                                                                                         December 31 2012


                                           DA 11-0572

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 320



BIG SKY COLONY, INC., and DANIEL E. WIPF,

              Petitioners and Appellees,

         v.

MONTANA DEPARTMENT OF LABOR AND
INDUSTRY,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Ninth Judicial District,
                       In and For the County of Glacier, Cause No. DV 10-4
                       Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Steve Bullock, Montana Attorney General; J. Stuart Segrest (argued),
                       Assistant Attorney General, Helena, Montana

                For Appellees:

                       Ron A. Nelson (argued); Michael P. Talia; Church, Harris, Johnson &
                       Williams, P.C., Great Falls, Montana


                                                                Argued: April 25, 2012
                                                              Submitted: November 28, 2012
                                                               Decided: December 31, 2012



Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Appellant Montana Department of Labor and Industry (the Department) appeals from

the order of the Ninth Judicial District Court, Glacier County, that granted summary

judgment to Appellees Big Sky Colony, Inc., and Daniel E. Wipf (collectively Colony). The

District Court determined that the requirement to provide workers’ compensation coverage

for the Colony’s members engaged in certain commercial activities contained in House Bill

119 (2009 Mont. Laws, ch. 112 § 30) (HB 119) violated the Colony’s rights under the Free

Exercise Clause and the Establishment Clause of the First Amendment to the U.S

Constitution, and also violated the Colony’s right to equal protection of the laws under the

U.S. Constitution and the Montana Constitution. We reverse.

¶2     We address the following issues on appeal:

¶3     1. Whether the provisions in HB 119 that incorporate the Colony into the definition of

“employer” and the Colony’s members into the definition of “employee” under the Workers’

Compensation Act violate the Free Exercise Clause.

¶4     2. Whether the provisions in HB 119 that incorporate the Colony into the definition of

“employer” and the Colony’s members into the definition of “employee” under the Workers’

Compensation Act violate the Establishment Clause.

¶5     3. Whether the provisions in HB 119 that incorporate the Colony into the definition of

“employer” and the Colony’s members into the definition of “employee” under the Workers’

Compensation Act violate the Colony’s right to equal protection of the laws.



                  FACTUAL AND PROCEDURAL BACKGROUND
                                             2
¶6     The Hutterite Brethren Church originally formed in the 16th century as part of the

Anabaptist movement during the Protestant Reformation in Europe. Anabaptists rejected

infant baptism as “unbiblical” and instead renewed the practice of adult baptism.

Anabaptists live a life of pacifism. Jacob Hutter and his followers eventually broke away

from other Anabaptists over a dispute regarding communal living.

¶7     Jacob Hutter suffered a violent end as he was burned at the stake in a public square in

Innsbruck, Austria, in 1536. Austro-Hungarian authorities held Hutter in freezing water and

then placed him in a hot room. Authorities further tortured Hutter by pouring brandy on his

wounds before burning him to death.

¶8     Hutterite believers moved across Europe for the next several centuries in search of a

safe place in which to practice their faith and live their communal life. This wandering

eventually brought the Hutterites to North America in the 19th century in search of religious

freedom. Hutterites continue to practice their faith and live a communal lifestyle in colonies

in Minnesota, North Dakota, South Dakota, Montana, Washington, and parts of Canada.

¶9     The Colony, a signatory to the Hutterian Brethren Church Constitution, organizes

itself as a religious corporation under Montana law. The Colony’s Articles of Incorporation

provide that it was formed for the purpose of operating “a Hutterische Church Brotherhood

Community.” All members of the Colony must belong to the Hutterische Church Society

and all members agree to “live a communal life and follow the teaching and tenets of the

Hutterische Church Society.” Daniel Wipf serves as the Colony’s first minister and

corporate president.



                                              3
¶10    The Department initially determined that the Workers’ Compensation Act did not

apply to the Colony or its members due to the fact that the Colony did not pay “wages” to its

members. The Department based this determination on the fact that the Colony did not fall

within the definition of “employer” set forth at § 39-71-117, MCA, and that the Colony’s

members did not fall within the definition of “employee” set forth at § 39-71-118, MCA.

The 2009 Montana legislature enacted HB 119.

¶11    HB 119 worked a laundry list of changes to the Workers’ Compensation Act,

including revised claims handling practices (§ 39-71-107, MCA), and revised accident

reporting requirements for employers (§ 39-71-307, MCA). Pertinent to our analysis,

Section 6 amended the definition of “employer” to include:

       a religious corporation, religious organization, or religious trust receiving
       remuneration from nonmembers for agricultural production, manufacturing, or
       a construction project conducted by its members on or off the property of the
       religious corporation, religious organization, or religious trust.


Section 39-71-117(1)(d), MCA. Section 7 of HB 119 amended the definition of “employee”

to include:

       a member of a religious corporation, religious organization, or religious trust
       while performing services for the religious corporation, religious organization,
       or religious trust, as described in 39-71-117(1)(d).

Section 39-71-118(1)(i), MCA.

¶12    The Colony brought an action against the Department in 2010. The Colony alleged

that Sections 6 and 7 of HB 119 impermissibly swept the Colony and its members within the

definition of “employer” and “employee” in the Workers’ Compensation Act. The Colony

and the Department agreed that the inclusion of the Colony within the definition of
                                              4
“employer” and the Colony’s members within the definition of “employee” would require

the Colony to provide workers’ compensation coverage for its members engaged in

commercial activities. The Colony alleged that this requirement to provide workers’

compensation coverage violated the Free Exercise Clause, the Establishment Clause, and the

Colony’s right to equal protection of the law.

¶13    The parties filed cross-motions for summary judgment. The District Court first

addressed the Colony’s Free Exercise claim. The court determined that Sections 6 and 7

were not neutral as the burdens posed “fall only on the Hutterite religion.” The court further

determined that Sections 6 and 7 were not generally applicable as the bill “unquestionably

targets only the Hutterite religious practice of communal living.” The two determinations

prompted the court to apply strict scrutiny. The court’s strict scrutiny analysis led it to reject

the Department’s claim of any compelling state interest being served by Sections 6 and 7.

¶14    With respect to the Colony’s Establishment Clause claim, the court purported to apply

the test from Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971). Sections 6 and 7

foundered on every factor of the Lemon Test. The court concluded that Sections 6 and 7

impermissibly “targeted a group defined by their religion.” The primary effect of this

impermissible targeting, in turn, “would be to inhibit the Colony in the practice of their

religion.” Finally, the court concluded that excessive entanglement with the State would

ensue as it “appears evident that a comprehensive, discriminating, and continuing state

surveillance will inevitably be required to ensure that only particular areas of Hutterite

activities are scrutinized.”



                                                5
¶15    The court also determined that Sections 6 and 7 violated the Colony’s right to equal

protection of the laws. These provisions, according to the court, specifically identify

“religious organizations” and target a particular religious organization. The separate

classification created by Sections 6 and 7 “treats Hutterites differently from other religious

organizations and further targets religious organizations generally.” This classification,

according to the District Court, failed to satisfy even the rational basis standard that applies

to constitutional challenges to workers’ compensation laws. The Department appeals.

                                 STANDARD OF REVIEW

¶16    This Court exercises plenary review of constitutional issues. DeVoe v. City of

Missoula, 2012 MT 72, ¶ 12, 364 Mont. 375, 274 P.2d 752. We review for correctness a

district court’s decisions on constitutional issues. DeVoe, ¶ 12. Statutes enjoy a presumption

of constitutionality. The party challenging the constitutionality of a statute bears the burden

of proof. DeVoe, ¶ 12.

                                        DISCUSSION

¶17    Issue 1. Whether the provisions in HB 119 that incorporate the Colony into the

definition of “employer” and the Colony’s members into the definition of “employee” under

the Workers’ Compensation Act violate the Free Exercise Clause.

¶18    The District Court determined that the practice of the Hutterite faith demands that its

members engage in commercial activities with nonmembers for remuneration. This

determination prompted the District Court to analyze the statute based on the strict scrutiny

standard applied in the U.S. Supreme Court’s decision in Church of the Lukumi Babalu Aye,



                                               6
Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217 (1993). The Court in Lukumi Babalu

struck down a group of municipal ordinances that banned animal sacrifice.

¶19     The Santeria church intended to construct a church in the City of Hialeah. Animal

sacrifice represents one of the principal forms of devotion of the Santeria church. Church

members perform animal sacrifices “at birth, marriage, and death rites, for the cure of the

sick, for the initiation of new members and priests, and during annual celebrations.” Lukumi

Babalu, 508 U.S. at 524, 113 S. Ct. at 2222. The City of Hialeah enacted four ordinances

immediately after the Santeria church announced its plans to construct a church there.

¶20     The Court recognized that the ordinances, though seemingly neutral on their faces,

effectively served to ban animal sacrifices undertaken for religious reasons. The Court

likened the religious discrimination effect of the ordinances to an impermissible state law

that disqualified members of the clergy from holding certain public offices in McDaniel v.

Paty, 435 U.S. 618, 98 S. Ct. 1322 (1978). Lukumi Babalu, 508 U.S. at 532, 113 S. Ct. at

2226.    The Court similarly considered the effect of the ordinances in light of the

unconstitutional application of a municipal ordinance in Fowler v. Rhode Island, 345 U.S.

67, 73 S. Ct. 526 (1953). Lukumi Babalu, 508 U.S. at 532, 113 S. Ct. at 2226. There the city

had interpreted a municipal ordinance to prohibit preaching in a public park by a Jehovah’s

Witness, but to allow preaching during the course of a Catholic Mass or a Protestant church

service. Lukumi Babalu, 508 U.S. at 532, 113 S. Ct. at 2226, citing Fowler, 345 U.S. at 69-

70, 73 S. Ct. at 527. The Court in Lukumi Babalu concluded that the religious exercise of the

Santeria church represented “the only conduct” subject to the prohibition on animal sacrifice.

Lukumi Babalu, 508 U.S. at 535, 113 S. Ct. at 2228.
                                              7
¶21    The requirement that a religious corporation provide workers’ compensation coverage

for its members differs markedly from the outright ban of an activity central to the Santeria

faith. Unlike the prohibitions in Lukumi Babalu and McDaniel, the workers’ compensation

requirement does not prohibit the Colony members from engaging in the commercial

activity. HB 119 regulates the Colony’s engagement in commercial activities in the same

manner that the workers’ compensation system regulates the commercial activities of other

employers in Montana. The Colony, like all other employers in Montana, simply will make

less money on these commercial endeavors once it pays the workers’ compensation

premiums. And unlike the ordinance in Fowler, the workers’ compensation requirement

does not place the Colony members in a discriminatory position compared to other religious

groups who might choose to engage in similar activity. These distinctions lead us to reject

the strict scrutiny analysis from Lukumi Babalu as the appropriate lens through which to

analyze the Colony’s claim.

¶22    We instead apply the standard used by the Court in Dept. of Human Resources of

Oregon v. Smith, 494 U.S. 872, 878, 110 S. Ct. 1595, 1599 (1990). The workers’

compensation requirement must be facially neutral and serve a secular purpose in order to

survive a Free Exercise challenge. Smith, 494 U.S. at 878, 110 S. Ct. at 1599. The

requirement also must impose only an incidental burden on religious conduct as opposed to a

prohibition on religious conduct. Smith, 494 U.S. at 878, 110 S. Ct. at 1599.

       Facially Neutral and Secular Purpose.

¶23    The District Court concluded that HB 119 “unquestionably targets only the Hutterite

religious practice of communal living.” This conclusion ignores the fact that the workers’
                                             8
compensation requirement in Montana applies generally to multiple types of entities. See

§ 39-71-117, MCA. The legislature did not conceive of the workers’ compensation system

as a means to shackle the religious practices of Colony members. HB 119 simply adds to the

scope of the workers’ compensation system religious corporations that engage in commercial

activities with nonmembers for remuneration through its expansion of the definition of

“employer” contained in § 39-71-117, MCA.

¶24    No doubt exists that the workers’ compensation requirement would apply if the

Colony employed its members to work for wages on these commercial activities. Indeed, in

St. John’s Lutheran Church v. State Comp. Ins. Fund, 252 Mont. 516, 524, 830 P.2d 1271,

1277 (1992), this Court rejected a Free Exercise challenge to the requirement that the church

provide workers’ compensation coverage to its pastor on the basis that the provision of

workers’ compensation represents “an overriding governmental interest.” No doubt exists

that the workers’ compensation requirement would apply if the Colony opted to establish

separate commercial entities to perform the type of work at issue here. See Ridley Park

Methodist Church v. Zoning Hearing Board, 920 A.2d 953, 960 (Pa. 2007) (denying zoning

variance to operate a daycare on church site did not impinge on religious activities of church

as operation of the daycare “is not a fundamental religious activity of a church”).

¶25    The Dissent suggests that HB 119 would not capture the activities of the other

religious employers, in part, because they do not engage in the types of economic activities

enumerated by HB 119. Dissent, ¶ 88. HB 119 did not need to capture these other religious

employers, however, to incorporate them into the workers’ compensation system. Section

39-71-117(1)(a), MCA, already captures other religious employers who engage in
                                              9
commercial activities. Subsection (a) includes within the definition of “employer” “all

public corporations and quasi-public corporations,” religious or otherwise. Subsection (a)

further includes within the definition of “employer” “each firm, voluntary association,

limited liability company, limited liability partnership, and private corporation,” religious or

otherwise. Finally, subsection (c) defines employer to include “any non-profit association,

limited liability company, limited liability partnership, or corporation or other entity,”

religious or otherwise, that receives federal, state, or local government funds to be used for

community service programs.

¶26    The Department of Labor and Industry previously did not consider the Colony subject

to the workers’ compensation system due to the fact that the Colony did not pay “wages” to

its members as part of its communal living system. The Colony nevertheless engaged in

commercial activities. The Colony instead provides food, shelter, clothing, and medical care

to its members who engage in these commercial activities. See Stahl v. United States, 626

F.3d 520, 521 (9th Cir. 2010). HB 119 clarified that religious corporations, organizations, or

trusts that engage in specified commercial activities, who do not pay “wages” to their

members for labor on these commercial activities, but who receive remuneration from

nonmembers, qualify as “employers” for purposes of the workers’ compensation system.

Section 39-71-117(1)(d), MCA. HB 119 does not lose its facial neutrality or shed its secular

purpose due to the fact that it sought to include the colony’s commercial activities, as

opposed to its religious practices, within the scope of the workers’ compensation system.

       Incidental Burden or Prohibition on Religious Conduct.



                                              10
¶27    The District Court pronounced that the communal lifestyle represents the Hutterites’

“most distinguishing feature.” This communal lifestyle merges religious exercise and labor

as a member voluntarily contributes all of his property and labor to the Colony “as an

expression of faith and worship.” This attribute led the District Court to determine that

application of HB 119 to the Colony’s commercial activities transformed a potentially valid

regulation into an outright prohibition on religious conduct. Courts uniformly have rejected

the notion that a party’s religious motivation for undertaking an act can transform a generally

applicable regulation into a prohibition on religious conduct. Smith, 494 U.S. at 878, 110 S.

Ct. at 1600. Other courts have recognized that this logic, taken to its extreme, would

subsume every facet of a religious organization into a religious activity.

¶28    The Court in Smith dismissed the notion that the “religious motivation” for using

peyote placed the two employees beyond the reach of a criminal law not directed specifically

at their religious practice. Smith, 494 U.S. at 878, 110 S. Ct. at 1600. Alfred Smith and

Galen Black were fired from their jobs with a private drug rehabilitation organization

because they ingested peyote for sacramental purposes at a ceremony of the Native American

Church, of which both were members. The employment division denied their claims for

unemployment due to the fact that they had been discharged for work-related “misconduct.”

Smith, 494 U.S. at 874, 110 S. Ct. at 1598. The two brought a Free Exercise challenge to the

division’s denial.

¶29    The Court recognized, similar to the Colony’s claim, that the exercise of religion often

involves not only belief, “but the performance of (or abstention from) physical acts.” Smith,

494 U.S. at 877, 110 S. Ct. at 1599. These acts include “assembling with others for a
                                              11
worship service, participating in sacramental use of bread and wine, proselytizing, abstaining

from certain foods or certain modes of transportation.” Smith, 494 U.S. at 877, 110 S. Ct. at

1599. The Court noted, in an obvious foreshadowing of its decision in Lukumi Babalu, that

it likely would be unconstitutional if a state attempted to ban such acts or abstentions only

when a person engages in them for religious reasons. Smith, 494 U.S. at 877-78, 110 S. Ct.

at 1599.

¶30    The Court upheld the denial of benefits based largely upon the fact that peyote use

had not been prohibited for religious reasons. The “right of free exercise does not relieve an

individual of the obligation to comply with a ‘valid and neutral law of general applicability

on the grounds that the law proscribes (or prescribes) conduct that his religion prescribes (or

proscribes).’” Smith, 494 U.S. at 879, 110 S. Ct. at 1600, quoting United States v. Lee, 455

U.S. 252, 263 n.3, 102 S. Ct. 1051, 1058, n.3 (Stevens, J. concurring). HB 119 does not ban

Colony members from engaging in commercial activities with nonmembers for

remuneration. It simply regulates this activity by requiring the Colony to provide workers’

compensation insurance for its members when they engage in these commercial activities.

See also Mount Elliott Cemetery Assoc. v. City of Troy, 171 F.3d 398, 403 (6th Cir. 1999)

(noting that the Free Exercise Clause does not prevent the government from regulating

behavior associated with religious beliefs).

¶31    The U.S. Supreme Court in Alamo Foundation v. Sec’ty of Labor, 471 U.S. 290, 105

S. Ct. 1953 (1985), similarly determined that the imposition of generally applicable secular

regulations on the volunteer labor of religious members who lived in a communal setting

constituted an incidental burden on religion rather than a prohibition on religious conduct.
                                               12
The Alamo Foundation, a non-profit religious organization, challenged the application of the

minimum wage, overtime, and recordkeeping requirements of the Fair Labor Standards Act

(FLSA). The Foundation argued that it staffed its numerous commercial operations,

including service stations, retail clothing and grocery outlets, hog farms, roofing and

electrical construction companies, a recordkeeping company, a motel, and companies

engaged in the production and distribution of candy, entirely with volunteers, known as

“associates.” Alamo Foundation, 471 U.S. at 292, 105 S. Ct. at 1957.

¶32    These associates typically had been “drug addicts, derelicts, or criminals” before their

conversion and rehabilitation by the Foundation. Alamo Foundation, 471 U.S. at 292, 105 S.

Ct. at 1957. The associates received no cash salaries. The Foundation instead provided them

with food, clothing, shelter, and other benefits. The Secretary of Labor initiated an action

against the Foundation based upon the notion that the Foundation was “engaged in ordinary

commercial activities in competition with other commercial businesses.” Alamo Foundation,

471 U.S. at 293, 105 S. Ct. at 1957. As a result, the Secretary argued that the “economic

reality” test of employment demonstrated that the associates qualified as employees.

¶33    The Court examined the Foundation’s claim that the associates functioned as

“volunteers” without any expectation of compensation. In fact, one associate testified

convincingly that “no one ever expected any kind of compensation, and the thought is totally

vexing to my soul.” Alamo Foundation, 471 U.S. at 301, 105 S. Ct. at 1961. Despite the

heart-felt protests of this associate and others, application of the “economic reality” test

revealed that the associates expected, indeed relied upon, the benefits conferred by the



                                             13
Foundation in the form of food, clothing, and shelter. Alamo Foundation, 471 U.S. at 301,

105 S. Ct. at 1961.

¶34    The Court further rejected the Foundation’s claim that application of the generally

applicable minimum wage and recordkeeping requirements failed to rise to the level of a

prohibition on religious conduct. The Court reasoned that the FLSA does not require the

payment of “cash wages.” Alamo Foundation, 471 U.S. at 303-04, 105 S. Ct. at 1963. The

FLSA defines wages to include many of the same benefits that the associates received. With

respect to the amount of the benefits, the Court noted that nothing in the FLSA would

“prevent the associates from returning the [excess] amounts to the Foundation, provided that

they do so voluntarily.” Alamo Foundation, 471 U.S. at 304, 105 S. Ct. at 1963.

¶35    A church in South Ridge Baptist Church v. Industrial Comm’n of Ohio, 911 F.2d 1203

(6th Cir. 1990), filed a declaratory judgment action remarkably similar to the Colony’s

dispute here, in which it alleged that the compulsory payment of workers’ compensation

premiums on behalf of its employees was “sinful.” The court recognized that the generally

applicable requirement of workers’ compensation coverage imposed some incidental burden

on the church’s free exercise of its religious beliefs. The court held, however, that “Ohio’s

interest in the solvency of the workers’ compensation fund” outweighed any incidental

burden imposed on the church.        The court premised this conclusion on the state’s

fundamental police power to safeguard the welfare of its citizens. South Ridge Baptist

Church, 911 F.2d at 1208. See also United States v. Indianapolis Baptist Temple, 224 F.3d

627 (7th Cir. 2000) (rejecting church’s Free Exercise challenge to a requirement that it pay

unemployment tax for its employees).
                                             14
¶36    The Court applied a similar analysis to mandatory payment of a generally applicable

sales and use tax in Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 110

S. Ct. 688 (1990). The constitution and bylaws of Jimmy Swaggart Ministries provide that it

“is called for the purpose of establishing and maintaining an evangelistic outreach for the

worship of Almighty God.” Jimmy Swaggart Ministries, 493 U.S. at 381, 110 S. Ct. at 691.

Jimmy Swaggart Ministries sold merchandise during 23 crusades in California during the

period of 1974 through 1981. This merchandise contained specific religious content –

Bibles, Bible study materials, printed sermons and collections of sermons, audiocassette

tapes of sermons, religious books and pamphlets, and religious music in the form of song-

books, tapes, and records. Jimmy Swaggart Ministries, 493 U.S. at 383, 110 S. Ct. at 692.

¶37    The Court analyzed first whether the government “has placed a substantial burden on

the observation of a central religious belief or practice.” Jimmy Swaggart Ministries, 493

U.S. at 383, 110 S. Ct. at 693 (emphasis added). The Court rejected the claim that the sales

and use tax constituted a tax “on the right to disseminate religious information, ideas, or

beliefs.” The Court instead characterized the sales and use tax as a tax “on the privilege of

making retail sales of tangible personal property” in California. Jimmy Swaggart Ministries,

493 U.S. at 389, 110 S. Ct. at 696. California treated the sale of a Bible by a religious

organization in the same manner that it treats the sale of a Bible by a bookstore: both would

be subject to the tax. See Knights of Columbus v. Town of Lexington, 272 F.3d 25, 35 (1st

Cir. 2001) (content-neutral ban on unattended structures on historic Battle Green, site of first

battle of Revolutionary War, that eliminated Christmas crèche survived Free Exercise

challenge).
                                              15
¶38    The Court further rejected the notion that the collection and payment of the tax would

violate the sincere religious beliefs of Jimmy Swaggart Ministries. The reduction in income

to Jimmy Swaggart Ministries represented the only burden imposed by the tax. The Court

deemed “not constitutionally significant” this reduction in the amount of money available to

Jimmy Swaggart Ministries to spend on religious activities caused by the imposition of this

generally applicable tax. Jimmy Swaggart Ministries, 493 U.S. at 391, 110 S. Ct. at 696; see

also Employment Division v. Rogue Valley Youth for Christ, 770 P.2d 588 (Ore. 1989)

(applying unemployment compensation taxation scheme to religious organizations did not

offend Free Exercise Clause).

¶39    The Court in Jimmy Swaggart Ministries referred repeatedly to a “generally”

applicable tax. E.g., Jimmy Swaggart Ministries, 493 U.S. at 395, 110 S. Ct. 698. The Court

did not require a tax to apply universally in order for it to be considered neutral toward

religious entities. See Indianapolis Baptist Temple, 224 F.2d at 629 (describing federal

unemployment tax laws as laws of “general” application). In the present case, the District

Court rejected the notion that Sections 6 and 7 were generally applicable laws based on its

determination that the “object of the legislation was remote from the concerns and purpose

underlying the Workers’ Compensation Act.” The District Court instead viewed HB 119 as

“an attempt to ‘tax’ the Hutterites for a religious practice.”

¶40    The Court in United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051 (1982), addressed a

free exercise challenge to the mandatory participation of an Amish employer in the social

security system. The Court noted that Congress had sought to accommodate, to the extent

compatible with a comprehensive national program, the practices of those who believe it a
                                              16
violation of their faith to participate in the social security system. Lee, 455 U.S. at 260, 102

S. Ct. at 1057. The Court cited the exemptions on religious grounds for self-employed

Amish as an example of the efforts by Congress to accommodate religious beliefs. Lee, 455

U.S. at 260, 102 S. Ct. at 1057. The Court further recognized, however, that when

“followers of a particular [religious] 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.” Lee,

455 U.S. at 261, 102 S. Ct. at 1057.

¶41    The legislature’s regulation of the activities of Colony members would violate the

right of members to exercise freely their religion only when the regulation impermissibly

singles out “some or all religious beliefs or regulates or prohibits conduct because it is

undertaken for religious reasons.” Lukumi Babalu, 508 U.S. at 532, 113 S. Ct. at 2226. The

workers’ compensation system in Montana generally applies to all employers engaged in

commercial activities. Section 39-71-401, MCA. The inclusion of religious organizations

that engage voluntarily in commercial activities within the workers’ compensation system

does not single out religious beliefs. Lee, 455 U.S. at 261, 102 S. Ct. at 1057. And neither

does HB 119’s inclusion of religious organizations within the workers’ compensation system

regulate or prohibit any conduct “because it is undertaken for religious reasons.” Lukumi

Babalu, 508 U.S. at 532, 113 S. Ct. at 2226.

¶42    Courts routinely have rejected Free Exercise challenges to compelled participation by

religious organizations in a wide variety of social welfare programs. These programs range

from a similar workers’ compensation system to the one at issue here, South Baptist Temple,
                                               17
to social security, Lee, to unemployment tax systems, Indianapolis Baptist Temple and

Valley Youth for Christ, to federal minimum wage and overtime and recordkeeping

requirements, Alamo Foundation, to state sales and use taxes, Jimmy Swaggart Ministries.

Each of these religious organizations presented sincere and heartfelt beliefs that its

participation in the governmental program violated its religious beliefs. The courts rejected

each claim. We, too, reject the Colony’s Free Exercise challenge to its participation in

Montana’s workers’ compensation system for Colony members engaged in commercial

activities with nonmembers for remuneration. The decision of the legislature to include in

the definition of “employer” religious corporations that voluntarily engage in commercial

activities with nonmembers for remuneration fails to establish evidence of discrimination

against religious organizations. Cf. Smith, 494 U.S. at 878, 110 S. Ct. at 1599-1600.

¶43    Issue 2. Whether the provisions in HB 119 that incorporate the Colony into the

definition of “employer” and the Colony’s members into the definition of “employee” under

the Workers’ Compensation Act violate the Establishment Clause.

¶44    Lemon provides the test to analyze government conduct under the Establishment

Clause of the First Amendment. The government conduct at issue must (1) have a secular

purpose, (2) not have as its principal or primary effect inhibiting religion, and (3) not foster

excessive entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S. Ct. at 2111. Courts

most commonly apply Lemon to situations in which the government allegedly has given

preference to a religion. Roemer v. Board of Public Works, 426 U.S. 736, 96 S. Ct. 2337

(1976). The Lemon test likewise accommodates evaluation of a claim brought under the

theory of hostility to religion. Vernon v. City of Los Angeles, 27 F.3d 1385, 1396 (9th Cir.
                                              18
1994) (applying Lemon to a claim that the City of Los Angeles’s investigation of a police

officer was prompted by hostility to the officer’s religious beliefs).

¶45     The purpose prong of Lemon asks whether the government’s actual purpose “is to

endorse or disapprove of religion.” Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th Cir.

1993). As a practical matter, however, a government practice will stumble on the purpose

prong “only if it is motivated wholly by an impermissible purpose.” Bowen v. Kendrick, 487

U.S. 589, 602, 108 S. Ct. 2562, 2570 (1988). We cannot agree with the District Court that an

impermissible purpose wholly motivated the legislature’s inclusion of Sections 6 and 7 in

HB 119.

¶46    The Court in Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S. Ct. 1526, 1535 (1972),

abrogated in part, Smith, 494 U.S. 872, 110 S. Ct. 1595, recognized “even when religiously

based, [one’s activities] are often subject to regulation by the States in the exercise of their

undoubted power to promote the health, safety, and general welfare.” The workers’

compensation system in Montana undoubtedly promotes the health, safety, and welfare of

workers. Walters v. Flathead Concrete Prods., Inc., 2011 MT 45, ¶ 28, 359 Mont. 346, 249

P.3d 913.    The decision by the legislature to ensure coverage under the workers’

compensation system to members of religious organizations engaged in commercial

activities with nonmembers for remuneration furthers this secular purpose.

¶47    The District Court further determined the primary effect of including the Colony’s

members in the workers’ compensation system “would be to inhibit the Colony in the

practice of their religion.” We evaluate this question from the perspective of a “reasonable

observer.” Kreisner, 1 F.3d at 784. In this regard, we must keep in mind that the
                                              19
Establishment Clause does not demand “that we elevate a group of persons to a privileged

status, above all [others], because of their religious beliefs.” Hofer v. DPHHS, 2005 MT

302, ¶ 42, 329 Mont. 368, 124 P.3d 1098. We must consider instead whether it would be

objectively reasonable for the government action to be construed as sending primarily a

message of either endorsement or disapproval of religion. County of Allegheny v. ACLU,

492 U.S. 573, 592-93, 109 S. Ct. 3086, 3100-01 (1989).

¶48    The legislature has chosen to include religious corporations that engage in commercial

activities with nonmembers for remuneration in the workers’ compensation system. The

workers’ compensation system applies to many other types of corporations and other entities

organized in various fashions that engage in commercial activities. Section 39-71-117(a),

(b), and (c), MCA. No reasonable observer would construe the legislature’s explicit

inclusion in the workers’ compensation system of religious corporations that engage in

commercial activities with nonmembers for remuneration, along with various other types of

corporations and entities, as sending a message of disapproval of religion. Cf. County of

Allegheny, 492 U.S. at 592-93, 109 S. Ct. at 3100-01.

¶49    The third prong of the Lemon test requires the court to examine whether the

government action results in “an excessive government entanglement with religion.” Lemon,

403 U.S. at 613, 91 S. Ct. at 2111. The entanglement prong “seeks to minimize the

interference of religious authorities with secular affairs and secular authorities in religious

affairs.” Cammack v. Waihee, 932 F.2d 765, 780 (9th Cir. 1991).                Administrative

entanglement typically involves comprehensive, discriminating, and continuing state

surveillance of religion. Lemon, 403 U.S. at 619-22, 91 S. Ct. at 2114-15.
                                              20
¶50    The Supreme Court usually has found excessive entanglement in situations that

involve either state aid to groups affiliated with a religious institution, such as parochial

schools, see, e.g., Aguilar; Roemer; Levitt v. Committee for Public Educ. & Religious

Liberty, 413 U.S. 472, 93 S. Ct. 2814 (1973); Lemon, or where religious employees and

public employees must work closely together, Aguilar, 473 U.S. at 412-14, 105 S. Ct. at

3237-39 (program required on-site monitoring of sectarian schools by public authorities and

coordinated planning by public and sectarian figures). The Colony’s claim presents none of

these situations.

¶51    Courts look first to the character and purpose of the religious institution affected by

the government action. Lemon, 403 U.S. at 615, 91 S. Ct. at 2112. Courts next assess the

nature of the activity that the government mandates. Lemon, 403 U.S. at 615, 91 S. Ct. at

2112. And finally, courts evaluate the resulting relationship between the government and the

religious institution. Lemon, 403 U.S. at 615, 91 S. Ct. at 2112. See also Jimmy Swaggart

Ministries, 493 U.S. at 393, 110 S. Ct. at 697.

¶52    The Alamo Foundation, 471 U.S. at 303, 105 S. Ct. at 1962, presented a similar

excessive entanglement claim. The Court recognized that the recordkeeping requirement

imposed by the FLSA applied only to commercial activities undertaken for a “business

purpose.” The recordkeeping requirement would have no impact on the Foundation’s “own

evangelical activities or on individuals engaged in volunteer work.” Alamo Foundation, 471

U.S. at 305, 105 S. Ct. at 1963.

¶53    The workers’ compensation requirement here applies only to those religious

corporations that receive “remuneration” from nonmembers for “agricultural production,
                                             21
manufacturing, or a construction project.” Section 39-71-117(1)(d), MCA. Any extra

bookkeeping or recordkeeping would apply only to the Colony’s commercial activities

undertaken for a “business purpose.” Cf. Alamo Foundation, 471 U.S. at 305, 105 S. Ct. at

1963. No extra bookkeeping or recordkeeping would be required for labor conducted by

Colony members for support of the Colony. The court’s decision in Stahl, 626 F.3d 520,

provides further persuasive reasoning.

¶54    There the president of the Stahl Hutterian Brethren sought a refund of a portion of his

personal income taxes. The Stahl Hutterian Brethren is a nonprofit apostolic corporation that

maintains a common treasury and pays no income tax. Members instead pay personal

income taxes on their pro rata share of the corporation’s income. Stahl, 626 F.3d at 521.

Members live a communal lifestyle similar to the Colony and engage mainly in agriculture.

The corporation farms 30,000 acres of land and produces dairy products and a variety of

crops that it sells to other businesses and at farmers markets. Stahl, 626 F.3d at 521.

¶55    The corporation members disavow individual personal property ownership, and, as a

result, members receive no salaries from the corporation. The corporation maintains and

uses all of its property for the benefit of its members. The corporation, in turn, provides for

the members’ personal needs, including food, shelter, clothing, and medical care. Stahl, 626

F.3d at 521.

¶56    The president brought an action to obtain an income tax refund on the basis that the

corporate income level should have been reduced for tax purposes before his pro-rata share

passed through to him. He argued that the costs of meals and medical expenses of the

corporation’s employees constituted ordinary and necessary business expenses. Stahl, 626
                                              22
F.3d at 522. The district court determined that none of the corporation’s members, including

the president, qualified as employees for tax purposes. Stahl, 626 F.3d at 522.

¶57    The Ninth Circuit reversed. The court evaluated whether the corporation’s members

qualified as employees for tax purposes under federal law. This analysis led the court to

determine that “the individual Hutterites” who work for the corporation should be seen “as

common law employees” to the extent that these individual members perform the work of

the corporation. Stahl, 626 F.3d at 527. The court remanded for consideration of the

president’s claims for deductions.

¶58    On remand, the district court granted the president’s claim for deduction. With

respect to food, the court reasoned that the corporation’s dairy farm operation required round

the clock supervision. These employees must be fed. Stahl v. United States, 861 F. Supp. 2d

1226, 1231 (E.D. Wa. 2012). Likewise, the court concluded that the corporation had

provided food and medical care to the president in return for his labor.

¶59    The court recognized that the corporation and its members had created a community

that functions largely without wages. Employee compensation in a wageless community

takes the form of housing, food, and medical care. The fact that the corporation and its

members had chosen this wageless community for religious reasons proved “irrelevant” as

long as the items that the corporation claims as compensation – food and medical care – truly

function as compensation in the community. Stahl, 861 F. Supp. 2d at 1231. Similar

reasoning applied to medical expenses incurred by the corporation to purchase a health plan

for the president and the corporation’s members and payment for any uninsured charges.

Stahl, 861 F. Supp. 2d at 1232.
                                             23
¶60    The Court in Jimmy Swaggart Ministries noted that the organization possessed a

sophisticated accounting staff and had the ability to segregate retail sales and donations for

purposes of obtaining a federal income tax exemption on these donations. Thus, Jimmy

Swaggart Ministries easily could track the revenue generated by its retail sales. The Court

further recognized that imposition of the tax involved a determination only of whether a sale

had taken place and required no determination of whether the materials sold were religious in

nature. Jimmy Swaggart Ministries, 493 U.S. at 396, 110 S. Ct. at 699. The fact that Jimmy

Swaggart Ministries placed a price on its merchandise relieved California of the need to

undertake any independent valuation of any religious items. Jimmy Swaggart Ministries,

493 U.S. at 396, 110 S. Ct. at 699; see also Hofer, ¶ 43 (concluding that an express trust

exists between the Hutterite colony and its members and therefore the colony’s resources are

available to members when considering a member’s eligibility for the Family-Related

Medicaid Program).

¶61    The court in South Ridge Baptist similarly rejected an excessive entanglement claim.

The burden imposed by the requirement that the church provide workers’ compensation

coverage for its employees differed little from the church’s other involvements with the state.

Ohio law required the church’s payroll and wage expenditures to be open for inspection.

These payroll reports are sent every six months to employers to be completed and returned.

The church would be obligated to report job-related injuries or illnesses and report aggregate

wages and the number of employees. None of this information delved into “the religious

beliefs of the clergy or the congregation.” South Ridge Baptist, 911 F.2d at 1210. Moreover,

the church undoubtedly remains “subject to a variety of state public welfare regulations,
                                              24
from the zoning, building and fire codes applicable to its place of worship . . . to federal

minimum wage and other labor standards governing [its] employment practices.” South

Ridge Baptist, 911 F.2d at 1211.

¶62    The Dissent laments that HB 119 creates a substantial intrusion into the religious

practices of the Colony and its members. Dissent, ¶ 99. Neither the Dissent, nor the Colony

for that matter, claim that other state regulations of the Colony’s commercial activities pose

substantial intrusions into the religious practices of the Colony and its members. For

example, Title 81 of the Montana Code Annotated regulates commercial agricultural

producers of poultry, dairy, and other products. Title 81 further authorizes the Department

of Agriculture and county boards of health to promulgate health and safety regulations for

commercial agricultural producers. These regulations necessarily require some entanglement

between the State and producers of commercial agricultural products, including the Colony.

¶63    The information necessary for the Colony to comply with participation in the

workers’ compensation system would not delve into the religious beliefs of the Colony or its

members. It further appears that the requirement to provide workers’ compensation coverage

for its members engaged in commercial activities poses no more burdensome recordkeeping

requirement than those outlined in Stahl. The Colony presently maintains financial records

based on its status as a religious corporation so that its members, similar to the religious

corporation in Stahl, may file tax returns. Finally, as the Department asserts, the Colony

retains the option to self-insure as a means to limit excessive entanglement. Section 39-71-

2101, MCA. We cannot agree with the District Court’s conclusion that “a comprehensive,

discriminating, and continuing state surveillance will inevitably be required to ensure that
                                             25
only particular areas of Hutterite activity are scrutinized.” The recordkeeping required to

establish compliance with Montana’s workers’ compensation system constitutes a valid

regulation of the Colony’s commercial activities.

¶64    Issue 3. Whether the provisions in HB 119 that incorporate the Colony into the

definition of “employer” and the Colony’s members into the definition of “employee” under

the Workers’ Compensation Act violate the Colony’s right to equal protection of the laws.

¶65    The District Court determined that the separate classification created by Sections 6

and 7 “treats Hutterites differently from other religious organizations and further targets

religious organizations generally.” A party who asserts an equal protection claim based on a

workers’ compensation statute must satisfy two separate criteria. Wilkes v. Mont. State

Fund, 2008 MT 29, ¶ 12, 342 Mont. 292, 177 P.3d 483. The party first must demonstrate

that the legislature has created a classification that treats differently two or more similarly

situated groups. Wilkes, ¶ 12. Once the party has demonstrated a classification that treats

groups differently, the party must demonstrate that the discriminatory classification

rationally relates to no legitimate governmental purpose. Wilkes, ¶ 12.

¶66    The Colony claims that HB 119 singles out the Hutterites and treats them differently

than other similarly situated groups. The Colony identifies two separate sets of “similarly

situated groups.” The Colony first argues that HB 119 treats the Colony differently than any

other religious groups. The Colony further argues that HB 119 treats religious groups

differently from non-religious groups.

¶67    The Colony argues that its commitment to communal living prevents a member from

owning property. As a result, a Colony member who received any compensation for lost
                                              26
wages pursuant to a workers’ compensation claim immediately would have to forfeit the

money to the Colony or face possible excommunication from the Colony. The Colony

claims, however, that HB 119 somehow would prevent the Colony from proceeding to

excommunicate a member who received a workers’ compensation claim payment. The

Colony further claims that no other religion bans ownership of property, and, therefore, HB

119 would affect only the Colony in this manner.

¶68    We first note that nothing prevents an injured Colony member from refraining to file a

workers’ compensation claim or returning any workers’ compensation claim award to the

Colony. Cf. Alamo Foundation, 471 U.S. at 304, 105 S. Ct. at 1963. More importantly,

nothing in HB 119 or any other provision of the Workers’ Compensation Act prevents the

Colony from proceeding to excommunicate a member who receives compensation for lost

wages and refuses to give the money to the Colony. HB 119 treats the Colony no differently

than any religious groups that do not prevent ownership of property.

¶69    The Colony next argues that HB 119 creates a group of religious employers and a

group of all other employers. HB 119 amended the definition of “employer” explicitly to

include religious corporations, organizations, or trusts that engage in commercial activities

with nonmembers for remuneration. The Colony claims that the exclusive focus in Section 6

of HB 119 on religious employers results in a system that treats religious employers

differently than non-religious employers.

¶70    We look to a statute’s plain language to interpret it. Delaney & Co. v. City of

Bozeman, 2009 MT 441, ¶ 22, 354 Mont. 181, 222 P.3d 618. We must read a whole act

together and where possible we must give full effect to all statutes involved. Delaney & Co.,
                                             27
¶ 22. Accordingly, we look to the entirety of the Workers’ Compensation Act, rather than to

a single subsection, to determine whether the Workers’ Compensation Act treats religious

employers differently than non-religious employers.

¶71    Section 39-71-117, MCA, sets forth in mind-numbing detail the full definition of

“employer” for purposes of the workers’ compensation system. This extensive definition,

including subsections (a), (b), and (c), all of which predated HB 119, applies generally to

religious and non-religious entities alike. The definition of “employer” includes the state,

counties, cities, public corporations, quasi-public corporations, private corporations,

individual people, associations, limited liability companies, and nonprofit associations, as

well as numerous other entities. Section 39-71-117(a), (b), and (c), MCA. HB 119 simply

adds religious organizations to the types of entities that qualify as an “employer” for

purposes of the workers’ compensation system. HB 119 treats religious organizations no

differently than any other employer under the workers’ compensation system. A review of

the complete list of entities that qualify as an “employer” for purposes of the workers’

compensation system reveals that the Workers’ Compensation Act creates no separate

classification under HB 119 that singles out religious groups for different treatment.

¶72    The Colony’s failure to establish that HB 119 creates “two separate similarly situated

groups” that receive unequal treatment under the Workers’ Compensation Act ends our

inquiry. This failure to establish two separate groups relieves the Court of the need to

evaluate whether the alleged disparate treatment rationally relates to any legitimate

governmental interest. Bustell v. AIG Claims Serv., 2004 MT 362, ¶ 22, 324 Mont. 478, 105

P.3d 286.
                                             28
                                       CONCLUSION

¶73   We recognize that the issues in dispute present intractable problems that no court ever

will resolve to the satisfaction of all parties. Justice O’Connor, in rejecting a challenge

brought by Native Americans to enjoin a United States forest service road through sacred

areas, summed up our dilemma:

      However much we might wish that it were otherwise, government simply
      could not operate if it were required to satisfy every citizen’s religious needs
      and desires. A broad range of government activities -- from social welfare
      programs to foreign aid to conservation projects -- will always be considered
      essential to the spiritual well-being of some citizens, often on the basis of
      sincerely held religious beliefs. Others will find the very same activities
      deeply offensive, and perhaps incompatible with their own search for spiritual
      fulfillment and with the tenets of their religion. The First Amendment must
      apply to all citizens alike, and it can give to none of them a veto over public
      programs that do not prohibit the free exercise of religion. The Constitution
      does not, and courts cannot, offer to reconcile the various competing demands
      on government, many of them rooted in sincere religious belief, that inevitably
      arise in so diverse a society as ours. That task, to the extent that it is feasible,
      is for the legislatures and other institutions.



Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 452, 108 S. Ct. 1319,

1327 (1988).

¶74   Reversed and remanded for entry of summary judgment in favor of the Department.


                                                   /S/ BRIAN MORRIS


We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER

                                              29
Justice James C. Nelson, dissenting.


¶75    I join Justice Rice’s well-reasoned and compelling Dissent.

¶76    Although in today’s society and politics the principle is honored more in the breach,

this Country was founded on the seminal precept that there is a wall of separation between

church and state. See Donaldson v. State, 2012 MT 288, ¶ 194, ___ Mont. ___, ___ P.3d ___

(Nelson, J., dissenting). To that end, the First Amendment and Article II, Section 5 of

Montana’s Constitution both contain clear, unambiguous, and unequivocal proscriptions:

Congress and the State shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof.

¶77    Yet here, as Justice Rice explains, in order to level some theoretical economic playing

field and to pacify the complaints of one industry, the Legislature enacted a law targeting

Hutterite colonies and preventing them from being able to practice and comport with

important doctrines of their religion—a religion that defines and drives every aspect of

Colony life.

¶78    Today’s decision allows the State to do exactly what the Montana and United States

Constitutions expressly prohibit. This Court’s decision allows the government to interfere

with the doctrinal belief systems of a religious institution and its members. Apparently,

henceforth, “no law” prohibiting the free exercise of religion does not actually mean “no

law” in Montana. Rather, it means no law, except to the extent that the law greases the

squeaky wheel of a powerful industry.

                                             30
¶79    I dissent.

                                                   /S/ JAMES C. NELSON



Justice Jim Rice, dissenting.

¶80    To reach its decision, the Court uses waves of generic statements that fail to account

for the facts of this case, the arguments of the Colony, and the applicable legal tests. The

Court makes no effort to determine whether the challenged legislation constitutes a religious

gerrymander, even though courts “must survey meticulously the circumstances of

governmental categories to eliminate, as it were, religious gerrymanders.” Lukumi Babalu,

508 U.S. at 534, 113 S. Ct. at 2227. The Court minimizes the Colony’s claim to merely

“sincere and heartfelt beliefs that its participation in the governmental program violated its

religious beliefs,” and cites to numerous cases that reject claims of that nature, while failing

to acknowledge that this case is factually, and fundamentally, different. Opinion, ¶ 42. I

believe the facts and law, when properly considered, demonstrate that the Legislature created

a clear religious gerrymander applicable only to the Hutterites and that such action was not

justified by a compelling state interest. I would affirm the District Court’s holding that their

right to free exercise of religion was violated.

¶81    A law affecting the constitutional guarantee of free exercise of religion is to be both

facially neutral and generally applicable. Lukumi Babalu, 508 U.S. at 531-32, 113 S. Ct. at

2226 (citing Smith, 494 U.S. at 879-81, 110 S. Ct. at 1600-01). A law failing to satisfy the

requirements of neutrality and general applicability “must be justified by a compelling

governmental interest and must be narrowly tailored to advance that interest.” Lukumi
                                              31
Babalu, 508 U.S. at 531-32, 113 S. Ct. at 2226. A law is not neutral if the text of the law has

a targeting effect or a discriminatory object as discerned from direct and circumstantial

evidence. Lukumi Babalu, 508 U.S. at 533-34, 113 S. Ct. at 2227. The Court in Lukumi

Babalu stated:

       Official action that targets religious conduct for distinctive treatment cannot be
       shielded by mere compliance with the requirement of facial neutrality. The
       Free Exercise Clause protects against governmental hostility which is masked
       as well as overt. ‘The Court must survey meticulously the circumstances of
       governmental categories to eliminate, as it were, religious gerrymanders.’

Lukumi Babalu, 508 U.S. at 534, 113 S. Ct. at 2227 (quoting Walz v. Tax Comm’n of New

York City, 397 U.S. 664, 696, 90 S. Ct. 1409, 1425 (1970) (Harlan, J., concurring)). In

determining that the contested ordinances in Lukumi Babalu were not neutral, the Court

reviewed the legislative record and history surrounding the enactment of the ordinances,

stating, “the effect of a law in its real operation is strong evidence of its object.” Lukumi

Babalu, 508 U.S. at 535, 113 S. Ct. at 2228. The Court found that the four contested

ordinances created an impermissible religious gerrymander because they “were drafted in

tandem” to “target petitioners and their religious practices.” Lukumi Babalu, 508 U.S. at

535, 113 S. Ct. at 2228.

¶82    To appreciate the Hutterites’ arguments, it is first necessary to understand their unique

religious principles. The Court offers generally that the Hutterite faith is one in which “all

members agree to live a communal life and follow the teaching and tenets of the Hutterische

Church Society,” Opinion, ¶ 9, but fails to discuss the manner in which the Hutterites were

targeted or articulate the critical tenets which the legislation would require the Hutterites to

violate in order to participate in the workers’ compensation system.

                                              32
¶83    To begin, the record establishes that a hallmark of the Hutterite religion is the

communal lifestyle where religious exercise and labor are not divisible because “[a]ll labor

and support provided by members to the Colony is done for their own personal religious

purpose without promise or expectation of compensation. The performance of labor and

support for the Colony is an act of religious exercise.” Hutterites eat meals, worship, work,

and are educated entirely communally and they do not associate with “non-members.” The

Membership Declaration, to which every member of the Colony must subscribe, affirms each

member’s responsibility to relinquish current and future property rights to the Colony, and

members are not permitted a wage or salary. In fact, the Hutterite faith prohibits the

payment of wages for labor performed by its members. At oral argument, the State conceded

that the wage replacement component of workers’ compensation coverage would not be

applicable to Colony members because, pursuant to their tenets of faith, they cannot receive

wages.1 Farming and agricultural production has been a part of the Hutterite lifestyle for

hundreds of years and is specifically named in the Colony’s Articles of Incorporation and the

Hutterian Brethren Church Constitution as a central component of the Colony’s livelihood.

The Colony also participates in manufacturing and construction projects.

¶84    In Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972), parents of Amish

children challenged Wisconsin’s law requiring all children to attend school until age 16,

claiming that their beliefs required children to be educated within the Amish community

1
 The State also argued that Colony members could nonetheless receive medical benefits from the
mandated coverage, but this would require the forbidden act of filing a legal claim, discussed further
herein. As to medical care, the record reflects that “the colonies fund the medical care that their


                                                 33
after completion of eighth grade in order to limit exposure to worldly influences inconsistent

with their religious beliefs. Yoder, 406 U.S. at 210-13, 92 S. Ct. at 1530-32. The Supreme

Court held that Wisconsin’s compulsory school attendance law unduly burdened the Free

Exercise Clause by forcing Amish parents to send their children to public school after the

eighth grade in violation of one of the core Amish religious beliefs. Yoder, 406 U.S. at 234-

35, 92 S. Ct. at 1542. In its analysis, the Supreme Court stated that “we must be careful to

determine whether the Amish religious faith and their mode of life, are . . . inseparable and

interdependent.” Yoder, 406 U.S. at 215, 92 S. Ct. at 1533. As in Yoder, the record here

supports the determination that the communal way of life of the Colony is “one of deep

religious conviction, shared by an organized group, and intimately related to daily living.”

Yoder, 406 U.S. at 216, 92 S. Ct. at 1533. The command to live communally and without

property or legal claims is fundamental to the Hutterite faith.

¶85    In addition to the communal lifestyle that requires renouncement of wages and the

ownership of property, and critical to an understanding of the conflict presented by their

inclusion into the Workers’ Compensation Act, is the tenet that making a legal claim is a

violation of fundamental Hutterian doctrine. Daniel Wipf’s affidavit states that “Christians

shall not sue one another at law nor sit in judgment of one another. Hutterites cannot make

claims against others for wrongs done to them.” The Membership Declaration, which every

member of the Colony must sign, states:

              I declare that my acceptance of membership and the terms and
       conditions of membership is a matter of my religious beliefs . . . Among those

members need. Each individual Colony still provides full no-fault medical care for its members”
and “[r]egardless of the reason for any member’s illness or injury, the member is cared for.”
                                              34
       beliefs is the commandment to live at peace with fellow believers, to resolve
       disputes within the Church, and not to seek redress before secular authorities
       whether related to secular or sectarian issues.

(Emphasis added.) Wipf’s affidavit explains that a member who does not convey his or her

“ownership” of a legal claim to the Colony, like other property, would be subject to

excommunication, or essentially termination from membership in the Colony. He states, “I

do not know of any Hutterite member who has made any workers’ compensation claim

against a Hutterite colony in Montana or against the Uninsured Employers[’] Fund.”

¶86    HB 119’s legislative history must be considered in order to understand the impact of

the bill. The United States Supreme Court has looked both to the text and to the legislative

history of a law to determine whether legislators intended to target religious practices,

Lukumi Babalu, 508 U.S. at 533-34, 113 S. Ct. at 2227, although the Court fails to do so

here. The Department proposed HB 119 to address complaints received “about Hutterite

colonies competing with other Montana businesses, such as contractors, without having to

provide workers’ compensation insurance.”         The only religious group named in the

legislative debates surrounding HB 119 was the Hutterites, and both the House and the

Senate specifically discussed the impact HB 119 would have on Hutterite colonies.

Representative Hunter said, “[i]n particular, we are speaking of, in [Sections 6 and 7], about

Hutterite colonies” when he introduced HB 119 in the House Committee and reiterated this

concept to the Senate Committee. Mont. H. Comm. on Bus. & Labor, Hearing on H. Bill

119, 61st Legis., Reg. Sess. (Jan. 8, 2009); Mont. Sen. Comm. on Bus., Labor, & Econ.

Affairs, Hearing on H. Bill 119, 61st Legis., Reg. Sess. (Mar. 5, 2009). Senator Stewart-

Peregoy characterized HB 119 and the corresponding Legislative debate as “targeting” the

                                             35
Hutterites, stating, “if we’re going to target a group, we should have just put Hutterite

religious organizations and let’s be done with it. . . . [W]e are targeting a group and I just

wanted that for the record.” Mont. Sen. Comm. on Bus., Labor, & Econ. Affairs, Hearing on

H. Bill 119, 61st Legis., Reg. Sess. (Mar. 11, 2009). Additionally, Senator Balyeat

acknowledged HB 119 was really “aimed” at the Hutterite religious colonies near Great

Falls. Mont. Sen., Floor Session on H. Bill 119, 61st Legis., Reg. Sess. (Mar. 16, 2009).

The legislative record clearly shows that the objective intent of the legislators was none other

than to target the Hutterites.

¶87    In response to this expressed legislative intention, the text of HB 119 was amended

throughout the legislative process to focus more and more narrowly on the Hutterites.

Language was inserted within Section 6’s definition of employer to read “a religious

corporation, religious organization, or religious trust receiving remuneration from

nonmembers for agricultural production, manufacturing, or a construction project

conducted by its members on or off the property of the religious corporation, religious

organization, or religious trust.” Section 39-71-117(1)(d), MCA (emphasis added). The

language “agricultural production, manufacturing, or a construction project”—instead of all

commercial activities—was inserted into HB 119 to incorporate only those specific business

enterprises in which the Hutterites engaged. Here, the Court’s tactic of ignoring the facts

and over-generalizing HB 119 and the Act as a whole in order to give the appearance that the

Act applies equally to all employers is well illustrated. See Opinion, ¶ 21 (“HB 119

regulates the Colony’s engagement in commercial activities in the same manner that the

workers’ compensation system regulates the commercial activities of other employers in
                                              36
Montana.”). The Court repeatedly states that HB 119 applies to all “commercial activities”

and bases its analysis thereon. See Opinion ¶¶ 18, 21, 23, 24, 25, 26, 27, 30, 41, and 42.

However, the text of HB 119 does not apply to “commercial activities” generally, nor does

HB 119 use the term “commercial activities” at all. Rather, it employs the phrase

“agricultural production, manufacturing, or a construction project”—only those economic

activities that the Legislature knew the Hutterites to be engaged in.

¶88    Similarly, the Court makes repeated statements to the effect that all religious

employers are treated the same as other employers. See Opinion, ¶ 71 (“HB 119 treats

religious organizations no differently than any other employer under the workers’

compensation system”; “the Workers’ Compensation Act creates no separate classification

under HB 119 that singles out religious groups for different treatment.”). However, these

statements are not supported by the text of HB 119. Religious employers such as a

Presbyterian Day Care, a Mormon Cleaning Service, or a Catholic Social Agency would not

satisfy HB 119’s definition of religious “employer” for multiple reasons, the first being that

they are not engaged in the economic activities targeted by the bill—“agricultural

production, manufacturing, or a construction project.”2, 3


2
  These are examples of religious employers who would be exempt from participation under § 39-71-
117(1)(d), MCA. However, it is possible that a social agency could come within the definition of
employer under § 39-71-117(c), MCA, if it was “funded in whole or in part by federal, state, or local
government funds.”
3
  The Court responds that HB 119 did not need to capture these other religious employers because
they and the Hutterites were already included under other statutory provisions. Opinion, ¶ 25. The
Court then reasons that the revision to the statutory definition of “wages” to include the concept of
“remuneration” was all that was necessary to bring the Hutterites into the workers’ compensation
system. Opinion, ¶ 26. The State has not made these assertions, and the Court cites neither to
authority nor to the record to support them. They are not supported by the plain language of the
other provisions, which makes no reference to religious employers. If religious employers were
                                                 37
¶89    The Court distinguishes cases that have struck down legislation for violating the free

exercise right by reasoning that HB 119 “does not place the Colony members in a

discriminatory position compared to other religious groups who might choose to engage in

similar activity. These distinctions lead us to reject the strict scrutiny analysis . . . .”

Opinion, ¶ 21. Again, this distinction—and the conclusion based thereon to reject strict

scrutiny review—is likewise belied by the text of HB 119. The Legislature cleverly drafted

Sections 6 and 7 to include only the Hutterites engaged in these economic activities and to

exclude other religious groups. Under these provisions, an “employee” must be “a member”

of the “religious corporation, religious organization, or religious trust while performing

services” for the organization. Correspondingly, an “employer” is defined as a religious

organization engaged in the targeted economic activities only when such activities are

“conducted by its members.” See Section 39-71-117(1)(d), MCA. As mentioned, all

Hutterite labor is provided by members of their communal organization. The “performance

of labor” is a religious exercise required of every member “to the extent of his or her ability”

and is provided for the “personal religious purpose” of the members. Hutterites do not

associate for these purposes with nonmembers, who provide no labor for the organization.

By merely hiring employees who are not “members” of their organization, other religious


already completely encompassed by other provisions, it would have been unnecessary to create the
new category of “religious organization” within the statutory definition of “employer,” as HB 119
did. See § 39-71-117(1)(d), MCA. Likewise, it would have been unnecessary to create, within the
statutory definition of “employee,” the new category of a “member” of a religious organization
“while performing services” for the religious organization. See § 39-71-118(1)(i), MCA. I note that
the former statutory provision under which the religious employer in St. John’s Lutheran Church
was required to participate in workers’ compensation was subsequently repealed. See Sec. 13, Ch.
448, L. 2005. Context matters, and I believe that consideration of context should include all of the

                                                38
organizations choosing to participate in the named economic activities could be exempted

from the provisions of HB 119. The tenets of the Hutterite religion, however, do not permit

this evasion, as their labor is provided by members only. HB 119 incorporates religious

organizations within workers’ compensation only when “members” (§ 39-71-118(1)(i),

MCA) of a religious organization provide labor and services to “nonmembers” (§ 39-71-

117(1)(d), MCA)—a scheme which only applies to the religious structure of the Hutterites.

There is no evidence in the record that any other religious organization would be

incorporated into the workers’ compensation system under these provisions.

¶90    The text reveals further targeting of the Hutterites. HB 119 created the new financial

category of “remuneration,” § 39-71-117(1)(d), MCA, and in other provisions drafted in

tandem, revised § 39-71-123(5), MCA, to incorporate a method for calculating remuneration

so that the Act would apply to the Hutterites, who receive no wages. No other religious

organization is identified in the record as using a non-wage system. HB 119’s application to

the specified economic activities when “conducted by its members on or off the property” of

the religious organization, § 39-71-117(1)(d), MCA, is a reference to the practice of the

Hutterites living communally on their own property and providing services off their

property.

¶91    Some of these provisions could be potentially innocuous methods of defining a

religious entity for incorporation within the workers’ compensation system as part of a broad

inclusion of all religious organizations within the system. However, the Legislature did not



text of HB 119, the Act as a whole, and the legislative history, which reveal an effort of laser-like
precision to capture only the Hutterites.
                                                 39
broadly incorporate all religions. Rather, it enacted these provisions to define and target only

the Hutterite religion for inclusion within the system. While the text of HB 119 is not

facially discriminatory, its history and text reveal that it nonetheless fails to be neutral and

generally applicable. “Official action that targets religious conduct for distinctive treatment

cannot be shielded by mere compliance with the requirement of facial neutrality.” Lukumi

Babalu, 508 U.S. at 534, 113 S. Ct. at 2227. The effect of HB 119 is to create a religious

gerrymander that improperly singles out one religion. Lukumi Babalu, 508 U.S. at 535, 113

S. Ct. at 2228 (“Apart from the text, the effect of a law in its real operation is strong evidence

of its object.”). The significance of a religious gerrymander under the proper legal analysis

is that it must sustain strict scrutiny review. Lukumi Babalu, 508 U.S. at 531-32, 113 S. Ct.

at 2226.

¶92    The Court relies on cases that rejected Free Exercise challenges to truly generally

applicable statutes. Generally applicable laws are not subject to strict scrutiny review and

thus are more easily defended against challenges. In Alamo Foundation and Jimmy

Swaggart Ministries, religious organizations challenged labor and tax laws that were

generally applicable to the commercial activities of all organizations, including religious

organizations. Similarly, South Ridge Baptist Church, Lee, and Rogue Valley Youth for

Christ challenged generally applicable tax and wage requirements. In these cases, the

religious organizations merely argued that compliance with such neutral and generally

applicable requirements violated the tenets of their faith. Unlike HB 119, there was no effort

in those cases to draft the challenged laws with the purpose to gerrymander and include a



                                               40
particular religious organization within the system. The failure to draft HB 119 in a

generally applicable manner necessarily requires strict scrutiny review.

¶93    That being so, the State argues that a compelling state interest can be demonstrated. It

offers that HB 119 was enacted for two legitimate government interests, including protection

of the Uninsured Employers’ Fund (UEF) from potential liability for a catastrophic injury

claim filed by a Hutterite member and ensuring fair competition among businesses by

eliminating the Hutterites’ perceived advantage. Regarding the first, the UEF only applies to

uninsured “employers” who are subject to the Act but have not provided coverage for their

employees. See Zempel v. Uninsured Employers’ Fund, 282 Mont. 424, 431, 938 P.2d 658,

663 (1997) (citations omitted) (“[O]nly injured employees of employers meeting the

definition of uninsured employer . . . are entitled to the ‘substitute’ workers’ compensation

benefits the UEF was created to provide to injured employees of employers who have failed

to ‘properly comply’ with the Act. . . . As a result, the UEF has no funding mechanism to

provide ‘substitute’ workers’ compensation benefits to injured employees of employers not

subject to the Act.”). Consequently, prior to HB 119, a claim could not have been filed by a

Hutterite member against the UEF because the Colony was not an “employer” subject to the

Act—and none have been filed. The State is attempting to legitimize HB 119 by arguing

that the bill provides a solution to a problem that did not exist prior to the bill’s enactment.

Additionally, even if the UEF was a legitimate government concern, HB 119 does not further

that concern. As noted by the District Court, a fundamental tenet of the Hutterites’ faith is

that they cannot make legal claims against others. The Hutterite faith includes “the

commandment to . . . not to seek redress before secular authorities whether related to secular
                                              41
or sectarian issues.” A governmental interest in protecting the UEF from claims that are

prohibited as a matter of law, made by people whose faith forbids them to make such claims,

can hardly be considered “legitimate.”

¶94    The State’s second argument that HB 119 was enacted for a legitimate government

purpose pertained to complaints from businesses about unequal competition with the

colonies. We recognize that the State has legitimate interests in the financial viability of the

workers’ compensation system, in controlling costs, and in providing benefits.                  See

Stratemeyer v. Lincoln Co., 259 Mont. 147, 155, 855 P.2d 506, 511 (1993); Eastman v.

Atlantic Richfield Co., 237 Mont. 332, 339, 777 P.2d 862, 866 (1989). However, the State

has provided no authority for the proposition that ensuring “competitive fairness” among the

state’s businesses is an objective of the workers’ compensation system. Rather, the workers’

compensation system is directed to providing care and rehabilitation to injured workers and

returning them to work as soon as possible. Caldwell v. MACo Workers’ Comp. Trust, 2011

MT 162, ¶ 31, 361 Mont. 140, 256 P.3d 923. Further, the State has not made an effort to

demonstrate that requiring the Colony to pay for workers’ compensation coverage would

actually address the concern over unfair competition, where any competitive advantage of

the Colony would appear to be primarily because of its nonpayment of the more substantial

expenses of wages and benefits, unique to the Colony’s religious beliefs. The State argues

that fairness “is a viable legislative goal, and the Legislature is entitled to take steps to ensure

that the workers’ compensation system is fair to all participants, whether religious or

secular.” However, whether or not “fairness” among competing businesses is a viable goal

of the workers’ compensation system, it pales in comparison to “one of the most cherished
                                                42
and protected liberties in our society,” St. John’s Lutheran Church, 252 Mont. at 523, 830

P.2d at 1276, and cannot be accomplished by legislation that targets a particular religious

group and intrudes upon their internal religious practices. The State’s interest in insuring a

viable workers’ compensation system or creating a “level playing field” is not legitimized by

HB 119 in a way that satisfies the rigorous standards protecting the free exercise of religion.

¶95    The State argues there is a compelling state interest because workers’ compensation,

like social security, “serves the public interest by providing a comprehensive insurance

system with a variety of benefits available to all participants . . .” (quoting Lee, 455 U.S. at

258, 102 S. Ct. at 1055), and this interest is advanced by HB 119’s intention to correct the

purported unfair competitive advantage the Colony has over other businesses. However, HB

119 fails to prohibit nonreligious conduct that endangers the State’s purported government

interests of preventing a catastrophic claim against the UEF and address the perceived

business advantage enjoyed by the Hutterites by not participating in the workers’

compensation system. The Workers’ Compensation Act currently exempts other areas of

employment in agriculture, manufacturing, and construction that could affect the UEF or the

viability of the workers’ compensation system. For example, § 39-71-401(2), MCA,

exempts certain employments from the Act, unless the employer elects coverage and the

insurer allows coverage, including: household or domestic employment (§ 39-71-401(2)(a)),

casual employment (§ 39-71-401(2)(b)), employment of a person performing services in

return for aid or sustenance only (§ 39-71-401(2)(h)), a person who is employed by an

enrolled tribal member or an association, business, corporation, or other entity that is at least

51% owned by an enrolled tribal member or members, whose business is conducted solely
                                               43
within the exterior boundaries of an Indian reservation (§ 39-71-401(2)(m)), and a person

who is an officer or manager of a ditch company (§ 39-71-401(2)(s)).4                 Similarly,

independent contractors may waive rights and benefits of the Act if they obtain an

independent contractor exemption (§ 39-71-401(3)). These exemptions are contrary to the

governmental interests asserted by the State, and lend further credence that the Legislature’s

intent, as demonstrated above, was to pursue “governmental interests only against conduct

motivated by religious belief.” Lukumi Babalu, 508 U.S. at 545, 113 S. Ct. at 2233.

¶96    HB 119 is likewise not narrowly tailored and it places an impermissible burden on the

Hutterite religion. A law is narrowly tailored when the law achieves its stated ends without

unduly burdening religion. See Lukumi Babalu, 508 U.S. at 546, 113 S. Ct. at 2234; Yoder,

406 U.S. at 220-21, 92 S. Ct. at 1536. Following the United States Supreme Court, this

Court has previously applied the Thomas test to determine whether there is a burden on the

free exercise of religion:

              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.

Griffith v. Butte Sch. Dist. No. 1, 2010 MT 246, ¶ 62, 358 Mont. 193, 244 P.3d 321 (quoting

Valley Christian Sch. v. Mont. High Sch. Ass’n, 2004 MT 41, ¶ 7, 320 Mont. 81, 86 P.3d

554; Thomas v. Review Bd. of Ind. Empl. Sec. Div., 450 U.S. 707, 717-18, 101 S. Ct. 1425,

1432 (1981)). There is a burden on the free exercise of religion when the state causes an

4
 This Court has periodically discussed these exemptions to the Act, see i.e., Weidow v. Uninsured
Employers’ Fund, 2010 MT 292, 359 Mont. 77, 246 P.3d 704; Cottrill v. Cottrill Sodding Serv., 229

                                               44
“internal impact or infringement” on the relationship between a religious entity and its

members or “on their sincerely held religious beliefs.” St. John’s Lutheran Church, 252

Mont. at 526, 830 P.2d at 1278. The United States Supreme Court’s 2012 Hosanna-Tabor

decision further supports the premise that there is an impermissible burden on the free

exercise of religion when a government action causes an “internal impact” on religious

beliefs. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Empl. Opportunity

Comm’n, ___ U.S. ___, 132 S. Ct. 694 (2012).

¶97    The State argues that the burden imposed by the workers’ compensation system on the

Hutterites is incidental. However, it fails to recognize that the operation of HB 119 and the

Act interferes with the internal relationship between the Colony and its members under the

central tenets of the Hutterite faith. The Hutterite faith prohibits all property ownership, but

the Act requires injured employees to initiate and thus “own” a claim against the employer or

its insurer to receive benefits under the Act. See § 39-71-603, MCA. The State argues, and

the Court accepts, that self-insurance is a viable option for the Colony, under which a claim

would be made to the Colony itself without any determination of whether a member is

possessing property. See Opinion, ¶ 63. However, the statute cited for this premise, § 39-

71-2103, MCA, actually provides that after an employer is approved to be self-insured, the

employer may “make payments directly to the employees as they may become entitled to

receive the payments.” Such payments to Colony members are exactly the problem because

the Colony’s beliefs require members to relinquish property and live communally.




Mont. 40, 744 P.2d 895 (1987); Bennett v. Bennett, 196 Mont. 22, 637 P.2d 512 (1981).
                                              45
¶98    Further, in the event a member would file a workers’ compensation claim against the

Colony, an act directly contrary to Hutterite religious principles, the member faces

excommunication from the Colony. The Court’s solution for this religious burden is that

“nothing prevents an injured Colony member from refraining to file a workers’

compensation claim or returning any workers’ compensation claim award” or, alternatively,

the Colony could proceed “to excommunicate a member who receives compensation for lost

wages and refuses to give the money to the Colony.” Opinion, ¶ 68. The Court thus reasons

that the Hutterites could simply forego participation in the system to comply with its

religious beliefs. Yet, the financial burden would remain, for which no benefit would be

paid. This is the very definition of illusory coverage that “defies logic” and violates public

policy. See Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶ 37, 315 Mont. 107, 67

P.3d 892. The Court also reasons that the burden placed upon the Colony could be addressed

by a member violating his religious tenets and having the Colony excommunicate the

member. Opinion, ¶ 68. I would suggest that this is not a permissible rationale for justifying

the State’s internal impact upon a religion’s practices.

¶99    I would thus reject the State’s argument that the burden imposed here is incidental.

HB 119 creates a substantial burden on the Colony’s religious practice because, in order for

the Colony and its members to actually participate under the Act, they must violate their

sincerely held religious beliefs.5 HB 119 creates substantial internal intrusion into the

religious practices of the Colony and its members, burdening the Hutterites’ religious


5
 No question has been raised about the sincerity of the Colony’s religious beliefs. See i.e., Sherbert
v. Verner, 374 U.S. 398, 399 n. 1, 83 S. Ct. 1790, 1791 n. 1 (1963).
                                                 46
practices. Strict scrutiny review is not satisfied because the law is neither justified by a

compelling state interest nor narrowly tailored to advance that interest.6

¶100 In my view, the Court fails in its duty to properly undertake the necessary

constitutional inquiry. The Court’s over-general statements do not acknowledge the facts of

the record. The Court’s reliance on Lyng v. Northwest Indian Cemetery Protective

Association, 485 U.S. 439, 108 S. Ct. 1319 (1988), where the United States Supreme Court

rejected a challenge to the government’s use of its own property for road construction and

the property was deemed sacred by non-owners, provides little authority for this case and

less consolation. Our Court has held that “only those interests of the highest order and those

not otherwise served can overbalance legitimate claims to the free exercise of religion.” St.

John’s Lutheran Church, 252 Mont. at 524, 830 P.2d at 1276 (quoting Miller v. Catholic

Diocese of Great Falls, Billings, 224 Mont. 113, 117, 728 P.2d 794, 796 (1986); Yoder, 406

U.S. at 215, 92 S. Ct. at 1533). However, in my view, such protection has not been provided

herein. Had this been the status of religious freedom in 1620, the Pilgrims may well have

sailed right by.

¶101 I dissent.

                                                     /S/ JIM RICE

Justice Patricia O. Cotter and Justice Jim Nelson join in the dissenting Opinion of Justice
Rice.



6
  The Court responds to the claim that HB 119 intrudes into the religious practices of the Colony by
listing regulatory statutes that would apply to the Colony’s business activities. See Opinion, ¶ 62.
However, these statutes regulate the Hutterites’ external activities and do not intrude into their
internal religious practices, as do the provisions at issue here.
                                                47
     /S/ PATRICIA COTTER
     /S/ JAMES C. NELSON




48
