validity of the orders themselves); and (3) Mr. Hershberger’s privilege to act in preservati
on of private property as it relates to the holding order.
The Wisconsin Constitution
includes broad protections for freedom of religion and therights of conscience. W.S.A. Const. Art. 1, §18 provides, in pertinent part:The right of every person to worship Almighty God according to thedictates of conscience shall never be infringed; nor shall any person becompelled to attend, erect or support any place of worship, or to maintainany ministry, without consent; nor shall any control of, or interference with,the rights of conscience be permitted, or any preference be given by law to
any religious establishment or modes of worship . . .”
Wisconsin’s seminal case regarding freedom of religion under Article 1, §18 of the Wisconsin
State v. Miller,
202 Wis. 2d 56, 549 N.W.2d 235 (1996). Under
thechallenger carries the burden to prove (1) that he or she has a sincerely held religious belief; (2)that is burdened by the application of the state law at issue. Upon such proof, the burden shiftsto the State to prove: (3) that the law is based on a compelling state interest, (4) which cannot beserved by a less restrictive alternative.
This last issue was not mentioned at the December 21 hearing; however, since this defense also implicates Mr.
Hershberger’s religious beliefs it is addressed here along with the other issues.
The First Amendment to the United States Constitution provides a separate, independent protection for Mr.
Hershberger’s Right to Religious Freedom
State v. Miller
, 202 Wis. 2d 56, 65-66, 549 N.W.2d 235, 239 (1996).The test under the First Amendment is the same as under the Wisconsin Constitution: a compelling governmental
interest must be shown to overcome Mr. Hershberger’s religious liberty chall
enge to the administrative procedure.As discussed herein, there is no compelling governmental interest sufficient to require Mr. Hershberger to violate hisconscience. In the interest of avoiding repetition, Mr. Hershberger hereby preserves his First Amendment claimwithout repeating the argument made under the Wisconsin Constitution.
test is articulated, and is typically applied, in the context of application of a state law. TheConstitutional provision, however, is broader and applies to
“any control of, or interference with, the rights of conscience”. Mr. Hershberger argues that exclusion of the evidence at issue here would violate Mr. Hershberger’s
constitutional rights. Even if it would not, however, the evidence should be allowed based on the equitable factorsarticulated