¶1 concurring.
¶2 I agree with the judgment of the majority, but I write separately for two reasons. First, I am not convinced that the regulation in question does not burden the religious beliefs of the appellant. In my opinion, the record is not adequate to make a determination on that point. The record tells us that appellant hunts for food for his family and for recreation. There is no further evidence in the record from which to conclude that hunting is not a central tenet of the Amish faith or that there are other sources of meat available to appellant’s family. The appellant has not met his burden of producing sufficient evidence to show that the regulation in question burdens his religious belief. Appellant does not pass the second step in the Sherbert test, and his assignments of error should be overruled on that basis.
¶3 I also write separately because I disagree with the majority in their treatment of the state’s compelling interest (the third step in the Sherbert test). I find nothing in the record that establishes the compelling interest of the state. The prosecution introduced no evidence on this point, and I am not willing to speculate as to the motives of the state. The case can be decided on the failure of the appellant to meet his burden with respect to the second step of the Sherbert test. The opinion should stop there rather than engage in speculation as to the compelling interest of the state.
¶4 Finally, I would refrain from any statement about the constitutionality of the Religious Freedom Restoration Act. The majority makes the following criticism: “We note that the constitutionality of this statute may be questionable.” While other courts and academic commentaries may have examined the Act’s constitutionality, the question was not presented or argued to this court. Therefore, such a comment by the majority is advisory in nature and inappropriate.
¶5 I would affirm the conviction of the appellant because he failed to introduce sufficient evidence to establish that the regulation in question burdened his religious beliefs.