Florida prosecutor says man violated probation after taking communion

Wednesday, January 13, 1999

A Florida man, on probation for drunken driving, has lost his driver's license for taking communion at his Lutheran church.

Gerald Scott Bennett, a Miramar resident on probation for drug possession and DUI, was told by a state DUI counselor that his ceremonial use of wine at his church was enough to have his license suspended until 2005. Bennett is an assistant lay minister at his church.

Bennett, however, is challenging his alleged violation of his probation by arguing that the state's newly enacted Religious Freedom Restoration Act protects his religious practices. The act, modeled after a federal version that the U.S. Supreme Court invalidated in 1997, requires state courts to use a stringent legal test to determine when a citizen's free exercise of religion is violated by a state law or action.

The Florida law, which went into effect last May, requires government to a show a “compelling interest” in any law or action that substantially infringes on a person's free exercise of religion. Moreover, the government must show that its action or law is applied in the “least-restrictive means” possible.

Sam Fields, a Ft. Lauderdale attorney representing Bennett, said he would argue before a judge later this month that Bennett's religious practices should not result in the loss of his driving privileges.

“My position is that the county judge should dismiss this case, because Bennett's suspension was illegal,” Fields said. “In essence he is being punished for being Christian.”

According to Fields the state could come up with a less-restrictive way to ensure Bennett's sobriety. “I suppose the government could tell him to publish the list of days he participates in and administers communion and then agree not to drive an hour after communion.”

Brad Peterson, a state prosecutor, told the Ft. Lauderdale Sun-Sentinel that the state's Religious Freedom Restoration Act could not be used as a defense in criminal cases.

Florida's Religious Freedom Restoration Act of 1998 states that it applies to “all state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this act.”

Steve McFarland, legal director of the Christian Legal Society, said Peterson should re-familiarize himself with the state law.

“The law applies to all persons faced with substantial infringements on their religious practices because of any criminal or civil law,” McFarland said. “It would be a very empty law if it did not apply to the most onerous burdens of a state criminal prosecution.”

McFarland added that “a sixth-grader” could think of less-restrictive ways of ensuring Bennett's sobriety than yanking his driving privileges for taking a sip of wine for religious reasons. McFarland is also a member of the Coalition for the Free Exercise of Religion, a national group of civil rights and religious-liberty advocates that has urged the passage of religious-freedom laws such as Florida's.

Marc Stern, a senior attorney for the Washington-based nonprofit American Jewish Congress, also questioned the suggestion that Florida's religious-freedom law did not apply to criminal prosecutions.

“I think literacy tests should be used for Florida prosecutors,” Stern said. “This is a case of the government looking stupid. Even if it really meant to exclude Bennett from taking a sip of communion wine, a six-year extension of his sentence does not seem to meet the 'least-restrictive means' test.”