REAL ID: A Lesson To Christians On How Submitting To The Mark Will Not
Be Optionable

Religious minorities face Real ID crackdown*

By Anne Broache
Staff Writer, CNET News.com
February 6, 2008 4:00 AM PST

Editor's note: A May deadline looms as just one flash point in a
political showdown between Homeland Security and states that oppose Real
ID demands. This is the third in a four-part series examining the
confrontation.

No television, no wedding or family photographs, and definitely no image
of herself on her driver's license: That was the devout Christian life
that Nebraska resident Frances Quaring was trying to lead.

Which is why, after the state of Nebraska rejected her request for a
license-without-a-photograph in the mid-1980s, Quaring sued the state in
a landmark case that ended up at the U.S. Supreme Court. She won, with
the justices agreeing that preserving her freedom of religion outweighed
the state's interest in requiring an ID photograph.

More than two decades after the Quaring case, approximately a dozen
states now offer religious exceptions when issuing driver's licenses.
But because of a federal law called the Real ID Act that takes effect on
May 11, residents of those states who have pictureless licenses could
expect problems flying on commercial airliners and entering federal
buildings, including some Social Security and Veterans Affairs offices.

The new rules could affect thousands of Americans in states including
Nebraska, Pennsylvania, Oregon, Minnesota, Kansas, Arkansas, and
Indiana. Religious groups including some Amish, Old Order Mennonites,
Muslims, members of Native American faiths, and fundamentalist
Christians object to identification cards bearing their photographs--or,
in some cases, even showing their unshrouded faces in public.

The American Civil Liberties Union, which has criticized Real ID on
numerous grounds, says it has received complaints about the law's
rigidity toward religious groups and is "exploring all options,"
including a legal challenge to the law.
No photo ID, no admittance?

Starting May 11, the Real ID Act is expected to cause hassles for anyone
with a pictureless license. Also affected are residents of a separate
list of states--shown on this map--who may have trouble when flying on
commercial airliners or entering federal buildings. Click a state below
to see what it has told us about whether its driver's licenses will meet
Real ID requirements.

Real ID by state

Click a state above to see what that state has told us about whether or
not it's going along with the federal Real ID Act.
Alabama

Alabama plans to ask for an extension. "At this point, one option that's
being considered is a 'hybrid' approach to Real ID in Alabama, by which
the state would offer compliant and noncompliant driver licenses and ID
cards. We do plan to ask for an extension."
--Dorris Teague, Public Information/Education Unit, Alabama Department
of Public Safety\

Alaska

"Alaska does indeed intend to request an extension to meet the
requirements of Real ID. We haven't submitted our extension request yet,
but we fully intend to do so in the very near future."
--Whitney Brewster, spokeswoman, Alaska Division of Motor Vehicles

Arizona

Arizona says that Homeland Security has said the state will
"automatically get an extension" because of an existing plan to revamp
its licenses, according to Jeanine L'Ecuyer, spokeswoman for Arizona
Gov. Janet Napolitano. That means its driver's licenses and state ID
cards will be treated as Real ID-compliant until December 31, 2009.

But L'Ecuyer added that final compliance is still an open question:
"Will Arizona do Real ID? Maybe is the honest answer to that question."

Arkansas

"We have asked for the first extension, but in the extension letter, we
say we are not committed to implementing Real ID. We just need time to
look at it and evaluate it."
--Mike Munns, assistant revenue commissioner for Arkansas

California

California reiterated in January 2008 that it has no problems complying
with Real ID. Its statement did, however, mention "privacy and funding
issues, which continue to be a concern for California."

Colorado

"We requested and received the extension until 2009, and we expect to be
fully on the road to implementing Real ID satisfactorily by that point
to get another extension in the future if we need to."
--Mark Couch, spokesman for the Colorado Department of Revenue

Connecticut

Connecticut has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. "We are
still studying the issue. (Department of Motor Vehicles Commissioner
Robert Ward) remains supportive of the concept, but no firm decisions
have been made."
--Bill Seymour, spokesman for the motor vehicle commissioner.

Delaware

Delaware has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. "The DMV
director and secretary are going to give a briefing to the governor next
month, February. Because we've got until the end of March to
decide...After they have this meeting with the governor is when we're
going to make our official choice."
--Mike Williams, spokesman, Delaware Department of Transportation
Florida

Florida has not announced whether it will or will not request an
extension. "Thanks to the leadership of our governor, cabinet, and
legislature, Florida already provides our citizens a secure and safe
driver license and identification card, and we are well postured to
incorporate any changes that may be required. We applaud the federal
government on their efforts to protect all of our citizens with the
implementation of this act."
--Ann Nucatola, public information director, Department of Highway
Safety and Motor Vehicles

Georgia

Georgia has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. The
legislature has approved legislation authorizing the governor to reject
Real ID if federal regulations do not "adequately safeguard and restrict
use of the information in order to protect the privacy rights" of
Georgia residents. "Our legislature has to make that determination
within the next few months."
--Susan Sports, public information officer, Georgia Department of Driver
Services

Hawaii

Hawaii has filed for and received an extension. "We are moving forward
on reviewing the rules and coordinating with the county DMVs to see how
the rules can be implemented and coordinated."
--Russell Pang, chief of Media Relations for Hawaii Gov. Linda Lingle

Idaho

"We've asked for an extension, but we still have serious concerns and
reservations about it and its future here is to be determined."
--Jon Hanian, spokesman for Idaho Gov. C.L. "Butch" Otter

Illinois

"We have every intention to file for an extension."
--Henry Haupt, spokesman for Illinois Secretary of State Jesse White

Indiana

"We do intend to comply, and we have filed for and received an
extension. Over the past couple of years, we've done some security
enhancements to our own system that we were going to do regardless of
how Real ID rolled out."
--Dennis Rosebrough, spokesman, Indiana Bureau of Motor Vehicles
Iowa
"Yes, Iowa will be implementing Real ID and we will be requesting the
first extension."
--Dena Gray-Fisher, spokeswoman, Iowa Department of Transportation

Kansas

"Kansas has obtained authorization for the extension, which gets us out
to the end of 2009 and affords us the opportunity to see where we are,
negotiate a few different things with our vendor and others. It gives us
a little breathing room."
--Carmen Alldritt, director of the division of vehicles, Kansas
Department of Revenue

Kentucky

"A Real ID would be an entirely new document. The current KY license
would not meet the new standard...Kentucky has asked for the extension."
--Mark Brown, spokesman, Kentucky Transportation Cabinet

Louisiana

State officials have not responded to repeated requests for information
about Real ID compliance. One bill in the state legislature asks
Congress to repeal Real ID, while a response to a DMV survey says that
"We believe that Louisiana will meet standards."
Maine

Will not comply. "There is currently no effort being undertaken within
the state to roll back the public law preventing the secretary from
moving in the direction of Real ID. It is a situation where Mainers may
face some inconvenience at airports come May 11."
--Don Cookson, spokesman for Maine Secretary of State Matthew Dunlap

Maryland

Maryland requested a deadline extension. "We're still going through 300
pages of federal guidelines. We're currently evaluating those guidelines
and then we'll develop a program that is Real ID-compliant."
--Jack Cahalan, spokesman, Maryland Department of Transportation

Massachusetts

"Massachusetts did apply for the waiver and received it. We are
basically telling (drivers who call us) that we've gotten the exemption,
which means that you are going to show your valid driver's license to
get on an airplane just as you have in the past until December 2009."
--Ann Dufresne, spokeswoman, Massachusetts Department of Motor Vehicles.

After December 2009, states can apply for a second extension, but will
receive it only if they're taking affirmative steps to comply.

Michigan

Michigan has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. "At this
point, we have not requested a waiver. We're still trying to work out
some of the details."
--Kelly Chesney, spokeswoman for Michigan Secretary of State Terri Lyn
Land. The state's Web site says: "There are still many
unknowns...Michigan law changes will be necessary."

Minnesota

"We did receive a letter from Homeland Security and it said that our
extension had been granted, so that would mean that our documents, our
driver's licenses, and ID cards, are compliant until December 31, 2009."
--Minnesota Department of Public Safety spokeswoman

Mississippi

No response to repeated inquiries.

Missouri

No response to repeated inquiries. The state Web site says: "January 11,
2008 the U.S. Department of Homeland Security (DHS) released the final
rule establishing minimum security standards for state-issued driver
licenses and identification cards. The rule is 284 pages in length. The
Missouri Department of Revenue is in the process of reviewing the rules
to determine the impact to Missouri."

Montana

Montana's legislature has flatly rejected Real ID in a bill that the
governor has signed into law. Gov. Brian Schwitzer has called on his
colleagues in other states this month to join Montana in opposition to
this "major threat to the privacy, constitutional rights, and
pocketbooks of ordinary Montanans." Lynn Solomon, a spokeswoman for the
Montana attorney general's office, told us: "Right now we're not even
sure that the existing Montana law allows us to ask for the extension.
We're just sort of sitting tight."

Nebraska

"Nebraska has requested and has been granted an initial extension. That
extension does not require you to technically commit to Real ID
compliance--it says we need some time, and that's what we said, we need
some time. Whether or not Nebraska is ultimately going to be compliant
is really for the most part right now in the hands of the legislature."
--Beverly Neth, director, Nebraska Department of Motor Vehicles
Nevada

Nevada has applied for a deadline extension. "Certainly this is
something that the governor supports and believes is important, although
he believes in some respects it is an unfunded mandate and that the
federal government should assist the states with the funding," Melissa
Subbotin, spokeswoman for Nevada Gov. Jim Gibbons, told us.
New Hampshire

New Hampshire last year enacted a law that prohibits the state from
changing its driver's license and identification card laws to comply
with Real ID. It doesn't appear that is going to change. "As it stands
now, the only action that has been taken is legislation to keep us out
of it. There would be no way that the state could pass amending
legislation or undo that within that time frame; it's just not going to
happen. I don't see that anything could be done in the intervening time
to change it," Jim Van Dongen, spokesman for the New Hampshire
Department of Safety, told us.

New Jersey

New Jersey has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. Mike
Horan, a spokesman for the New Jersey Motor Vehicle Commission, said
there are a number of factors that the state is considering, including
cost and wait times at the DMV. "Are the Real ID requirements going to
add 15 minutes more to a person's wait? Are we going to need a new
computer system to manage the requirements? We're in a bit of a fiscal
crisis like many states across the country. That's a major
concern--there are so many things that are in need of money."

New Mexico

New Mexico has applied for the first deadline extension from the
Department of Homeland Security. "We have not made a final decision on
whether we are going to implement Real ID or not," said David Harwell, a
spokesman for the state department of taxation and revenue, which issues
driver's licenses. "We are in the process of studying all of the
regulations that were issued by Secretary (Michael) Chertoff several
weeks ago."

New York

New York has already received an "unsolicited extension" from the
Department of Homeland Security as part of a recent agreement to change
its driver license policies, said Jennifer Givner, deputy press
secretary for Gov. Eliot Spitzer.

North Carolina

North Carolina said it will request an extension if it's necessary for
state residents to travel after May 11, but has not yet done so. "We're
feeling that we are on track to follow along the Real ID plan as it is
right now. We don't see any situation at this point where our citizens'
driver's licenses would be in jeopardy and keeping them out of federal
buildings or off of airplanes...Basically we feel like we're in a good
place."
--Marge Howell, spokeswoman, North Carolina Division of Motor Vehicles

North Dakota

North Dakota has applied for a deadline extension. "Our application is
stating that we'd like the extension and we would still like to reserve
the opportunity to investigate committing to full implementation," said
Linda Butts, deputy director of driver and vehicle services, North
Dakota Department of Transportation. "The other thing that's muddying
the water is that so many of these rules are long-term and seem to
continue to mutate and change a little bit, so that's another thing I
think all states are looking at is the cost of implementation. Are these
truly going to be the rules in 2015? Will the rules today be the rules
that are implemented five, seven years down the road?"

Ohio

Ohio said this month that it has applied for an extension and was the
first state to receive one.

Oklahoma

Oklahoma's legislature has approved legislation saying that Real ID "is
inimical to the security and well-being of the people of Oklahoma" and,
therefore, "the state of Oklahoma shall not participate in the
implementation of the Real ID Act." Paul Sund, spokesman for Oklahoma
governor's office, told us: "I'm not aware of any repeal efforts, but
our legislature does not convene until February 4."

Oregon

Oregon has requested and received an extension. In the longer term,
however, the state may not comply. "Oregon hasn't made a decision for or
against compliance with Real ID. But since the final federal rules were
released January 10, our legislature is likely to put that on its 2009
agenda."
--David House, spokesman for the Oregon Department of Motor Vehicles

Pennsylvania

Pennsylvania has requested and received an extension. In the longer
term, however, the state may not comply. "We're undergoing a
comprehensive review of those regulations right now to look at some
potential options, the cost that would be involved and also the impact
to the citizens of Pennsylvania. Being granted this initial extension
just allows us more time to do that and allows the citizens of the
commonwealth to continue using their state driver's licenses and IDs
through December 31, 2009."
--Danielle Klinger, spokeswoman, Pennsylvania Department of Transportation

Rhode Island

Rhode Island has applied for and received the first deadline extension
from DHS, according to state DMV spokeswoman Gina Zanni. "Our governor
supports the Real ID initiative," Zanni told us. "We have applied for
part of the grant money that has been made available...we'd sure like
some money."

South Carolina

South Carolina has enacted legislation saying the state "shall not
participate in the implementation of the federal Real ID Act." Beth
Parks, spokeswoman for the South Carolina Department of Motor Vehicles,
told us: "Yes, it is true that South Carolina is a nonparticipatory
state for Real ID. The South Carolina legislature is the only entity
that can change that position. We are comparing the new regulations to
the proposed regulations and our previous cost estimates. Once we have
completed our review, we will provide information to South Carolina
lawmakers and answer any questions they may have."

South Dakota

"We've applied for an extension and received one, but we have not
committed to Real ID yet," said Mitch Krebs, press secretary for South
Dakota Gov. Michael Rounds.

Tennessee

"The Department of Safety is conducting a detailed review of the final
rules in order to fully evaluate the impact Real ID implementation will
have on the citizens of the state of Tennessee. While we anticipate
filing an extension, no official request has been signed as of this
date. Keep in mind, an extension request is not necessarily an
indication of our intent to comply."
--Mike Browning, spokesman, Tennessee Department of Safety

Texas

Texas has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. "We're
still reading the fine print." --Tela Mange, spokeswoman, Texas
Department of Public Safety

Utah

Utah has requested and received a deadline extension. "Our driver's
license division is not a policy-making body. It would be up to the
legislature and the governor. We are currently going through our
legislative session--it just started. That will be one of the topics,
whether to go through with it."
--Sgt. Jeff Nigbur, spokesman, Utah Department of Public Safety

Vermont

"Vermont requested and was granted an extension until December 31, 2009."
--John Zicconi, spokesman, Vermont Agency of Transportation

Virginia

Virginia has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. "The
Virginia DMV is currently reviewing the regulations to determine our
next steps."
--Melanie Stokes, spokeswoman, Virginia Department of Motor Vehicles

Washington

Gov. Christine Gregoire signed legislation last year prohibiting the
state from implementing Real ID unless the federal government provides
funding and greater privacy protections. But, in an apparent effort to
avoid inconveniencing state residents in May, Gregoire requested a
compliance extension. "By not filing an extension, effective May 11,
Washingtonians would have automatically been subject to additional
security screenings at airports and federal buildings," Gregoire said in
a recent statement. It also said: "I will not allow for confusion and
chaos at our busy airports. This extension will allow our residents to
continue use of their Washington state driver license or ID card to
board planes and enter federal buildings...The federal regulations on
Real ID compliance are ambiguous, and I share funding and privacy
concerns held by many state legislators."

West Virginia

West Virginia has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. "In West
Virginia we are still weighing our options based upon the recent changes
to the act's requirements."
--Susan Watkins, spokeswoman, West Virginia Department of Transportation

Wisconsin

Wisconsin has not decided whether to comply with Real ID, reject it
completely, or request an extension to keep its options open. "We've not
made a final determination regarding next steps for Wisconsin as it
relates to Real ID," said Patrick Fernan, operations manager for the
Wisconsin Department of Motor Vehicles. "We have not requested an
extension as of yet."

Wyoming

Wyoming plans to request a deadline extension. "Unless the law for
implementation of Real ID is changed in Washington D.C. or our Wyoming
Legislature passes legislation not to comply with the Real ID, we will
work toward implementation," said Jim O'Connor, support services
administrator for the Wyoming Department of Transportation. He added,
however: "We are concerned about this unfunded federal mandate and the
effect it will have on the people of Wyoming."

Washington, D.C.

The nation's capital has not decided whether to comply with Real ID,
reject it completely, or request an extension to keep its options open.
"The DC DMV is still deciding on next steps," said public information
officer Janis Hazel. "Nothing further to report at this time."

"We are deeply concerned that Real ID and the associated regulations
intrude on the religious liberty of many Americans who for reasons of
faith wear head coverings or object entirely to having their photo
taken," said Daniel Mach, director of litigation for the ACLU Program on
Freedom of Religion and Belief. "The faithful shouldn't have to choose
between a driver's license and their religious beliefs."

Under Real ID, there's no obvious wiggle room for Americans who object
to facial photograph requirements on religious grounds. The lengthy new
regulations released by the U.S. Department of Homeland Security last
month set minimum standards for state-issued driver's licenses and IDs,
among which is a "full facial digital photograph" that adheres to
specific federal requirements.

This could pose real problems for some residents of states with a
history of allowing the devout to obtain valid driver's licenses without
photographs in an attempt to accommodate religious beliefs. Still more
states have enacted laws known as "religious freedom restoration acts,"
which more broadly allow for accommodation of religious beliefs in the
face of government regulations.

"My understanding is that the Real ID legislation takes that option away
from states," said Steve Nolt, a history professor at Goshen College who
has studied Amish interaction with government regulations in recent decades.

For some Christians, Quaring included, one source of religious
objections to Real ID comes from the Christian Bible's Second
Commandment, which in one translation says: "You shall not make for
yourself an idol in the form of anything in heaven above or on the earth
beneath or in the waters below."

Homeland Security justifies its mandates by saying a facial photograph
"serves important security purposes." Its stated goal through Real
ID--approved unanimously by the Senate and overwhelmingly by the House
of Representatives as part of a "Global War on Terror" bill--is to
improve driver's license security and thereby handicap terrorists,
identity thieves, and illegal immigrants.

"Given these security concerns and the clear statutory mandate, DHS
believes that a driver's license or identification card issued without a
photograph could not be issued as a Real ID-compliant driver's license
or identification card," the agency says.

Translated, that means in just over three months, federal agencies may
no longer accept those "noncompliant driver's licenses" for Americans
who are boarding a commercial airplane or entering a federal building.
In addition, Homeland Security can add other requirements--one Homeland
Security official recently suggested Real ID could be required to buy
certain cold medicines--without consulting Congress first.
"You shall not make for yourself an idol in the form of anything in
heaven above or on the earth beneath or in the waters below."
--Bible

The lack of flexibility is troubling to Herman Bontrager, the
secretary-treasurer of the National Committee for Amish Religious
Freedom. His all-volunteer group has met at least twice with Homeland
Security officials to try to seek a compromise, and it's also talking
with some members of Congress, as the Amish don't generally file
lawsuits. They've had "congenial" conversations that discussed
alternative possibilities for verifying identity--the Amish are amenable
to fingerprints instead of photographs, he said--but no actual progress
has been made so far.

The photo ID requirement has already raised practical concerns in recent
years, particularly because of the newly instated passport requirement
for crossing into Mexico and Canada, where the Amish often travel to
visit family or seek medical treatment, Bontrager said. Because the
Amish don't fly on airplanes, most do not have passports, he said,
adding that he worried the Real ID requirements could make it less
convenient for them to access federal buildings. Without a
photo-equipped license, they won't be able to visit some Social Security
offices, for instance.

"I think the Amish appreciate the conversations and the access to
Homeland Security people, but we're now getting down to the
implementation phase," said Bontrager, a Lancaster County, Penn.,
resident who runs an insurance company inspired by Biblical principles.
"Each step in the rulemaking progress, we provide comment, and so on and
never get any response. We have not yet seen any evidence that they're
willing to make accommodations or provide options."

Real ID could be the latest skirmish in years of legal battles between
states and the federal government over religious freedom laws. Until
1990, U.S. law said that the government has to show a "compelling
interest" in order to succeed in limiting a person's free exercise of
religion, as evidenced in the Quaring case. But then came a U.S. Supreme
Court case called Employment Division v. Smith, which concluded that if
a rule is neutral and isn't designed to target a particular religion,
then it may pass constitutional muster.

In a response to critics of that decision, Congress enacted a law called
the Religious Freedom Restoration Act, which attempted to shift more of
the burden back to the government in winning such cases. It said:
"Government shall not substantially burden a person's exercise of
religion" except in limited circumstances. That law, however, was
partially gutted by the Supreme Court, which ruled Congress had
overstepped its boundaries by applying that rule to the states,
prompting many states to enact their own versions of the law.

What's relevant to the new Real ID rules, however, is that the Religious
Freedom Restoration Act does still appear to apply to federal laws and
rules, said the ACLU's Mach. If the ACLU does challenge Real ID, it
plans to make its case using that law.

Whether such a challenge would be successful is another question.

Because Homeland Security appears to have a fairly narrow
requirement--that is, that a driver's license applicant's face be
uncovered--the government would likely be able to argue that it's
pursuing its security-related goals in the narrowest possible way, said
Seval Yildirim, director of the Center for International and Comparative
Law at Whittier Law School in California.

"In other words, this is not an outright prohibition on all religious
clothing or covering, but only those that prevent the state from
identifying the individual," said Yildirim, who is defending a Muslim
police officer in Philadelphia who was prohibited from wearing her head
scarf while in uniform and on the job.

A few years ago, the ACLU of Florida lost a case in which the state
revoked a devout Muslim woman's license because, after a later review,
the state decided she may not wear a veil that covered most of her face.
The ACLU argued that such a practice violated Florida's version of the
Religious Freedom Restoration Act, but state courts ruled that the
government's security concerns outweighed Freeman's religious freedom.
Critics said the decision reflected a post-9/11 mentality that's less
permissive of religious liberties.

Even though only some Muslims could be affected by the Real ID rules,
it's a "significant minority," said Ibrahim Ramey, director of the human
and civil rights division of the Muslim American Society Freedom
Foundation. Ramey estimated that about 80 percent of Muslim women wear
headscarves and about 10 percent also don a niqab, or face veil.

Organizations like his would "certainly be willing" to sign onto legal
action with other civil liberties groups against the rules, Ramey said.
(The Muslim American Society also has broader concerns about Real ID's
implications for undocumented immigrants.)

"I would argue again that the benefit of religious accommodation far
outweighs what some people might perceive as the drawback or the
problematic nature of doing it," Ramey said in a telephone interview. "I
don't think it's something...that will involve anything close to a large
plurality of Muslim women, but for any woman that chooses to wear the
covering, it ought to be something that's respected and accommodated by
the larger society, particularly if there's no evidence of criminal intent."

CNET News.com's Declan McCullagh contributed to this report.