COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Elder and Bray 

Argued at Salem, Virginia 

TIMOTHY MARC HOREN 

v. Record No. 2835-95-3 

COMMONWEALTH OF VIRGINIA OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

DIANE PATRICIA HOREN JANUARY 14, 1997 

v. Record No. 2836-95-3 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 James J. Knicely (Samuel Swindell; Knicely & 

Cotorceanu; Kratman, Pethybridge & Swindell, 

on briefs), for appellants. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Timothy Horen and Diane Horen were convicted of possession 

of wild bird feathers and parts in violation of Code 

§ 29.1-521(10).1

 The dispositive question is whether the 

application of Code § 29.1-521(10) to prohibit the possession of 

lawfully obtained owl feathers for the practice of the Horens' 

Native American religion violates their constitutional right to 

the free exercise of religion. 

 

 1 Code § 29.1-521(10) in relevant part makes it a Class three 

misdemeanor for any person to "possess . . . at any time or in any 

manner, any wild bird . . . or any part thereof, except as 

specifically permitted by law and only by the manner or means and 

within the numbers stated." The term "wild birds" is not defined 

in the Virginia Code; however, "all species of wild birds" are 

included within the definition of "wildlife" in Title 29.1. 
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 We find that Code § 29.1-521(10) is not a religiously 

neutral statute, that it substantially burdens the free exercise 

of the Horens' religion, and that the Commonwealth failed to 

prove that application of it to the Horens advances a compelling 

state interest or does so in the least restrictive manner. 

Therefore, we hold that under the facts and circumstances of this 

case the application of Code § 29.1-521(10) to the Horens 

violates their constitutional right to the free exercise of their 

religion and their rights under the Religious Freedom Restoration 

Act. 

 On February 10, 1995, responding to an anonymous complaint 

that the Horens had hybrid wolf pups and wild bird parts at their 

residence, Officer Steve Bullman, a State Game Warden, and 

Officer Bill Parker conducted an undercover investigation. 

Bullman and Parker, dressed in plain clothes, approached Mrs. 

Horen, a Native American medicine woman and member of the 

Southeastern Cherokee Confederacy, at her home and pretended to 

be interested in purchasing wolf pups. Mrs. Horen explained that 

she did not have any pups at present but that she would take the 

gentlemen's addresses and phone numbers and contact them when she 

did. 

 Bullman and Parker accompanied Mrs. Horen into her home. 

Inside, they observed a variety of Native American objects which 

had adorning feathers. The officers also observed two sets of 

wings and two sets of bird feet, later identified as owl feet and 

wings. Subsequently, these items were seized, and the Horens 
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were charged with violations of Code § 29.1-521(10). 

 The circuit court held a pretrial evidentiary hearing on the 

Horens' motions to dismiss the indictments on free exercise and 

other constitutional grounds. The Horens produced evidence 

regarding the significance of the owl feathers in the practice of 

their Native American religion. In addition to the Horens' 

testimony, George Branham Whitewolf also testified on the Horens' 

behalf. Whitewolf identified himself as a Lakota, or Sioux, 

Indian. He testified that he is the spiritual leader for the 

Monocan Tribe in Virginia and that he has practiced the Native 

American religion for forty-eight years. Whitewolf indicated 

that he has been a Native American religion advisor for the 

Virginia prison system and was appointed by President Clinton to 

serve as a religious advisor to a committee to rewrite the Native 

American Religious Freedom Act. 

 The Horens and Whitewolf testified that feathers and other 

bird parts are significant objects in the Native American 

religion because they represent the spirit of the bird from which 

they come. Mrs. Horen testified that certain essentials of the 

Native American religion, such as prayer, cleansing, 

purification, consecration and healing practices require feathers 

or other bird parts. Whitewolf testified that "Mrs. Horens' 

religious beliefs are consistent with the Native American 

religion. Different feathers mean different things to different 

tribes. For example, I wouldn't touch an owl feather. To me an 

owl is a symbol of death, and I wouldn't want anything to do with 
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an owl. But in other tribes, the owl is revered. The feathers 

are a must for Indians." Mrs. Horen testified that owl feathers 

are of special significance to her tribe and that because they 

are the feathers of soaring birds, "they carry prayers to the 

Creator; as night hunters, they fly noiselessly and see well in 

the dark; and as night messengers of death, their feathers are 

strong medicine." 

 Whitewolf also testified that the Horens could not get a 

permit to have feathers because the Horens are not members of a 

federally recognized tribe. Whitewolf explained that there is a 

feather bank in Colorado which is supposed to be the only place 

to obtain feathers and that he is one of only one hundred and 

twenty people who are not members of federally recognized tribes 

that have permits to have feathers. Whitewolf stated that he 

acquired his permit before the federal government decided to 

limit permits to people who belong to a federally recognized 

tribe.2

 Mr. Horen testified that the owl is a bird revered by the 

Iroquois from whom the Horens are descended. Mr. Horen also 

testified that they do not believe in killing these birds because 

this would dishonor the Creator. Mr. Horen explained he believes 

that if you find a feather it is a gift from the Creator and 

before picking up the feather you must perform a ceremony 

indicating your respect. Mr. Horen stated that the feathers and 

 2See also United States v. Abeyta, 632 F. Supp. 1301, 

1302-04 (D.N.M. 1986). 
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owl parts seized from his home were from two dead owls he 

discovered along roadsides and that he and his family found some 

of the feathers while walking in the woods. 

 The Horens' motions to dismiss on free exercise, free 

speech, equal protection, and due process grounds were denied. 

In denying the motions, the trial court stated its belief that 

the protection of fowl was a compelling governmental interest and 

that the imposition of a Class three misdemeanor for mere 

possession was the least restrictive means of accomplishing this 

goal. The court also refused to permit the Horens to present 

evidence about the religious significance of their possession of 

the seized items. The Horens were permitted to put on the record 

in restricted form a statement that the items seized had 

religious significance. However, they were not allowed to 

explain the religious significance of the seized items. The 

circuit court also refused to give the Horens' proposed jury 

instructions elaborating on federal and state constitutional and 

statutory defenses. 

Free Exercise

 The Free Exercise Clause of the United States Constitution, 

Article I, U.S. Const. amend. I, the Constitution of Virginia, 

Va. Const., art. I, § 16, and the Religious Freedom Restoration 

Act of 1993, 42 U.S.C. § 2000bb(b)(2) (1994), prohibit state 

imposition of substantial burdens on the exercise of religion 

unless the state advances a compelling government interest which 

is furthered in the least restrictive manner. 
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 In Employment Division, Department of Human Resources of 

Oregon v. Smith, 494 U.S. 872 (1990), the United States Supreme 

Court found that a religiously neutral law of general application 

that substantially burdens the free exercise of religion will 

survive free exercise challenge where the law rationally advances 

a legitimate state interest. However, where a law that 

substantially burdens the free exercise of religion is not 

"neutral," the government must prove that the law is necessary to 

advance a compelling government interest and does so in the least 

restrictive manner. Sherbert v. Verner, 374 U.S. 398 (1963); 

Wisconsin v. Yoder, 406 U.S. 205 (1972). 

 We find that Code § 29.1-521(10) is not a religiously 

neutral law. In relevant part, Code § 29.1-521(10) makes it a 

class three misdemeanor for any person to "possess . . . at any 

time or in any manner, any wild bird . . . or any part thereof, 

except as specifically permitted by law and only by the manner or 

means and within the numbers stated." (Emphasis added). 

Possession of owl feathers is permitted under Virginia law by 

taxidermists, academics, researchers, museums, and educational 

institutions. See Code §§ 29.1-415 through 29.1-422. Further, 

federal law specifically allows for the possession and use of 

eagle feathers in the Native American religion. See C.F.R. 

§ 22.22 (1984). However, at the time of trial there was no 

specific exception for the possession of owl feathers for 

religious use under either Code § 29.1-521(10) or under federal 
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law.3

 Consequently, while allowing for a variety of legitimate 

secular uses of owl feathers, Code § 29.1-521(10) inexplicably 

denies an exception for bona fide religious uses and thereby 

draws specific subject matter distinctions in regulating the use 

of feathers. 

 Where the state creates a mechanism for legitimate 

individualized exceptions but fails to include religious uses 

among these legitimate exceptions, discriminatory intent may be 

inferred. Ballweg v. Crowder Contracting Co., 247 Va. 205, 

212-13, 440 S.E.2d 613, 618 (1993). Failure to make allowance 

for bona fide religious uses "tends to exhibit hostility, not 

neutrality, towards religion. . . ." Bowen v. Roy, 476 U.S. 693 

(1986); Ballweg, 247 Va. at 213, 440 S.E.2d at 618. In Church of 

the Lukumi Babalu Aye, Inc. v. City of Hialeah, the United States 

Supreme Court, found that "[t]he Free Exercise Clause `protect[s] 

religious observers against unequal treatment.'" 113 S. Ct. 

2217, 2232 (1993). Accordingly, the Court held that because the 

city ordinance made exceptions for other religiously and 

secularly motivated animal killings, it could not be 

characterized as a law of neutral applicability. 113 S. Ct. at 

2232. Like the ordinance in Hialeah, Code § 29.1-521(10) makes 

 

 3 Federal law did provide for the possession of eagle feathers 

for religious purposes. 50 C.F.R. § 22.22 (1984). However, 

appellants' expert testified that because appellants' Native 

American heritage was from a tribe not federally recognized, he 

did not believe they would qualify for even this type of permit. 

See 50 C.F.R. § 22.22(a)(3),(5) (1983); 50 Fed. Reg. 39,047 

(September 26, 1985); 50 C.F.R. §§ 10.13, 13.12(b) (1985); 50 

C.F.R. 21.11-11-21.41 (1989). 
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exceptions for some uses while excluding bona fide religious uses 

and therefore is not a religiously neutral statute. 

Consequently, Code § 29.1-521(10) must be examined under the 

"compelling interest" test as set forth in Sherbert. Finding 

that Code § 29.1-521(10) is not a religiously neutral statute and 

therefore must pass the compelling interest test, we do not reach 

the issue of whether this case involves an instance in which the 

burdening of the free exercise of religion is coupled with the 

burdening of another constitutionally protected right. 

 Even if we were to find that Code § 29.1-521(10) was a 

neutral law of general applicability, application of the 

compelling interest test would nonetheless be required under the 

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb(b)(2) 

(1994) (hereinafter "RFRA"). Responding to Smith, Congress 

passed the RFRA in 1993. The RFRA was designed to "restore the 

compelling state interest test . . . and to guarantee its 

application in all cases where free exercise of religion is 

substantially burdened." Id. at § (b)(1). 

 The RFRA provides: 

 (a) IN GENERAL -- Government shall not 

substantially burden a person's exercise of 

religion even if the burden results from a 

rule of general applicability, except as 

provided in subsection (b). 

 (b) EXCEPTION -- Government may 

substantially burden a person's exercise of 

religion only if it demonstrates that 

application of the burden to the person -- 

 (i)