Nicholas Nighswander: How are State Statutes reviewed under the Kentucky Constitution that Affect the Free Exercise of Religion?

Nicholas Nighswander on behalf of
Nicholas M Nighswander PLLC Attorney at Law

How are State Statutes reviewed under the Kentucky Constitution that Affect the Free Exercise of Religion?

Prior to this year, KRS 189.820 required all slow moving vehicles to display the bright orange slow moving vehicle (SMV) triangle in a conspicuous place usually at the rear of the vehicle. The purpose of which was to alert overtaking vehicle drivers of the presence of the SMV and hopefully prevent a collision. (The Kentucky General Assembly amended this statute in 2012 to allow for the use of devices for the same purpose other than the bright orange triangle.)

In the case of Jacob Gingerich, et al. vs. Commonwealth of Kentucky, ___ S.W.3rd ____, rendered October 25, 2012 to be published and now final, the Kentucky Supreme Court affirmed a Kentucky Court of Appeals decision affirming lower court decisions interpreting KRS 189.820 as applied in requiring an Amish horse and buggy to use the bright orange SMV triangle.

The Amish were ticketed on numerous occasions in violation of the statute for not using the SMV triangle. In its place, the Amish were using other displayed reflective material and lanterns as allowed in states outside of Kentucky. The Amish defended the state charges at trial on the basis that the required use of the SMV triangle violated their free exercise of religion under the Kentucky Constitution instead of using an amendment of the United States Constitution, i.e., Amish that used bright colors violated the tenants of their religious sect which could result in them being shunned socially from others in the community among other things. The Amish argued that the Kentucky Constitution afforded greater protection to their religious rights from such statutes than the U.S. Constitution and KRS 189.820 was unconstitutional as it did not serve a compelling state interest. A compelling state interest review is the strictest of tests to determine the constitutionality of a statute.

The issue for the Kentucky Supreme Court was what standard of review was required under the Kentucky Constitution for laws of general applicability, enacted for the common good, which only incidentally affect the practice of one’s religion. Should the review be one of strict scrutiny that there must be a compelling interest where the law or statute is presumed to be unconstitutional if it affects a constitutional right? Or, should it be that the law or statute is constitutional if there is just a rational basis for it and it incidentally affects the free exercise of religion?

In a split decision, the Kentucky Supreme Court upheld the constitutionality of KRS 189.820 as applied to the Amish under Section 5 of the Kentucky Constitution. The Kentucky Supreme Court in the same split decision adopted the same analysis used by the United Supreme Court in reviewing a statute under the U.S. Constitution. In this case, a majority of the Kentucky Supreme Court determined that the state had met its burden that there was a compelling state interest for highway safety to require the Amish to us the SMV triangle under KRS 189.820. Just as interesting the Kentucky Supreme Court determined that Section 5 offered no greater state protections for the free exercise of religion than the U.S. Constitution. Thus, KRS 189.820 was found constitutional and the Amish would have to pay the fines and penalties imposed in the trial court.

In an informative dissent, Justice Scott, joined by Justice Abramson, found that the Kentucky Constitution offered more protection under Section 5 for the free exercise of religion than the U.S. Constitution and would have found KRS 189.820 unconstitutional. Justice Scott would have used a strict scrutiny review that there was not a compelling state interest for the use of just the bright orange SMV triangle. Other less restrictive means were available that was used by the Amish and proper. In fact, as stated above, the Kentucky General Assembly allowed less restrictive means when it amended the statute to allow other reflective devices other than the bright orange SMV triangle.

This opinion of the Kentucky Supreme Court offers an interesting review and opinions of the legal jurisprudence and analysis for reviewing the constitutionality of statutes. I found it to be a good read. The amendment of the statute this year, however, probably limited this opinion’s effect to some extent as a legal precedent.

Legal Tip: Be alert to the manner in which laws are enforced in your jurisdiction and others. The same law may be enforced completely different in neighboring cities or counties, subjecting the law to a constitutional challenge as to its legality. Or, you may want to contact your representatives to change the law as happened here.

A full text of the Kentucky Supreme Court’s Opinion can be found at:

This case is final and can be cited as authority.

Know your rights and stay within the law.

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