers of soaring birds, "they carry prayers to the Creator; as
night hunters, they fly noiselessly and see well in the dark; and as
night messengers of death, their feathers are strong medicine."

Whitewolf also testified that the Horens could not get a permit to
have feathers because the Horens are not members of a federally
recognized tribe. Whitewolf explained that there is a feather bank in
Colorado which is supposed to be the only place to obtain feathers and
that he is one of only one hundred and twenty people who are not
members of federally recognized tribes that have permits to have
feathers. Whitewolf stated that he acquired his permit before the
federal government decided to limit permits to people who belong to a
federally recognized tribe. [FN2]

FN2. See also United States v. Abeyta, 632 F.Supp. 1301, 1302-04
(D.N.M.1986).

Mr. Horen testified that the owl is a bird revered by the Iroquois
from whom the Horens are descended. Mr. Horen also testified that they
do not believe in killing these birds because this would dishonor the
Creator. Mr. Horen explained he believes that if you find a feather it
is a gift from the Creator and before picking up the feather you must
perform a ceremony indicating your respect. Mr. Horen stated that the
feathers and owl parts seized from his home were from two dead owls he
discovered along roadsides and that he and his family found some of
the feathers while walking in the woods.

The Horens' motions to dismiss on free exercise, free speech, equal
protection, and due process grounds were denied. In denying the
motions, the trial court stated its belief that the protection of fowl
was a compelling governmental interest and that the imposition of a
Class three misdemeanor for mere possession was the least restrictive
means of accomplishing this goal. The court also refused to permit the
Horens to present evidence about the religious significance of their
possession of the seized items. The Horens were permitted to put on
the record in restricted form a statement that the items seized had
religious significance. However, they were not allowed to explain the
religious significance of the seized items. The circuit court also
refused to give the Horens' proposed jury instructions elaborating on
federal and state constitutional and statutory defenses.

Free Exercise

The Free Exercise Clause of the United States Constitution, Article I,
U.S. Const. amend. I, the Constitution of Virginia, Va. Const., art.
I, § 16, and the Religious Freedom Restoration Act of 1993, 42 U.S.C.
§ 2000bb(b)(2) (1994), prohibit state imposition of substantial
burdens on the exercise of religion unless the state advances a
compelling government interest which is furthered in the least
restrictive manner.

In Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the
United States Supreme Court found that a religiously neutral law of
general application that substantially burdens the free exercise of
religion will survive free exercise challenge where the law rationally
advances a legitimate state interest. However, where a law that
substantially burdens the free exercise of religion is not "neutral,"
the government must prove that the law is necessary to advance a
compelling government interest and does so in the least restrictive
manner. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d
965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32
L.Ed.2d 15 (1972).

We find that Code § 29.1-521(A)(10) is not a religiously neutral law.
In relevant part, Code § 29.1-521(A)(10) makes it a class three
misdemeanor for any person to "possess ... at any time or in any
manner, any wild bird ... or any part thereof, except as specifically
permitted by law and only by the manner or means and within the
numbers stated." (Emphasis added). Possession of owl feathers is
permitted under Virginia law by taxidermists, academics, researchers,
museums, and educational institutions. See Code §§ 29.1-415 through
29.1-422. Further, federal law specifically allows for the possession
and use of eagle feathers in the Native American religion. See 50
C.F.R. § 22.22 (1984). However, at the time of trial there was no
specific exception for the possession of owl feathers for religious
use under either Code § 29.1-521(A)(10) or under federal law. [FN3]
Consequently, while allowing for a variety of legitimate secular uses
of owl feathers, Code § 29.1-521(A)(10) inexplicably denies an
exception for bona fide religious uses and thereby draws specific
subject matter distinctions in regulating the use of feathers.

FN3. Federal law did provide for the possession of eagle feathers for
religious purposes. 50 C.F.R. § 22.22 (1984). However, appellants'
expert testified that because appellants' Native American heritage was
from a tribe not federally recognized, he did not believe they would
qualify for even this type of permit. See 50 C.F.R. § 22.22(a)(3), (5)
(1983); 50 Fed.Reg. 39,047 (September 26, 1985); 50 C.F.R. §§ 10.13,
13.12(b) (1985); 50 C.F.R. 21.11-21.41 (1989).

Where the state creates a mechanism for legitimate individualized
exceptions but fails to include religious uses among these legitimate
exceptions, discriminatory intent may be inferred. Ballweg v. Crowder
Contracting Co., 247 Va. 205, 212-13, 440 S.E.2d 613, 618 (1994).
Failure to make allowance for bona fide religious uses "tends to
exhibit hostility, not neutrality, towards religion...." Bowen v. Roy,
476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986); Ballweg, 247 Va.
at 213, 440 S.E.2d at 618. In Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, the United States Supreme Court found that "[t]he
Free Exercise Clause 'protect [s] religious observers against unequal
treatment.' " 508 U.S. 520, 542, 113 S.Ct. 2217, 2232, 124 L.Ed.2d 472
(1993). Accordingly, the Court held that because the city ordinance
made exceptions for other religiously and secularly motivated animal
killings, it could not be characterized as a law of neutral
applicability. 508 U.S. at 542-43, 113 S.Ct. at 2232. Like the
ordinance in Hialeah, Code § 29.1-521(A)(10) makes exceptions for some
uses while excluding bona fide religious uses and therefore is not a
religiously neutral statute. Consequently, Code § 29.1- 521(A)(10)
must be examined under the "compelling interest" test as set forth in
Sherbert. Finding that Code § 29.1-521(A)(10) is not a religiously
neutral statute and therefore must pass the compelling interest test,
we do not reach the issue of whether this case involves an instance in
which the burdening of the free exercise of religion is coupled with
the burdening of another constitutionally protected right.

Even if we were to find that Code § 29.1-521(A)(10) was a neutral law
of general applicability, application of the compelling interest test
would nonetheless be required under the Religious Freedom Restoration
Act, 42 U.S.C. § 2000bb(b)(2) (1994) (hereinafter "RFRA"). Responding
to Smith, Congress passed the RFRA in 1993. The RFRA was designed to
"restore the compelling state interest test ... and to guarantee its
application in all cases where free exercise of religion is
substantially burdened." Id. at § (b)(1).

The RFRA provides:

(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--

(i) is in furtherance of a compelling government interest; and

(ii) is the least restrictive means of furthering that compelling
governmental interest.

42 U.S.C. § 2000bb-1 (1994). Accordingly, to prevail on a RFRA defense
to a law of general applicability, a person must first establish that
their exercise of religion has been substantially burdened. The
"burdens of going forward with the evidence and of persuasion" then
shift to the government to prove that application of the general law
to the person furthers a compelling government purpose and is the
least restrictive means of furthering that purpose. 42 U.S.C. §
2000bb-2(3).

Substantial Burden

Before applying the compelling interest test, it is necessary under
both the Free Exercise Clause and the RFRA to address the threshold
question of whether the Horens have proven that Code §
29.1-521(A)(10), as applied to the Horens, "substantially burdens" the
free exercise of their religion. [FN4] A substantial burden is imposed
on the free exercise of religion where governmental action compels a
party to affirm a belief they do not hold, discriminates on the basis
of religious beliefs, inhibits the dissemination of particular
religious beliefs, or compels a party to forgo their religious
practices. Battles v. Anne Arundel County Board of Educ., 904 F.Supp.
471, 476-77 (D.Md.1995); cf. Ballweg v. Crowder Contracting Co., 247
Va. 205, 209-11, 440 S.E.2d 613, 616-17 (1994). In Ballweg, the
Virginia Supreme Court held that government action which resulted in a
person having to choose between employment and practice of their
religion constituted a substantial burden. 247 Va. at 213-14, 440
S.E.2d at 618.

FN4. The Commonwealth did not challenge appellants' professed
convictions of faith. Nonetheless, the showing necessary for a
religious belief to be considered genuine is a minimal one. See, e.g.,
Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148,
104 L.Ed.2d 766 (1989) ("It is not within the judicial ken to question
the centrality of particular beliefs or practices to a faith, or the
validity of particular litigants' interpretation of those creeds");
Thomas v. Review Bd., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67
L.Ed.2d 624 (1981) ("[R]eligious beliefs need not be acceptable,
logical, consistent, or comprehensible to others in order to merit
First Amendment protection").

Here, the Horens introduced uncontested evidence that their possession
and use of owl feathers was pursuant to sincerely-held religious
beliefs. See supra note 4. The Commonwealth did not contest at trial
the evidence of the impact of Code § 29.1-521(A)(10) on the Horens'
exercise of their religion. The Commonwealth argues for the first time
on brief that the impact was not substantial. We read the trial
court's decision as finding that the Horens held sincere beliefs, that
the law had a substantial impact on the exercise of their religion,
but that a compelling state interest justified the impact.

The Horens and their expert, Whitewolf, presented substantial evidence
that: (1) the use of feathers is necessary to certain essentials of
the Native American religion, such as prayer, cleansing, purification,
consecration and healing practices; (2) the owl is revered among the
Horens' tribal ancestors and has special religious significance; and
(3) owl feathers are of special religious significance to the Horens'
tribe because they assist in carrying the Horens' prayers to the
creator. Mrs. Horen further testified that:

I practice the Native American religion.... I am a member of the Otter
Band of the tribe and a medicine woman. I had these feathers to
practice my religion. Feathers are very significant in the Native
American religion. I believe that, when you find a feather, it is a
gift from the Creator to you. We honor the Creator by using these
feathers when we pray. [Owl] feathers are particularly significant
because they are soaring birds and, when we pray, the spirit of these
birds carry our prayers higher to the Creator. Owl feathers are very
strong medicine. The owl is a messenger and symbolizes death and
wisdom. We use feathers to smudge with and for healing. Being a
medicine woman, I need these things.

The Horens also introduced uncontested evidence of the impact of Code
§ 29.1-521(A)(10) on their practice of their Native American religion.
The Horens described the various items seized from their home and the
religious significance of each item. These items included the Horens'
dream catcher, which Mrs. Horen testified is used to catch bad dreams
and thoughts and "[t]he feathers attached to it carry the good dreams
and thoughts to the Creator." The Horens' owl wings, which Mrs. Horen
testified are used to honor the Creator and smudge smoke over
religious items and the sick, were also taken. Mr. Horen's prayer
rattle was also seized. After describing the religious import of these
items, Mrs. Horen offered the following testimony regarding the impact
of the state's action:

I feel like my home has been raped. I can't very well be a medicine
person for my tribe without my medicine. It's not the same when I pray
anymore. I know in my heart that the Creator hears me, but I know my
prayers aren't carried as high. It has affected my relationship with
my family and the Creator and my tribe.

While the Horens' religious artifacts may not be commonplace, they
are, according to the evidence, akin to the Bible, crosses and
Madonnas that are hallmarks of the Christian faith. Dispossessing a
family of such items would likely be viewed as substantial
interference with the exercise of their Christian faith. Here, like
the situation in Ballweg, the state's action forced the Horens "to
choose between fidelity to religious belief and [punishment] and
thereby 'bring[s] unlawful coercion to bear on the[ir] choice.' " 247
Va. at 213-14, 440 S.E.2d at 618 (quoting Frazee v. Illinois Dept. of
Employment Sec., 489 U.S. 829, 832, 109 S.Ct. 1514, 1517, 103 L.Ed.2d
914 (1989)). Consequently, we find that Code § 29.1-521(A)(10) imposes
a substantial burden on the Horens' free exercise of their Native
American religion.

Compelling State Interest

Having found a substantial burden on the Horens' free exercise of
their religion, we must next consider whether the Commonwealth met its
burden of proving a compelling state interest, as required under both
the Free Exercise Clause and the RFRA. As noted previously, the RFRA
incorporates the compelling interest test as applied under the Free
Exercise Clause and as articulated in Sherbert:

It is basic that no showing merely of a rational relationship to some
colorable state interest [will] suffice; in this highly sensitive
constitutional area, only the gravest abuses, endangering paramount
interests, give occasion for permissible limitation.

374 U.S. at 406, 83 S.Ct. at 1795, 42, U.S.C. § 2000bb(b)(1).

The Commonwealth's interests in the protection of wild birds generally
and owls specifically are obviously important. However, the
Commonwealth has not established that application of Code §
29.1-521(A)(10) to the Horens furthers any compelling state interest.
Appellee asserted and the trial court found that the compelling state
interest served by Code § 29.1-521(A)(10) is protection and
preservation of wild birds. Here, the Horens use stray feathers or the
feathers of dead owls in their preparation of religious items. The
Commonwealth presented no evidence to suggest that the Commonwealth's
interest in preserving and protecting wild birds is in any way
advanced by prohibiting the Horens' bona fide religious uses of owl
feathers.

Other jurisdictions considering this matter have generally required
that the state must introduce evidence that the animal protected by
state law is "endangered" or at least threatened. See United States v.
Jim, 888 F.Supp. 1058 (D.Ore.1995) (holding that criminal sanctions
for killing eagles advanced a compelling state interest given proof
that the eagles were threatened); United States v. Billie, 667 F.Supp.
1485 (S.D.Fla.1987) (holding criminal sanctions for killing panthers
advanced a compelling state interest given proof that the panthers
were endangered); United States v. Abeyta, 632 F.Supp. 1301, 1307
(D.N.M.1986). In Abeyta, the court found that prosecution under the
Eagle Protection Act, 16 U.S.C. § 668 et seq. (1940), of a Native
American for killing a golden eagle violated his First Amendment
rights. Id. The court concluded that "[t]he Golden Eagle is not an
endangered species. The uncontradicted testimony at trial established
that some eagles could be taken without harmful impact on the
remaining population. The government's conservation interests
therefore are not compelling and cannot warrant a constriction of
Indian religious liberty." Id.

Abeyta presents a more precise tension between the religious exercise
involved and the state's interest than is presented in this case. The
Commonwealth produced no evidence establishing how preventing the
Horens from collecting and possessing found feathers or feathers from
dead owls serves the state's goal of preserving wild birds.
Accordingly, based on the evidence presented, we find that the
Commonwealth failed to meet its burden of proving a compelling state
interest.

Least Restrictive Means

Assuming, arguendo, that we found that application of Code §
29.1-521(A)(10) to the Horens furthered a compelling interest of the
Commonwealth, such application would nonetheless violate the Horens'
Free Exercise and RFRA rights because it is not the least restrictive
means of furthering the Commonwealth's interest. Here, the circuit
court considered only whether the Class three misdemeanor penalties
for possession, when viewed in the context of the state's Class one
misdemeanor penalties for the killing of or trafficking in owls and
owl parts, constituted the "least restrictive" means of furthering the
state's interests. Such "relative penalty" analysis does not address
whether this law is the least restrictive means of accomplishing the
state's purpose. The variety of permits and exemptions made for
secular purposes could easily have included permits for the use of
legally obtained owl feathers or parts for religious purposes. Such an
exception would broaden little, if at all, the scope of the present
use exceptions. Further, as noted earlier, no evidence was introduced
which suggested that allowing the Horens to obtain permits for their
bona fide religious uses of owl feathers would to any degree impede
the effectiveness of the Commonwealth's preservation and protection
efforts.

Having found that Code § 29.1-521(A)(10) is not a religiously neutral
statute, that it substantially burdens the free exercise of the
Horens' religion, and that application of it to the Horens does not
further a compelling state interest nor does so in the least
restrictive manner, we reverse the Horens' convictions. Further, in
light of our holding in this matter, we need not reach the issues of:
(1) whether the trial court erred in refusing to instruct the jury on
the statutory phrase "except as specifically permitted by law" as an
element of the offense; (2) whether the court erred in failing to
adopt a limiting construction of Code § 29.1-521(A)(10) or to instruct
the jury on scienter or knowledge as a necessary element for
conviction under statutes imposing affirmative obligations or
burdening fundamental rights; or (3) whether the Horens' equal
protection and free speech rights were violated.

Reversed and dismissed.

Va.App.,1997.