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All fifty states require that a licensee's photograph be included on his or her driver's license. While many people willingly comply with the photograph requirement and say "Cheese!" without complaint, the photograph requirement presents an obstacle to others that may in fact prevent them from obtaining valid drivers' licenses even though they are otherwise qualified. The photograph requirement causes a problem when an applicant for a driver's license has religious beliefs that forbid the taking of his or her photograph. An applicant is faced with the dilemma of following his or her religious beliefs or obtaining a valid driver's license in both of the following situations: (1) when the applicant adheres to a particular religion that prohibits the taking of his or her photograph, or (2) when the applicant believes that being photographed is against his or her religion even though this belief is not shared by others. Recognizing this lose-lose choice that some people face, some states-but not all-allow exceptions to the photograph requirement and issue valid drivers' licenses notwithstanding the fact that the licensees' photographs are not taken. ...

In Section I, this Comment traces the rather complex history of the Free Exercise Clause and explains the current law. In Section II, this Comment discusses the cases from various jurisdictions throughout the United States that have considered whether the photograph requirement on drivers' licenses violates the Free Exercise Clause. In Section III, this Comment considers the relevancy of the context in which the case is decided in explaining the government's interest and whether such interest is sufficient to allow an intrusion into the plaintiff's free exercise of religion. Of particular importance in Section III is a discussion of how the terrorist attacks of September 11, 2001, may have affected the courts' evaluation of state interests in photographing licensees. In Section IV, this Comment concludes with an analysis of the potential impact of post-September 11 safety concerns on future cases involving First Amendment challenges.