Andrew Hertzler, according to the suit, is from Lancaster County, Pa., and is an “active and practicing” member of the community; his “parents, grandparents, and siblings are all active and practicing Amish”; and he “has a sincerely held religious belief that prevents him from knowingly and willingly having his photograph taken and stored.”
“The Amish faith prohibits an individual from having his/her photograph taken,” the suit read. “This belief stems from the Biblical passage Exodus 20:4, which mandates that ‘You shall not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth,’ as well as the Christian belief in humility.”
But Hertzler’s humility caused a problem when, in June, he tried to buy a gun from a Pennsylvania dealer “using a non-photo, state-issued identification.” This wasn’t enough, according to the dealer — Hertzler was told he needed a picture ID.
So Hertzler took it up with his senator. Alas, though Sen. Pat Toomey (R) forwarded Hertzler’s response to the ATF, he could not help his constituent.
“As the enclosed response [from the ATF] states, Federal firearm laws require photo identification when purchasing a firearm,” Toomey wrote. “There are no exceptions to this federal requirement.”
Hertzler was caught in a Catch-22: To enjoy his rights under the Second Amendment, he would have to violate his faith — or vice-versa. It could not stand.
“Mr. Hertzler confronts Hobson’s choice: either forego his constitutional right to keep and bear arms in defense of himself and his home, or violate his religion,” the suit read. Yet: “The exercise of one Constitutional right cannot be contingent upon the violation or waiver of another.”
“By knowingly and willingly sitting for a photograph, even for a state-issued identification document, Mr. Hertzler would be violating his religion by taking a graven image of himself,” the suit read. “Thus, Mr. Hertzler’s religious freedom has been substantially burdened — in order to exercise his fundamental right to possess a firearm for defense of himself and his home, the Government is requiring him to violate a major tenet of his sincerely held religious belief.”
It was just this outcome, Hertzler’s suit argued, that Congress sought to avoid by passing RFRA in 1993. And it is some states’ versions of this law that are at the center of the Kim Davis controversy over gay marriage in Kentucky, the Memories Pizza stand-off in Indiana, the bakery dust-up in Colorado, and other confrontations between people of faith refusing to provide services to same-sex couples.
The Amish have been fighting for religious exemptions for decades, losing some cases and winning some, most notably a 1972 landmark in which the Supreme Court held that they could exempt themselves from compulsory education laws on religious grounds. Whether Hertzler can prevail in his case will depend on whether a judge finds that his right to exercise his religion outweighs the government’s interest in requiring photo identification for the issuance of gun permits.
While the Supreme Court has not ruled on photo identification religious exemptions for such purposes as drivers’ licenses and voter ID, lower courts have generally “been willing to recognize photo identification as a compelling purpose” that outweighs religious claims, according to a Congressional Research Service study of the issue, provided the photo requirement is “applied uniformly and without exemption.”
Unlike in other recent cases, Hertzler wasn’t trying to marry another man — a right the Supreme Court only ruled on this past summer. He was trying to exercise a centuries-old constitutional right. And the path forward is not clear.
“At a time when there’s been such a loud clamor to ‘do something’ about guns — and ‘doing something’ always involves more restrictions — if the courts agree with Hertzler, it will ultimately amount to fewer restrictions,” columnist Gil Smart wrote at Lancaster Online. “Although I don’t think we have to worry too much about the Amish and gun crime — unless, maybe, they’re the victims.”
Hertzler is not the only Amish man who wants to pack heat, as stories about Amish in several states worried about photo IDs and their gun rights have shown.
“A lot of the Amish hunt and they usually use squirrel or rabbit rifles to bring some food back home,” Douglas County Sheriff Charlie McGrew said after a change in Illinois state law required Amish to have photo ID to buy guns in 2011. “Their big concern is this means they won’t be able to purchase guns or ammo.”