(dissenting). My sympathies are all with the majority in the position that it takes in this case and if I were free to disregard what I find to be the compelling requirements of the United States and New York State Constitutions, I would join in the opinion for reversal. However, while I agree with the majority that no constitutional right of the petitioner’s client was violated by the direction of the Criminal Court that the petitioner remove his clerical collar as a condition of trying the charge against his client before the jury, I must reluctantly dissent from its conclusion that the direction violated no constitutional right of the petitioner.
Although the majority states that the petitioner claims that he is under instructions from his Bishop to wear his collar, and the record on appeal shows that he did make such a claim in his oral argument in the Criminal Court, his written papers in support of his article 78 application do not rely upon any claimed instructions from his Bishop but rest solely on the allegation that his wearing of the clerical collar at any public function is a continual act of worship and a symbol of his religious dedication and that his compliance with the Criminal Court’s order to remove his clerical collar would offend his religious conscience and deny him his First Amendment right of free exercise of religion. Thus, the major issue raised by this record is whether the appellant’s order that the petitioner remove his clerical collar as a condition of the court’s permitting him to represent his client before a jury denies him his constitutionally guaranteed First Amendment right of free exercise of religion, which right is made applicable to the States by the Fourteenth Amendment (Cantwell v Connecticut, 310 US 296, 309).
If the answer be in the affirmative, we are faced with the consequent question of whether the limitations sought to be imposed on this constitutional right can be justified by a compelling State interest. Since the majority does not dispute the fact that the applicable Federal standard in such a case is that any incidental burden on the petitioner’s right to free exercise of religion "must be justified by a compelling State interest in the regulation of a subject within the State’s power to regulate”, I shall not belabor that point.
The core of the question here presented, it seems to me, is answered in Sherbert v Verner (374 US 398, 403, 404), cited by the majority, where Mr. Justice Brennan, speaking for the court, said, "Plainly enough, appellant’s conscientious objec*254tian to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a 'compelling state interest in the regulation of a subject within the State’s constitutional power to regulate * * *’ NAACP v Button, 371 US 415, 438.* * *
"Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.”
In Wisconsin v Yoder (406 US 205, 214) the court said: "It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.”
So, too, in our case the State may not bar the petitioner from, or limit his right to, the practice of the law by compelling him, if he wishes to try a jury case, to abandon his pattern of conduct, in the exercise of his religious beliefs, of wearing his clerical collar whenever he appears in public. "Governmental imposition of such a choice” clearly would put on his free exercise of religion "the same kind of burden * * * as would a fine imposed against” him for his mode of worship (see Sherbert v Verner, supra, p 404).
But the majority, after conceding that the Federal standard requires it "to find that any incidental burden on the petitioner’s exercise of religion must be justified by a compelling State interest in the regulation of a subject within the State’s power *255to regulate”, goes on to conclude that "a balancing of the particular values becomes, therefore, the mechanism whereby the constitutionality of the regulation is decided” (emphasis supplied). But the effect of the majority’s substitution of a balancing test for the compelling-State-interest test is tantamount to excising the latter standard. Under the compelling-State-interest test, even if there is# a possibility that the practice enjoined might endanger the State’s right to a fair trial, "it would plainly be incumbent upon the * * * [the appellant] to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights” (Sherbert v Verner, 374 US 398, 407, supra). Hence, when the majority seeks to apply the compelling-State-interest test by a process of balancing the competing values of the State’s right to a fair trial against the petitioner’s right to a free exercise of religion, without a prior determination of whether the preservation of the former in the circumstances of this case requires that the First Amendment right of the petitioner be infringed, it is, in fact, giving mere lip service to the applicable compelling-State-interest test established to make clear the preferred position of that First Amendment right and is applying a completely different test, in negation of the concededly applicable Federal standard.
Only if the majority could find as a fact, as it does not, that the record demonstrates the ineffectiveness of existing alternative methods for avoiding any potential bias on the part of members of the jury panel can the process of balancing the competing values of the conflicting rights be involved.
In this respect it must be noted that even though there is a compelling State interest on the part of the State to insure a fair trial in criminal cases both for the defense and the prosecution, this, standing by itself, cannot suffice to justify an infringement of the petitioner’s First Amendment right to free exercise of religion. Thus, the court in Sherbert said (supra, p 406): "It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation,’ Thomas v Collins, 323 US 516, 530.” Here, as in Sherbert, "no such abuse or danger has been advanced” (supra, p 407). The appellant concedes that all that his order sought to avoid was the possibility of bias. Neither the court which issued the order to the petitioner to divest himself of *256his clerical collar nor the prosecutor who objected to the petitioner’s being allowed to wear his collar offered any proof of any prejudicial impact on the jury. Rather, the appellant argues only that his order was justified by the possibility that "the wearing of a clerical collar by a defense counsel before a jury could be improperly construed by it as an assertion of his client’s innocence”; that what the court was attempting to do "was to take a prophylactic measure in order to insure that an extraneous element which might cause bias, either for the prosecution or the defense, would not reach the jurors” (emphasis supplied). The appellant nowhere endeavors to show that the possibility which moved him to limit the petitioner’s free exercise of religion could not be adequately handled by the use of appropriate questioning of members of the jury panel in voir dire and by appropriate instructions to the jury.
The law is clear that the mere opportunity for prejudice raises no presumption that such prejudice exists (Holt v United States, 218 US 245, 251). Here, no evidence was offered to establish the existence of such bias, because the prospective jurors had not even been questioned as to whether they would be improperly influenced in determining the issues by reason of the petitioner’s garb. Hence, Sheppard v Maxwell (384 US 333), cited by the majority, which involved a trial where the hippodrome atmosphere the trial court had permitted to develop had clearly resulted in jury bias, is inapposite. Nor can any claim be made that the petitioner’s clerical collar was in any way inappropriate, unconventional, unsuitable, disturbing or distracting in the courtroom. Hence, Matter of Peck v Stone (32 AD2d 506) and People ex rel. Karlin v Culkin (248 NY 465), both of which sustained a court’s power to require attorneys to maintain an atmosphere comporting with dignity, are also inapposite. I do not dispute the power of a trial court to control the behavior of attorneys before it to assure the observance of proper decorum. The question here, however, is whether, in pursuit of this goal, the court may use that power to deny an attorney his First Amendment right to free exercise of religion because it fears (without proof) that his exercise of that right might possibly have the effect of appealing to the bias of some of the jurors, even though there are other available means of avoiding that possibility, means which would reach the goal without infringing on the petitioner’s First Amendment rights.
*257The majority quotes from Matter of Peck v Stone (32 AD2d 506, 508, supra) to the effect that "membership in the Bar is a privilege burdened with conditions and while certain conditions of conduct may be imposed by a Judge, the imposition of any such rule must bear a reasonable relationship to the contemporary conditions and ought to be imposed only after there is a reasonable foundation for the need of any rule.” The inference is that since membership in the Bar is a privilege rather than a right, limitations imposed on its exercise will be sustained if they have a reasonable foundation, a test far less drastic than the compelling-State-interest test. But in Sherbert v Verner (supra, p 404) the Supreme Court of the United States, dealing with the same contention, there made with respect to the collection of unemployment insurance, said: "Nor may the South Carolina court’s construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant’s 'right’ but merely a 'privilege.’ It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”
While it is clear that an attorney may be required to make certain concessions as a condition of receiving the privilege of practicing law (see Matter of Peters, 250 NY 595; People ex rel. Karlin v Culkin, 248 NY 465, supra; Matter of Goldstein, 220 App Div 107; Matter of New York County Lawyers Assn. [Roel], 3 NY2d 224, opp dsmd sub nom. Roel v New York County Lawyers Assn., 355 US 604), this cannot suffice to sustain a claim that a court may use its supervising power over attorneys to infringe on their constitutionally protected right to free exercise of religion without establishing the existence of a compelling State necessity for such action.
In a further effort to support their conclusion, the majority makes a de minimis argument. First it stresses that this denial of the free exercise of religion will have little effect generally, since "there are few clergymen who practice law generally.” But the issue is not whether few or many will suffer from a rule barring attorneys who are clerics from wearing their clerical garb when appearing for their clients before juries, but whether the rule has denied this respondent his constitutionally guaranteed right to free exercise of religion in the absence of the existence of a compelling State interest warranting a denial of that right. Second, the major*258ity contends that the order attacked by the petitioner "has a minimal effect on the petitioner’s conduct, for it is directed against him only when he tries cases before a jury and requires him only to doff his clerical collar.” But the First Amendment forbids the State not only "to condition the availability of benefits [in this case the petitioner’s right to wear his clerical garb whenever he appears in court as counsel for any party] upon this * * * [the petitioner’s] willingness to violate a cardinal principle of * * * [his] religious faith” because it thereby "effectively penalizes the free exercise of * * * [his] constitutional liberties” (Sherbert v Verner, 374 US 398, 406, supra), but it also denies to the State the right to say what is a cardinal principle and what is a subordinate principle of the petitioner’s religious faith (see Board of Educ. v Barnette, 319 US 624, 642).*
In sum, the majority’s conclusion, that the petitioner’s rights under the First Amendment must yield to the directions of the court that he not wear his clerical collar when he appears before it to try a case before a jury, results from the adoption of a balancing standard which departs wholly from that which the majority concedes is the Federal standard required to be applied. I therefore respectfully dissent from the conclusion reached by the majority.
There is really no need, therefore, to discuss the final portion of the majority’s opinion, which deals with the subordinate, and in my view irrelevant, question of whether the court’s order was reasonable. A few words of comment on the views the majority expressed may, however, not be inappropriate. The majority concedes that "a judicious use of the voir dire might well lead to the selection of a jury which would not be biased by the petitioner’s appearance in clerical garb as attorney for the defendant.” In seeking to explain away this concession it belittles the effectiveness of the voir dire as a screening mechanism. The majority notes, without distinguishing the question of the effect of clerical garb worn by an *259attorney from any other questions probing for potential jurors’ prejudices on other matters, that there is "no guarantee” that a voir dire would result in a bias-free jury. Thus, implicit in the majority’s argument is a rejection of the entire process of voir dire, a step which, I am sure, the majority does not call for or support.
Martuscello and Latham, JJ., concur with Hopkins, Acting P. J.; Shapiro, J., dissents and votes to affirm the judgment, with an opinion.
Judgment of the Supreme Court, Kings County, entered April 24, 1974, reversed, on the law, without costs, and petition dismissed on the merits.
In his opinion for the court in that case (p 642), Mr. Justice Jackson said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” If no official, including a Judge, may do so, he certainly is barred from ruling as to what is a cardinal principle of a person’s religious faith and what is a subordinate principle which may be infringed by court order, without a previous valid finding that such infringement is justified by a compelling State interest in the regulation of a subject within the State’s power to regulate.