               IN THE SUPREME COURT OF IOWA
                               No. 10–1932

                           Filed February 3, 2012


MITCHELL COUNTY,

      Appellee,

vs.

MATTHEW HOOVER ZIMMERMAN,

      Appellant.


      Appeal from the Iowa District Court for Mitchell County, Bryan H.

McKinley, Judge.



      The defendant seeks discretionary review of a district court ruling

affirming the denial of his motion to dismiss a citation for violation of a

Mitchell   County   road    protection   ordinance.    REVERSED       AND

REMANDED.



      Colin C. Murphy, Mason City, for appellant.



      Mark L. Walk, Mitchell County Attorney, Osage, for appellee.
                                      2

MANSFIELD, Justice.

      Members of the Old Order Groffdale Conference Mennonite Church

are forbidden from driving tractors unless their wheels are equipped with

steel cleats. A Mitchell County road protection ordinance forbids driving

such vehicles on the highways. The question we must decide is whether

the ordinance violates the religious rights of these church members

under either the United States or the Iowa Constitution.

      Although the issue is a close one, we conclude the ordinance as

applied to church members violates the Free Exercise Clause of the First

Amendment of the United States Constitution. 1 For the reasons stated

herein, we find the ordinance is not of general applicability because it

contains exemptions that are inconsistent with its stated purpose of

protecting Mitchell County’s roads. We also find the ordinance does not

survive strict scrutiny because it is not the least restrictive means of

serving what is claimed to be a compelling governmental interest in road

protection.    We therefore reverse and remand for entry of an order of

dismissal.

      I. Facts and Procedural History.

      On February 1, 2010, Matthew Zimmerman was cited for operating
a Massey Ferguson tractor in violation of a Mitchell County road

protection ordinance. The tractor had steel cleats or “lugs” on its wheels.

The lugs, which comprise “the bar that makes contact with the highway

as   the    tractor   moves   forward,”   were   several   inches   long   and

approximately an inch wide, and were attached to a rubber belt mounted

on the wheel.



      1We   do not reach the question whether the ordinance violates the Iowa
Constitution.
                                           3

      The ordinance in question was adopted by Mitchell County in

September 2009. Its stated purpose is “to protect Mitchell County hard

surfaced roads.” The ordinance provides:

      No person shall drive over the hard surfaced roadways,
      including but not limited to cement, concrete and blacktop
      roads, of Mitchell County, or any political subdivision
      thereof, a tractor or vehicle equipped with steel or metal tires
      equipped with cleats, ice picks, studs, spikes, chains or
      other projections of any kind or steel or metal wheels
      equipped with cleats, ice picks, studs, spikes, chains, or
      other projections of any kind.

Mitchell County, Iowa, Mitchell Cnty. Road Prot. Ordinance (Sept. 22,

2009).

      Zimmerman moved to dismiss the citation on the ground that his

constitutional rights to free exercise of religion under the First

Amendment to the United States Constitution and article I section 3 of

the Iowa Constitution had been violated. A hearing was held before a

magistrate, who found Zimmerman guilty of violating the ordinance and

denied the motion. Zimmerman appealed the ruling to the district court.

Because no recording of the hearing before the magistrate was available,

a new hearing was held.

      Eli Zimmerman, a fellow member of the Old Order Groffdale
Conference Mennonite Church, testified at the district court hearing in

support of the motion to dismiss. He explained the use of steel wheels is

a religious practice and a church rule of the Old Order of Groffdale

Mennonite Conference. Zimmerman cited Romans 12:2 as the biblical

passage from which the rule derives. 2 The practice of using steel wheels


      2According   to the King James Bible, this passage reads:
      And be not conformed to this world: but be ye transformed by the
      renewing of your mind, that ye may prove what is that good, and
      acceptable, and perfect, will of God.
                                          4

on tractors dates back at least forty years. The church determined farm

tractors could be used in addition to the traditional horse and buggy, but

would have to be refitted with steel wheels to maintain small-scale

farming and a close-knit community. If a church member drove a tractor

that did not have steel wheels, he or she would be barred from the

church. The steel wheel rule helps insure that tractors are not used for

pleasure purposes and thereby displace the horse and buggy.

      Zimmerman testified that it is permissible for church members to

hire other persons to drive them for business purposes in vehicles with

rubber tires. Also, a church member could hire someone with a rubber-

tired tractor to haul his or her farm wagons to market. 3 However, this

leads to “a lot of inconveniences.” In addition, a church member could

use horses for hauling purposes, if it were possible to make a living doing

so. In short, it has long been a religious requirement of the Old Order of

Groffdale Mennonite Conference that any motorized tractor driven by a

church    member       be   equipped     with   steel   wheels.      According   to

Zimmerman, “The religious practice, it has to be steel hitting the surface,

[be] it soil, [be] it highway, [be] it concrete.”

      The prohibition on driving motorized vehicles with rubber tires is
not the only church rule affecting modern conveniences.                Zimmerman

testified that the use of radio, television, and computers is also forbidden

in his religious community.

________________________________
Romans 12:2 (King James) (emphasis added).      The New American Standard Version
translates this passage as follows:
      And do not be conformed to this world, but be transformed by the
      renewing of your mind, so that you may prove what the will of God is,
      that which is good and acceptable and perfect.
Romans 12:2 (New American Standard) (emphasis added).
      3The   wagons may have rubber tires because people do not ride on them.
                                        5

          Over the years, to minimize possible road damage, the steel cleats

and lugs have been made wider and have been mounted on rubber belts

to provide cushioning. In Mitchell County, the Mennonites use county

roads mainly when they need to haul their produce to the produce

market. Both parties conceded that for some time the Mennonites and

the County had peacefully coexisted, and the County did not object to

the Mennonites’ use of steel wheels.          However, in 2009, the County

embarked on a $9 million road resurfacing project, where the existing

roads were “white-topped,” or covered with concrete.            The County had

never used this new method of repaving before.

          Two Mitchell County officials testified at the hearing that the steel

wheels have damaged their newly white-topped roads by causing cracks

and taking paint off them.        Photos introduced by the County showed

some cracks as well as markings where the steel wheels had come into

contact with the road surface.        As explained by the county engineer,

“Because the steel is harder than the aggregates in that material—in the

concrete surfaces and the asphalt surfaces, . . . it will wear that surface

off.” 4

          Accordingly, in September 2009, the County adopted its road
protection ordinance. The ordinance provides that violators are subject

to a maximum fine of $500 or 30 days in jail, or both, and a civil penalty

may also be imposed “equal to the amount necessary to repair the

damage to the road.”

          Under existing state law, no tire on a vehicle moved on a highway

is allowed to have “any block, stud, flange, cleat, or spike or any other

protuberances of any material other than rubber,” except for:

          4Zimmerman  maintained that the steel lugs only caused “white marks” that
“disappear[] as soon as it rains a little bit.”
                                     6
           1. Farm machinery with tires having protuberances
      which will not injure the highway.

            2. Tire chains of reasonable proportions upon any
      vehicle when required for safety because of snow, ice, or
      other conditions tending to cause a vehicle to skid.

            3. Pneumatic tires with inserted ice grips or tire studs
      projecting not more than one-sixteenth inch beyond the
      tread of the traction surface of the tire upon any vehicle from
      November 1 of each year to April 1 of the following year,
      except that a school bus and fire department emergency
      apparatus may use such tires at any time.

Iowa Code § 321.442 (2009).      However, a Mitchell County supervisor
testified that “the penalty there is only a $10 fine, which . . . isn’t

prohibitive really, . . . so we enacted . . . this ordinance to protect our

roads.” The County concedes that its ordinance, which expressly states

“Iowa Code § 321.442 shall continue to remain in full force and effect,” is

intended to mirror the Iowa Code provision substantively, while imposing

a stiffer sanction for violations. Mitchell Cnty. Road Prot. Ordinance.

      The district court overruled Matthew Zimmerman’s motion to

dismiss.   It found “the use of steel wheels on tractors is a matter of

religious conviction for members of the GC church.” It also determined

that the Mitchell County ordinance

      substantially burdens this religious practice. . . . These
      tractors are used to do field work, transport grain and
      produce to market, and are shared amongst neighbors and
      family members. All of these activities require that the
      tractors be driven on hard surfaced county roads. While it is
      admitted that other practices could be adopted to
      accomplish these same tasks, this ordinance will
      substantially burden the Mennonites . . . by requiring them
      to find other modes of transporting both their goods to
      market and their tractors to fields.

      However, the court held the Mitchell County ordinance was both

neutral and generally applicable.        It was not motivated by religious

animosity but “to protect Mitchell County’s investment in resurfacing
                                           7

their roads,” and “it treats secular and religious conduct equally.” The

court therefore sustained the ordinance against Zimmerman’s First

Amendment challenge, citing Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108

L. Ed. 2d 876 (1990). 5

       The district court then turned to Zimmerman’s arguments based

on article I section 3 of the Iowa Constitution. The court held that even

if, hypothetically, that provision required the ordinance to be supported

by a compelling state interest, such an interest had been established

here. As the court stated, “protecting the integrity of the county’s roads”

from damage is a compelling state interest, and the ordinance is “the

least restrictive means” because it only disallows steel wheeled vehicles

“on the hard surfaced roads.”

       We granted Zimmerman’s application for discretionary review.

       II. Standard of Review.

       We review constitutional claims de novo. Zaber v. City of Dubuque,

789 N.W.2d 634, 636 (Iowa 2010).

       III. The First Amendment Claim.

       Zimmerman contends the district court erred in denying his

motion to dismiss based on the First Amendment to the United States

Constitution. The First Amendment provides:




       5Congress   enacted the Religious Freedom Restoration Act of 1993 (RFRA) in
response to the Supreme Court’s ruling in Smith. Pub. L. No. 103-141, 107 Stat. 1488.
Under RFRA, “[g]overnment shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability” unless the
government “demonstrates that application of the burden to the person—(1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive means
of furthering that . . . interest.” 42 U.S.C. § 2000bb–1 (2006). In City of Boerne v.
Flores, the Supreme Court held RFRA unconstitutional as applied to the states. 521
U.S. 507, 536, 117 S. Ct. 2157, 2172, 138 L. Ed. 2d 624, 649 (1997).
                                      8
             Congress shall make no law respecting an
      establishment of religion, or prohibiting the free exercise
      thereof; or abridging the freedom of speech, or of the press;
      or the right of the people peaceably to assembly, and to
      petition the Government for a redress of grievances.

U.S. Const. amend. I (emphasis added). The highlighted language, the

Free Exercise Clause, was part of the original Federal Bill of Rights and

was made applicable to the states through the Fourteenth Amendment in

Cantwell v. Connecticut. 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed.

1213, 1217–18 (1940).
      In America, one has “the right to believe and profess whatever

religious doctrine one desires.”    Smith, 494 U.S. at 877, 110 S. Ct. at

1599, 108 L. Ed. 2d at 884.        Yet the Free Exercise Clause does not

guarantee the government’s absolute noninterference with religion.

      Two landmark cases under the Free Exercise Clause were Sherbert

v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), and

Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).

In Sherbert, the United States Supreme Court held that a Seventh Day

Adventist could not be denied unemployment benefits because she

refused to work on Saturday for religious reasons. 374 U.S. at 409–10,

83 S. Ct. at 1797, 10 L. Ed. 2d at 973–74.           The Court found a

substantial burden on the free exercise of her religion because the

appellant was “force[d] to choose between following the precepts of her

religion and forfeiting benefits, on the one hand, and abandoning one of

the precepts of her religion in order to accept work, on the other hand.”

Id. at 404, 83 S. Ct. at 1794, 10 L. Ed. 2d at 970. The Court then turned

to whether “some compelling state interest” justified this “substantial

infringement of appellant’s First Amendment right” and found none. Id.

at 406–07, 83 S. Ct. at 1795, 10 L. Ed. 2d at 972. Therefore, the Court

concluded, “South Carolina may not constitutionally apply the eligibility
                                    9

provisions so as to constrain a worker to abandon his religious

convictions respecting the day of rest.” Id. at 410, 83 S. Ct. at 1797, 10

L. Ed. 2d at 974.

       In Yoder, the Court decided that Wisconsin’s compulsory school

attendance law could not be applied to members of the Old Order Amish

religion whose religion forbids school attendance after the eighth grade.

406 U.S. at 207–08, 234, 92 S. Ct. at 1529–30, 1542, 32 L. Ed. 2d at 20–

21, 36. The Supreme Court seemed to say that government could not

compel conduct that interferes with the practice of a legitimate religious

belief except based upon “interests of the highest order.” Id. at 214–15,

92 S. Ct. at 1533, 32 L. Ed. 2d at 24–25.      Ultimately, it rejected the

state’s contention that “its interest in its system of compulsory education

is so compelling that even the established religious practices of the

Amish must give way.” Id. at 221, 92 S. Ct. at 1536, 32 L. Ed. 2d at 28.

       A decade later, however, the Supreme Court observed that when a

citizen engages in a commercial activity, it may not be possible for him or

her to avoid, on religious grounds, the effects of laws regulating that

activity:

              Congress and the courts have been sensitive to the
       needs flowing from the Free Exercise Clause, but every
       person cannot be shielded from all the burdens incident to
       exercising every aspect of the right to practice religious
       beliefs.  When followers of a particular sect enter into
       commercial activity as a matter of choice, the limits they
       accept on their own conduct as a matter of conscience and
       faith are not to be superimposed on the statutory schemes
       which are binding on others in that activity.

United States v. Lee, 455 U.S. 252, 261, 102 S. Ct. 1051, 1057, 71 L. Ed.

2d 127, 134–35 (1982), superseded by statute on other grounds,

Exemption Act of 1988, Pub. L. No. 100–647, Title VIII, § 8007(a)(1), 102

Stat. 3781.
                                    10

      In Lee, a member of the Old Order Amish objected to the payment

of employer Social Security taxes. He maintained that his faith already

imposed an obligation on members to provide for fellow members. Both

payment and receipt of Social Security benefits, he contended, were

religiously forbidden. The Supreme Court did not dispute these points.

Id. at 257, 102 S. Ct. at 1055, 71 L. Ed. 2d at 132. It acknowledged,

rather, that there was a conflict between the Amish faith and the

requirements of the Social Security system.     But the Court cited “the

broad public interest in maintaining a sound tax system” and found it

would be difficult to “accommodate the comprehensive social security

system with myriad exceptions flowing from a wide variety of religious

beliefs.” Id. at 259–60, 102 S. Ct. at 1056–57, 71 L. Ed. 2d at 134. “The

tax imposed on employers to support the social security system must be

uniformly applicable to all, except as Congress provides explicitly

otherwise.” Id. at 261, 102 S. Ct. at 1057, 71 L. Ed. 2d at 135. Hence,

the Court rejected Lee’s free exercise claim.

      This case arguably bears some similarities to Lee. The tenets of

Zimmerman’s religion require him to engage in a commercial activity, i.e.,

hauling farm products, on a different basis from others.         But the

highways belong to everyone, and there is a public interest in preserving

and protecting those highways.

      Eight years after Lee, in Smith, the Supreme Court made clear that

the First Amendment’s Free Exercise Clause does not prohibit a state

from enforcing “a neutral, generally applicable regulatory law,” and cited

Lee as its “most recent decision” involving such a law. Smith, 494 U.S. at

878–80, 110 S. Ct. at 1600–01, 108 L. Ed. 2d at 885–86. A regulatory

law that is both neutral and generally applicable passes constitutional

muster under the Smith line of authority, even though it may require
                                         11

performance of an act—or abstention from conduct—in contradiction to

an individual’s religious beliefs. Id. 6 Smith distinguished Yoder on the

ground it was not purely a free exercise case but involved an additional

right—“the right of parents . . . to direct the education of their children.”

Id. at 881, 110 S. Ct. at 1601, 108 L. Ed. 2d at 887. Smith distinguished

Sherbert as an unemployment case. Id. at 882–84, 110 S. Ct. at 1602–

03,108 L. Ed. 2d at 888–89.

       On the other hand, laws that are not neutral or of general

applicability require heightened scrutiny. They “must be justified by a

compelling governmental interest and must be narrowly tailored to

advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531–32, 113 S. Ct. 2217, 2226, 124 L. Ed. 2d

472, 489 (1993).

       Smith and Lukumi illustrate the two poles of Federal Free Exercise

Clause analysis. In Smith, the individuals were denied unemployment

benefits because they had been fired for using peyote, in violation of a

neutral and generally applicable regulatory law. 494 U.S. at 874–76, 110

S. Ct. at 1597–98, 108 L. Ed. 2d at 882–84. The Supreme Court found

no violation of their free exercise rights.        Id. at 886–87, 110 S. Ct. at

1604, 108 L. Ed. 2d at 890–91.            By contrast, in Lukumi, the church

challenged ordinances that targeted the killing of animals for “sacrifice”

but not for food.      508 U.S. at 527–28, 113 S. Ct. at 2223–24, 124

L. Ed. 2d at 486–87.         The Supreme Court concluded that “each of

Hialeah’s ordinances pursues the city’s governmental interests only

against conduct motivated by religious belief,” id. at 545, 113 S. Ct. at


       6We  applied Smith in Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637,
640 (Iowa 1991) (holding an injunction against a trespassing protester did not violate
the protester’s free exercise rights).
                                           12

2233, 124 L. Ed. 2d at 498, applied strict scrutiny, and found the

ordinances did not pass a strict scrutiny test, id. at 546–47, 113 S. Ct. at

2233–34, 124 L. Ed. 2d at 498–99.               Mitchell County argues that its

ordinance is a neutral and generally applicable regulatory law and,

therefore, Smith is the more relevant precedent. 7

       In Smith, the Supreme Court did not define general applicability or

expressly distinguish it from neutrality, but merely referenced “neutral

law of general applicability” and “neutral, generally applicable law” as

valid limits on free exercise. 494 U.S. at 880–81, 110 S. Ct. at 1600–01,

108 L. Ed. 2d at 886–87.          Smith did not explore the details of general

applicability because it dealt with a uniformly applicable law that

contained no exemptions. 8          Lukumi provided some clarification of the

contours of general applicability but, because of the extreme degree of

gerrymandering involved, did not provide sufficient specificity to guide

lower courts in cases where fewer exemptions are allowed. See Lukumi,

508 U.S. at 543, 113 S. Ct. at 2232, 124 L. Ed. 2d at 497 (“In this case

we need not define with precision the standard used to evaluate whether

a prohibition is of general application, for these ordinances fall well below

the minimum standard necessary to protect First Amendment rights.”).9

       7The   County also argues that the use of steel wheels is a “rule” rather than a
“religious belief or practice.” We disagree. Eli Zimmerman testified that the use of steel
wheels is a longstanding church requirement and that someone who does not follow
that precept “will be barred from the church.” See Lukumi, 508 U.S. at 531, 113 S. Ct.
at 2225, 124 L. Ed. 2d at 489 (observing that “ ‘religious beliefs need not be acceptable,
logical, consistent, or comprehensible to others in order to merit First Amendment
protection’ ”) (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714,
101 S. Ct. 1425, 1430, 67 L. Ed. 2d 624, 631 (1981))).
       8The  Oregon law at issue was a criminal law forbidding possession of a
controlled substance unless prescribed by a medical practitioner. Smith, 494 U.S. at
874, 110 S. Ct. at 1597, 108 L. Ed. 2d at 882.
       9Hialeah  enacted a series of ordinances with a long list of carefully crafted
exemptions that allowed for just about every conceivable secular form of animal killing
while precluding similar activity in a religious context. See Lukumi, 508 U.S. at 535–37,
113 S. Ct. at 2227–29, 124 L. Ed. 2d at 491–93. Collectively these ordinances “f[e]ll
                                       13

Lukumi did make clear that although neutrality and general applicability

were overlapping concepts they were nevertheless distinct, and therefore

a law could fail the separate test of general application even if it satisfied

the neutrality criteria.    See id. at 542, 113 S. Ct. at 2231–32, 124

L. Ed. 2d at 496 (referring to general applicability as a “second

requirement of the Free Exercise Clause” and devoting Section IIB of the

opinion to a separate analysis of this issue).          Lukumi separated the

neutrality and general applicability criteria which in Smith were loosely

treated as a single inquiry. Still, the Lukumi Court recognized the two

requirements were “interrelated,” and “failure to satisfy one requirement

is a likely indication that the other has not been satisfied.” Id. at 531,

113 S. Ct. at 2226, 124 L. Ed. 2d at 489.

      A. Facial Neutrality.        We must first determine whether the

ordinance is facially neutral. The most basic requirement of neutrality is

“that a law not discriminate on its face.” Id. at 533, 113 S. Ct. at 2227,

124 L. Ed. 2d at 491.       “A law lacks facial neutrality if it refers to a

religious practice without a secular meaning discernable from the

language or context.” Id. Here the ordinance reads as follows:

       No person shall drive over the hard surfaced roadways,
       including but not limited to cement, concrete and blacktop
       roads, of Mitchell County, or any political subdivision
       thereof, a tractor or vehicle equipped with steel or metal
       tires equipped with cleats, ice picks, studs, spikes, chains
       or other projections of any kind or steel or metal wheels
       equipped with cleats, ice picks, studs, spikes, chains or
       other projections of any kind.

Mitchell Cnty. Road Prot. Ordinance. The ordinance’s language is devoid

of any religious references.       Furthermore, Mitchell County gave the

ordinance the official title of the “Mitchell County Road Protection
________________________________
well below the minimum standard” required by the Free Exercise Clause. Id. at 543,
113 S. Ct. at 2232, 124 L. Ed. 2d at 497.
                                      14

Ordinance.”   Id. (emphasis added).        Moreover, the first section of the

ordinance, entitled “Purpose,” states:

      The purpose of this ordinance is to protect Mitchell County
      hard surfaced roads, including but not limited to cement,
      concrete and blacktop roads, from damage caused by a
      tractor, vehicle or implement equipped with steel or metal
      tires equipped with cleats, ice picks, studs, spikes, chains or
      other projections of any kind or steel or metal wheels
      equipped with cleats, ice picks, studs, spikes, chains or
      other projections of any kind.

(emphasis added).    Thus, we agree with the district court that “[t]he

language of the statute refers to the use of steel wheels in a secular and

nonreligious context.” Therefore, the ordinance is facially neutral.

      B. Operational Neutrality.         Our next inquiry is whether the

ordinance is operationally neutral.        Because the Supreme Court has

recognized that “[f]acial neutrality is not determinative,” we must

examine the ordinance for “governmental hostility which is masked, as

well as overt.”   Lukumi, 508 U.S. at 534, 113 S. Ct. at 2227, 124

L. Ed. 2d at 491 (recognizing that “[o]fficial action that targets religious

conduct for distinctive treatment cannot be shielded by mere compliance

with the requirement of facial neutrality”). We look beyond the language

of the ordinance to determine whether there is “impermissible targeting”
of the Old Order of Groffdale Mennonite Conference. Id. at 535, 113 S.

Ct. at 2228, 124 L. Ed. 2d at 491–92 (referring to a “ ‘religious

gerrymander’ ” (citation omitted)).        In other words, we ask whether

“religious practice is being singled out for discriminatory treatment.” See

id. at 538, 113 S. Ct. at 2229, 124 L. Ed. 2d at 493.

      We agree with the district court that religious practice is not being

intentionally discriminated against.        The record supports the district

court’s conclusion that Mitchell County enacted the ordinance, not to

persecute members of a particular faith, but to protect its $9 million
                                    15

investment in newly repaved roads.        The ordinance was passed by

Mitchell County only after its engineers detected apparent damage

caused to the roads by steel wheels. That damage had not occurred prior

to 2009 because the repaving project that year was the first time the

“white-topping” method had been used by the County.          Moreover, the

prohibitions of the ordinance essentially buttress existing state law

requirements. See Iowa Code § 321.442.

      At the same time, we must recognize the ordinance was adopted

specifically to address use of the resurfaced concrete roads by steel wheel

tractors.   This is not a case where new activity brushed up against a

preexisting ordinance, but where an ordinance was passed to deal with a

longstanding religious practice. See Yoder, 406 U.S. at 219, 226, 235, 92

S. Ct. at 1535, 1538, 1543, 32 L. Ed. 2d at 27, 31, 36 (noting that “[t]he

requirement for compulsory education beyond the eighth grade is a

relatively recent development in our history,” whereas the Old Order

Amish faith has a “history of three centuries”).

      C. General Applicability.      We now turn to the more difficult

question whether the ordinance is “generally applicable.” Lukumi found

that Hialeah’s ordinances violated the principle of general applicability

because “the secular ends asserted in defense of the laws were pursued

only with respect to conduct motivated by religious beliefs.” 508 U.S. at

524, 113 S. Ct. at 2222, 124 L. Ed. 2d at 484. The Court further made

clear that an ordinance could violate the principle of general applicability

even if religious conduct were not the only activity it prohibited, so long

as religious adherents ultimately bore most of the burden of compliance.

See id. at 535–37, 113 S. Ct. at 2228–29, 124 L. Ed. 2d at 492–93

(noting that “almost the only conduct subject to Ordinances . . . is the

religious exercise” and “[t]he net result of the gerrymander is that few if
                                     16

any killings of animals are prohibited other than Santeria sacrifice” while

“most other killings fall outside the prohibition”). The Court emphasized

that Hialeah’s ordinances imposed restrictions on Santeria worshippers

the city was not willing to impose in other contexts, noting that this was

the “precise evil . . . the requirement of general applicability is designed

to prevent.” Id. at 545–46, 113 S. Ct. at 2233, 124 L. Ed. 2d at 498. The

Court objected to Hialeah’s “devalu[ation of] religious reasons . . . by

judging them to be of lesser import than nonreligious reasons.” Id. at

537, 113 S. Ct. at 2229, 124 L. Ed. 2d at 493.              It recognized that

although “[a]ll laws are selective to some extent, . . . categories of

selection are of paramount concern when a law has the incidental effect

of burdening religious practice.”    Id. at 542, 113 S. Ct. at 2232, 124

L. Ed. 2d at 496.

      The Lukumi Court found that the Hialeah ordinances were

underinclusive in terms of serving the purposes they were designed for—

protecting public health and preventing cruelty to animals—in that they

“fail[ed] to prohibit nonreligious conduct that endangers these interests

in a similar or greater degree than Santeria sacrifice does.” Id. at 543,

113 S. Ct. at 2232, 124 L. Ed. 2d at 497. This underinclusion was held

to be substantial because the overwhelming majority of activity that the

ordinances    targeted   was    religious.     See    id.     Two   types   of

underinclusiveness were identified: (1) secular activities that equally

threatened the purposes of the ordinances but were not prohibited (and

therefore were approved by silence), and (2) some equally deleterious

secular activities that were granted express approval. See id.

      Thus, according to Lukumi, the Free Exercise Clause appears to

forbid the situation where the government accommodates secular

interests   while   denying    accommodation    for    comparable    religious
                                           17

interests. Hialeah could not constitutionally treat religious sacrifice as

less worthy of protection than secular animal killings that posed the

same type and degree of potential harm.

       Smith dealt with a law containing no exemptions. The ordinances

in Lukumi had a wide array of exemptions. Because there has been no

subsequent word from the Supreme Court on the meaning of “general

applicability,” other courts have had to wrestle with its definition in

specific cases. 10     Lukumi tells us that underinclusion is problematic

when it is “substantial, not inconsequential.” Id. Other courts have had

to refine the meaning of these rather general terms.

       One prominent discussion of general applicability was authored by

Supreme Court Justice Alito when he served on the Third Circuit. See

Fraternal Order of Police Newark Lodge v. City of Newark, 170 F.3d 359

(3d Cir. 1999). In Fraternal Order, Sunni Muslim police officers refused

to comply with department regulations requiring them to shave their

beards for the purpose of establishing uniform appearance to the public

and morale within the police force. Id. at 366. This regulation did not

allow for a religious exemption but did permit two secular exemptions,

one for a very limited number of officers who could not shave for medical

reasons and one for undercover officers. Id. at 360. The court found the

undercover exemption did not undermine the purpose of the rule and

therefore did not impact its general applicability. Id. at 366. However,

the secular medical exemption was considered sufficiently parallel to the

requested      religious    exemption       such      that    if   the    former     were

       10In  Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307, 158 L. Ed. 2d 1 (2004), the
Supreme Court upheld the State of Washington’s failure to make state scholarship aid
available for students pursuing theology degrees. The Court held the Lukumi line of
cases was inapplicable because the state simply had made a decision not to fund
certain activity and imposed “neither criminal nor civil sanctions on any type of
religious service or rite.” Locke, 540 U.S. at 720, 124 S. Ct. at 1312, 158 L. Ed. 2d at 9.
                                             18

accommodated, the latter must also be in order to maintain general

applicability. Id. at 364–66. The City of Newark was not able to explain

why “religious exemptions threaten important city interests but medical

exemptions do not.” Id. at 367. Therefore, heightened scrutiny applied

and    the    city    was    required        to     grant   the   requested     religious

accommodation. 11

       The Third Circuit followed a two-step analysis to evaluate the

potential     underinclusiveness        or        nongenerality   of   the    challenged

ordinance.       It first identified the governmental purposes that the

ordinance was designed to promote or protect and then asked whether it

exempted or left unregulated any type of secular conduct that threatened

those purposes as much as the religious conduct that had been

prohibited. Id. at 366–67. If a law allowed secular conduct to undermine

its purposes, then it could not forbid religiously motivated conduct that

did the same because this would amount to an unconstitutional “value

judgment in favor of secular motivations, but [against] religious

motivations.” Id. at 366. However, if the governmental entity could show

that exempted secular conduct was sufficiently different in terms of its

impact on the purpose of the law, the exemption would not render the

law underinclusive. Id. (noting that “the Free Exercise Clause does not

require the government to apply its laws to activities that it does not have

an interest in preventing”).

       Fraternal Order makes it clear that not every secular exemption

automatically requires a corresponding religious accommodation.                       The

undercover police exemption did not undermine the purposes of the no-


       11In  a footnote, the Third Circuit noted that “Smith and Lukumi speak in terms of
strict scrutiny,” but it assumed that “an intermediate level of scrutiny applies since this
case arose in the public employment context.” Fraternal Order, 170 F.3d. at 366 n.7.
                                      19

beard policy, and therefore, had it been the only exemption, general

applicability   would   not   have    been    violated   and   no   religious

accommodation would have been required (assuming that there was a

rational basis behind the ordinance). Thus, the central question under

Fraternal Order is whether the secular exemptions threaten the statutory

purposes to an equal or greater degree than a religious exemption.

Although there may be many secular exemptions to a statute, if none of

them undermines the statutory purpose, then even their cumulative

weight does not establish underinclusiveness.       Yet, in Fraternal Order,

only a single narrow health exception was held to be sufficient to

establish a violation of general applicability, thus triggering heightened

scrutiny, because it was deemed to threaten the secular purpose.

      The Third Circuit has applied its Fraternal Order precedent in

several subsequent decisions.        In Tenafly Eruv Ass’n v. Borough of

Tenafly, the court found that the free exercise rights of Orthodox Jews

were likely violated when Tenafly prohibited them from affixing “lechis”

(thin black strips designating an “eruv” where pushing and carrying is

permitted on the Sabbath) to utility poles while allowing other materials

such as house numbers to be affixed. 309 F.3d 144, 152, 178 (3d Cir.

2002). The exemptions undermined the borough’s apparent purpose of

preventing visual clutter. Id. at 172. In Blackhawk v. Pennsylvania, the

court held that Pennsylvania violated the Free Exercise Clause by

refusing a fee waiver to a Native American who kept a bear for ceremonial

purposes when the law, among other things, categorically exempted zoos

and nationally recognized circuses from such fees. 381 F.3d 202, 210–

11, 214 (3d Cir. 2004) (Alito, J.).        Although the state argued that

exemptions could be justified because they provided a tangible benefit to

Pennsylvania wildlife, the court found the challenged fee provisions
                                     20

substantially “underinclusive” with respect to this alleged benefit. Id. at

211–12. In sum, the court concluded:

      A law fails the general applicability requirement if it burdens
      a category of religiously motivated conduct but exempts or
      does not reach a substantial category of conduct that is not
      religiously motivated and that undermines the purposes of
      the law to at least the same degree as the covered conduct
      that is religiously motivated.

Id. at 209.

      The Eleventh Circuit applied similar reasoning in holding that a

limited secular exemption failed the general applicability test. In Midrash

Sephardi, Inc. v. Town of Surfside, the town passed a zoning ordinance

“ ‘to provide for retail shopping and personal service needs of the town’s

residents and tourists’ ” with the goal of protecting “retail synergy” in the

business district. 366 F.3d 1214, 1233, 1235 (11th Cir. 2004) (citation

omitted). The ordinance excluded religious assemblies from the area, but

an exemption was allowed for private clubs and lodges. Id. at 1235. The

court found this policy to be underinclusive with respect to the town’s

goal of retail synergy because it was “pursued only against religious

assemblies, but not other non-commercial assemblies, thus devaluing

the religious reasons for assembling.”        Id. at 1234.     Echoing the

reasoning in Fraternal Order, the court found that these limited

exceptions “violate[d] the principles of neutrality and general applicability

because private clubs and lodges endanger Surfside’s interest in retail

synergy as much or more than churches and synagogues.” Id. at 1235.

As in Fraternal Order, only a single categorical secular exemption was

enough to establish underinclusiveness and require heightened scrutiny.

      In another case, a federal district court found a University of

Nebraska policy with three categorical secular exemptions was not of

general applicability and therefore subjected it to strict scrutiny which it
                                       21

ultimately failed.    See Rader v. Johnston, 924 F. Supp. 1540 (D. Neb.

1996).    The university had a parietal rule for freshmen that required

them to live on campus, but allowed exemptions for students who were

nineteen years or older, married, or living with their parents.         Id. at

1546.      These     categorical   exemptions,   combined   with   a   general

discretionary exemption, together covered more than one third of all

freshmen. Id. at 1553. Nonetheless, the university refused to grant an

exemption to a religious student who wanted to live off campus at a

Christian Student Fellowship house because he believed that on-campus

dorms were immoral and would endanger his spiritual life. Id. at 1544–

45. This decision was found to violate Rader’s free exercise rights and

the university was ordered to refrain from enforcing its policy against

him. Id. at 1558; see also Stinemetz v. Kan. Health Policy Auth., 252 P.3d

141, 154–56 (Kan. Ct. App. 2011) (holding that the First Amendment

Free Exercise rights of a Jehovah’s Witness Medicaid beneficiary were

violated when she was denied a request for an out-of-state bloodless liver

transplant because, although the regulations generally did not cover out-

of-state services, they allowed for individual exemptions on a case-by-

case basis); Horen v. Commonwealth, 479 S.E.2d 553, 557 (Va. Ct. App.

1997) (finding a violation of the First Amendment Free Exercise Clause

when a Native American medicine woman and her husband were

convicted of illegal possession of owl feathers and the statute exempted

possession of such feathers by “taxidermists, academics, researchers,

museums, and educational institutions”).

        By contrast, federal courts have generally found laws to be neutral

and generally applicable when the exceptions, even if multiple, are

consistent with the law’s asserted general purpose. Thus, in Stormans,

Inc. v. Selecky, the Ninth Circuit upheld certain Washington regulations
                                      22

requiring pharmacists to fill all prescriptions over a pharmacist’s

objection that providing the Plan B contraceptive would violate her

religious beliefs. 586 F.3d 1109, 1115–17 (9th Cir. 2009), abrogated on

other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22

129 S. Ct. 365, 376, 172 L. Ed. 2d 249, 262 (2008).             Although the

regulations contained exemptions where the customer did not pay,

supplies were limited, or the pharmacist had a legitimate belief the

prescription was fraudulent, the court reasoned that these exceptions did

not undermine the goal of “increasing safe and legal access to

medications” and thus did not affect the general applicability of the rules.

Id. at 1135. In Swanson ex rel. Swanson v. Guthrie Independent School

District No. I-L, the Tenth Circuit upheld a school district policy

forbidding   part-time   attendance    even   though    it   allowed   secular

exemptions for fifth-year seniors and special education students.         135

F.3d 694, 697, 701 (10th Cir. 1998). The plaintiffs there were parents

who wanted their child to learn Christian principles at home but who

wished to send their homeschooled daughter to the local public school

part-time so she could benefit from classes such as foreign languages,

music, and science that her parents felt less competent to teach. Id. at

696.   The policy against part-time attendance applied equally to all

homeschooled children, regardless of the reason for home schooling. Id.

at 698. Although the court emphasized this last point in rejecting the

plaintiffs’ claim, it also noted the exemptions in the law (fifth-year seniors

and special education students) were consistent with the school district’s

overall purpose of not taking on students for whom there was no

corresponding state aid. Id. at 698 n.3. Because state aid was based on

the number of full-time students in the district, and only the two

exempted categories of part-time students were counted as full-time for
                                           23

state-aid purposes, there were no exemptions for students who did not

qualify for state aid, and general applicability was met.                  Id; see also

Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 242 (3d Cir. 2008) (finding

a homeschooling law to be neutral and of general applicability because it

imposed the same standards on everyone who was being homeschooled);

Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253,

266 (3d Cir. 2007) (indicating that “the relevant comparison for purposes

of a Free Exercise challenge to a regulation is between its treatment of

certain religious conduct and the analogous secular conduct that has a

similar impact on the regulation’s aims”). 12

         With the foregoing authorities in mind, we turn to the ordinance at

issue.      Zimmerman contends the Mitchell County ordinance is not

generally applicable because it carries over exceptions from Iowa Code

section     321.442     that    undermine        the   ordinance’s      purpose      and

demonstrate its underinclusivity. 13            The state law exemptions are as

follows:

              1. Farm machinery with tires having protuberances
         which will not injure the highway.


         12We do not want to convey the impression that post-Lukumi cases are
monolithic. In Primera Iglesia Bautista Hispana of Boca Raton v. Broward County, cited
by the district court below, the Eleventh Circuit seemed to indicate that a regulation or
ordinance would be considered generally applicable unless it burdened “almost only”
religious uses. 450 F.3d 1295, 1309 (11th Cir. 2006). That case involved statutory
interpretation of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
The zoning regulation there contained no exemptions. Id. at 1310.
         13Asnoted above, the ordinance provides that “Iowa Code § 321.442 shall
continue to remain in full force and effect and no provision of that Code Section shall be
deemed to have been eliminated by this ordinance.” Mitchell Cnty. Road Prot.
Ordinance. Hence, Zimmerman argues—and the County does not dispute—that the
exemptions set forth in section 321.442 are also preserved as exemptions in the
Mitchell County ordinance. We need not address whether state law would preempt the
ordinance if it sought to prohibit uses permitted under section 321.442. See Iowa
Const. art. III § 38A; Iowa Code § 321.235; City of Davenport v. Seymour, 755 N.W.2d
533, 538–39 (Iowa 2008).
                                       24
            2. Tire chains of reasonable proportions upon any
      vehicle when required for safety because of snow, ice, or
      other conditions tending to cause a vehicle to skid.

            3. Pneumatic tires with inserted ice grips or tire studs
      projecting not more than one-sixteenth inch beyond the
      tread of the traction surface of the tire upon any vehicle from
      November 1 of each year to April 1 of the following year,
      except that a school bus and fire department emergency
      apparatus may use such tires at any time.

Iowa Code § 321.442. Zimmerman asserts these exceptions “undermine

the County’s purpose of preventing damage to the roads.”

      Upon our review, we find the County’s ordinance lacks sufficient

general applicability to bring this case under Smith. Section 321.442(1)

is not a problem; it exempts farm machinery tires with protuberances,

but only so long as they “will not injure the highway.” Such an exception

is consistent with the stated purpose of protecting the County’s roads.14
One could argue that sections 321.442(2) and (3) do not defeat the

general applicability of the ordinance either. Although they allow the use

of tire chains, ice grips, or tire studs, the exemptions are limited in scope

(“reasonable proportions,” “not more than one-sixteenth inch beyond the

tread of the traction surface of the tire”), and except for buses and

emergency vehicles, in timing (“when required for safety because of snow,
ice, or other conditions,” “from November 1 of each year to April 1 of the

following year”). One could construct an argument, therefore, that the

ordinance really serves a mixed purpose:          It protects the roads from

damage except when necessary for safety reasons.

      Yet we believe the effort ultimately fails. School buses are allowed

to use ice grips and tire studs year round. It is difficult to see how this

secular exemption serves either of the foregoing dual purposes.


      14Although  Zimmerman maintained at the hearing that the steel lugs did not
harm the county’s roads, he did not argue that this exemption applied.
                                         25

Moreover, the County declined in September 2009 to regulate various

other sources of road damage besides steel wheels. Rather, it chose to

prohibit only a particular source of harm to the roads that had a

religious origin. For example, although state law contains various limits

on the overall weight of vehicles and also limits weight per inch of tire

width, see Iowa Code §§ 321.440(2), .463, Mitchell County elected not to

cover these matters in its ordinance.

       The underinclusion of the ordinance undermines its general

applicability. See Blackhawk, 381 F.3d at 209 (noting that a law “fails

the general applicability requirement if it burdens a category of

religiously motivated conduct but exempts or does not reach a

substantial category of conduct that is not religiously motivated and that

undermines the purposes of the law to at least the same degree as the

covered conduct that is religiously motivated” (emphasis added)). We are

convinced the underinclusion is “substantial, not inconsequential.”

Lukumi, 508 U.S. at 543, 113 S. Ct. at 2232, 124 L. Ed. 2d at 497. 15

       D. Application of Strict Scrutiny. Of course, an ordinance can

fail the general applicability test and still not amount to a Free Exercise

violation. However, the ordinance must then “undergo the most rigorous
of scrutiny.” Id. at 546, 113 S. Ct. at 2233, 124 L. Ed. 2d at 498. That

is, it “must advance ‘ “interests of the highest order” ’ and must be

narrowly tailored in pursuit of those interests.”            Id. (citation omitted).

The County has the burden to show that the ordinance serves a

compelling state interest and is the least restrictive means of attaining


       15The  County argues this case is unlike Blackhawk and Fraternal Order because
there are no exemptions: The ordinance “does not permit anyone to use steel wheels on
the road.” But the ordinance is not directed at “steel wheels,” nor could it be, if the
County wanted it to be considered “neutral.” The ordinance is directed at metal
projections of any kind, and it provides for exemptions.
                                           26

that interest. See Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450

U.S. 707, 718, 101 S. Ct. 1425, 1432, 67 L. Ed. 2d 624, 634 (“The state

may justify an inroad on religious liberty by showing that it is the least

restrictive means of achieving some compelling state interest.”). 16

       The district court found that the County has a compelling interest

“in protecting the integrity of the county’s roads. This interest not only

includes the economic costs of repairing roads, but also the safety and

drivability of the roads for all.” We do not decide this issue. See United

States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (recognizing a

compelling governmental interest in preserving the bald eagle population

despite a claim that possession of eagles was necessary to the practice of

the Sioux faith); Satawa v. Bd. of Cnty. Road Comm’rs, 687 F. Supp. 2d

682, 699–700 (E.D. Mich. 2009) (holding that highway safety concerns

amounted to a compelling state interest justifying the denial of a permit

for a Nativity display on a median in the center of a major traffic artery);

but see Blackhawk, 381 F.3d at 213–14 (stating it is “doubtful” whether

“maintaining the fiscal integrity” of a permit fee system is a compelling


       16Assuming      without deciding that the church members must show the
ordinance places a substantial burden on their religion, that requirement has been met
here. Although Eli Zimmerman testified it is “possible” to comply with the ordinance
and still follow his religion, this would require the Mennonites to pursue one of two
impractical alternatives: Either they would have to use horses and buggies to haul their
produce to market (if they even had enough horses) or they would have to hire persons
of another faith to do their hauling. We agree with the district court’s finding “from the
record that the Mitchell County ordinance substantially burdens this religious
practice.” See Sherbert, 374 U.S. at 404, 83 S. Ct. at 1794, 10 L. Ed. 2d at 970 (finding
an unconstitutional burden even though South Carolina did not require the appellant
to give up her Saturday Sabbath Day but merely denied her unemployment benefits
because “the pressure upon her to forego that practice is unmistakable”); see also
Thomas, 450 U.S. at 717–18, 101 S. Ct. at 1432, 67 L. Ed. 2d at 634 (“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.”).
                                          27

state interest); United States v. Hardman, 297 F.3d 1116, 1127 (10th Cir.

2002) (stating that “a desire for federal funds is not a compelling

interest”).

       We are not persuaded, however, that the ordinance is narrowly

tailored to achieve the stated objective of road preservation.                      The

photographic evidence does show examples of cracking and marking

that, according to the County’s witnesses, resulted from the steel lugs.

The county engineer testified that steel wheels hasten deterioration of the

County’s roads. He said that “the steel is harder than the aggregates . . .

in the concrete surfaces and the asphalt surfaces, and it will wear that

surface off.”     On the other hand, the County agreed that Mennonite

tractors had driven over hard-surfaced county roads, including both

concrete and asphalt roads, for years before the ordinance was enacted.

The county engineer admitted that various factors lead to road

deterioration, 17 and he could not quantify the impact of steel wheels on

the County’s normal schedule of road repair or resurfacing. 18
       Given the lack of evidence of the degree to which the steel lugs
harm the County’s roads, the undisputed fact that other events cause
road damage, and the undisputed fact that the County had tolerated
steel lugs for many years before 2009, it is difficult to see that an
outright ban on those lugs is necessary to serve a compelling state
interest. A more narrowly-tailored alternative might allow steel wheels
on county roads in some circumstances, while establishing an effective
mechanism for recouping the costs of any necessary road repairs if

       17For example, he admitted that one of the newly white-topped roads has

experienced longitudinal cracking even though no steel wheels have been driven on it.
         18Although both we and the parties use the shorthand “steel wheels,” the

attachments are more accurately described as lugs, cleats, or slats. Eli Zimmerman
testified that they have been redesigned and placed over rubber to reduce their potential
to cause damage.
                                      28

damage occurs. Indeed, an adjoining county reached an agreement with
the Mennonite community to accept a financial deposit in a trust
arrangement to cover possible road damage, in lieu of banning steel
wheels. See www.co.howard.ia.us/bosinfo/minutesarchive.htm (minutes
of December 7, 2009 Board of Supervisors Meeting); Jean Caspers-
Simmet, Howard County Crafts Agreement Over Steel-Wheel Tractors, Agri
News, Dec. 1, 2009, http://www.agrinews.com/howard/county/crafts/
agreement/over/steelwheel/tractors/story-1056.html.             As the United
States Supreme Court has indicated in a statutory case arising under the
Religious Freedom Restoration Act, the compelling interest test must
focus on “the harms posed by the particular use at issue here.” Gonzales
v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432–33,
126 S. Ct. 1211, 1221–22, 163 L. Ed. 2d 1017, 1032–33 (2006) (finding
the compelling interest test would not sustain application of the
Controlled Substances Act to approximately 130 American members of a
Christian   Spiritist   sect   who   used   hoasca,   a   tea    containing   a
hallucinogen, for communion).
      A comparison can be drawn between the present case and a series
of cases that have arisen over state-law requirements for special signage
on slow moving vehicles. In State v. Hershberger, 444 N.W.2d 282 (Minn.
1989), cert. granted, judgment vacated, 495 U.S. 901, 110 S. Ct. 1918,
109 L. Ed. 2d 282 (1990), and State v. Miller, 549 N.W.2d 235 (Wis.
1996), members of the Old Order Amish faith challenged state laws that
required their horse-drawn buggies to display fluorescent red and orange
“slow moving vehicle” signs.
      Hershberger was a pre-Smith case.         There the court applied a
compelling state interest test and acknowledged for purposes of the case
that highway safety was a compelling interest, but invalidated the sign
requirement after concluding that the use of silver reflective tape and
                                     29

lighted red lanterns, as proposed by the church members, would
adequately address the same safety concerns. Hershberger, 444 N.W.2d
at 288–89. In Miller, interpreting the Wisconsin Constitution rather than
the United States Constitution, the court also applied a compelling state
interest test.   Similar to the Minnesota court, the Wisconsin court
concluded that “the State has failed to demonstrate that public safety on
the highways cannot be served by the Respondents’ proposed less
restrictive alternative of the white reflective tape and the red lantern.”
Miller, 549 N.W.2d at 242.
      While the analogy between those cases and the present steel
wheels case is not a perfect one, the same basic analytical framework
applies here.    The question here is whether the County’s goal of road
preservation can be accomplished less restrictively without banning the
tractors used by the Mennonites. On this record, we believe it can be.
We therefore hold that the application of the Mitchell County road
protection ordinance to Matthew Zimmerman violates his rights of free
exercise of religion under the First Amendment to the United States
Constitution.    We need not and do not reach the question whether
Zimmerman’s rights under article I section 3 of the Iowa Constitution
have also been violated.
      IV. Conclusion.
      Cases involving religious rights present challenging issues. Here, a
conflict has arisen between longstanding religious practice and a
county’s legitimate desire to protect its investment in roads.    On this
record, we find the religious rights prevail.
      We reverse and remand to the district court for entry of an order of
dismissal.
      REVERSED AND REMANDED.
