Religious Use
Law Review
Number 2
Published Decisions
for reference in Religious
Use
Greetings,
I know, this looks like a lot of work. It was, 53 months work in the federal
prison law libraries to be precise. You will be well advised to actually get
a copy of each of these cases. Your Public Pretender can print them out from
his computer by accessing his subscription to West Law Services. If you don't
have an actual copy of each case, you may forget some detail of the ruling or its
application. It is a lot to carry around in your head. I don't even
try that myself. So, get copies of these cases and file them in this order.
With this index you will always be able to provide the court with the actual rulings
on the relevant issues of your case. If your Public Pretender doesn't want
to do this, fire them immediately and file a complaint in the court and with the
Professional Responsibility Committee of your State Bar Association.
One Love revtombrown
Rev. Tom Brown, First Church of the Magi, P.O. Box 2827, Fayetteville, Arkansas
72702 (479) 521-5470
Pre Religious
Freedom Restoration
Act Case Law
Note - Smith is both the precursor to and the cause
of enactment of RFRA, it is also a Peyote case - therefore it is listed in both
categories in this law review. Smith is reported
in the law books twice,
Smith I and
Smith II.
see 110 S.Ct., page 1595: "Respondents' claim for relief rests on our decisions
in Sherbert. . . in which we
held that a State could not condition the availability of unemployment insurance
on an individual's willingness to forego conduct required by his religion.
As we observed in Smith I however,
the conduct at issue (in
Sherbert) was not prohibited by law."
see 110 S.Ct., page 1601: "The only decisions in which we have held that the
First Amendment bars application of a neutral, generally applicable law to religiously
motivated action have involved not the free Exercise Clause alone,
but the Free exercise Clause in conjunction with other constitutional protections.
. .Wisconsin v. Yoder,".
(Note that in
Smith II the court remains silent on why
Yoder is different from
Sherbert and so deserves different treatment.
(In the report on
City of Boerne v. Flores cited below however, Justice Kennedy graces us
with the strained explanation of how
Yoder differs from Sherbert. The
Justice shared that the
Sherbert case involved only the question of the right to exercise religion
on a Saturday Sabbath.
(Kennedy claims that in
Yoder two fundamental rights are denied and the denial of two rights at
the same time is too much to bear. In
Yoder, the government tried to deny both the right of religious exercise
of religion and the right to educate our children to our own desires.
(Neither the court in
Boerne or in Smith states where the right to
educate our children to our own desires is mentioned as a fundamental right in the
Constitution or the Bill of Rights.
(In the Yoder case, choice in education
was listed AS the religious exercise, not as a co-plaintiff to the religious exercise.)
see 110 S.Ct., page 1604: "As we affirmed only last Term 'it is not within
the judicial ken to question the centrality of particular beliefs or practices to
a faith or the validity of particular litigants interpretation of those creeds."
see 110 S.Ct., page 1611: "Even if, as an empirical matter, a government's
criminal laws might usually serve a compelling interest in health, safety or public
order, the First Amendment at least requires a case-by-case determination of
the question sensitive to the facts of each particular claim."
Religious Freedom
Restoration Act
Case Law
Eighth Circuit
Precedent
Note - The 8th Federal Circuit is where I am located by being resident in Fayetteville,
Arkansas. The published precedent of the 8th Circuit has the most impact on
the federal court here and on the state courts of Arkansas. For that reason,
those cases are listed first.
One case in particular is listed first,
In re Young. That case has been to the US Supreme Court and rules that
RFRA is constitutional and applicable to federal laws. So, the four consecutive
and separate court decisions of
In re Young are listed before the others.
Caution, the quotes accompanying the citations are meant to outline the relevant
issues. They are not definitive - so you must read the entire case in order
to overstand the meaning of the court ruling and whether or not it would apply to
your case.
In re Young, 148 Bankruptcy Reporter 886 (D. Minnesota 1992)
see page 896: "I must 'presume that a legislature says in a statute what it
means to say and means in a statute what it says." citing Germain,
112 S.Ct. at 1149.
In re Young, 152 Bankruptcy Reporter 939 (D. Minnesota 1993)
(Note that this case was decided before RFRA was signed into law in November 1993)
see page 955: "Even if Smith did not apply
in this case, the Court is satisfied that the Bankruptcy code is designed to advance
a compelling governmental interest."
see page 1416: "Although RFRA was enacted after the district court's decision,
the RFRA provides that it 'applies to all Federal and State law and the implementation
of that law, whether statutory or otherwise and whether adopted before or after
November 16, 1993.'"
see page 1417: "For the reasons discussed below, we hold that the recovery
of contributions substantially burdens the debtor's free exercise of their religion
and is not in furtherance of a compelling interest and therefore violates RFRA."
see page 1420: "However. . . interpreted the compelling
governmental interest test. . . to include in the free exercise context
'only those interests pertaining to survival of the republic
or the physical safety of its citizens'".
see page 858: "RFRA codified the compelling interest test of
Sherbert and Yoder, and provided
that the government could 'substantially burden a persons exercise of religion only
if it demonstrates that application of the burden to the person (1) is in furtherance
of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.'"
see page 859: "Where the Supreme Court strikes down one portion of a statute,
we must presume that other portions of the same statute remain in effect 'unless
it is evident that the Legislature would not have enacted those provisions which
are within its power independently of that which is not.'"
see page 861: "RFRA however, has effectively amended the Bankruptcy Code. .
."
Rust v.
Clark, 851 F.Supp. 377 (D. Nebraska 1994)
see page 377: "(1) fact issue as to whether prison officials employed least
restrictive means of furthering compelling governmental interest when restricting
inmate's rights. . ."
Rust v.
Clark, 883 F.Supp 1293 (D. Nebraska 1995)
see page 1305: "inadequately formulated prison regulations and policies grounded
on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice
to meet the acts requirements. . .
"To establish an interest of the 'highest order' the state must do more than
simply assert in a conclusory fashion that a limitation. . . is required."
Hamilton v. Schriro, 863 F.Supp 1019 (W.D. Missouri 1994)
see pages 1023 and 24 for CI and LRM analysis.
read and weep!
Weir v.
Nix, 890 F.Supp. 769 (S.D. Iowa 1995)
see page 784: "The case (Smith) was seen as
a retreat from Sherbert and
Yoder in favor of a 'rational relationship' test. . . RFRA's express
purpose is to repudiate the standard employed in (Smith).
. ."
see page 785: "the complaint, as amended, does not plead money damages under
the act."
see page 787: "The defendants are immune from suit or money damages in their
individual capacity unless (1) their conduct violated a constitutional right of
the plaintiff-prisoner that was clearly established prior to the time of the alleged
acts of the prison officials; (2) they knew or should have known of the clearly
established right at the time of the violation; and (3) they knew or should have
know that their conduct violated that right."
see page 789: "Sunday worship is not included
among the tenets of Weir's beliefs out lined in his doctrinal statement."
see page 790: "Supervisory liability is usually not established by isolated
occurrences, but rather results from a pattern of occurrences which permit an inference
of deliberate indifference or tacit authorization. . . Plaintiff having prevailed
in part the court will consider whether plaintiff is entitled to an award of attorney
fees. Plaintiff may make application therefore as provided by Local Rule 22."
RFRA case law from other circuits
Lawson
v. Dugger, 844 F.Supp. 1538 (S.D. Florida 1994)
see page 1539: "The relevant history of this case dates back to 1986. . ."
see page 1543: "That the particular individuals representing the Department
originally named in the lawsuit have been replaced by other individuals in the same
official capacity does not render this case moot. The appropriate inquiry is whether
the controversy is capable of repetition and not, where a recurrence of the dispute
is more probable then not."
Allah
v. Menei, 844 F.Supp. 1056 (E.D. Pennsylvania 1994)
see page 1065: "Government may not favor one legitimate faith group over another
or question the rationale of honestly held beliefs. . . The defendants seem to assert
that prison officials may judge whether the plaintiff's honestly believed contentions
of difference between his faith and the Nation of Islam are correct. The government
has a constitutional obstacle to making such judgments."
Campos
v. Coughlin, 854 F.Supp. 194 (S.D. New York 1994)
see page 204: "Ordinarily, violations of First Amendment rights are recognized
as constituting an irreparable injury."
see page 849: "The District Court ruled that plaintiff's Free Exercise claim
failed because 'even assuming that plaintiff's suspicions about the defendants biases
and motivations are true. . . the plaintiff's have not adduced evidence of a 'substantial
burden' ' as required by the RFRA."
see page 850: "A government action is subject to 'strict scrutiny' under the
Equal Protection Clause of the Fourteenth Amendment if it discriminates against
a 'suspect class' or if it interferes with a 'fundamental right'
"The plaintiff's argue that the violation of their fundamental right to free
exercise of religion constitutes an equal protection violation.
"However, in order to maintain an equal protection claim with any significance
independent of the free exercise count which has already been raised, the plaintiff's
must also allege and prove that they received different
treatment from other similarly situated individuals or groups."
United States v. Meyers, 906 F.Supp. 1494 (D.Wyoming 1995)
Note - Both Meyers cases are a judicial attempt
to define religion. As such it is a fundamental violation of the First Amendment
to the Federal constitution - because - since judicial rulings have the force and
effect of law, Meyers is a "law" regarding
establishment and exercise of religion. Having stated that,
Meyers is instructive in the means and methods of establishing evidence
of "sincerity" of religious establishment and exercise.
Note -
Bauer is the first published federal case considering religious use of marijuana
under RFRA.
Bauer is the first published case that overturns the
Leary case (see page 373 and 375 in this report on
Bauer below ) (see
Leary on page 8 below where the Marijuana cases are reported.)
Bauer overturns
Leary because RFRA requires the
Sherbertand Yodertests and
Leary specifically
exempts the drug laws from the
Sherbert test.
Since
Bauer is a RFRA case that requires the
Sherbert test, the
Leary case is not valid or binding precedent as a matter of law.
The Yoder case had not yet been
decided in 1967 when the
Leary case came into court.
Bauer is published in both the 75 Federal Reporter Third Edition and the
84 F.3d. Be aware of the change from 75 to 84.
see page 1373 for
Leary cite: "Relying on several earlier appellate cases, the district
court held, however, 'that the government has an overriding interest in regulating
marijuana'. The district court quoted
Leary. . ."
see page 1375: "The district court treated the existence of the marijuana laws
as dispositive of the question whether the government had chosen the least restrictive
means of preventing the sale and distribution of marijuana.
"The district court relied on a drug case decided before
the enactment of RFRA (Leary).
"We do not exclude the possibility that the government may show that the least
restrictive means of preventing the sale and distribution of marijuana is universal
enforcement of the marijuana laws.
"Under RFRA, however, the government had the obligation,
first to show that the application
of these laws to the defendants was in furtherance of a compelling
governmental interest and, second
to show that the application of these laws
to these defendants was the least restrictive means
of furthering that compelling governmental interest."
see page 1376: "III. EXTRAORDINARY FUNDS FOR THEOLOGY EXPERT"
see page 1381: "NOONAN, Circuit Judge, Dissenting from part I."
see page 1559: "The court may conduct a preliminary hearing
in which the defendants will have the obligation of showing that they are Rastafarians
and that the use of marijuana is a part of the religious practice of Rastafarians."
Note - In this case the Supreme Court ruled that RFRA would be unconstitutional
under the Federal constitution if it were applied to a state law.
Congress can only control a State government if the State is denying fundamental
rights without exception to a distinct group (like voting).
That denial has to be fully documented as to the State refusing under any circumstances
to allow that particular group to exercise the fundamental right (like voting).
And even then the federal law has to have an escape clause that allows the State
to escape from the federal law any time the State enforces a law to protect the
fundamental right (like the Voting Rights Act of 1968).
see 138 L.Ed.2d, page 646 where the court defines what RFRA is - "RFRA is not
so confined. Sweeping coverage ensure its intrusion at every level of government,
displacing laws and prohibiting actions of almost every description and regardless
of subject matter.
"RFRA's restrictions apply to every agency and every official of the Federal,
State, and local Governments.
"RFRA applies to all federal and state law, statutory or otherwise, whether
adopted before or after its enactment.
"RFRA has no termination date or termination mechanism. Any law is subject
to challenge at any time by any individual who alleges a substantial burden on his
or her free exercise of religion."
see 138 L.Ed.2d, page 648: "Requiring a State to demonstrate a compelling interest
and show that it has adopted the least restrictive means of achieving that interest
is the most demanding test known to constitutional law.
"If 'compelling interest' really means what it says. . . many laws will not
meet the test. . . (The Test) would open the prospect of constitutionally required
exemptions from civic obligations of almost every conceivable kind. . .
"Laws valid under Smith would fall under RFRA without regard to whether they
had the object of stifling or punishing free exercise. . .
"the statute nevertheless would require searching judicial scrutiny of state
law with the attendant likelihood of invalidation."
Marijuana cases
see page 860 for denial of
Sherbert - the court states that, "The district judge properly refused
an instruction to the jury that they should acquit the defendant if they found his
religious practices were in good faith.
"Appellant's (Leary) reliance on Sherbert.
. . for authority that the constitutionally guaranteed right of free religious exercise
imposes on the government the burden of showing a compelling interest
in its abridgement, is misplaced and inapposite
on the facts.
"In Sherbert the Supreme Court held that the disqualification
of a member of the Seventh Day Adventist Church for unemployment benefits under
the South Carolina Unemployment Compensation Act, because of her refusal to work
on Saturday, imposed a burden on the free exercise of her religion.
"The Court in arriving at its conclusion considered whether there was 'some
compelling state interest' in the statute which justified 'the substantial infringement
of appellant's First Amendment right'. . . and found no such state interest. . .
.
"Congress has made it a crime to traffic in marihuana and
it was not incumbent upon the Government to produce evidence to controvert the testimony
of witnesses on the controversial question whether use of the drug is relatively
harmless.
"Thus the question is whether the conduct or action so regulated and prohibited
under severe criminal penalties by Congress . . . has posed some 'substantial threat
to public safety, peace or order'. . .
"Congress has demonstrated beyond doubt that it believes marihuana is an evil
in American society and a serious threat to its people."
see page 448 for "rational basis" to support prohibition.
see page 445 for citation of the
Leary case.
see page 469 for
Leary cite.
see page 895 for
Leary cite.
see page 1222 for "rational basis".
United States v. LaFroscia, 354 F.Supp. 1338 (S.D. New York 1973)
see page 1341 for "rescheduling" issues in administrative law.
see page 350 and 357 for "rescheduling" issues.
see page 352 for "strict scrutiny" issue.
see page 656 and 657 for "rescheduling" issues.
see page 740 for "Constitutional limitations" built into the Single Convention
drug treaty.
see page 753 for exemption from prohibition for marijuana leaves to make Indian
"national drink".
Ravin v. State
of Alaska, 537 Pacific Reporter 2d 494 (1975)
see page 513 for State Constitutional protections distinguished from federal protections.
Randall
v. Wyrick, 441 F.Supp. 312 (W.D. Missouri 1977)
see page 314 for
Leary cite and 315 for misstatement of
Yoder application in
Leary and
Kuch.
see page 316 for "rational" basis.
see page 650 for "rational basis".
see page 651 for child smoking "tobacco/cannabis spliff".
see page 651 for driving under the influence.
State v. Olsen,
315 North Western Reporter 2d 1 (1982)
see page 7-9 for "religious use" analysis.
see page 8 for the use of state board of pharmacy examiners opinion.
see page 822 for "rational basis".
see page 824 for "rescheduling issues".
see page 825-826 for
Leary cite "harm not relevant to compelling interest".
see page 547 for "rational basis".
State v. Rocheleau, 451 Atlantic Reporter 2d 1144 (Vermont 1982)
see page 1148 for "religious use analysis".
see page 511 for "religious use" issues.
see page 512 for
Leary cite, "The question whether the government has an overriding
interest in controlling the use and distribution of marijuana by private citizens
is a topic of continuing political controversy. . .
"In enacting substantial criminal penalties for possession
with intent to distribute, Congress has weighed the evidence and
reached a conclusion which it is not this court's task to review de novo.".
see page 513 for more citing
Leary, "Congress has demonstrated beyond doubt that
it believes marihuana is an evil in American society and a serious threat to its
people."
Rev. Carl Olsen petitioned for rescheduling for religious use. Court ruled
that this application could not be accomplished under the drug law, as that law
does not provide for a religious use classification. This is used to support
the denial below in 878 F.2d on the next page.
Rev. Carl Olsen files a writ of habeas corpus based on equal protection in light
of Native American Church use of peyote. See also 649 F.Supp 14.
Note - CI must be advanced at the earliest opportunity in the record.
Note - You must force the attorney to notify the court and the government that RFRA
requires the government to prove the facts of CI before anything else.
Note - Carl's case in the Marijuana Rescheduling for Medical Use case had already
been decided and the decision had been released. Since the Federal drug law
requires Rescheduling the Federal court must accept the decision as a matter of
law.
Since the Court has to accept the DEA decision on Rescheduling as a matter of law,
and the Rescheduling process must rule on the question of toxicity, the DEA Administrative
Law Judge is the government expert on the question of toxicity as a matter of fact.
Since a decision on the toxicity of marijuana is the first consideration in the
CI test, the DEA decision on Rescheduling is the final ruling on a threat to public
health and safety caused by the religious use of marijuana as Carl Olsen describes
it in his own application.
Since the DEA Rescheduling decision states that the lethal dose of marijuana is
consumption of 1500 pounds in 15 minutes, that 1500 pounds of marijuana in fact
is less toxic then 5 gallons of water which weighs 35 pounds (anyone drinking 5
gallons of water in 15 minutes would die).
Since marijuana is less toxic then water, it poses no more threat to individual
or public health and safety then water poses.
Since the government cannot prove any threat to public health and safety to prohibit
a church from possessing a plant that is safer then water, the government cannot
even begin to prove the threat to public health and safety that is so great that
it creates a compelling interest on the part of government to prohibit.
If you can't even kill half the people who eat the 1500 pounds of marijuana in 15
minutes, how is anyone else gonna get killed that doesn't eat any of the marijuana,
someone in the Public, someone who is outside the church?
see page 1463: "He maintains that members of his church are entitled to a religious
exemption from the marijuana laws on the same terms as the peyote exemption granted
the Native American Church."
see page 1466 quoting the DEA decision on Carl's request for religious exemption
cited in 776 F.3d above on page 11.
"- "The criteria for scheduling do not include provisions for
religious use.
"- There is no mechanism for an exemption to scheduling for religious use."
and
"- "In the Memorandum of Law in this matter, Mr. Olsen represents that
he has been denied basic procedural due process because no hearing has been held.
"- Where there is no issue of fact to be decided, and no statutory requirement
for a hearing, a hearing is not necessary.
"For purposes of this decision, the administrator accepts that the Ethiopian
Zion Coptic Church is a bona fide religion whose sacrament is marijuana. The Administrator
also accepts Mr. Olsen's representations of the method and manner of use of marijuana
by members of the church.
"The acceptance of these facts means there are no facts in dispute,
and therefore, no necessity for a hearing.
see page 1467 for
Leary cite.
see page 593 for "religious use" issues.
see page 594 for
Leary cite.
see page 596 for "breech of the peace" issues, and
"Balancing the competing interests, and giving significant
weight and deference to the Legislature's determination that the possession,
distribution, and cultivation of marihuana and hashish disturb the public order.
. . we conclude that such conduct is not protected by art. 2 even if motivated by
sincere religious purpose."
see page 597 for jury questions of fact, "Any constitutional protection would
only extend to one who believed in good faith in a religious doctrine that involved
the use of marihuana for religious purposes.
"The question of the existence of such a belief would be a jury question.
"This would be followed by another jury question, namely, whether the uses
that the defendants made of controlled substances fell within
whatever constitutionally protected areas of good faith conduct might exist."
see page 600 for Massachusetts State Constitution Declaration of Rights, art 2,
"It is the right as well as the duty of all men in society, publicly, and at
stated seasons to worship the SUPREME BEING, the
Great Creator and Preserver of the universe."
see page 601 for "breech of peace" issues, "Thus, in order for the
defendants to practice their religion so that they do disturb the peace, it is necessary
that both parts of the definition have been satisfied. The second prong mandates
that there be a victim."
see pages 456 and 457 for
Leary cites.
PEYOTE CASE LAW
Note - this is a fundamental case for understanding the implementation of the CI
and LRM tests to drug laws.
see 394 P.2d, page 818: "The state asserts that the compelling reason for the
prohibition of Peyotism lies in its deleterious effects upon the Indian community,
and even more basically in the infringement such practice would place upon the enforcement
of the narcotic laws because of the difficulty of detecting fraudulent claims of
an asserted religious use of peyote. . . The record however, does
not support the state's chronicle of harmful consequences of the use of peyote.
. .
"The attorney General also argues that since 'peyote
could be regarded as a symbol, one that obstructs enlightenment and shackles the
Indian to primitive conditions' the responsibility rests with the state
to eliminate its use.
"We know of no doctrine that the state, in its asserted omniscience, should
undertake to deny to defendants the observance of their religion in order to free
them from the suppositious 'shackles' of their
'unenlightened' and 'primitive condition.'"
State of Arizona v. Whittingham, 504 Pacific Reporter 2d 950 (1973) - Peyote
wins!
Whitehorn v. State of Oklahoma, 561 Pacific 2d 539 (1977) - Peyote wins!
see page 1249 for
Leary cite and denial of protections under
Sherbert for anything other then peyote.
see page 1249 thru 1251 for reports on Congressional Record in the peyote legislation
case.
Note - This set of four (4) cases illustrate the disparity between judicial interpretations
of the same facts in evidence and law from time to time in the same case.
In addition, this set of cases is used to deny the fundamental First Amendment rights
by creating a special class of citizens where no facts exist that the class exists.
Those who know the actual published history of the Native American Church will see
the judicial lies clearly.
There is no surprise that this set of cases comes from the same circuit that gave
us the
Leary decision in 1967, the same circuit where President Kennedy was murdered
without justice and in spite of all the evidence presented, the same circuit where
government agricultural programs are used to wipe out the native peyote gardens
to our detriment.
It is imperative to know and overstand these cases in order to be prepared to
counter the inevitable government and judicial corruption that we face in the federal
and state courts.
Indian Inmates v. Grammer, 649 F.Supp. 1374 (D. Nebraska 1986) - Peyote
loses.
Toledo v. Nobel-Sysco, 651 F.Supp. 483 (D.N.M. 1986) - Peyote wins!
see page 1490 for CI tests.
see page 1491 for "Attorney General may only employ criteria set out in the
1970 (federal drug) statute in exempting substances from Schedule I and that the
religious exemption is not supported by any of those criteria."
Note - Smithis both the precursor to and the cause of enactment of RFRA -
therefore it is listed in both categories in this law review.
see page 1595 "Respondents' claim for relief rests on our decisions in Sherbert. . . in which we held that a State could
not condition the availability of unemployment insurance on an individual's willingness
to forego conduct required by his religion. As we observed in
Smith I however, the conduct at issue was not prohibited by law."
see page 1601 "The only decisions in which we have held that the First Amendment
bars application of a neutral, generally applicable law to religiously motivated
action have involved not the free Exercise Clause alone, but
the Free exercise Clause in conjunction with other constitutional protections.
. . Wisconsin v. Yoder," .
see page 1604 "As we affirmed only last Term 'it is not within the judicial
ken to question the centrality of particular beliefs or practices to a faith or
the validity of particular litigants interpretation of those creeds."
see page 1611, "Even if, as an empirical matter, a government's criminal laws
might usually serve a compelling interest in health, safety or public order,
the First Amendment at least requires a case-by-case determination of the question
sensitive to the facts of each particular claim.”
This decision is the most beautiful piece of legal writing I have ever seen.
The honor and integrity of this Federal District Court Judge rings out from every
word on every page. It is a privilege to read this decision.
see page 1340: "It is one thing for a local branch of the Native American Church
to adopt its own restrictions on membership, but it is entirely another for the
government to restrict membership in a religious organization on the basis of race."
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