                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia


TIMOTHY MARC HOREN

v.       Record No. 2835-95-3

COMMONWEALTH OF VIRGINIA                           OPINION BY
                                           CHIEF JUDGE NORMAN K. MOON
DIANE PATRICIA HOREN                            JANUARY 14, 1997

v.       Record No. 2836-95-3
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                          Thomas H. Wood, Judge

              James J. Knicely (Samuel Swindell; Knicely &
              Cotorceanu; Kratman, Pethybridge & Swindell,
              on briefs), for appellants.

              Kathleen B. Martin, Assistant Attorney
              General (James S. Gilmore, III, Attorney
              General, on brief), for appellee.



         Timothy Horen and Diane Horen were convicted of possession

of wild bird feathers and parts in violation of Code
                   1
§ 29.1-521(10).        The dispositive question is whether the

application of Code § 29.1-521(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.
     1
      Code § 29.1-521(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(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(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

                                - 2 -
were charged with violations of Code § 29.1-521(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. Horens'

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

                                - 3 -
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. 2
        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
    2
      See also United States v. Abeyta, 632 F. Supp. 1301,
1302-04 (D.N.M. 1986).


                                 - 4 -
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.

                                 - 5 -
     In Employment Division, Department of Human Resources of

Oregon v. Smith, 494 U.S. 872 (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 (1963);

Wisconsin v. Yoder, 406 U.S. 205 (1972).

     We find that Code § 29.1-521(10) is not a religiously

neutral law.    In relevant part, Code § 29.1-521(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 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(10) or under federal



                                 - 6 -
law. 3    Consequently, while allowing for a variety of legitimate

secular uses of owl feathers, Code § 29.1-521(10) inexplicably

denies an exception for bona fide religious uses and thereby

draws specific subject matter distinctions in regulating the use

of feathers.

         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 (1993).       Failure to make allowance

for bona fide religious uses "tends to exhibit hostility, not

neutrality, towards religion. . . ."       Bowen v. Roy, 476 U.S. 693

(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.'"      113 S. Ct.

2217, 2232 (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.      113 S. Ct. at

2232.     Like the ordinance in Hialeah, Code § 29.1-521(10) makes
     3
      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. 21.11-11-21.41 (1989).


                                  - 7 -
exceptions for some uses while excluding bona fide religious uses

and therefore is not a religiously neutral statute.

Consequently, Code § 29.1-521(10) must be examined under the

"compelling interest" test as set forth in Sherbert.     Finding

that Code § 29.1-521(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(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)




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