Real ID vs. the states

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Real ID could be the latest skirmish in years of legal battles between states and the federal government over religious freedom laws. Until 1990, U.S. law said that the government has to show a "compelling interest" in order to succeed in limiting a person's free exercise of religion, as evidenced in the Quaring case. But then came a U.S. Supreme Court case called Employment Division v. Smith, which concluded that if a rule is neutral and isn't designed to target a particular religion, then it may pass constitutional muster.

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.

Related story
The legislation behind
a national ID

Read the full text of
the Real ID law here.

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.

"In other words, this is not an outright prohibition on all religious clothing or covering, but only those that prevent the state from identifying the individual," said Yildirim, who is defending a Muslim police officer in Philadelphia who was prohibited from wearing her head scarf while in uniform and on the job.

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.

Even though only some Muslims could be affected by the Real ID rules, it's a "significant minority," said Ibrahim Ramey, director of the human and civil rights division of the Muslim American Society Freedom Foundation. Ramey estimated that about 80 percent of Muslim women wear headscarves and about 10 percent also don a niqab, or face veil.

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.)

"I would argue again that the benefit of religious accommodation far outweighs what some people might perceive as the drawback or the problematic nature of doing it," Ramey said in a telephone interview. "I don't think it's something...that will involve anything close to a large plurality of Muslim women, but for any woman that chooses to wear the covering, it ought to be something that's respected and accommodated by the larger society, particularly if there's no evidence of criminal intent."

CNET News.com's Declan McCullagh contributed to this report.

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.

Stories in this series

Monday: Real ID could mean real travel headaches
In just over four months, millions of law-abiding Americans could face new hassles when traveling on commercial flights if they hold driver's licenses or ID cards issued by states that haven't agreed to comply with Real ID. Homeland Security is already predicting "delays" and "enhanced security screening" procedures for those Americans in the non-Real ID line at the airport.

Tuesday: Federal buildings become Real ID zones
Everyone from visitors to the U.S. Capitol building to jurors being called to duty in federal courthouses could be affected by Real ID's requirement that noncompliant driver's licenses may not be used to access "federal facilities." Homeland Security says it "cannot predict" how many Americans in non-Real ID states will be inconvenienced.

Wednesday: Religious minorities face Real ID crackdown
Some U.S. states have long allowed citizens with religious objections to avoid having their photograph on driver's licenses. The Amish, Old Order Mennonites, and some Muslim women fall into this category. But licenses without photographs don't comply with Real ID, a rule that could invite a legal challenge.

Thursday: FAQ: How will Real ID affect you?
What are the privacy implications? What happens next? This list of frequently asked questions tries to clear up some of the confusion surrounding the controversial law.