Anne Broache, CNET News.com, February 6, 2008
No television, no wedding or family photographs, and definitely no image of herself on her driver’s license: That was the devout Christian life that Nebraska resident Frances Quaring was trying to lead.
Which is why, after the state of Nebraska rejected her request for a license-without-a-photograph in the mid-1980s, Quaring sued the state in a landmark case that ended up at the U.S. Supreme Court. She won, with the justices agreeing that preserving her freedom of religion outweighed the state’s interest in requiring an ID photograph.
More than two decades after the Quaring case, approximately a dozen states now offer religious exceptions when issuing driver’s licenses. But because of a federal law called the Real ID Act that takes effect on May 11, residents of those states who have pictureless licenses could expect problems flying on commercial airliners and entering federal buildings, including some Social Security and Veterans Affairs offices.
The new rules could affect thousands of Americans in states including Nebraska, Pennsylvania, Oregon, Minnesota, Kansas, Arkansas, and Indiana. Religious groups including some Amish, Old Order Mennonites, Muslims, members of Native American faiths, and fundamentalist Christians object to identification cards bearing their photographs—or, in some cases, even showing their unshrouded faces in public.
The American Civil Liberties Union, which has criticized Real ID on numerous grounds, says it has received complaints about the law’s rigidity toward religious groups and is “exploring all options,” including a legal challenge to the law.
Under Real ID, there’s no obvious wiggle room for Americans who object to facial photograph requirements on religious grounds. The lengthy new regulations released by the U.S. Department of Homeland Security last month set minimum standards for state-issued driver’s licenses and IDs, among which is a “full facial digital photograph” that adheres to specific federal requirements.
This could pose real problems for some residents of states with a history of allowing the devout to obtain valid driver’s licenses without photographs in an attempt to accommodate religious beliefs. Still more states have enacted laws known as “religious freedom restoration acts,” which more broadly allow for accommodation of religious beliefs in the face of government regulations.
For some Christians, Quaring included, one source of religious objections to Real ID comes from the Christian Bible’s Second Commandment, which in one translation says: “You shall not make for yourself an idol in the form of anything in heaven above or on the earth beneath or in the waters below.”
Homeland Security justifies its mandates by saying a facial photograph “serves important security purposes.” Its stated goal through Real ID—approved unanimously by the Senate and overwhelmingly by the House of Representatives as part of a “Global War on Terror” bill—is to improve driver’s license security and thereby handicap terrorists, identity thieves, and illegal immigrants.
“Given these security concerns and the clear statutory mandate, DHS believes that a driver’s license or identification card issued without a photograph could not be issued as a Real ID-compliant driver’s license or identification card,” the agency says.
Translated, that means in just over three months, federal agencies may no longer accept those “noncompliant driver’s licenses” for Americans who are boarding a commercial airplane or entering a federal building. In addition, Homeland Security can add other requirements—one Homeland Security official recently suggested Real ID could be required to buy certain cold medicines—without consulting Congress first.
The photo ID requirement has already raised practical concerns in recent years, particularly because of the newly instated passport requirement for crossing into Mexico and Canada, where the Amish often travel to visit family or seek medical treatment, Bontrager said. Because the Amish don’t fly on airplanes, most do not have passports, he said, adding that he worried the Real ID requirements could make it less convenient for them to access federal buildings. Without a photo-equipped license, they won’t be able to visit some Social Security offices, for instance.
In a response to critics of that decision, Congress enacted a law called the Religious Freedom Restoration Act, which attempted to shift more of the burden back to the government in winning such cases. It said: “Government shall not substantially burden a person’s exercise of religion” except in limited circumstances. That law, however, was partially gutted by the Supreme Court, which ruled Congress had overstepped its boundaries by applying that rule to the states, prompting many states to enact their own versions of the law.
What’s relevant to the new Real ID rules, however, is that the Religious Freedom Restoration Act does still appear to apply to federal laws and rules, said the ACLU’s Mach. If the ACLU does challenge Real ID, it plans to make its case using that law.
Whether such a challenge would be successful is another question.
Because Homeland Security appears to have a fairly narrow requirement—that is, that a driver’s license applicant’s face be uncovered—the government would likely be able to argue that it’s pursuing its security-related goals in the narrowest possible way, said Seval Yildirim, director of the Center for International and Comparative Law at Whittier Law School in California.
A few years ago, the ACLU of Florida lost a case in which the state revoked a devout Muslim woman’s license because, after a later review, the state decided she may not wear a veil that covered most of her face. The ACLU argued that such a practice violated Florida’s version of the Religious Freedom Restoration Act, but state courts ruled that the government’s security concerns outweighed Freeman’s religious freedom. Critics said the decision reflected a post-9/11 mentality that’s less permissive of religious liberties.
Organizations like his would “certainly be willing” to sign onto legal action with other civil liberties groups against the rules, Ramey said. (The Muslim American Society also has broader concerns about Real ID’s implications for undocumented immigrants.)
What is Real ID?
Federal regulations creating a uniform national ID card—called Real ID—take effect on May 11. If your state hasn’t agreed in principle to upgrade its driver’s licenses to be Real ID-compliant, you could have trouble traveling by air and taking advantage of some government services.
A CNET News.com survey shows that just over half of the states have signed up, while some have flatly refused to participate, typically citing costs or sovereignty worries. Privacy is another concern, with a mandatory barcode on Real ID cards lacking encryption or legal prohibitions against misuse, and mandatory linking of states’ motor vehicle databases.
[Check] a state [below] to see what that state has told us about whether or not it’s going along with the federal Real ID Act.
Alabama plans to ask for an extension. “At this point, one option that’s being considered is a ‘hybrid’ approach to Real ID in Alabama, by which the state would offer compliant and noncompliant driver licenses and ID cards. We do plan to ask for an extension.”
—Dorris Teague, Public Information/Education Unit, Alabama Department of Public Safety
“Alaska does indeed intend to request an extension to meet the requirements of Real ID. We haven’t submitted our extension request yet, but we fully intend to do so in the very near future.”
—Whitney Brewster, spokeswoman, Alaska Division of Motor Vehicles
Arizona says that Homeland Security has said the state will “automatically get an extension” because of an existing plan to revamp its licenses, according to Jeanine L’Ecuyer, spokeswoman for Arizona Gov. Janet Napolitano. That means its driver’s licenses and state ID cards will be treated as Real ID-compliant until December 31, 2009.
But L’Ecuyer added that final compliance is still an open question: “Will Arizona do Real ID? Maybe is the honest answer to that question.”
“We have asked for the first extension, but in the extension letter, we say we are not committed to implementing Real ID. We just need time to look at it and evaluate it.”
—Mike Munns, assistant revenue commissioner for Arkansas
California reiterated in January 2008 that it has no problems complying with Real ID. Its statement did, however, mention “privacy and funding issues, which continue to be a concern for California.”
“We requested and received the extension until 2009, and we expect to be fully on the road to implementing Real ID satisfactorily by that point to get another extension in the future if we need to.”
—Mark Couch, spokesman for the Colorado Department of Revenue
Connecticut has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “We are still studying the issue. (Department of Motor Vehicles Commissioner Robert Ward) remains supportive of the concept, but no firm decisions have been made.”
—Bill Seymour, spokesman for the motor vehicle commissioner.
Delaware has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “The DMV director and secretary are going to give a briefing to the governor next month, February. Because we’ve got until the end of March to decide . . . After they have this meeting with the governor is when we’re going to make our official choice.”
—Mike Williams, spokesman, Delaware Department of Transportation
Florida has not announced whether it will or will not request an extension. “Thanks to the leadership of our governor, cabinet, and legislature, Florida already provides our citizens a secure and safe driver license and identification card, and we are well postured to incorporate any changes that may be required. We applaud the federal government on their efforts to protect all of our citizens with the implementation of this act.”
—Ann Nucatola, public information director, Department of Highway Safety and Motor Vehicles
Georgia has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. The legislature has approved legislation authorizing the governor to reject Real ID if federal regulations do not “adequately safeguard and restrict use of the information in order to protect the privacy rights” of Georgia residents. “Our legislature has to make that determination within the next few months.”
—Susan Sports, public information officer, Georgia Department of Driver Services
Hawaii has filed for and received an extension. “We are moving forward on reviewing the rules and coordinating with the county DMVs to see how the rules can be implemented and coordinated.”
—Russell Pang, chief of Media Relations for Hawaii Gov. Linda Lingle
“We’ve asked for an extension, but we still have serious concerns and reservations about it and its future here is to be determined.”
—Jon Hanian, spokesman for Idaho Gov. C.L. “Butch” Otter
“We have every intention to file for an extension.”
—Henry Haupt, spokesman for Illinois Secretary of State Jesse White
“We do intend to comply, and we have filed for and received an extension. Over the past couple of years, we’ve done some security enhancements to our own system that we were going to do regardless of how Real ID rolled out.”
—Dennis Rosebrough, spokesman, Indiana Bureau of Motor Vehicles
“Yes, Iowa will be implementing Real ID and we will be requesting the first extension.”
—Dena Gray-Fisher, spokeswoman, Iowa Department of Transportation
“Kansas has obtained authorization for the extension, which gets us out to the end of 2009 and affords us the opportunity to see where we are, negotiate a few different things with our vendor and others. It gives us a little breathing room.”
—Carmen Alldritt, director of the division of vehicles, Kansas Department of Revenue
“A Real ID would be an entirely new document. The current KY license would not meet the new standard . . . Kentucky has asked for the extension.”
—Mark Brown, spokesman, Kentucky Transportation Cabinet
State officials have not responded to repeated requests for information about Real ID compliance. One bill in the state legislature asks Congress to repeal Real ID, while a response to a DMV survey says that “We believe that Louisiana will meet standards.”
Will not comply. “There is currently no effort being undertaken within the state to roll back the public law preventing the secretary from moving in the direction of Real ID. It is a situation where Mainers may face some inconvenience at airports come May 11.”
—Don Cookson, spokesman for Maine Secretary of State Matthew Dunlap
Maryland requested a deadline extension. “We’re still going through 300 pages of federal guidelines. We’re currently evaluating those guidelines and then we’ll develop a program that is Real ID-compliant.”
—Jack Cahalan, spokesman, Maryland Department of Transportation
“Massachusetts did apply for the waiver and received it. We are basically telling (drivers who call us) that we’ve gotten the exemption, which means that you are going to show your valid driver’s license to get on an airplane just as you have in the past until December 2009.”
—Ann Dufresne, spokeswoman, Massachusetts Department of Motor Vehicles.
After December 2009, states can apply for a second extension, but will receive it only if they’re taking affirmative steps to comply.
Michigan has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “At this point, we have not requested a waiver. We’re still trying to work out some of the details.”
—Kelly Chesney, spokeswoman for Michigan Secretary of State Terri Lyn Land. The state’s Web site says: “There are still many unknowns . . . Michigan law changes will be necessary.”
“We did receive a letter from Homeland Security and it said that our extension had been granted, so that would mean that our documents, our driver’s licenses, and ID cards, are compliant until December 31, 2009.”
—Minnesota Department of Public Safety spokeswoman
No response to repeated inquiries.
No response to repeated inquiries. The state Web site says: “January 11, 2008 the U.S. Department of Homeland Security (DHS) released the final rule establishing minimum security standards for state-issued driver licenses and identification cards. The rule is 284 pages in length. The Missouri Department of Revenue is in the process of reviewing the rules to determine the impact to Missouri.”
Montana’s legislature has flatly rejected Real ID in a bill that the governor has signed into law. Gov. Brian Schwitzer has called on his colleagues in other states this month to join Montana in opposition to this “major threat to the privacy, constitutional rights, and pocketbooks of ordinary Montanans.” Lynn Solomon, a spokeswoman for the Montana attorney general’s office, told us: “Right now we’re not even sure that the existing Montana law allows us to ask for the extension. We’re just sort of sitting tight.”
“Nebraska has requested and has been granted an initial extension. That extension does not require you to technically commit to Real ID compliance—it says we need some time, and that’s what we said, we need some time. Whether or not Nebraska is ultimately going to be compliant is really for the most part right now in the hands of the legislature.”
—Beverly Neth, director, Nebraska Department of Motor Vehicles
Nevada has applied for a deadline extension. “Certainly this is something that the governor supports and believes is important, although he believes in some respects it is an unfunded mandate and that the federal government should assist the states with the funding,” Melissa Subbotin, spokeswoman for Nevada Gov. Jim Gibbons, told us.
New Hampshire last year enacted a law that prohibits the state from changing its driver’s license and identification card laws to comply with Real ID. It doesn’t appear that is going to change. “As it stands now, the only action that has been taken is legislation to keep us out of it. There would be no way that the state could pass amending legislation or undo that within that time frame; it’s just not going to happen. I don’t see that anything could be done in the intervening time to change it,” Jim Van Dongen, spokesman for the New Hampshire Department of Safety, told us.
New Jersey has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. Mike Horan, a spokesman for the New Jersey Motor Vehicle Commission, said there are a number of factors that the state is considering, including cost and wait times at the DMV. “Are the Real ID requirements going to add 15 minutes more to a person’s wait? Are we going to need a new computer system to manage the requirements? We’re in a bit of a fiscal crisis like many states across the country. That’s a major concern—there are so many things that are in need of money.”
New Mexico has applied for the first deadline extension from the Department of Homeland Security. “We have not made a final decision on whether we are going to implement Real ID or not,” said David Harwell, a spokesman for the state department of taxation and revenue, which issues driver’s licenses. “We are in the process of studying all of the regulations that were issued by Secretary (Michael) Chertoff several weeks ago.”
New York has already received an “unsolicited extension” from the Department of Homeland Security as part of a recent agreement to change its driver license policies, said Jennifer Givner, deputy press secretary for Gov. Eliot Spitzer.
North Carolina said it will request an extension if it’s necessary for state residents to travel after May 11, but has not yet done so. “We’re feeling that we are on track to follow along the Real ID plan as it is right now. We don’t see any situation at this point where our citizens’ driver’s licenses would be in jeopardy and keeping them out of federal buildings or off of airplanes . . . Basically we feel like we’re in a good place.”
—Marge Howell, spokeswoman, North Carolina Division of Motor Vehicles
North Dakota has applied for a deadline extension. “Our application is stating that we’d like the extension and we would still like to reserve the opportunity to investigate committing to full implementation,” said Linda Butts, deputy director of driver and vehicle services, North Dakota Department of Transportation. “The other thing that’s muddying the water is that so many of these rules are long-term and seem to continue to mutate and change a little bit, so that’s another thing I think all states are looking at is the cost of implementation. Are these truly going to be the rules in 2015? Will the rules today be the rules that are implemented five, seven years down the road?”
Ohio said this month that it has applied for an extension and was the first state to receive one.
Oklahoma’s legislature has approved legislation saying that Real ID “is inimical to the security and well-being of the people of Oklahoma” and, therefore, “the state of Oklahoma shall not participate in the implementation of the Real ID Act.” Paul Sund, spokesman for Oklahoma governor’s office, told us: “I’m not aware of any repeal efforts, but our legislature does not convene until February 4.”
Oregon has requested and received an extension. In the longer term, however, the state may not comply. “Oregon hasn’t made a decision for or against compliance with Real ID. But since the final federal rules were released January 10, our legislature is likely to put that on its 2009 agenda.”
—David House, spokesman for the Oregon Department of Motor Vehicles
Pennsylvania has requested and received an extension. In the longer term, however, the state may not comply. “We’re undergoing a comprehensive review of those regulations right now to look at some potential options, the cost that would be involved and also the impact to the citizens of Pennsylvania. Being granted this initial extension just allows us more time to do that and allows the citizens of the commonwealth to continue using their state driver’s licenses and IDs through December 31, 2009.”
—Danielle Klinger, spokeswoman, Pennsylvania Department of Transportation
Rhode Island has applied for and received the first deadline extension from DHS, according to state DMV spokeswoman Gina Zanni. “Our governor supports the Real ID initiative,” Zanni told us. “We have applied for part of the grant money that has been made available . . . we’d sure like some money.”
South Carolina has enacted legislation saying the state “shall not participate in the implementation of the federal Real ID Act.” Beth Parks, spokeswoman for the South Carolina Department of Motor Vehicles, told us: “Yes, it is true that South Carolina is a nonparticipatory state for Real ID. The South Carolina legislature is the only entity that can change that position. We are comparing the new regulations to the proposed regulations and our previous cost estimates. Once we have completed our review, we will provide information to South Carolina lawmakers and answer any questions they may have.”
“We’ve applied for an extension and received one, but we have not committed to Real ID yet,” said Mitch Krebs, press secretary for South Dakota Gov. Michael Rounds.
“The Department of Safety is conducting a detailed review of the final rules in order to fully evaluate the impact Real ID implementation will have on the citizens of the state of Tennessee. While we anticipate filing an extension, no official request has been signed as of this date. Keep in mind, an extension request is not necessarily an indication of our intent to comply.”
—Mike Browning, spokesman, Tennessee Department of Safety
Texas has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “We’re still reading the fine print.”—Tela Mange, spokeswoman, Texas Department of Public Safety
Utah has requested and received a deadline extension. “Our driver’s license division is not a policy-making body. It would be up to the legislature and the governor. We are currently going through our legislative session—it just started. That will be one of the topics, whether to go through with it.”
—Sgt. Jeff Nigbur, spokesman, Utah Department of Public Safety
“Vermont requested and was granted an extension until December 31, 2009.”
—John Zicconi, spokesman, Vermont Agency of Transportation
Virginia has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “The Virginia DMV is currently reviewing the regulations to determine our next steps.”
—Melanie Stokes, spokeswoman, Virginia Department of Motor Vehicles
Gov. Christine Gregoire signed legislation last year prohibiting the state from implementing Real ID unless the federal government provides funding and greater privacy protections. But, in an apparent effort to avoid inconveniencing state residents in May, Gregoire requested a compliance extension. “By not filing an extension, effective May 11, Washingtonians would have automatically been subject to additional security screenings at airports and federal buildings,” Gregoire said in a recent statement. It also said: “I will not allow for confusion and chaos at our busy airports. This extension will allow our residents to continue use of their Washington state driver license or ID card to board planes and enter federal buildings . . . The federal regulations on Real ID compliance are ambiguous, and I share funding and privacy concerns held by many state legislators.”
West Virginia has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “In West Virginia we are still weighing our options based upon the recent changes to the act’s requirements.”
—Susan Watkins, spokeswoman, West Virginia Department of Transportation
Wisconsin has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “We’ve not made a final determination regarding next steps for Wisconsin as it relates to Real ID,” said Patrick Fernan, operations manager for the Wisconsin Department of Motor Vehicles. “We have not requested an extension as of yet.”
Wyoming plans to request a deadline extension. “Unless the law for implementation of Real ID is changed in Washington D.C. or our Wyoming Legislature passes legislation not to comply with the Real ID, we will work toward implementation,” said Jim O’Connor, support services administrator for the Wyoming Department of Transportation. He added, however: “We are concerned about this unfunded federal mandate and the effect it will have on the people of Wyoming.”
The nation’s capital has not decided whether to comply with Real ID, reject it completely, or request an extension to keep its options open. “The DC DMV is still deciding on next steps,” said public information officer Janis Hazel. “Nothing further to report at this time.”
“We are deeply concerned that Real ID and the associated regulations intrude on the religious liberty of many Americans who for reasons of faith wear head coverings or object entirely to having their photo taken,” said Daniel Mach, director of litigation for the ACLU Program on Freedom of Religion and Belief. “The faithful shouldn’t have to choose between a driver’s license and their religious beliefs.”