The Free Exercise of Religion – Part 3

This blog post is the third part in a series examining the free exercise of religion, particularly in Arizona.  It is helpful to read the blog posts chronologically, but it is not necessary.

Part 1 – Supreme Court Cases and federal law

Part 2 – Arizona Constitution and State law

The Arizona Supreme Court also has looked at the issue of what it means to freely exercise religion.

State v. Hardesty, 214 P.3d 1004 (2009)

Danny Ray Hardesty drove his van through the night in Arizona.  A police officer pulled him over for a broken headlight.  During the stop the officer smelled marijuana and discovered a baggie containing fourteen ounces of marijuana.

Hardesty never contested the marijuana or possession of it, but fought the charge on First Amendment grounds.  As a member of the Church of Cognizance, his religion told him that marijuana is the sacrament.  According to Hardesty, the Church is decentralized and consists of “individual orthodox member monasteries.”  Each individual monastery is able to determine its own mode of worship.  Hardesty’s mode was to smoke and eat marijuana without limit as to time or place.  He argued the federal and Arizona constitutions, federal Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb, and the Arizona Free Exercise of Religion Act (FERA) Ariz. Rev. Stat. § 41-1493.01.

The trial court convicted Hardesty, finding his defense was not recognized.  The court of appeals affirmed the conviction while taking judicial notice of the dangers marijuana pose to establish the state’s compelling interest in banning the possession or use of marijuana.

The Arizona Supreme Court looked to see if the State’s compelling interest was narrowly tailored to outweigh violation of Hardesty’s religious freedoms.  The interesting part of this case is neither side gave anything, both argued for absolutes.  Hardesty argued to be able to consume marijuana whenever and however he wanted.  It did not matter if he consumed marijuana while driving, or during religious worship — his religious beliefs could not be limited.  The State took the polar opposite approach saying any use of marijuana whatsoever was unacceptable and a potential harm to society. “Hardesty claims an unlimited religious right to use marijuana when and where he chooses, and in whatever amounts he sees fit. In the context of this case, no means less restrictive than a ban will achieve the State’s conceded interests. State v. Hardesty, 214 P.3d 1004, 1009 (2009).

Neither side would give an inch.  This put the court in the position of choosing between two absolutist positions, hardly an ideal situation.

The Court reasoned in cases like Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1459-60 (D.C. Cir. 1989) where courts have found other drugs suitable during religious worship.

Members of the Native American Church assert only the religious right to use peyote in limited sacramental rites; Hardesty asserts the right to use marijuana whenever he pleases.

State v. Hardesty, 214 P.3d 1004, 1010 (2009).

The Arizona Supreme Court said because Hardesty’s use of marijuana was not narrowly tailored to religious purposes it did not outweigh the State’s compelling interest.  This is a 180 degree shift from what the written rule is.  The rule says in both RFRA and FERA that the government has the burden to prove the compelling interest and to tailor its actions.  Because religious freedoms are normally protected, both state and federal legislators have said in the legislation it is the government’s burden to prove why there should be an exception.

Even though this rationale of the Arizona Supreme Court does not comport with the written law, it does follow United States Supreme Court precedent.  Back in Part 1, I discussed two different cases where potentially dangerous acts were allowed by the United States Supreme Court in the name of free exercise of religion: animal sacrifices during religious ceremonies; and a sacramental tea that contains a hallucinogen.  One way to look at both of these cases is the dangerous activity was only practiced during religious ceremonies.  In neither O Centro Espirita Beneficente Uniao do Vegetal, nor Church of Lukumi Babalu Aye did either church demand an unrestricted right to exercise their religion.

State v. Fisher, P.3d 663 (Ariz. Ct. App. 2008)

Defendant Kelly Fisher is a member of the Fundamentalist Church of Jesus Christ of Latter–Day Saints (FLDS Church) and lived in Colorado City, Arizona.  Fisher practiced polygamy, having multiple wives at once.  Polygamy is not legal in Arizona, but that is not the big issue.  J.S., a  thirteen or fourteen year old girl, became Fisher’s wife.  At the age of seventeen, J.S., still a minor, had a baby and listed Fisher as the father on the birth certificate.

The state of Arizona prosecuted Fisher criminally for sexual conduct with a minor and conspiracy to commit sexual conduct with a minor.

At the time of trial Fisher moved to dismiss the criminal case against him because of the First Amendment right to free exercise of religion and because the statutory definition of the term “spouse” was vague, among the other defenses that would be used (I am only interested in the part of the case dealing with the First Amendment).  Before the trial Fisher documented the culture, history, and practices of the FLDS Church through a motion in limine which was granted by the judge.

The Court noted early in the decision polygamy has clearly been denied First Amendment protections for more than 100 years. Reynolds v. United States, 98 U.S. 145, 168 (1878) (upholding a territorial bigamy law because of the “evil consequences supposed to flow from plural marriages.”).  While Reynolds is more than 100 years old, the court acknolwedged that it is still good law, and noted it is cited in more contemporary cases. See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 485 U.S. 660, 671 (1988) (Smith I ) (noting “bigamy may be forbidden, even when the practice is dictated by sincere religious convictions”); and see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15 (1973) (“Statutes making bigamy a crime surely cut into an individual’s freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision.”).

**AzCommonLaw note: The Arizona Constitution prohibits polygamous marriages.  Ariz. Const. art. 20, § 2.

Defendant Fisher also argues that Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) impliedly overrrules Reynolds because of the protection afforded by the First Amendment.  However, the Court of Appeals took the opposite view.

[T]he Supreme Court cited Reynolds favorably to note the limits of First Amendment protection. . . . To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling—permitting him, by virtue of his beliefs, to become a law unto himself, contradicts both constitutional tradition and common sense.

— State v. Fischer, 219 Ariz. 408, 413, (Ariz. Ct. App. 2008) (internal citations omitted).

It is my understanding the limits applied should be on the government, not on its citizens.  This opinion was written by the Arizona Court of Appeals in 2008 well after both RFRA and FERA were passed.  Furthermore, O Centro Espirita Beneficente Uniao do Vegetal was decided in 2006 and one of the holdings in that case is the GOVERNMENT has the burden of demonstrating the compelling interest and showing its actions are narrowly tailored to meet its objectives. “[T]he Government bears the burden of proof on the ultimate question of [the challenged Act’s] constitutionality, respondents [the movants] must be deemed likely to prevail unless the Government has shown that respondents’ proposed less restrictive alternatives are less effective than [enforcing the Act].” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (internal citations omitted). Not only is O Centro Beneficente Beneficente Uniao do Vegetal, much more recent than the United States Supreme Court precedent relied upon by the Arizona Court of Appeals in Fisher, O Centro also holds true to the spirit of the legislatively passed RFRA and FERA.

Judicial Burden Shifting

With all of this precedent laid out in the first two sections of this analysis, why are the Arizona courts seemingly misconstruing the law?

The Supreme Court muddied the waters Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990), overturning years of precedent that was established in Sherbert v. Verner, 374 U.S. 398 (1963) (establishing what would be known as the Sherbert rule that was later incorporated into the federal Religious Freedom Restoration Act).

In Smith, Respondents were fired from their job with a private drug rehabilitation organization for ingesting peyote for sacramental purposes during a religious service with the Native American Church (a federally recognized church).  The state of Oregon later denied respondents unemployment benefits because the discharge was due to “work related misconduct.”  The State argued the illegality of peyote was central to their claim of denying unemployment benefits.  The United States Supreme Court in 1987 agreed (Smith I) noting that if the criminal law is facially neutral (does not discriminate), denying unemployment benefits does not violate the First Amendment.  The United States Supreme Court sent the case back down to the Oregon Supreme Court to determine if the use of peyote violated the State’s controlled substances act.  The Oregon Supreme Court found since there was not a specific religious exception in the law, the use of peyote did in fact violate the law.  Then the United States Supreme Court heard the case for a second time (Smith II) to determine whether the prohibition was valid under the Free Exercise clause.

The Court has trouble with the concept of what a religion is, saying that anyone could claim a particular religious belief for her advantage.  Justice Scalia writing for the majority makes a historical note, free exercise of religion is most likely to be upheld when coupled with another right.

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, such as freedom of speech and of the press.

— Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 881 (1990).

When a claim of free exercise of religion is coupled with another claim then the court does not have to enter the muddy situation of deciding what is and is not a valid religion, who is or is not trying to game the system, etc.

Further on in the analysis the Court distanced itself from Sherbert, in spite of the fact both (Sherbert and Smith) cases are about extending unemployment benefits to workers who were discharged because of their religious beliefs.  The Court said the distinguishing mark is the present case, Smith, deals with an across the board, criminally prohibited drug, peyote.

The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.

Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 885 (1990) (internal quotation omitted).

Smith, effectively shifted the burden in free exercise cases when there is socially harmful conduct from the government having to prove a compelling governmental interest to the individual having to prove his religious freedom is more important than an absolute public policy.


It appears that the Arizona courts struggle with some of the same concepts the United States Supreme Court did in Smith.  Despite the fact legislation is enacted on both the state and federal level (RFRA and FERA) setting the standard for religious freedom, and there are at least two more recent United States Supreme Court decisions (Church of Lukumi Babalu Aye and O Centro Espirita Beneficente Uniao do Vegetal) using the new legislative standards, Arizona Courts are still using what appears to be overturned precedent.

The current standard of — the First Amendment provides protection for free exercise of religion, except when the government has a compelling interests and narrowly tailors its actions — is really tough burden for the government to overcome.  However, it does create the questions of what is a genuinely held religious belief (not trying to game the system), and what is a genuine religion.  Legal scholars have not really looked at this issue (a few have) and I will post more about this in the future.

For now, it appears there are clear standards for adjudicating issues involving the free exercise of religion, but because of past precedent courts on all levels have had trouble applying the rules in a consistent fashion.



One thought on “The Free Exercise of Religion – Part 3”

  1. Thanks for the great analysis. Am giving link etc to some of the lawyers in the Temple case. Encoraging to use arguments that will at least be a basis for an appeal.

    Friday May 2, next major hearing on States Motion to Exclude Religious Defenses with mostly Tracy’s witnesses trying to oppose States motion again. All day set aside by the judge. Many national witness coming and a key witness the judge has issued a judicial subpoena to appear when the Catholic Church (Project Rose) refused a regular subpoena

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s