Tag Archives: free exercise

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.



The Free Exercise of Religion in Arizona – Part 2

This is the second post in a series that examines the free exercise of religion in Arizona. It is helpful to read the first part before reading the second, but it is not necessary.

The Free Exercise of Religion – Part 1 (constitutional theory).

The Free Exercise of Religion – Part 3 (Arizona case law).

Onto the second part.


State constitutions can expand upon liberties granted in the United States Constitution, but cannot restrict them.  The United States Constitution is the supreme law of the land and cannot be overridden by a state. See Large v. Superior Court, In & For Maricopa Cnty.,714 P.2d 399, 405 (1986) (stating United States Constitution is a “benchmark” for minimum constitutional protection).  When looking at the Arizona Constitution, it is important to keep in mind that it can only expand liberties the United States Constitution grants.

The Arizona Constitution contains two different sections that deal with religion Ariz. Const. art. 2, § 12, and Ariz. Const. art. 20, § 1. Both Arizona constitutional provisions to work together to secure religious liberty, in sort of a piecemeal approach.  “The first amendment (sic) to the United States Constitution and Ariz. Const. Art. 20 guarantee religious freedom. Perfect religious toleration is qualified by Ariz.Const. Art. 2, § 12.” Matter of Appeal In Cochise Cnty. Juvenile Action No. 5666-J, 650 P.2d 459, 465 (Ariz. 1982). The court noted further that religious acts are not absolutely protected.  However, the basis of the protection of religious acts, or the free exercise is discussed in part 1.

Ariz. Const. art. 20, § 1.

“Perfect toleration of religious sentiment shall be secured to every inhabitant of this state, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same.”

The term perfect toleration is not defined in the Arizona Constitution, nor is it defined in Arizona case law.  However, our courts have told us the term perfect toleration is not absolute.  See Barlow v. Blackburn, 798 P.2d 1360, 1363 (Ariz. Ct. App. 1990) (stating “the of our constitution (sic) did not intend the perfect toleration clause to protect the practice of polygamy”).  Even though Arizona courts are hesitant to define the term, they do provide us with some context.  “[S]tatehood was expressly conditioned on the ‘perfect toleration of religious sentiment.'” Kotterman v. Killian, 972 P.2d 606, 636 (Ariz. 1999).

Even though the language of this clause seems to be absolute on its face, the Arizona courts have followed in the footsteps of the United States Supreme Court precedent that no rights or liberties are absolute.  C.f. City of Woodinville v. Northshore United Church of Christ, 211 P.3d 406, 410 (Wash. 2009) (stating article I, sec. 11 of the Washington Constitution “absolutely protects” the exercise of free religion).  Some states have broadened the scope of rights considerably.  In Arizona, we know that there can be exceptions to the rule.

Ariz. Const. art. 2, § 12.

Article 2 of the Arizona Constitution is entitled Declaration of Rights.  Presumably, this is the section that gives rights to the ‘liberty of conscience,’ and ‘religious freedoms.’

The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state. . . No

opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.

This provision of the Arizona Constitution protects religious beliefs / thoughts.  The state cannot tell any citizen what to think about religious matters, nor hold her religious opinions against her.  This is consistent with United States Supreme Court jurisprudence.  See generally Sherbert v. Verner, 374 U.S. 398 (1963) (holding unemployment benefits cannot be withheld based upon religious beliefs).

The first sentence in this section can be problematic because the word ‘licentiousness’ is very broad and acts as a limiting instruction. Typically, when a rights rights are thought of in a constitutional sense, it is a grant of rights, but here there is an express limitation on the right. The express language Licentiousness is a restriction upon an act, not upon a thought.  The constitutional provision allows for all thoughts, but the freedom of thought cannot be used as a justification for an act of licentiousness. See Planned Parenthood Arizona, Inc. v. Am. Ass’n of Pro-Life Obstetricians & Gynecologists, 257 P.3d 181, 197 (Ariz. Ct. App. 2011) (citation omitted) (stating licentiousness acts as a limitation on the judiciary, but the legislature can pass statutes to provide greater protections).  Neither Arizona’s constitution, statutes, or case law define the term ‘licentious.’  So there appears to be some vagueness of what licentiousness entails.

Peace and safety of the state are probably easier to define.  These are more common terms in contemporary society with more context for definition.

Strategies To Interpret Arizona Constitution’s Religious Freedom Sections

When faced with a statute that is unclear on its face the court of appeals instructs us: “When a constitutional or statutory provision is not clear, we may look to the context, subject matter, historical background, effects, consequences, spirit, and purpose of the law. Finally, we strive to interpret a constitutional provision or statute in a manner that gives meaning to all of its language.” Chavez v. Brewer, 214 P.3d 397, 407 (Ariz. Ct. App.2009); C.f. 1 William Blackstone, Commentaries 59 (1765).  In other words, the court will look to all evidence that it can find to make the strongest argument.

To find a common definition of a word would be to look to a popular dictionary.  Merriam Webster’s dictionary defines licentiousness as lack moral or legal restraints, especially sexual restraints. This definition is pretty broad and really does not provide any guidance in one direction or another.

Another option would be to take a historical look to the law of Arizona.

Looking back at the construction and intent of the Arizona Constitution may provide some insights. The Arizona constitutional convention consumed a mere two months from beginning to end. As one of the last states admitted to the Union, Arizona borrowed much from those that preceded it. Language was lifted from the constitutions of Washington, Oregon, Texas, and Oklahoma, to name a few.” Kotterman v. Killian, 972 P.2d 606, 624 (1999) (citations omitted). There is some speculation that the language of Arizona’s Constitution article II, § 12 was borrowed from the state of Washington’s Constitution.  “Article I, § 11 of the Washington Constitution is in pertinent part identical to Arizona’s article II, § 12. It is therefore safe to assume that our provision was borrowed. Thus, Washington cases interpreting their constitution are persuasive authority with respect to our constitution.” Kotterman v. Killian, 972 P.2d 606, 638 (Ariz. 1999). Reading Washington’s Constitution article I, § 11 the first two sentences are almost exactly the same, word-for-word. Because of the sameness of Arizona’s and Washington’s constitutional section on religious freedoms, Washington’s interpretation of that particular section is persuasive in Arizona courts.  What that means is Arizona courts will strongly look at how Washington handled any claim that fell under its constitutional religious freedom section, but Arizona reserves the right to interpret it’s own Constitution the way it wants.

Looking to the common law could also provide an understanding to what the legislature’s intentions were when the constitutional provision was passed.  When Arizona joined statehood the legislature criminalized several immoral or sexual acts: rape, human trafficking, indecent exposure, adultery, disturbing a church service, using offensive or abusive language in the presence of women, and owning and operating a public dance house.  Ariz. Rev. Stat. of 1913, Part I, Title IX Crimes Against the Person and Against Public Decency and Good Morals.  The breadth of offenses categorized as criminal at the common law is staggering.  Not only are many of the crimes listed at Arizona’s statehood not applicable today, there are some things that are considered crimes today which were not on the books then.

Current Arizona laws can provide the intent of how the legislature currently interprets the constitutional provisions.  There are a couple of state statutes that deal with religion.

The section of the state statutes that deals most with religion is 41-1493 et. seq. (means the whole chapter), which deals with the freedom of religion as a civil right.  The Definitions section is helpful because it defines what it means to “exercise religion” as “the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.” Ariz. Rev. Stat. § 41-1493(2). That helps provide a scope for religion and the constitutional sections above.  To further re-enforce the standard the legislature included a statute on what it means for free religion to be protected — the state statute is modeled after the federal Religious Freedoms Restoration Act.  See Ariz. Rev. Stat. § 41-1493.01; C.f. 42 U.S.C. § 2000bb.

Part 3 of this series will analyze Arizona case law to see how the courts have interpreted free exercise of religion in Arizona.


The Free Exercise of Religion in Arizona – Part 1

The Free Exercise of Religion in Arizona:
This is blog post is Part I examines constitutional theory.
Part II examines Arizona’s Constitution and statutes.
Part III examines Arizona’s case law and tries to summarize discussion.

In a free government, the security for civil rights must be the same, as that for religious rights.  It consists, in the one case, in the multiplicity of interests, and in the other, in the multiplicity of sects.

— Joseph Story, Frmr. Assoc. Justice of the United States Supreme Court, Commentaries on Constitution of the United States, § 474 (quoting James Madison, Federalist Papers, #51 (1788)).

Religious freedom is a hot topic — both nationally and in Arizona.  This term the United States Supreme Court will hear arguments to what extent, if any, corporations have the right to free exercise of religion.  Locally, several religious oriented bills were proposed by the state legislature.

Furthermore this summer, a trial will start in Maricopa County, that will find if sex is a valid exercise of religion.  The Phoenix Goddess Temple claims to combine spirituality and sexuality to help the people who need love and guidance.  It is an officially recognized Oklevueha Native American Church (see more in the Arizona section below). Officials in Maricopa County shut down and arrested members claiming it is nothing more than a brothel.  Members of the temple say they are a federally recognized church and provide important spiritual services to the community.

This blog post will look at federal and state law and try to make sense of what the scope of religious organizations exercises under the United States Constitution and Arizona Constitution (Arizona will be covered in Part 2, the next blog post).

Free Exercise of Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

— U.S. Const. amend. I.

The free exercise of religion is a cornerstone of our democracy.  It is enshrined in the First Amendment, the Religious Freedoms Restoration Act 1993, 42 U.S.C. § 2000bb(1), among other statutes and protections on the federal level.  At the state level in two different parts of the Arizona Constitution protect religious freedoms, as well as state and local laws.  RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government demonstrates that application of the burden to the person represents the least restrictive means of advancing a compelling interest.

Even our elected Congressmen (House and Senate), when taking their oaths of office as prescribed by the Constitution are reminded that religion does not factor their jobs.  “But no religious test shall ever be required, as a qualification to any office or public trust under the United States.” U.S. Const. art. II, § 1.

In fact, the Supreme Court noted the free exercise of religion is so entrenched “that few violations are recorded in our opinions.” Church of Lukumi Babalu Aye v. City of Hialeah, 508, U.S. 520, 523 (1993).

Let’s look at the two most recent United States Supreme Court opinions that examine when the free exercise of religion, is considered by some, to have harmful effects in society.

Church of Lukumi Babalu Aye v. City of Hialeah, 1993

Plaintiffs practiced the religion Santeria.  The basis of Santeria is the “personal relation with the orishas, and one of the principal forms of devotion is animal sacrifice.”  Church of Lukumi Babalu Aye v. City of Hialeah, 508, U.S. 520, 524 (1993).  Orishas depend on sacrifice for their survival.  “Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during annual celebrations.”  Id. at 525. The animals are killed by cutting the cartoid artery in the neck.

The Church of Lukumi Babalu registered with the state of Florida as a not-for-profit corporation and leased land in the city of Hialeah, Florida with the intent of building a place of worship.  It appears from judicial notice that the Church obtained all the necessary licensing, inspection and zoning approvals.  Id. at 526.

Community members began to complain about the planned church, so much so, the city council held an emergency meeting to address the topic.  The council passed several statutes incorporating and adding to the state of Florida’s animal cruelty laws.  Additional laws that Hialeah passed included a ban on “ritualistic animal sacrifices.”  The church filed suit alleging a violation of the Free Exercise clause, the church asked for an injunction and for declaratory relief.

The district court found the city had four compelling interests: 1.animal sacrifices present a substantial health risk, both to participants and the general public; 2. emotional injury to children who witness the sacrifice of animals; 3. protecting animals from cruel and unnecessary killing; 4. restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use. Id. at 529-30.  Balancing the interests of the church and the interests of the city, the District court found the compelling governmental interests justified an absolute prohibition on ritual sacrifices.

The Supreme Court disagreed with the district court’s analysis.

Although the practice of animal sacrifice may seem abhorrent to some, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’

Id. at 531 (quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981).

The Supreme Court notes that if the object of the law is to target a specific group, religion or belief then the law is not neutral then only a compelling governmental interest will override the liberty interest.  The Court gives tips on how to determine if a law is neutral or not: 1. the law it must have facial neutrality, to not discriminate in the plain language of the law (facial neutrality is not determinative); and 2. the law’s application cannot subtly depart from neutrality.

Explaining the second part of the test the court notes: “[t]he Free Exercise Clause protects against governmental hostility which is masked as well as overt. ‘The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.'” Id. at 534 (quoting Walz v. Tax Comm’n of New York City, 397 U.S. 664, 696 (1970)(Harlan, J., concurring)).

The Court importantly documents that religious liberty interests are impacted both by the legislative and executive branches.   The two different branches have different functions, writing the law and applying the law, and tasks can be performed in neutral and non-neutral manners.  Here, it seems the court accepts the different branches interests and interpretations of the law, but the Court will scrutinize the actions of both branches because of their independent roles.

Once it is decided if a law is neutral or not then different levels of scrutiny will apply.  If it is decided the law is not neutral or it impacts a particular group or class of people then only a compelling governmental interest that is narrowly tailored to address the problem will be enough to overcome targeted religious liberty infringement.

The Court unanimously found the laws banning animal sacrifice to be unconstitutional (there was some disagreement as to the test to use).

* It is important to note that Religious Freedoms Restoration Act (RFRA) 42 U.S.C. § 2000bb was made into law in Nov. 1993, while this case was decided months prior in June 1993.  RFRA was not available as a guidepost when this opinion was written.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 2006

A religious organization uses a sacramental tea in its worship that contains a hallucinogen prohibited by the Controlled Substances Act (CSA) Title 21 U.S.C. § 801.  At communion, worshippers drink hoasca, made from two plants in the Amazon region of South America.  “One of the plants, psychotria viridis, contains dimethyltryptamine (DMT), a hallucinogen whose effects are enhanced by alkaloids from the other plant, banisteriopsiscaapi.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 425 (2006). DMT is listed as a Schedule I drug, which means that it has a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision.

Customs officials intercepted a shipment of hoasca (sacramental tea) to the church.  Records indicated that in addition to the three drums in the current shipment, fourteen drums had previously been shipped to the church.  The hoasca was seized and the church was threatened with criminal prosecution.   The church filed suit against the United States for an injunction and for a declaratory opinion as to the legality of the hoasca during worship.

Congress recognized that laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,and legislated the compelling interest test as the means for the courts to strike sensible balances between religious liberty and competing prior governmental interests.

Id. at 439 (internal quotation marks omitted).

The government challenged the the legality of hoasca even though they conceded it substantially burden the church’s free exercise of religion.  Despite substantially burdening religion, the government argued the ban on hoasca was the least restrictive means of advancing three governmental interests: “protecting the health and safety of [church] members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances.” Id. at 426.

Both sides presented evidence about the effects of hoasca.  The government contended the hallucinogen can cause psychotic reactions, cardiac irregularities, and adverse drug interactions.  The church contended that how the hoasca was used during worship it minimized the health risks cited by the government.  The district court found that the evidence of health risks was equal.  Neither the government’s nor the church’s evidence was more compelling.  The evidence on diversion was also very close.  The district court granted the injunction and told the government it had to show harm to church members or that the levels of DMT increased to dangerous levels.

The Supreme Court held the government never showed a compelling reason for limiting religious exercise that the Religious Freedom Restoration Act 42 U.S.C. § 2000bb required. Even from the district court level, the government never contested that it limited freedoms, it just said that it’s interests overrode any liberty interests of the church.

The Supreme Court noted that while DMT is dangerous and correctly classified as a Schedule I drug, Congress never considered its usage in a tea used during religious worship.  The opinion compares DMT to peyote when used for religious purposes by Native Americans and says it would be unfair to make an exception for peyote and not for DMT during religious worship.  Id. at 433. “The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA.” Id. at 434.

The Court gave short shrift to the argument about potentially violating the international treaty because hoasca is not a named substance to be banned.

Again a unanimous Court (Justice Alito recused himself) found the prohibition of hoasca to be unconstitutional.


The Untied States Constitution allows one to believe in whatever one wants, even if it includes animal sacrifice and hallucinogenic teas.

Once it is established that activity is religious in nature, it is the Government’s job to prove why the activity should not be permitted.  There may be restrictions on non-neutral speech as long as there is a compelling governmental interest and the law is narrowly tailored for the least restrictive means.

It is interesting to note that both of these cases are unanimous decisions.  The Court is sending a strong message with these two cases that the government must have a really strong reason to restrict religious freedoms.  Perhaps what is most telling is the Court was even willing to make an exception to Schedule I drugs on  the Controlled Substances Act.  Schedule I drugs, by Congressional definition have a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision.  In other words, Congress said there is no redeeming value at all to Schedule I drugs.  However, the Supreme Court said that was too broad and if applied within the historical practices of the Church the government did not have a strong enough interest to restrict the religious liberty.

If religious liberties will allow activities as dangerous as consuming Schedule I drugs and performing animal sacrifices, it is quite possible that if a church believes the performance of sex is part of spirituality then that may be permitted.  Sexual conduct may be permitted, even if money is exchanged at some point because all religious institutions have expenses of some sort and must pay for those expenses. See Catholicism and offertories.  Restricting a church’s religious freedoms and the ability to practice spirituality and sexuality together because a payment is made to the Church could be seen as a non-neutral restriction of speech.

I will continue my analysis in the next post where I will also discuss Arizona law and it’s impact on the free exercise of religion.

Part II: Arizona’s protections for the Free Exercise of Religion.
Part III: Arizona’s case law and a summary of the whole analysis.