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.
