Rodney Tyms-Bey v. State of Indiana

FILED
Jan 13 2017, 8:10 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Rodney Tyms-Bey, January 13, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1603-CR-439
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Annie Christ-
Appellee-Plaintiff Garcia, Judge
Trial Court Cause No.
49G24-1408-FD-38469

Baker, Judge.

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[1] Rodney Tyms-Bey brings this interlocutory appeal of the trial court’s order

granting the State’s motion to strike his notice of defense under Indiana’s

Religious Freedom Restoration Act (RFRA).1 Our legislature has carved out a

statutory exception to RFRA protections when the government’s imposition of

a burden furthers a compelling interest and is the least restrictive means of

furthering that interest. We find as a matter of law that the State’s compelling

interest in a uniform and mandatory taxation system falls into the statutory

exception such that RFRA affords no relief to Tyms-Bey. Therefore, we affirm

and remand for further proceedings.

Facts 2

[2] On June 24, 2013, the State notified Tyms-Bey that the Department of Revenue

had determined that he had falsely reported his income and eligible tax

deductions for the tax year 2012 and that he owes the State $1,042.82. Tyms-

Bey responded with paperwork “claim[ing] he is a sovereign citizen and

declar[ing] himself an estate.” Appellant’s App. Vol. II p. 16. Tyms-Bey did

not subsequently amend his tax return or pay the balance due. On August 6,

2014, the State charged Tyms-Bey with three counts of class D felony tax

evasion.

1
Ind. Code ch. 34-13-9 et seq.
2
We held oral argument in this matter in Indianapolis on November 21, 2016. We thank counsel for both
parties for their outstanding oral advocacy.

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[3] On July 1, 2015, the date Indiana’s RFRA statute took effect, Tyms-Bey filed a

notice of defense of religious freedom. The State moved to strike the defense.

On January 6, 2016, the trial court held a hearing on the motion to strike. At

the hearing, Tyms-Bey refused to identify what religious practice or belief was

burdened by the State’s actions and stated that he believed he was entitled to

present his defense to a jury and would provide all evidence at trial. The State

argued that a defense of religious freedom is unavailable as a defense to failure

to pay taxes. The trial court granted the State’s motion to strike, and Tyms-Bey

now brings this interlocutory appeal.

Discussion and Decision
[4] Matters of statutory interpretation present a pure question of law to which we

apply a de novo standard of review. E.g., Study v. State, 24 N.E.3d 947, 950

(Ind. 2015).

[5] Indiana Code section 34-13-9-8, the heart of Indiana’s RFRA, provides as

follows:

(a) Except as provided in subsection (b), a governmental
entity may not substantially burden a person’s exercise of
religion, even if the burden results from a rule of general
applicability.

(b) A governmental entity may substantially burden a person’s
exercise of religion only if the governmental entity
demonstrates that application of the burden to the person:

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 (1) is in furtherance of a compelling governmental
interest; and

(2) is the least restrictive means of furthering that
compelling governmental interest.

Initially, we note that the State concedes that RFRA applies to criminal

proceedings. Appellee’s Br. p. 14. And indeed, it plainly does: “This chapter

applies to all governmental entity statutes, ordinances, resolutions, executive or

administrative orders, regulations, customs, and usages, including the

implementation or application thereof, regardless of whether they were enacted,

adopted, or initiated before, on, or after July 1, 2015.” I.C. § 34-13-9-1.

Moreover, a person “may assert the violation or impending violation [of the

chapter] as a claim or defense in a judicial or administrative proceeding . . . .”

I.C. § 34-13-9-9. There are no general exemptions relevant to criminal

prosecutions to be found in the text of RFRA. Therefore, as a general matter,

we hold that defendants may raise a RFRA claim in a criminal prosecution.

[6] Tyms-Bey invites us to address a number of broad issues surrounding RFRA

and its application to criminal cases. But this case can be disposed of on much

narrower grounds. We will assume solely for argument’s sake that Tyms-Bey

pleaded a RFRA defense properly and met his burden of showing that this

prosecution substantially burdens his exercise of religion. Having made those

assumptions, we need decide only whether—as a matter of law—the State’s

enforcement of its income tax laws is in furtherance of a compelling interest and

is the least restrictive means of furthering that compelling interest. In other

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 words, we must determine whether, viewing the situation in a light most

favorable to a defendant facing criminal income tax penalties, that defendant

could ever raise a successful RFRA defense. We hold that he could not.

[7] The United States Supreme Court has recognized the compelling interest in the

collection of taxes and the absolute necessity of uniform and mandatory

participation in the tax system. United States v. Lee, 455 U.S. 252, 258-61 (1982)

(holding that exception to social security tax sought by Amish employer would

undermine the fiscal vitality of the system that necessitates uniform application

to all employers); see also Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680,

700 (1989) (holding that the reasoning of Lee applies equally to federal income

tax). The Lee Court recognized that the nature of tax systems is such that they

“must be uniformly applicable to all, except as Congress provides explicitly

otherwise.” 455 U.S. at 261. More specifically, “[t]he tax system could not

function if denominations were allowed to challenge the tax system because tax

payments were spent in a manner that violates their religious belief.” Id. at 260.

As a result, the Court held that “[b]ecause the broad public interest in

maintaining a sound tax system is of such a high order, religious belief in

conflict with the payment of taxes affords no basis for resisting the tax.” Id.3

3
Lee was not decided in the context of the federal RFRA, but multiple federal courts have applied the same
reasoning to reach the same conclusion under that statute. E.g., United States v. Indianapolis Baptist Temple,
224 F.3d 627, 730 (7th Cir. 2000) (holding church not entitled to exemption from federal tax laws because
“the difficulties inherent in administering a tax system riddled with judicial exceptions for religious
employers make a uniformly applicable tax system the least restrictive means of furthering that interest”);
Adams v. Commissioner of Internal Revenue, 170 F.3d 173, 179 (3rd Cir. 1999) (observing that the Lee holding

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[8] In Indiana, our General Assembly has carved out a statutory exception to the

protections of RFRA. Specifically, the government may substantially burden a

person’s exercise of religion if the government’s imposition of the burden furthers

a compelling governmental interest and is the least restrictive means of furthering

that interest. I.C. § 34-13-9-8(b). As noted above, it has already been held, in a

variety of contexts by a variety of courts, that the uniform collection of income

tax satisfies both of these requirements.

[9] At oral argument, counsel for Tyms-Bey argued that the imposition of a criminal

penalty to someone who has evaded their income tax payment is not the least

restrictive means to further the State’s compelling interest. But the relevant

“means,” for purposes of RFRA, is the “burden” the party hopes to avoid, not

the sanction imposed for ignoring that burden. Here, the “burden” that Tyms-

Bey is seeking to avoid—that burden that he claims violates his religious

freedom—is the uniform and mandatory obligation to pay taxes (or the lack of a

religious exemption from that obligation), not the specific enforcement

mechanism chosen by the state. See, e.g., Adams, 170 F.3d at 179 (framing the

“compelling interest” as the collection of taxes and framing the “means” of

furthering that interest as mandatory participation in the tax system—that is, a

system with no (or limited) exceptions).

has turned the “least restrictive means inquiry into a rhetorical question” when it comes to collection of
income tax, which must be done in a uniform, mandatory manner).

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[10] We find United States v. Christie, 825 F.3d 1048 (9th Cir. 2016), particularly

instructive. In responding to a criminal defendant’s RFRA argument that

prosecution under a particular statute was not the least restrictive means of

furthering the relevant governmental interest, the Christie Court explicitly

disagreed with that framing of the issue:

The Christies next assert that a less restrictive alternative would
have been for the government to bring these prosecutions under a
less punitive provision of the [Controlled Substances Act], ideally
a provision that would not have triggered statutory mandatory
minimum penalties. The Christies cite nothing for the
proposition that a (potentially) less punitive charging decision
qualifies as a “less restrictive” alternative.

We find such lack of authority unsurprising, for at least two
reasons. First, when the government exposed the Christies to the
threat of a mandatory minimum, it did not restrict their religion
to a greater degree than if the government had forgone such
charges, for either prosecution would trigger an outright ban on
their ability to use and to distribute cannabis. Such alternative
prosecutions are equally restrictive of religion, even if they might
not be equally punitive. Cf. [Burwell v. Hobby Lobby Stores, Inc., 134
S.Ct. 2751, 2782 n.40 (2014)] (explaining that to qualify as a less
restrictive means, a proposed alternative must “accommodate[ ]
the religious beliefs asserted in these cases”). Second, given the
broad array of charges prosecutors can choose to bring or not to
bring in any given case, recognizing the Christies’ theory would
plunge courts far too deep into the business of reviewing the most
basic exercises of prosecutorial discretion.

Id. at 1061-62 (emphases original); see also U.S. v. Wilgus, 638 F.3d 1272, 1288-

95 (10th Cir. 2011) (analyzing whether, under RFRA, banning the possession of

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 eagle feathers, not whether criminal enforcement of that ban, is the least

restrictive means of furthering the compelling governmental interest in

protecting eagles).

[11] In other words, in the case at hand, regardless of the State’s chosen enforcement

mechanism, the “burden” that Tyms-Bey wants to avoid is the same—the

requirement that he pay taxes. The fact that the State has both civil and criminal

enforcement options is beside the point. We find that the uniform and mandatory

tax system as a whole, which incorporates the criminal penalties at issue here, is

the least restrictive means of furthering the government’s compelling interest in

collecting revenue.

[12] We adopt the analysis of the Lee Court and hold as a matter of law that, in the

context of Indiana’s RFRA, there is a compelling governmental interest in

collecting income tax revenue. Moreover, we hold as a matter of law that the

least restrictive means of furthering that compelling interest is uniform and

mandatory participation in the income tax system. There are no facts that Tyms-

Bey could proffer with respect to his exercise of religion that would not be

overcome by the State’s compelling interest and the means used by the State in

furthering that interest. In other words, as a matter of law, Indiana’s RFRA offers

Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017 Page 8 of 26
 no protection for the allegedly criminal nonpayment of income taxes by Tyms-

Bey, and the trial court did not err by denying his request to assert the defense. 4

[13] The judgment of the trial court is affirmed and remanded for further proceedings.

Vaidik, C.J., concurs.

Najam, J., dissents with a separate opinion.

4
We leave for another day and another case the broader arguments and procedural questions raised by
Tyms-Bey about the application of RFRA to criminal prosecutions, including those concerning the proper
role of the trial court judge, both before and during trial, under Indiana Code section 34-13-9-10.

Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017 Page 9 of 26
 IN THE
COURT OF APPEALS OF INDIANA

Rodney Tyms-Bey, Court of Appeals Case No.
49A05-1603-CR-439
Appellant-Defendant,

v.

State of Indiana,
Appellee-Plaintiff.

Najam, Judge, dissenting.

[14] I respectfully dissent. Tyms-Bey’s alleged RFRA defense may ultimately not

succeed, but he is entitled to his day in court. The majority’s holding that, in

effect, Tyms-Bey has not stated a claim under RFRA and that he is not even

entitled to present evidence in support of his alleged defense is too quick to

dispose of Tyms-Bey’s claim and denies him the particularized adjudication

that is expressly afforded to him by Indiana’s RFRA. Moreover, in enacting

Indiana’s RFRA, our legislature explicitly reserved to itself, and withheld from

our judiciary, the right to declare categorical exemptions from RFRA’s

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 application. The majority’s holding disregards that command and categorically

removes tax-based actions from RFRA’s application. The majority’s analysis

further misunderstands the least restrictive means test under RFRA and denies

Tyms-Bey his right under Article 1, Section 19 of the Indiana Constitution.

And the majority’s selective use of federal authority fails to consider federal

cases in which religious exemptions from facially neutral tax laws have been

permitted, and, in any event, the authority relied on by the majority is readily

distinguishable.

Overview

[15] Indiana’s RFRA represents a new paradigm in Indiana law concerning

exercise-of-religion claims and defenses. Federal and state legislatures have

enacted RFRA laws following the United States Supreme Court’s decision in

Employment Division v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that

the Free Exercise Clause of the First Amendment “does not require judges to

engage in a case-by-case assessment of the religious burdens imposed by facially

constitutional laws.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418, 424 (2006) (discussing Smith, 494 U.S. at 883-90). By rejecting

Smith and enacting Indiana’s RFRA, the General Assembly now requires

claims of religious exemptions from laws of general applicability to be

determined on a case-by-case basis using a strict scrutiny analysis. Ind. Code §

34-13-9-8 (2016).

[16] But, contrary to the majority’s assessment, Indiana’s new religious-freedom

paradigm goes further than merely reinstating pre-Smith free exercise cases. As
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 with its identically worded federal counterpart, by its plain terms Indiana’s

RFRA is “an obvious effort” by the General Assembly “to effect a complete

separation from First Amendment case law.” Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751, 2761-62 (2014). For example, Indiana’s RFRA, like the federal

version, defines “exercise of religion” more broadly than First Amendment case

law defines it, and our RFRA also provides a broader definition of the

“person[s]” who may bring RFRA claims or defenses than does either First

Amendment case law or the federal RFRA. See id. at 2772, 2775; see also I.C. §

34-13-9-5 (defining “exercise of religion”); I.C. § 34-13-9-7 (defining “person”).

[17] And there is good reason for the General Assembly to have sought that

complete separation. It is widely recognized that the “least restrictive means

requirement” under RFRA “was not used in the pre-Smith jurisprudence.” City

of Boerne v. Flores, 521 U.S. 507, 535 (1997). Rather, the pre-Smith case law, in

which the Supreme Court routinely sided with the government, 5 “indicates that

[the Court] was not applying a genuine ‘compelling’ interest test.” James E.

Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment,

78 Va. L. Rev. 1407, 1413-15 (1992) (specifically identifying United States v. Lee

as one such decision); see also United States v. Lee, 455 U.S. 252, 262 (1982)

(Stevens, J., concurring in judgment) (concluding that the government’s

5
In the seventeen cases between 1963 and 1990 in which the United States Supreme Court considered
religious exemptions under the strict scrutiny test, in thirteen the Court sided with the government. James E.
Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1413-14
(1992).

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 argument in Lee did not pass strict scrutiny and that the majority’s opinion was

better understood using the test the Court later adopted in Smith).6 Thus,

RFRA is unmistakably “broader” than that case law. City of Boerne, 521 U.S. at

535. The Court’s decision in Smith was simply the last straw, which caused

legislatures throughout the nation to enact statutory protections for claimants of

religious exemptions.

[18] Rather than following Burwell, the majority instead concludes that Lee, a pre-

Smith case, and its progeny more accurately reflect our legislature’s intent when

it enacted RFRA. I cannot agree and must conclude that the majority’s

assessment that Indiana’s RFRA adds nothing to pre-Smith jurisprudence is

contrary to RFRA. As the Burwell Court recognized, Lee is “a free exercise, not

a RFRA, case.” Burwell, 134 S. Ct. at 2784. Indeed, the Burwell Court

expressly concluded that the reasoning in Lee is “squarely inconsistent with the

plain meaning of RFRA.” Id. at 2784 n.43 (discussing Lee, 455 U.S. at 261).

Our legislature enacted RFRA less than nine months after the Court’s opinion

in Burwell, which was the impetus for our legislature’s decision. Moreover,

Indiana’s RFRA contains the exact same language that the Court in Burwell,

considering the federal RFRA, held to provide broader protection to the

6
Indeed, the Smith Court quoted Justice Stevens’ concurring opinion in Lee with approval. Smith, 494 U.S.
at 879.

Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017 Page 13 of 26
 exercise of religion than Lee and its progeny, and Indiana’s RFRA expressly

codifies and expands upon the holding in Burwell.7 See I.C. §§ 34-13-9-5, -7.

[19] Accordingly, I would hold that Burwell, not Lee, best reflects the intent of our

legislature in enacting RFRA. And this is significant here because, as Burwell

explains, RFRA demands a fact-sensitive, “particularized” assessment of the

claimed religious exemption, while Lee does not. Burwell, 134 S. Ct. at 2779-80,

2783-85.

7
Indeed, I agree with the majority and the State’s concession that, by its plain terms, Indiana’s RFRA may
be raised as a defense to any criminal prosecution, which includes the State’s prosecution of Tyms-Bey for
tax evasion. See Appellee’s Br. at 14. In this respect, Indiana’s RFRA is broader than several other states’
RFRA laws, which have numerous, various exemptions from coverage. For example, Florida prohibits its
RFRA from being used as a defense to a drug-related criminal allegation. Fla. Stat. Ann. § 761.05(4) (West
2016). Indiana’s RFRA, by comparison, only exempts certain allegations of discrimination and certain
claims against private employers from its coverage, I.C. §§ 34-13-9-0.7, -11, and it applies in all other
circumstances, see I.C. §§ 34-13-9-1, -2.
The State also notes that “RFRA is not a defense to criminal conduct only and . . . can be brought proactively
for an actual or likely burden on a person’s religious exercise and to obtain declaratory or injunctive relief to
prevent that burden . . . .” Appellee’s Br. at 10; see I.C. § 34-13-9-9. Taken in conjunction with its concession
that RFRA applies to criminal proceedings, it is clear that the State concedes that Hoosiers need not
proactively assert, in a declaratory judgment proceeding or otherwise, their rights to religious exercise to be
able to assert those rights as a defense in a criminal proceeding. By comparison, other states with RFRA
laws do require certain procedures to be followed before an individual may later raise RFRA as a defense.
E.g., Tex. Civ. Prac. & Remedies Code Ann. § 110.006 (West 2015).
Taken together, and especially in light of their more restrictive counterparts in foreign jurisdictions, those
provisions evince our legislature’s intent to make RFRA rights broadly available absent explicit direction
from the General Assembly otherwise. Indeed, those provisions of Indiana’s RFRA, along with the
expansive definition of “person” in Indiana Code Section 34-13-9-7 and the express permission under
Indiana Code Section 34-13-9-9 to invoke RFRA in proceedings that involve only private parties, make
Indiana’s RFRA more broadly available than the federal RFRA. Again, in Burwell the Court held that Lee
was not controlling law under the federal RFRA because the federal RFRA provided greater protection than
the pre-Smith free exercise cases. Burwell, 134 S. Ct. at 2784; see City of Boerne, 521 U.S. at 535. If the federal
RFRA provides greater protection than the pre-Smith case law, that is only all the more true for Indiana’s
RFRA.

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[20] With that background in mind, I turn to five reasons for my disagreement with

the majority on the limited facts of this case.

1. Indiana Code Sections 34-13-9-1 and -2

[21] First, by its plain terms Indiana’s RFRA expressly permits all litigants in

Indiana in any cause of action, other than actions based on certain claims of

discrimination or claims against private employers, to assert their exercise of

religion as a claim or defense against compliance with a statutory mandate.

I.C. §§ 34-13-9-0.7 to -2, -11. Specifically, Indiana Code Section 34-13-9-1

unambiguously states that RFRA “applies to all . . . statutes,” and Section 34-

13-9-2 just as clearly states that “[a] . . . statute . . . may not be construed to be exempt

from the application of this chapter unless a state statute expressly exempts the

statute . . . .” (Emphasis added.)

[22] In other words, the General Assembly expressly reserved to itself the right to

exempt statutes from RFRA’s application and expressly commanded the

judiciary to not “construe[]” statutes “to be exempt from th[at] application.” Id.

Those commands are consistent with the case-by-case, particularized

adjudications the Burwell Court described as fundamental to RFRA. See 134 S.

Ct. at 2779-80. And there is no state statute that expressly exempts tax evasion

prosecutions from the application of RFRA.

[23] Nonetheless, the majority construes tax evasion prosecutions as exempt from

RFRA defenses and, in doing so, contravenes those express instructions. See

I.C. § 34-13-9-2. As the Indiana Supreme Court has made clear, to discern our

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 legislature’s intent “we look first to the statutory language and give effect to the

plain and ordinary meaning of statutory terms. Where the language is clear and

unambiguous, there is no room for judicial construction.” Jackson v. State, 50

N.E.3d 767, 772 (Ind. 2016) (citations and quotation marks omitted). Indiana

Code Sections 34-13-9-1 and -2 leave no room to look elsewhere for interpretive

authority. The General Assembly has unambiguously declared that the

judiciary is not to exempt RFRA claims and defenses from any action and that

such exemptions lie solely within the prerogative of the General Assembly. If

we disregard that plain language, “the General Assembly might fairly ask if

we’re listening.” Dye v. State, 972 N.E.2d 853, 862 (Ind. 2012) (Massa, J.,

dissenting). As a matter of law under RFRA, Tyms-Bey is entitled to present

facts in support of his alleged RFRA defense to the State’s criminal charges

against him, and the trial court erred when it preemptively struck his alleged

defense.

2. Least Restrictive Means Test

[24] Second, the majority’s analysis misunderstands the least restrictive means test

as used in RFRA and instead erroneously applies the more permissive

standards from pre-Smith case law. See City of Boerne, 521 U.S. at 535; Ryan,

supra, 78 Va. L. Rev. at 1413-15. As explained by the Court in Burwell, the least

restrictive means test under RFRA is “exceptionally demanding” and requires

the State to show that “it lacks other means of achieving its desired goal

without imposing a substantial burden on the exercise of religion by the

objecting part[y] . . . .” 134 S. Ct. at 2780. This test requires the State to

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 demonstrate that the “application of the burden to the person” is the least

restrictive means of furthering the State’s compelling interest. I.C. § 34-13-9-

8(b) (emphasis added); see Burwell, 134 S. Ct. at 2780 (quoting 42 U.S.C. §

2000bb-1(a), (b)). And considering “the burden to the person” requires a

“focused inquiry” that “look[s] beyond broadly formulated interests

and . . . scrutinize[s] the asserted harm of granting specific exemptions to

particular religious claimants . . . .” Burwell, 134 S. Ct. at 2779 (quotation

marks and brackets omitted).

[25] Here, the absence of facts from either Tyms-Bey or the State is fatal to the

majority’s argument.8 Rather than rely on any specific facts, the majority

instead relies exclusively on Lee and its progeny, which concluded under the

Free Exercise Clause that the government’s need in uniform and mandatory

participation in the tax scheme necessarily overcomes any individualized

concerns. Lee, 455 U.S. at 258-61. But this is not a free exercise case.

[26] Rather, under RFRA, the State cannot rely on such “broadly formulated

interests” but instead must demonstrate how granting Tyms-Bey his asserted

exemption would prevent the State from “achieving its desired goal.” See

8
In the State’s probable cause affidavit in support of the tax evasion charges, the State asserted that Tyms-
Bey “claimed he is a sovereign citizen,” “declared himself an estate,” and “den[ied] . . . liability of the tax
due.” Appellant’s App. Vol. II at 16. But there is no evidence that Tyms-Bey intends to rely on those same
assertions as the basis for his RFRA defense. Indeed, in its motion to strike Tyms-Bey’s RFRA defense, the
State acknowledged that he “has not yet identified what religion he belongs to, how the tenets of that religion
relate to Indiana’s income tax regime[,] or how that tax negatively impacts the practice of his religion.” Id. at
36.

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Burwell, 134 S. Ct. at 2779-80. And without a factual basis in the record for

Tyms-Bey’s asserted exemption, the State cannot satisfy that test. Indeed,

religious exemptions already exist in the tax code. If Tyms-Bey’s RFRA

defense is that he was wrongly denied such exemptions, the State would be

hard pressed under the least restrictive means test to demonstrate how granting

him an already established exemption would prevent the State from achieving

its goals. See, e.g., Lee, 455 U.S. at 262 (Stevens, J., concurring in judgment)

(“As a matter of administration it would be a relatively simple matter to

extend” existing religion-based tax exemptions “to the taxes involved in this

case”); see also Burwell, 134 S. Ct. at 2780-82 (holding under the federal RFRA

that a government-established exception for religious nonprofit businesses

would “serve[ the government’s] stated interests equally well” if extended to

some religious for-profit businesses). Accordingly, I cannot say, as a matter of

law, that the State has met the “exceptionally demanding” and “particularized”

strict scrutiny analysis required under RFRA.9 See Burwell, 134 S. Ct. at 2779-

80.

9
At oral argument, Tyms-Bey’s counsel asserted that the least restrictive means test requires the State to
pursue civil enforcement mechanisms before it may enforce tax delinquencies through criminal proceedings.
Other jurisdictions have agreed and held that, where the law at issue provides for both civil and criminal
enforcement mechanisms, to satisfy the least restrictive means test the governmental entity must demonstrate
that the criminal option is the least restrictive option. See, e.g., State v. J.P., 907 So. 2d 1101, 1119 (Fla. 2004)
(holding that “the imposition of criminal sanctions” for curfew violations is not the least restrictive means to
further local governmental entities’ compelling interests because “[t]he same goals could be achieved by
imposing a civil penalty”); Commonwealth v. Weston W., 913 N.E.2d 832, 846 (Mass. 2009) (holding that the
Commonwealth “failed to meet its burden” under the least restrictive means test “to show that the use of
criminal penalties provides an increased benefit over . . . civil enforcement mechanisms . . . sufficient to offset
their greater intrusion”). Here, in its probable cause affidavit the State asserted that the Department of
Revenue mailed Tyms-Bey “a notice . . . that he owed . . . taxes,” but there is no evidence of any attempts at

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 3. Article 1, Section 19

[27] Third, the majority’s preemptive strike of Tyms-Bey’s RFRA defense denies

him his right under Article 1, Section 19 to a jury trial on an affirmative

defense. Although RFRA generally presents a question of law, see I.C. § 34-13-

9-10,10 in criminal cases, such as here, Article 1, Section 19 of the Indiana

Constitution requires that a defendant who asserts RFRA as an affirmative

defense and has not waived his jury trial right be permitted to present evidence

of that defense to a jury.

[28] As we have explained:

The constitution is emphatic that the right of the jury to
determine the law as well as the facts applies “[i]n all criminal
cases whatever.” Ind. Const. art. 1, § 19 (emphasis added). “All”
is defined as “the whole extent or duration of . . . each and every
one of.” Webster’s Third New International Dictionary 54
(1976). “Whatever” is defined as “no matter what . . . of any
kind at all.” Id. at 2600. We believe that the terms “all” and
“whatever” mean what they say. In interpreting the Indiana
Constitution, our analysis is controlled by the text itself. Price v.
State, 622 N.E.2d 954, 957 (Ind. 1993). Article 1, Section 19
does not speak of verdicts but of “criminal cases.”

collection by the State prior to the filing of the instant criminal charges or any evidence that such attempts
would have been ineffective. Appellant’s App. Vol. II at 15-16.
10
Indiana Code Section 34-13-9-10 states that a RFRA determination is to be made by “a court or other
tribunal in which a violation of this chapter is asserted . . . .” That statute further provides that, if a RFRA
violation is found, “the court or other tribunal shall allow a defense . . . and shall grant appropriate
relief . . . .” I.C. § 34-13-9-10. That language suggests that the viability of a RFRA claim or defense generally
is a question of law for the court or other tribunal “in which” the claim or defense is asserted and from which
the claiming party can obtain “appropriate relief.” See id.

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 Seay v. State, 673 N.E.2d 475, 480 (Ind. Ct. App. 1996), adopted, 698 N.E.2d

732, 733 (Ind. 1998). The General Assembly, having expressly permitted

RFRA to be raised as an affirmative defense in criminal actions, cannot then

deny the right to submit that defense to a jury under Article 1, Section 19. Id. at

479.

[29] And, despite the State’s argument to the contrary on appeal, there is no serious

question whether RFRA is an affirmative defense for criminal defendants. A

criminal defendant who asserts RFRA as a defense contends, in effect, that any

evidence the State may present of his alleged criminal conduct is a legal nullity

if the defendant demonstrates that the statute imposes a substantial burden on

his exercise of religion and the State fails to rebut the defendant’s showing.

That is plainly an affirmative defense. See, e.g., Melendez v. State, 511 N.E.2d

454, 457 (Ind. 1987). Further, it is well established that the defendant bears the

initial burden of proof at trial to demonstrate his affirmative defense by a

preponderance of the evidence. Lacy v. State, 58 N.E.3d 944, 948 (Ind. Ct. App.

2016). The burden then shifts to the State to negate the defense beyond a

reasonable doubt. Id.

[30] Indiana Code Section 34-13-9-10 can be harmonized with Article 1, Section 19.

Specifically, if a criminal defendant who has asserted RFRA as an affirmative

defense to the jury fails to present evidence in the record at trial to support his

burden on that defense, the trial court may, in its discretion, decline to give a

jury instruction on the defense. E.g., Cavens v. Zaberdac, 849 N.E.2d 526, 533

(Ind. 2006). In this manner, RFRA secures both the trial court’s role as a

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 gatekeeper under Section 34-13-9-10 before the jury and the criminal

defendant’s jury trial right under Article 1, Section 19.

[31] Moreover, Tyms-Bey was not required to present evidence in support of his

affirmative defense to the trial court in a pretrial hearing on the State’s motion

to strike. Tyms-Bey has no more pretrial burden of proof than any other

criminal defendant who asserts an affirmative defense, even if a pretrial notice

of that affirmative defense is required, which such notice is not required for

RFRA defenses.11 See, e.g., Griffin v. State, 664 N.E.2d 373, 375-76 (Ind. Ct.

App. 1996). As a courtesy, Tyms-Bey notified the State that he would assert a

RFRA defense at trial before a jury. That was sufficient, and to hold otherwise

simply discourages pretrial notices.

[32] The majority has, in effect, declared that Tyms-Bey has failed to state a claim

under RFRA. In so holding, the majority has denied Tyms-Bey his

constitutional right to present evidence of his RFRA affirmative defense to a

jury. The trial court should have denied the State’s motion to strike under

Indiana Trial Rule 12(F).

11
Nothing in our rules of criminal or trial procedure prohibit the State from seeking discovery regarding any
potential RFRA defenses to avoid a trial-day surprise.

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 4. First Amendment Precedent
Demonstrates the Need for a Factual Basis

[33] Fourth, the majority’s reliance on selected federal cases in lieu of the plain text

of Indiana’s RFRA and Article 1, Section 19 is misplaced. Indeed, Indiana’s

RFRA aside, the United States Supreme Court has repeatedly recognized that

some facially neutral tax laws do not withstand strict scrutiny when applied to

particular individuals. For example, in Murdock v. Pennsylvania, the Court held

that an otherwise nondiscriminatory tax that, as applied, required “religious

colporteurs to pay a license tax as a condition to the pursuit of their activities”

did not pass strict scrutiny. 319 U.S. 105, 110, 63 S. Ct. 870, 873 (1943).

Likewise, in Follett v. Town of McCormick, the Court held that persons exercising

their religion “may be subject to general taxation” but that “does not mean that

they can be required to pay a tax for the exercise of that which the First

Amendment has made a high constitutional privilege.” 321 U.S. 573, 577-78

(1944).

[34] Similarly, in Sherbert v. Verner12 the Supreme Court explained as follows:

In Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d
1460, we . . . struck down a condition which limited the
availability of a tax exemption to those members of the exempted
class who affirmed their loyalty to the state government granting
the exemption. While the State was surely under no obligation
to afford such an exemption, we held that the imposition of such

12
The federal RFRA expressly identifies Sherbert as applying an analysis consistent with that statute’s
intended protection. 42 U.S.C. § 2000bb(b)(1).

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 a condition upon even a gratuitous benefit inevitably deterred or
discouraged the exercise of First Amendment rights of
expression . . . . ‘To deny an exemption to claimants who engage
in certain forms of speech is in effect to penalize them for such
speech.’ Id., 357 U.S., at 518, 78 S. Ct., at 1338. Likewise, to
condition the availability of benefits upon this appellant’s willingness to
violate a cardinal principle of her religious faith effectively penalizes the
free exercise of her constitutional liberties.

374 U.S. 398, 405-06 (1963) (emphasis added). In other words, in Sherbert the

Supreme Court recognized that the government cannot condition tax benefits

on a claimant’s willingness to violate his faith.

[35] Because Tyms-Bey has not yet had the opportunity to present facts in support of

his defense under RFRA, we cannot say that his defense is “insufficient” under

Indiana Trial Rule 12(F) and must fail as a matter of law. We do not yet know

the basis for Tyms-Bey’s claimed exemption. We know the State has alleged a

certain sum of unpaid taxes based on allegedly unreported income, allegedly

falsely reported rental addresses, and an allegedly falsely claimed credit. But we

do not know if, as in Murdock and Follett, Tyms-Bey’s religious defense to those

allegations is aimed particularly at specific provisions of the code as applied to

him. Nor do we know if, as in Sherbert and Speiser, he believes that the State has

denied him an exemption or benefit based on his willingness to violate a tenet

of his faith. Simply, without a factual basis we cannot say that Tyms-Bey has

no defense under RFRA.

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 5. United States v. Lee Is Readily
Distinguishable, Even If It Were To Apply

[36] Fifth, and finally, Lee and its progeny, even if they were to apply under

Indiana’s RFRA, are not on all fours with Tyms-Bey’s case. Rather, Lee is

readily distinguishable from Tyms-Bey’s case because, in Lee, there was a

factual basis established for the claimant’s religious objection. In particular, the

record in Lee makes clear that the objector, in his role as an employer and

business owner, failed to withhold Social Security taxes from his employees’

paychecks and likewise failed to pay the employer’s share of those taxes. He

argued that his actions were justified because the entirety of the Social Security

system was contrary to his religious beliefs. The Supreme Court rejected that

argument as a valid basis for a First Amendment religious exemption. Lee, 455

U.S. at 261.

[37] But, again, here we have no idea what the factual basis for Tyms-Bey’s RFRA

defense may be. And without any evidence we cannot assume the basis for that

defense. Accordingly, for that additional reason, the majority’s reliance on Lee

is misplaced.

Conclusion

[38] In sum, I respectfully dissent. The majority’s holding that, “as a matter of law,

Indiana’s RFRA offers no protection for the allegedly criminal nonpayment of

income taxes,” slip op. at 8-9, is erroneously premised on Lee rather than

Burwell and, as a result, undermines the broad and particularized protection our

legislature intended RFRA to have. The majority’s analysis is contrary to the

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 plain language of Indiana’s RFRA; it does not properly define or apply the least

restrictive means test implemented by RFRA; and it denies Tyms-Bey his jury

trial right under Article 1, Section 19. Further, the majority’s reliance on

selected federal cases is misplaced. The majority’s selection of authorities does

not account for cases in which particularized religious exemptions from facially

neutral tax laws have been permitted. Neither is the majority’s reliance on Lee

persuasive when, unlike Lee, here there is no factual basis in the record for

Tyms-Bey’s asserted defense.

[39] The majority’s opinion that there are no facts that Tyms-Bey could offer to

support his defense is contrary to RFRA’s mandate and is “a pre-emptive strike

on a matter that deserves further record development.” Citizens Action Coalition

v. Koch, 51 N.E.3d 236, 243 (Ind. 2016) (Rucker, J., concurring in part and

dissenting in part). Without question, the majority is concerned, as were the

dissenters in Burwell, that RFRA will wreck “havoc” on judicial proceedings

and be a “radical” departure from the status quo. Burwell, 134 S. Ct. at 2787,

2805 (Ginsburg, J., dissenting). But “[t]he wisdom of [our legislature’s]

judgment on this matter is not our concern. Our responsibility is to enforce

RFRA as written, and under the standard that RFRA prescribes . . . .” Id. at

2785 (majority opinion). And it is certainly not the judiciary’s role to construe

actions as exempt from RFRA when our legislature has expressly reserved that

right to itself. See I.C. § 34-13-9-2.

[40] At the end of the day, Tyms-Bey’s exercise-of-religion defense may not prevail.

But we cannot say as a matter of law that Tyms-Bey can prove no set of facts in

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support of his RFRA defense that would entitle him to relief. The issue is not

whether a RFRA claimant will ultimately prevail but whether he is entitled to

offer evidence to support his claim. In other words, Tyms-Bey is entitled to his

day in court and to the same due process as any other criminal defendant,

including his right to present his affirmative defense to a jury. Otherwise,

RFRA is for naught and offers no more protection to the exercise of religion

than does the First Amendment. Accordingly, I would reverse the trial court’s

judgment and remand for further proceedings that comply with the

unmistakable commands of RFRA, with Article 1, Section 19, and with the

same criminal trial procedure we follow when, as here, the defendant asserts an

affirmative defense.

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