Order Michigan Supreme Court
Lansing, Michigan
June 13, 2008 Clifford W. Taylor,
Chief Justice
135712 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
CATHERINE NICOLE DONKERS and BRAD Robert P. Young, Jr.
LEE BARNHILL, Stephen J. Markman,
Justices
Plaintiffs-Appellees,
v SC: 135712
COA: 270311
Washtenaw CC: 05-000994-NM
TIMOTHY KOVACH,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the December 18, 2007
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J., dissents and states as follows:
For the reasons set forth in Judge Markey’s thoughtful dissent, I would affirm the
decision of the trial court to dismiss plaintiff’s case after plaintiff refused to affirm, with
her right hand raised, to give truthful testimony. Plaintiff is not a law unto herself and
cannot unilaterally determine the circumstances under which she will participate in the
judicial process and communicate to the judge and the jury that she is a credible witness.
Rather, there are rules and procedures — in this instance, having a pedigree of half a
millennium or so — by which our system of law seeks to ensure that the truth of matters
is discerned in legal disputes.
Typically, witnesses must swear to tell the truth and outwardly communicate their
commitment to do so by raising their right hand during the process of swearing. To
accommodate those with conscientious objections to such swearing, Michigan law
affords an alternative procedure by which witnesses may “affirm” to tell the truth. MCL
600.1434. For the reasons set forth by Judge Markey, I do not believe that this
alternative procedure vitiates the requirement of an upraised right hand. Because plaintiff
refused to participate in the legal process by the rules and procedures established by law,
I do not believe the trial court abused its discretion by dismissing plaintiff’s lawsuit.
2
I would only add to what Judge Markey has stated that I am not convinced that the
instant case is properly characterized as a “free exercise” case, as plaintiff asserts.
Although the trial court provided ample opportunity for plaintiff to explain her objections
to affirming to tell the truth with her right hand raised, plaintiff offered no explanation for
her refusal to act in accord with the law other than vaguely claiming that she holds
contrary “religious beliefs.” Yet, plaintiff entirely failed to specify the nature and source
of these beliefs. Thus, it is not only impossible to know whether plaintiff’s “free
exercise” of religion is truly implicated here, but it is impossible to know whether either
plaintiff’s insistence upon affirming, rather than swearing, or her refusal to raise her right
hand, was truly a matter of “conscientious opposition,” as is required by MCL 600.1434.
Although “religious beliefs need not be acceptable, logical, consistent, or comprehensible
to others in order to merit First Amendment protection,” a person making a free exercise
claim must provide some showing of the “sincerity” of the professed belief. Church of
Lukumi Babalu Aye v City of Hialeah, 508 US 520, 531 (1993). Moreover, as Judge
Markey noted, the requirement of raising the right hand “has a secular origin and fosters
the secular purposes of reinforcing the solemnity of the occasion and ensuring truthful
testimony.” Donkers v Kovach, 277 Mich App 366, 384 (2007). Cf. West Virginia State
Bd of Ed v Barnette, 319 US 624 (1943).
Even if factual developments established this as a bona fide “free exercise” claim,
I would still not affirm the Court of Appeals, but rather would grant leave to appeal to
determine under what standard such claims are to be evaluated in Michigan, and then
remand to the trial court to properly apply that standard to plaintiff’s claim. Under the
federal constitutional standard, the right of free exercise does not generally relieve an
individual of the obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes). Employment Div, Dep’t of Human Resources of
Oregon v Smith, 494 US 872, 879 (1990) (quotations omitted). See also Greater Bible
Way Temple v Jackson, 478 Mich 373 (2007).
However, this Court has apparently held, post-Smith, that Michigan’s Free
Exercise Clause, Const 1963, art 1, § 4, requires the application of “strict scrutiny” to
even neutral laws and that they must serve a “compelling state interest.” McCready v
Hoffius, 459 Mich 131, 143 (1998); see also Reid v Kenowa Hills Pub Schools, 261 Mich
App 17, 26 (2004). However, McCready cited no Michigan cases, or otherwise
explained in any way why the Michigan Constitution, art 1, § 4, imposes a greater burden
upon the government to justify even neutral laws than the United States Constitution, US
Const, Am I. In my judgment, this is a substantial constitutional issue that is worthy of
far more thorough analysis than was provided in McCready. Id. at 150 n 4 (Boyle, J.,
dissenting) (stating that the parties had not been given “an opportunity to thoroughly
argue the issues”).
3
Before this Court effectively jettisons an institution that has served this state well
since its inception, and that has always been viewed by our system of law as essential to
the achievement of a fair trial, I would accord this issue significantly more careful
consideration.
TAYLOR, C.J., and CORRIGAN, J., join the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 13, 2008 _________________________________________
t0610 Clerk