dissenting. I do not believe that the order to pay child support in this case can stand consistent with the First Amendment as interpreted by the Religious Freedom Restoration Act of 1993. Two factors are critical to my view.
First, the real source of the controversy is the communal living arrangement required by the Northeast Kingdom Community Church. Defendant works as a cobbler and salesman in the church cobbler shop. All income from his work effort goes directly to the church and, in turn, all of his needs are met by the church. Defendant has no individual income or assets. This communal living arrangement is commanded by church doctrine; defendant cannot be a church member without residing in the church community and participating in its economy.
Second, the issue is whether defendant can be required to pay a nominal amount of child support even though the guideline calculation would otherwise exempt him. Under our guideline system, an obligor spouse is assigned a “self-support reserve,” which is “an amount sufficient to provide a reasonable subsistence compatible with decency and health.” 15 V.S.A. § 653(7). The point of the self-support reserve is that it represents an income floor beneath which the obligor should not be taken in order to pay child support. Thus, when the obligor’s income is above the self-support reserve, but a support order calculated under the guidelines would leave the obligor with income below the self-support reserve, the support amount is presumed to be the difference between the obligor’s income and the self-support reserve. See id. § 656(c). This rule leaves the obligor the amount of the reserve to meet his or her own needs. When the obligor’s income starts out below the self-support reserve, the policy is essentially the same except that the court must “require payment of a nominal support amount.” Id. § 656(b).
*440Although the requirement of at least a nominal payment is understandable, it has the perverse effect of leaving the lowest income obligor with a smaller income than that retained by an obligor with an income slightly above the guidelines. In this case, it also creates a constitutional conflict. Defendant has no cash income, so he is well below the self-support reserve. The trial courts imputed income to defendant because he has the employment history and current skills that would allow him to work and support his children outside the church. They also noted that defendant’s individual income tax returns reflected income of $2,300 per year, which represented that portion of total church income assigned by the church to defendant. Even after income imputation, however, defendant’s income falls below the self-support reserve.
As the majority recognizes, the purpose of the Religious Freedom Restoration Act was to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 403 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). Sherbert noted that “a rational relationship to some colorable state interest” is insufficient; instead, “‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’” Sherbert, 374 U.S. at 406 (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). Yoder explained that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Yoder, 406 U.S. at 215.
I emphatically agree with the majority about the importance of child support obligations and requiring that parents honor them. Therefore, I would ordinarily find that child support laws further a compelling governmental interest. In this case, however, we have a clash of principles with virtually no economic or social substance. The sole policy in issue requires every parent with a child support obligation, no matter how low his or her income, to pay at least a small amount of child support to maintain that sense of obligation. I support that policy, but I can not accept that it involves a “paramount” state interest or an interest “of the highest order.” The very nature of First Amendment balancing requires us to be discerning about the interests involved and the methods employed. See Yoder, 406 U.S. at 221 (when Amish refused to send children to public school beyond the eighth grade, Court could not accept “sweeping claim” of compelling interest in compulsory education; Court must “searchingly examine” state interest in policy in dispute). The symbolism of a “nominal” child support order does not rise to the level of state interest necessary to substantially burden a parent’s free exercise of religion.
*441In evaluating the state interest involved here, it is instructive how the issue of nominal payment is handled in the federal child support enforcement scheme and in the other states, which like Vermont have adopted child support guidelines. Pursuant to the Family Support Act of 1988, states are required to adopt child support guidelines and adopt a rebuttable presumption that in each individual case the amount of child support ordered will be based on the guidelines. See 42 U.S.C. § 667 (1988); 45 C.F.R. § 302.56 (1993). There is no requirement in federal law that courts order at least a nominal amount of support in every case, no matter how low the income and resources of the obligor parent. Although I do not have an exact count, the reported decisions suggest that unlike Vermont, most states do not require very low income obligors to pay child support. See Hannah v. Hannah, 582 So. 2d 1125, 1126 (Ala. Civ. App. 1991) (when noncustodial parent has no ability to pay, it is improper to order parent to pay child support); Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. Ct. App. 1991) (absent finding of bad faith, trial court can not order child support against parent unable to pay because of unemployment); State ex rel. Wilcox v. Strand, 442 N.W.2d 256, 258 (S.D. 1989) (upholding refusal of trial court to order child support against parent because of parent’s limited ability to pay); Glenn v. Glenn, 848 P.2d 819, 822 (Wyo. 1993) (incarcerated parent without income or assets not subject to child support order). The different attitudes on obtaining support orders in every case is demonstrated by Wilcox, in which an attempt by the state to obtain an order against a parent because she was capable of working but was voluntarily unemployed brought a hostile reaction from the court: “[t]he burden on the judicial caseload enhanced by this sort of action and appeal is not appreciated.” Wilcox, 442 N.W.2d at 258.
Although the parties have not raised this point, there is a serious question whether Vermont’s requirement for a support order from every noncustodial parent is consistent with the federal requirement that guidelines take into consideration the income of the absent parent and operate as rebuttable presumptions. See 42 U.S.C. § 667(b)(2). The issue was litigated in New York, which by statute requires an award of at least $25 per month per child, and the New York Court of Appeals struck down the nominal amount requirement as inconsistent with federal law. See Rose v. Moody, 629 N.E.2d 378, 381, 607 N.Y.S.2d 906, 909 (1993), cert\. denied, — U.S. —, 114 S. Ct. 1837 (1994). The court reasoned: “For a judicial decree to declare that [the parent] . . . owes what she cannot realistically or legally pay is *442not only unjust and inappropriate, it is a legal pretense.” Id. Thus, the nominal-amount provision violated the federal requirement that the obligor be able to rebut the guideline amount when he or she can show that application of the guidelines would be “unjust or inappropriate” in a particular case. Id.
I think it ironic that a policy the New York Court of Appeals found not to be legally sustainable is found by this Court to involve a compelling state interest that overrides a claim of religious liberty. Whether the New York court is right or wrong, it is clear that we can reach the majority’s result only by accepting that virtually any state interest is sufficient to trump a religious liberty claim under the Sherbert and Yoder decisions. The Religious Freedom Restoration Act plainly demands more than this lip-service tribute to the free exercise of religion.
Even if I agreed that a child support order in this case advanced a compelling state interest, I cannot agree that it advances the “interest in the least restrictive means possible.” Whatever income is earned from defendant’s labor is retained by the church. In an economic sense, the church is defendant’s employer. By requiring wage withholding in most child support cases involving employed obligors, 15 V.S.A. § 781(a), the state has found that employers have an obligation to help create a workable system of child support enforcement. I see no reason why the state could not legislate that the income that flows to the church from defendant’s labor is encumbered by defendant’s obligation of support. Thus, the payment obligation would be placed on the church, which has the income and assets from which collection is achievable. This obligation is no different from those placed on the church by taxation or Social Security laws with which it must comply. See, e.g., Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 392 (1990).
Although the majority is remanding to determine whether there is a less restrictive alternative than contempt, there is no indication of an alternative under present law. Thus, it is highly likely, if not inevitable, that we will again imprison defendant in an attempt to make him pay what he does not have. The real dispute here is between the State and the church, and I do not believe that we are justified in holding a church member hostage to this dispute. If the State is correct that its interests are so fundamental that they must be enforced in these circumstances, this Court should insist that they be enforced directly against the church that retains the income in issue.
*443For the above reasons I would hold that the nominal support payment order can not be enforced against defendant consistent with his right to free exercise of religion. I dissent.