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Blackhawk v. Pennsylvania

ELR Citation: 34 ELR 20079
Nos. Nos. 02-3947, -4158, (3d Cir., 08/20/2004)

The Third Circuit upheld a district court decision that a state wildlife and game commission's refusal to exempt a Native American, who owns black bears for religious purposes, from a permit fee violates the First Amendment's Free Exercise Clause. The permitting scheme is subject to strict scrutiny. The permit fee waiver mechanism creates a regime of individualized, discretionary exemptions, and the challenged fee provisions are substantially underinclusive with respect to its asserted goals and thus fail the requirement of general applicability. Further, the permitting scheme could not withstand strict scrutiny because the commission was unable to demonstrate a compelling interest in refusing to grant a religious exemption. Because the state sets its fees at modest levels and provides for hardship waivers, it clearly does not regard the objective of discouraging the possession of wild animals as a matter "of the highest order." And even if the asserted interests were compelling, the fee scheme is not narrowly tailored to further them. However, the commission officials could not be held liable under §1983 because they were entitled to qualified immunity.