The UC Law Review Forum

Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review

In March 2014, Congress introduced the Truth in Advertising Act Bill.[1] The goal of the law was for the Federal Trade Commission (FTC) to regulate to what extent advertisers could digitally alter images[2] used in advertisements through a systematic framework.[3] Digitally altered images of models in beauty ads, the Act’s supporters say, are harmful to consumers as they are misleading, manipulative, and they contribute to negative body-image.[4] The Act did not gain the momentum necessary to pass the bill into law, and remained stagnant until a reintroduction in early 2016.[5] Although the Act is well intended, and takes on the noble effort of ensuring that men and women in America are not bombarded with images of unattainable beauty, the Act has many flaws and gaps that need to be addressed before it can be successful.

The major issue with the Act: blanket regulation on all digitally altered advertisements. Since not all digitally altered images are necessarily misleading, or contribute to negative body image, the fate of the Act remains unclear. Digital alterations of images often speak to simple aesthetics of an advertisement, and seek to only enhance the visuals. Other times, digital alteration can delve into manipulation.[6] The point of contention is discerning when artistry and creativity cross over into manipulation. Drawing that abstract line, distinguishing the point where art transcends into something dangerous, is what lawmakers struggle to mold.[7] Continue reading →

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

Imagine taking basic ingredients found in your cupboard, blending them all together, and then baking the substance until it was brick-like in both texture and taste. Now imagine being subscribed that as a meal three times a day for upwards of fourteen days in a row. That is the reality for many inmates in prisons across the United States today. Prison food is largely unappealing, but there comes a point where prison meals cross over from a culinary catastrophe to an unconstitutional use of punishment. Throughout the United States, prisons use the nutraloaf as an outdated form of punishment and either the Supreme Court or state legislatures must prohibit its use.

What is the Nutraloaf? Continue reading →

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

Article II, Section 2, Clause 2 of the United States Constitution vests in the President of the United States the power to appoint public officials with the advice and consent of the Senate.[1] This clause, known as the Appointment Clause, serves as “a bulwark against one branch aggrandizing its power at the expense of another branch.”[2] By requiring the advice and consent of the Senate, the President’s appointment power is checked by the legislature to ensure that officers of the United States are thoroughly vetted to assume a role with “significant authority.”[3] The Constitution bifurcates officers of the United States into classes; principal officers and inferior officers.[4] Whereas principal officers must be nominated by the President with the advice and consent of the Senate, Congress may vest the power to appoint inferior officers solely in the hands of the President, the courts, or the heads of departments.[5]   Continue reading →

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review

At federal sentencing hearings across the country, the judge takes the time to explain how her hands are tied by an independent agency in Washington, DC, the United States Sentencing Commission.[1] The judge explains to the defendant and others in attendance that she is required by law to start her sentencing analysis with the Federal Sentencing Guidelines that accounts for all of two factors before dictating a recommended sentence.[2] Only then may the judge impose a sentence different (lesser in almost every case)[3]than what the guidelines recommend, and furthermore, she must elaborate upon why she has amended the sentence.[4] Regardless, any sentence is still subject to the constraints of the statutory mandatory minimums.[5] The goal of all the statutory constraints on federal sentences is to create uniformity in federal sentencing,[6] so that a hypothetical defendant in Texas is not incarcerated for decades for committing the same crime while one in California is slapped on the wrist. However, uniformity in sentencing has come at the price of reasonability. The Sentencing Commission’s recommended sentences are out of touch with the sentiments of many communities across the country, and the agency should use federal judges and juries, that deal with sentencing every day, as a resource to ensure that the sentences are not punishing people beyond what our society believes is reasonable or necessary. Continue reading →

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

Modern life in American is often lived at a frantic pace and it is difficult for families to balance their work and family obligations. The Family & Medical Leave Act (FMLA) is designed to promote work-life balance in America.[1] It seeks to promote equal employment opportunities for men and women while balancing the interests of employers.[2] “The FMLA applies to all public agencies, pre-university schools, and companies with fifty or more employees.”[3] It requires covered employers to provide up to twelve weeks of unpaid job leave for a variety of reasons.[4] These reasons may include caring for an ill family member, the birth of a child, and individual health concerns.[5] Litigation surrounding this statute often questions whether an employer’s denial of leave to an employee violates the FMLA. In these cases, an important issue is when the statute of limitations begins running. The Seventh Circuit ruled that the statute of limitation begins to run when the violation of the FMLA occurs, not when the termination occurs.[6] The Sixth Circuit took the opposite approach, holding the statute of limitation begins at the employee’s termination.[7] While the policy of the Sixth Circuit decision is well intentioned, there is no support for the decision in the FMLA text. Congress should amend the statute to reflect the policy of Sixth Circuit in response to the circuit split.

Seventh Circuit Decision

The Seventh Circuit recently weighed in on the issue of when the FMLA statute of limitations starts to run. In Barrett, the plaintiff was employed by the Illinois Department of Corrections (“department”).[8] The employee was fired after twelve unauthorized absences in seven months.[9] The employee argued that three of the absences were protected under the FMLA because the absences were for family or medical care.[10] On each of the three occasions, the employee’s supervisor was notified of her absence but never received authorization to be absent.[11]On appeal, all three times the Employee Review Board rejected her request for leave.[12]

The court began by looking at the plain language of the statute, which states “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.”[13] The court reasoned, “when a[n] FMLA plaintiff alleges that his employer violated the Act by denying qualifying leave, the last event constituting the claim ordinarily will be the employer’s rejection of the employee’s request for leave.”[14] Using this language, the court held the statute of limitations began every time the Employee Review Board ruled against the plaintiff’s request for leave.[15] The plaintiff did not file her complaint until 2012, but her Employee Review Board hearings had occurred in 2004 and 2005. [16] Therefore, she was several years too late in bringing her claim against her employer.[17] The court rejected an argument from the plaintiff that her termination was the last event creating a FMLA violation. [18] The court reasoned the plaintiff’s argument that there can be more than last event under § 2617 (c) (1) was not supported by the statutory language.[19] Further, nothing in § 2617 (c) (1) supports an open-ended tolling rule holding the statute of limitations indefinitely.[20] The court acknowledged that forcing a plaintiff to file in litigation for every contested absence that may only result in minor discipline is not practical for many plaintiffs.[21] The court briefly mentioned the Secretary of Labor’s power to investigate FMLA complaints and suggested Congress may have considered these complaints be adjudicated by a federal agency as opposed to a federal court.[22]

Sixth Circuit Decision

In Butler, the employee worked for Owens-Brockway, a plastics products company, and was terminated for accumulating twelve points in a year and half under the company absentee policy.[23] Under this company policy, a worker who accumulated twelve points in a year could be terminated.[24] The employee was warned that she was placed on sixth month probation after her twelfth point accumulated.[25] That same day, she called in sick and was terminated.[26] The employee alleged that three of those absences were protected by the FMLA resulting in a violation of the statute.[27] The employer argued the statute of limitations should be based on the absences in the plaintiff’s employment record since termination occurs as a result of the absences accumulating. [28] The court ruled against the employer, and held that the “Plaintiff’s termination was the first material adverse action in this case, because it was the first action serious enough to warrant plaintiff’s resort to the legal system”.[29] If the alternative were true, then plaintiff would be forced to file suit after every contested absence in the record.[30] This interpretation would flood the legal system with litigation.[31]

Analysis

The Sixth Circuit opinion policy rationale is intuitive. Interpreting the statute of limitations to run after one employee absence will flood the courts with premature claims.  However, the Seventh Circuit decision may actually decrease the amount of future claims. The plaintiff in the Seventh Circuit decision noted the impracticality of contesting every possible FMLA violation. [32] Potential plaintiffs are almost certainly short of money and time to devote to a lawsuit. Requiring plaintiffs to contest every one of their disputed absences in order to receive relief from the FMLA would discourage plaintiffs from seeking the protection of FMLA. In turn, this interpretation could embolden employers to violate the statute, confident that few people would be willing to litigate multiple challenges to contested absences. In contrast, a statute that allows employees to sue after their termination is a fair compromise because it is a significant event worth the effort of litigation. This puts the employee in the best position to sue for FMLA violations.

The Seventh Circuit position that FMLA violations were meant to be investigated by federal agencies as opposed to litigation is not a compelling position.[33] It is the most logical interpretation looking at the plain language of the statue.[34] Yet, it does not make sense that Congress would create a civil right of action not intending it to be used along the Secretary of Labor’s power to investigate violations. It seems unlikely Congress would create a toothless civil action if it wanted FMLA violations to be exclusively investigated and resolved by a federal agency. This interpretation promotes the application of the Sixth Circuit’s holding, however, just because the Sixth Circuits reasoning makes the most sense does not make it legally valid.

While the policy of the Sixth Circuit makes sense, unfortunately this ruling is not grounded in law. The Sixth Circuit does not use the text of the FMLA statute at all in making its determination. The court reached its decision because it reasoned an employee’s termination is the first action serious enough to warrant a lawsuit by the plaintiff. The Court decided this would lead to the federal courts being flooded with FMLA litigation because plaintiffs would be forced to bring lawsuits whenever a negative mark is assessed on an employee’s absence record. The court simply reaches an interpretation it feels makes the most sense for the statute. By not analyzing the statute, the court substitutes its own judgement in interpreting the statute instead of attempting to determine what the legislature intended. Undoubtedly, judges will have to make tough decisions when interpreting statutes. These decisions should be made by attempting to make some sort of statutory interpretation however. Otherwise, judges simply pontificate their views from the bench. For example, the Seventh Circuit notes in a footnote how unhelpful it found the Sixth Circuit decision because its reasoning was not based upon a reading of the statute. [35]

Congress should amend the FMLA statute in order to reflect the policy of the Sixth Circuit decision. “Except as provided in paragraph (2), an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” The statute’s language does not allow for more than one last event.^[36] The statute requires a plaintiff to file suit after a particular event.[37] The statute does not give the plaintiff an option to sue after an absence in the record but then give them another opportunity to do so when the plaintiff is fired.[38] Nor does the statute support an interpretation of an indefinite statute of limitations.[39] Therefore, the Supreme Court’s best option would be to resolve the split in the direction of the Seventh Circuit. Congress has the power to amend the law to resolve this circuit split and improve the law for future plaintiffs. No longer will plaintiffs be penalized for their lack of resources or inability to devote time to a lawsuit regarding a disputed disciplinary record.

Conclusion

In conclusion, the Seventh Circuit decision reached the appropriate decision based on a proper understanding standing of the law and the statutory text. The Sixth Circuit decision, while inserting its own rationale as opposed to attempting to determine what the statute actually meant, has the appropriate policy considerations in place. Congress should amend the FMLA to allow plaintiffs to bring their FMLA claims after termination of employment as opposed to when the FMLA violation took place. This amendment will improve access to future plaintiffs while also ensuring employers are able to better judge the risk of litigation.

[1] See 29 USCA § 2601.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Barrett v. Illinois Dept. of Corrections, 803 F.3d 893, 897 (7^th Cir. 2015).

[7] Butler v. Owens-Brockway Plastics Products, 199 F.3d 314, (6^th Cir. 1999).

[8] Barrett, 803 F.3d at 897.

[9] Id.

[10] Id.

[11] See Barrett, 803 F.3d at 896

[12] See id.

[13] 29 U.S.C § 2617 (c) (1).

[14] Id. at 897.

[15] Id.

[16] Id.

[17] Id.

[18] Barrett, 803 F.3d at 899.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Butler, 199 F.3d at 315.

[24] Id.

[25] Id.

[26] Id. at 316.

[27] Butler, 199 F.3d at 316.

[28] Id. at 317.

[29] Id.

[30] Id.

[31] Id.

[32] Barrett, 803 F.3d at 899.

[33] Id.

[34] Barrett, 803 F.3d at 897.

[35] To be fair, the 7^th Circuit Court also criticizes the 8^th Circuit for a “thinly reasoned” opinion even though the 7^th Circuit reached the same conclusion as the eighth. Barrett, 803 F.3d at 896 n.1.

^[36] Barrett, 803 F.3d at 897.

[37] See id. at 899

[38] See id.

[39] See id.  at 897.

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

On December 22, 2016, the Sixth Circuit Court of Appeals held that a police officer’s killing of two dogs was reasonable, denying the Plaintiff’s Fourth Amendment unreasonable seizure claim.[1] The public outrage was swift and severe; many reported on the topic stating something akin to “police can kill your dog for merely barking.”[2] Although the headlines do not quite capture the facts in Brown v. Battle Creek Police Department, they do highlight the problem facing police departments and courts in a nation where thirty-six percent of households have pet dogs.[3] In one instance where the public perceived the killing of a dog as unreasonable, the “self-described activist” group Anonymous[4] retaliated against the police department responsible for killing the dog.[5]

Primarily fueling the public outrage is the assertion by police departments and later the determination by courts that the killings are reasonable.[6] Indeed, the legal analysis of a police officer killing a dog centers on the reasonableness of the officer’s actions under the circumstances. This analysis flows from a Fourth Amendment claim of unreasonable seizure, as well as the officer’s primary defense of qualified immunity.[7] Although it is often reasonable for an officer to kill a dog under the circumstances, in the case of Brown v. Battle Creek Police Department,[8] the Court unfairly ignores critical facts showing that the killing of at least one of the dogs unreasonable. Continue reading →

Ryan Kenny, Associate Member, University of Cincinnati Law Review

 On June 24, 2016, House Speaker Paul Ryan (R-WIS) and Kevin Brady (R-TX), Chairman of the Ways and Means Committee, released a Blueprint outlining their proposed tax reform. The Blueprint is titled A Better Way: Our Vision for a Confident America (Blueprint).[1] The Blueprint details proposed reforms to the tax system, for individual taxation, pass-through entity taxation (such as partnerships and LLCs), and corporate taxation.[2] The individual and pass-through entity tax reform proposal consist primarily of reductions in the top marginal tax rates, and the reduction of the current seven-tax-bracket system for individual taxation, into a three-tax-bracket system.[3] Pass-through entities would have a top marginal rate of 25%.[4] Furthermore, the capital gains tax rate will match ordinary income rates, rather than the current special rates in the Internal Revenue Code (Code) §1(h).[5] However, the changes to corporate taxation are the most seismic. Not only are the top marginal rates reduced for corporations, but the underlying theories on U.S. jurisdiction to tax corporate incomes is set to change dramatically under the proposed reform. It is important to understand how corporations are currently taxed in the United States under federal income tax law. Then, the changes proposed in the Blueprint will be explained to show the changes. Any possible economic repercussions are beyond the scope of this analysis. This analysis will only cover corporations that are incorporated under state law in the United States, not foreign resident and nonresident corporations. Continue reading →

Meg Franklin, Associate Member, University of Cincinnati Law Review

Introduction

In a recent case, Or. Rest. & Lodging Ass’n v. Perez, the Ninth Circuit considered whether precedent foreclosed the Department of Labor’s (DOL) ability to promulgate a formal rule.[1]  On appeal, the Ninth Circuit found that the DOL was within its authority to promulgate its regulation.[2]  The dissent disagreed and insisted that the Ninth Circuit precedent overrides the DOL regulation.[3]  Its analysis considered whether the statute was clear and unambiguous and an agency’s scope of power to promulgate rules under an ambiguous statute.[4]

In Perez, the majority and minority were divided over whether the judiciary or an agency should fill in blanks left by Congress.[5]  Yet, a third option has arisen in the form of a House of Representatives bill.[6]  Under the Regulations from the Executive in Need of Scrutiny Act of 2017 (REINS), all significant blanks found in statutes would be filled in by Congress.[7]  In other words, REINS would cancel any major regulations that do not receive explicit approval from Congress.[8]  Continue reading →

Author: Anonymous, Associate Member, University of Cincinnati Law Review

The 2016 Presidential election shocked many, and for many reasons. In particular, following the election, countless experts and analysts recognized their failure to appreciate the power and influence of social media platforms over the election. Given the exponential growth of social media, combined with the Millennial generation’s maturity into adulthood and eligibility to vote, it became clear that our political landscape was changing.

Indicative of the unchartered collision of social media and Presidential election was the introduction of the “ballot selfie” to our modern vocabulary. On October 24th, 2016, singer Justin Timberlake took a photo of himself, hereafter referred to as a “selfie,” inside the voting booth at a Shelby County, Tennessee, polling location.[1] Mr. Timberlake shared the photo on the social media platform Instagram.[2] Along with the photo, Mr. Timberlake urged everyone to vote and referenced “Rock the Vote,” the popular celebrity endeavor to encourage young voter turnout.[3] Unbeknownst to Mr. Timberlake, Tennessee had recently passed a new law that “use [of] a mobile device of any kind to take pictures, video or to make a phone call with that device inside polling places” is illegal.[4] Although later retracted, the Shelby County District Attorney’s Office said that Mr. Timberlake’s ballot selfie was under investigation for illegal activity.[5]

Unsurprisingly, the warning from the District Attorney took many off guard because so few citizens know the intricacies of the law that govern them. Many news outlets covered the story and it became clear that the laws covering “ballot selfies” varied significantly across the country. However, this lack of uniformity may be unsustainable because social media is about expression and regulation of speech, especially political speech, is not taken lightly by our First Amendment jurisprudence.

The Exploding Popularity of Social Media

Nearly 70% of adult Americans own a smartphone, with that number jumping to 86% among Americans aged 18-29.[6] Unsurprisingly, mobile devices equipped with internet or data capabilities, such as smartphones, have contributed to the exponential growth of social media usage; constant access and ease of use, made possible by smartphones, has permitted social media to become a powerful force within our society. With a combined 2.1 billion users, Facebook, Instagram, and Snapchat are a few of the most popular social media platforms, and all are used heavily for the sharing of photographs.[7] Snapchat is relatively new to the social media scene, whereas Facebook and Instagram have been around long enough to report user data. Since 2011, Facebook grew from 845 million users to 1.5 billion users and Instagram grew from 15 million users to 400 million users.[8] Currently, Snapchat has 150 million users.[9]

Political speech: Millennial’s Changing the Political Forum

Given the explosion of social media use, political speech encompasses more mediums more than ever. Specifically within the Millennial generation, social media platforms constitute a significant forum for political discussion and expression.[10] The Millennial generation is the first generation to have grown up with computers, where effortlessly using technology is second-nature. As the Millennial generation has aged into adulthood, with Millennials ranging in age from 19-35 years old,[11] social media has become a driving force in tapping into the economic, social, and political power of the generation. At the time of the first Presidential debate between Hillary Clinton and Donald Trump, the debate was the most “tweeted” debate ever with over ten million “tweets” submitted on Twitter over the course of the ninety minute debate.[12]

After the election, it became clear that President Trump’s early harnessing of the power of social media has been attributed as one of the driving forces behind his success in the 2016 presidential election.[13] With over 90% of Millennials using at least one form of social media, the impact of social media on our political landscape is undeniable.[14]   

Ballot Selfies and the First Amendment: Will States Lose Control over the Election Process?

In the aftermath of Mr. Timberlake’s near brush with the law, countless news outlets covered the story, either clarifying the local laws pertaining to their audience or calling for nationwide reform to make the election laws governing social media uniform. Indeed, the laws governing the sharing of photographs, or selfies, taken during voting or of one’s ballot vary significantly across the country. Even locally, within the tri-state[15] area surrounding the University of Cincinnati College of Law, the laws differ. In Ohio, state law prohibits sharing a ballot that has been marked “with the intention of letting it be known how the elector is about to vote”.[16] Whereas in Kentucky and Indiana, there are no restrictions on sharing photos of oneself at the polling location or of the ballot.[17] Yet in Pennsylvania, each county can set its own rules governing the sharing of photos.[18] This lack of uniformity has prompted states to recognize that their ballot laws are anachronistic, misplaced in our society’s current practice of documenting and sharing every moment of our day on various social platforms.

Under the Article 1 of the Constitution, states have control over the process in presidential election, which accounts for the lack of uniformity amongst the states on the legality of “ballot selfies.”[19] However, the constitutionality of the bans on “ballot selfies” have made their way to the courts, on First Amendment grounds, and social media giants are entering the fray.[20] Snapchat filed an amicus brief in Rideout v. Gardner, an appeal pending in the First Circuit, agreeing that New Hampshire’s ban on “ballot selfies” is a content-based restriction on free speech and urging the Court to recognize that “ballot selfies” are a “uniquely powerful form of political expression.”[21] Proponents of the ban on “ballot selfies” argue that the photographs jeopardize the integrity of the secret ballot, create a more dangerous polling environment, and create a situation ripe for vote-buying.[22] In its amicus brief, Snapchat rejects those arguments as unfounded and instead offers that states which ban “ballot selfies” are more interested in regulating “the effect that such a powerful and novel form of political expression may have.”[23]

In the end, the First Circuit correctly held that the ban on “ballot selfies” was an impermissible restriction on free speech.[24] Speculation on the part of those supporting the ban, including a lacking of demonstrable harm, swayed the Court to hold the ban unconstitutional.[25] However, given the immense popularity of social media, the First Circuit will not be the only court to address this issue. Currently, twenty-one states and the District of Columbia permit “ballot selfies.”[26] Whereas seventeen states explicitly ban “ballot selfies” and twelve have not taken a stance on the legality of such photographs.[27] Crookston v. Johnson, a case before the Sixth Circuit, upheld the ban temporarily by staying an injunction on the ban. [28] Crookston might create a split between the Circuit Courts.

Conclusion

Now that the 2016 election has passed, federal courts and state legislators must consider the legality of “ballot selfies.” Given that the “ballot selfie” is a form of political expression, and First Amendment protections have been implicated, state control over the election process might be lessened by federal court rulings. If a split among the Circuit Courts ensues, the issue may find its way to the Supreme Court. Without a clear justification for banning such a form of political speech, bans on “ballot selfies” are unlikely to pass a strict scrutiny review. With four more years until our next Presidential election, there is no better time for the courts to address the issue.            

[1] Madeline Farber, Justin Timberlake Avoids Jail Time after Taking a Ballot Selfie in Memphis Fortune.com (2017), http://fortune.com/2016/10/27/just-timberlake-ballot-selfie/ (last visited Jan 16, 2017).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Monica Anderson, Technology Device Ownership: 2015 Pew Research Center: Internet, Science & Tech (2017), http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015/ (last visited Jan 16, 2017).

[7] The Continued Growth of Social Media [Infographic] | SEJ, Search Engine Journal (2017), https://www.searchenginejournal.com/growth-social-media-v-3-0-infographic/155115/ (last visited Jan 16, 2017).

[8] Id.

[9] More Frier, Snapchat Passes Twitter in Daily Usage Bloomberg.com (2017), https://www.bloomberg.com/news/articles/2016-06-02/snapchat-passes-twitter-in-daily-usage (last visited Jan 16, 2017).

[10] Jeff Fromm, New Study Finds Social Media Shapes Millennial Political Involvement And Engagement (2017), http://www.forbes.com/sites/jefffromm/2016/06/22/new-study-finds-social-media-shapes-millennial-political-involvement-and-engagement/#21cc1cc615de (last visited Jan 16, 2017).

[11] Richard Fry & Richard Fry, Millennials overtake Baby Boomers as America’s largest generation Pew Research Center (2017), http://www.pewresearch.org/fact-tank/2016/04/25/millennials-overtake-baby-boomers/ (last visited Jan 16, 2017).

[12] Second Trump-Clinton presidential debate most tweeted ever, (2017), http://www.deccanchronicle.com/world/america/101016/second-trump-clinton-presidential-debate-most-tweeted-ever.html (last visited Jan 16, 2017). Twitter is an immensely successful social media platform on which users can “tweet” a message that contains up to 120 characters.

[13] Brian Stelter, Monday night ranks as the ‘most tweeted debate ever’ CNNMoney (2017), http://money.cnn.com/2016/09/27/media/debate-social-media-twitter-facebook/ (last visited Jan 16, 2017).

[14] How Millennials use and control social media, American Press Institute (2017), https://www.americanpressinstitute.org/publications/reports/survey-research/millennials-social-media/ (last visited Jan 17, 2017).

[15] The tri-state includes Ohio, Kentucky, and Indiana.

[16] Michael Huson & Campus Editor, Ohio voters better off keeping ‘ballot selfies’ at arm’s length, officials say Thelantern.com (2017), http://thelantern.com/2016/11/ohio-voters-better-off-keeping-ballot-selfies-at-arms-length-officials-say/ (last visited Jan 16, 2017).

[17] Justin Timberlake can take all the ballot selfies he wants in Indiana, Indianapolis Star (2017), http://www.indystar.com/story/news/politics/2016/10/26/justin-timberlake-can-talk-ballot-selfies-wants-indiana/92763782/ (last visited Jan 16, 2017).

[18] Id.

[19] Voting and Election Laws | USA.gov, Usa.gov (2017), https://www.usa.gov/voting-laws (last visited Jan 16, 2017).

[20] Daniel Victor, Selfies in the Voting Booth? Snapchat Fights for the Right Nytimes.com (2017), http://www.nytimes.com/2016/04/27/us/politics/voting-booth-snapchat-selfies.html?_r=0 (last visited Jan 16, 2017).

[21] Brief for Snapchat as Amicus Curiae, p. 5, Rideout v. Gardner, 838 F.3d 65 (2016).

[22] Id. at 10-15.

[23] Id. at 15.

[24] Rideout v. Gardner, No. 14-cv-489-PB, Memorandum and Order, at 1 (D.N.H. Aug 11, 2015).

[25] Id.

[26] Want to take ‘ballot selfie’? Here’s where it’s legal, and not, USA TODAY (2017), http://www.usatoday.com/story/tech/news/2016/11/06/ballot-selfie-beware-s-often-illegal-despite-flurry-late-attempts-change/93299316/ (last visited Jan 16, 2017).

[27] Id.

[28] Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016). The Court in Crookston was primarily concerned with the timing of the case because it came directly before the 2016 election, giving Michigan little time to reconcile a ruling.

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review 

                                                             Introduction

The legalization of recreational and medicinal marijuana is experiencing a domino effect across the states. However, as a larger portion of the country is coming around to the idea of legalized marijuana, some states are significantly behind. Indiana has some of the most draconian marijuana laws in the country, where medical marijuana is illegal, and where possession of a single joint could support a year-long prison sentence and up to a $5,000 fine.[1] With recreational and medicinal use off the table, Indiana resident Bill Levin is fighting for a third option to legally use cannabis—sacramental use.[2] A core tenant of Levin’s First Church of Cannabis is the use of marijuana for religious, spiritual, and healing purposes.[3] Levin argues that the state is placing a substantial burden on the church’s free exercise of religion, by threatening to prosecute its members for partaking in religious practices.[4] This is not the first time that a plaintiff has attempted to circumvent drug laws through the freedom of religion. Employment Division v. Smith,[5] is a landmark case in which the Supreme Court ruled that Oregon did not have accommodate the use of peyote by members of the Native American Church, because its prohibition of peyote was neutral and generally applicable.[6] In response, Congress enacted the Religious Freedom Restoration Act[7] (RFRA) that mandates strict scrutiny be applied to federal governmental action that substantially burdens individual religious exercise.[8] The analysis begins with determining what a substantial burden is.

Substantial Burden

The Ninth Circuit dealt with defining a substantial burden in Oklevueha Native American Church of Hawaii, Inc. v. Lynch.[9] The Oklevueha court held that Controlled Substances Act[10] (CSA) was not a substantial burden upon the church’s religious ceremonies that included the use of marijuana.[11] The court’s holding raises created ambiguity regarding what constitutes a substantial burden. After Oklevueha, it is uncertain whether the analysis turns on the importance of the practice to the religion, the extent of the restriction by the government, or both.

The Case

Michael Rex Mooney founded the Oklevueha Native American Church, where members, through sacrament, use marijuana, peyote, and many other controlled substances to “experience a connection with the divine.”[12] In 2009, the church filed suit against several federal officials in response to a seizure of cannabis,[13] in order to protect itself from sanctions under the CSA. The Ninth Circuit heard the plaintiff’s claim under the RFRA, but granted summary judgment to the government because the church failed to demonstrate that cannabis was necessary for its practice of religion, or that the CSA was a substantial burden.[14] The court explained that cannabis was not necessary for the practice of the church’s religion, by the plaintiff’s own admission, because it was used as a substitute for peyote, and other drugs could be used in its place.[15] Furthermore, they failed to allege that cannabis served a specific function in their religion.[16]

The church argued that under Hobby Lobby, [17] the “court must not decide the plausibility of a religious claim,” and therefore the court cannot deny the church its use of cannabis through discrediting the church’s religious belief.[18] In Hobby Lobby, a group of Christian store-owners sought freedom from a mandate that required them to provide contraceptives to their female employees through company healthcare.[19] The court ruled that the store-owners did not have to provide the contraceptives, because it was not the least restrictive (upon the store-owners’ religious freedom) means to provide contraception to the female employees.[20] Thus, the Hobby Lobby court protected the religious freedom to forego supplying contraceptives, and the court upheld that the religious belief was plausible, without challenge. However, the Oklevueha court explained that it was not inquiring into the plausibility of the church’s claim, but rather denied the claim based on the church’s own admission that it did not believe that specifically cannabis was a religious necessity, but a “substitute drug,” that was used alongside peyote, the true religious necessity.[21]

The Oklevueha Interpretation of Substantial Burden

While a “substantial burden” can be construed as excessive governmental pressure to violate one’s own religious beliefs, as was the case in Hobby Lobby, where the government imposed a hefty fine on the store-owners, the Oklevueha court interpreted a substantial burden based on the importance of the practice. In this case, the use of marijuana was not found to be integral to the practice of religion, and the court ruled on those grounds that the burden was not substantial. Therefore, under Oklevueha, the government is free to doll out harsh penalties such as hefty fines or jail time, without the harshness being accounted for in the level of burden upon plaintiffs, as long as the state is not impinging upon a highly important, or mandatory religious practice. Thus, the crux of Oklevueha is the mandatory nature of the practice, not necessarily the plausibility.

The Consequences

In this case, the government was found to not have imposed a substantial burden upon the Church of Oklevueha. However, the ruling arguably makes it more likely that a RFRA challenge to the illegality of cannabis will be successful in the future, because the court focused too heavily on mandatory nature of cannabis use, which may be used to a plaintiff’s advantage in the future. Now, plaintiffs know that they must plead that cannabis is a mandatory part of their religion. The government’s primary concern in these cases is that the alleged religious ceremonies are merely a pretext for breaking the law and avoiding prosecution. In Oklevueha, the court acknowledges the holding in Hobby Lobby that essentially bars the court from subjectively deciding that the alleged religious conduct is pretext. While the court was able to move past this issue in Oklevueha because the plaintiffs admitted that cannabis use was not mandatory, future courts may not have such an easy time dodging the issue if the plaintiffs plead differently. Without the authority to subjectively decide that the cannabis use is not mandatory, any legal burden upon a plaintiff’s religious freedom will be harder to prove unsubstantial. 

Conclusion

The First Church of Cannabis is set to have trial in November 2017.[22] In the wake of Hobby Lobby and Oklevueha, what appears to be a blatant pretext to circumvent Indiana’s strict marijuana laws appears to have a surprisingly promising outlook. If Bill Levin can avoid the crucial mistake that the Church of Oklevueha made in admitting that their use of cannabis was not mandatory, then the First Church of Cannabis could be primed for a run to the Supreme Court. Fortunately for Levin, his church is named after cannabis, this should make for a compelling argument that the drug is obligatory for the practice of the faith. If the court remains true to its precedent from Hobby Lobby, as restated in Oklevueha, the court may have to rule that marijuana is legal in Indiana, but only when used for sacramental purposes.

[1] Indiana Laws & Penalties, NORML http://norml.org/laws/item/indiana-penalties-2.

[2] Stephanie Wang and Michael Anthony Adams, Church of Cannabis Suit Raises Religious Liberty Issues, Indy Star, (July 8, 2015).

[3] Mark Alesia, Cannabis Church Stays Optimistic About Laws, Indy Star, (Nov. 27, 2016).

[4] Id.

[5] 494 U.S. 872 (1990)

[6] Id. at 878-79.

[7] 42 U.S.C. §§ 2000bb to 2000bb-4 (2012).

[8] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 & n.3 (2014).

[9] 828 F.3d 1012 (9th Cir. 2016).

[10] 21 U.S.C. §§ 801–904 (2012).

[11] Oklevueha, 828 F.3d at 1016

[12] Id. at 1016.

[13] Id. at 1014.

[14] Id. at 1018.

[15] Id. at 1016.

[16] Id.

[17] 134 S. Ct. 2751 (2014).

[18] Oklevueha, 828 F.3d at 1016.

[19] Hobby Lobby, 134 S. Ct. at 2775.

[20] Id.

[21] Oklevueha, 828 F.3d at 1016.

[22] See Alesia, supra note 3.