Tag Archives: Religion

What is a Religion in a Legal Context – Truly Held Belief Test

Religion and the law is a complex and rich subject.  With it’s prominence in the First Amendment it is a surprise, at least to me, that the subject is not litigated more because the case law is far from certain.

This past week Alabama Supreme Court Chief Justice Roy Moore argued in a Pastor for Life Luncheon, that the First Amendment should only apply to Christians.   “They can’t define it they way Mason, Madison and even the United States Supreme Court defined it: ‘the duties we owe to the Creator in the manner of discharging it.’  They don’t want to do that because then it acknowledges the Creator is God.'” Moore said at 1:35 of the video, while referring to the case Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003).  Moore’s argument is since only Christianity says their God is the Creator, then Christianity should be the only recognized religion.  In his speech, Moore is frustrated with American courts for not defining religion.  “In the law, it isn’t just politically correct [to define what religion is] because we have been divorced from God for so many years.”  Moore argued at 2:35 of the video.

Previously, I have analyzed the Free Exercise of Religion, here, here and here.  However, it is still unclear what is a religion in a legal context.  In spite of Chief Justice Moore’s wishes, the Supreme Court of the United States have provided First Amendment protections for religions of various sizes, ideologies, and dates when they were established in the United States (some were established at the founding of our nation, others were established later).

I think it is a fair comment that religions are as vast and different as the people on the earth.  Furthermore, our beliefs, including religious beliefs change by time and because of technological advances.  Given that the First Amendment protects religious establishments and exercise of religion, defining what is or is not a religious can be a daunting task.

Few would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man’s predicament in life, in death or in final judgment and retribution.

United States v. Seeger, 380 U.S. 163, 174 (1965).

Defining a religion is tough stuff.  So how have the courts looked at it over the years?

There are different tests courts have used to define a religion.  In this first part of a series, I will look at the truly held belief test and its origins.

Truly Held Belief Test

United States v. Macintosh, 283 U.S. 605 (1931).

Mr. Macintosh, a Canadian citizen, petitioned for naturalization to the United States.  The only problem with the petition was Macintosh would not promise in advance to bear arms in defense of the United States unless he believed the war to be “morally justified.”  An implied part of being fit for citizenship at the time was “willing to support the government in time of war, as well as in time of peace, and to assist in the defense of the country, not to the extent or in the manner that he may choose, but to such extent and in such manner as he lawfully may be required to do.” United States v. Macintosh, 283 U.S. 605, 617 (1931).

The majority held Macintosh’s belief’s were not enough to overcome the legislative and judicial scrutiny of being a naturalized citizen.  The dissent said Macintosh’s “first allegiance was to the will of his God.” Id. at 629 (Hughes, C.J. dissenting). The dissent said that one’s freedom of conscience should be taken into account of such implied promises.  “When one’s belief collides with the power of the State, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the State has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.”  Id. at 633-34 (1931) (Hughes, C.J. dissenting).

While the dissent was never binding law, it persuaded other Judges and Justices found it persuasive and used it in future opinions.

Berman v. United States, 156 F. 2d 377 (9th Cir. 1946).

Herman Berman registered for the Selective Service and Training Act of 1940.  Because of the registration he was made available for immediate duty and ordered to an induction center to join the armed forces.  He refused induction and was charged and convicted criminally of refusing to obey a board order.  Berman appealed the decision and sentence partly on religious grounds.

The Selective Service and Training Act stated: “Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Id. at 379. Berman objected to the Board’s interpretation of the clause because in his opinion the phrase “of religious training and belief” is limited to those who conscientiously opposed to war as a belief related more or less definitely to deity.

Thus, the issue before the Court is does religious training or belief require a deity?

Berman claimed that his Socialist beliefs should disqualify him from service.  In the defendant’s view the Socialist Party strove for the betterment of mankind and war contrary to that view. It is important to note neither the prosecution, nor either court questioned Berman’s beliefs.  It was noted with thorough documentation the defendant held his views publicly for many years prior registering for the Selective Service and Training Act.

The Government claimed that even though he held sincere views, sincere beliefs are not enough to constitute a religious belief.

The Court of Appeals agreed with the Government. “It would be quite ridiculous to argue that the use of the word ’religion’ could have been understood by the authors of this part of our
national charter or by those having to do with its adoption as meaning to be inclusive of morals or of devotion to human welfare or of government.” Id. at 380. The Court drew a line between moral beliefs and religious beliefs.  “The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” Berman v. United States, 156 F. 2d 377, 381 (9th Cir. 1946) (quoting United States v. Macintosh, 283 U.S. 605, 633-34 (1931) (Hughes, C.J. dissenting).

The Berman court basically said the difference between a belief and a religious belief is the involvement in a higher power in that belief.

United States v. Seeger, 380 U.S. 163 (1965).

Three cases are combined together objectors of the Universal Military Training and Service Act in Seeger. The Act exempts persons from military duty “religious training and belief which Congress has defined as ‘belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.” Id. at 173 (internal quotation marks omitted). The definition disallows persons who want to be exempt for economic, sociological, personal, political reasons (Congress may have been specific because of the Berman case, supra).

The Court noted when amended the Universal Military Training and Service Act in 1940, Congress used the words form Chief Justice Hughes’ dissent in Macintosh. Id. at 175.When Congress made the changes it replaced ‘God’ with ‘Supreme Being’ it likely broadened the religious protections, especially the legislative body chose not to define the phrase Supreme Being.  The Court held the change to the statute constituted an “ever-broadening understanding of the modern religious community.” Id. at 180. The Court consults several leading religious resources to provide support to its view.

With an ‘ever-broadening’ sense of religion, and with religion as already a terribly difficult topic to define (see blockquote from Seeger in the introduction to this blog post), the Court draws up a test for religion.  “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption? This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.” Id. at 184.  The Court reasoned that anyone is allowed to believe in anything.  Furthermore because of the nature of religion proving a belief is impossible.  The Court made the assertion: “while the ‘truth’ of a belief is not open to question, there remains the significant question whether it is ‘truly held.’” Id. at 185.


There is some debate about whether the Seeger Court overstepped its judicial bounds with its interpretation of ‘Supreme Being.’  Putting that discussion to the side, it is important to note each court care to say that religion is ever evolving.  That point can be evidenced in the evolution of the opinions on the Universal Military Training and Service Act.  Also, it is important to remember the Court was not directly ruling on the First Amendment, but via the congressionally created exception for the statute.  The “language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like  ‘religion’ or ‘speech,’ which this Court is freer to construe in light of evolving needs and circumstances.” Welsh v. United States, 398 U.S. 333 (1970) (Harlan, J., concurring).

If anything, this line of cases shows difficult it is for judges to determine what is a truly held belief in a religious sense.  Courts do not want to be in the position of defining what a definition is, not only because of the sheer complexity of the task, but because the definition changes with time.  They do not want to update their definition of religion every generation to meet society’s present needs. On the other hand, in the cases of military service, courts do not want to permit abuse of the system by allowing people who have insincere beliefs to game the system.

Truly held beliefs is one way to judge religious beliefs.










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 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.


Arizona Religious Freedom Bill SB 1062

The Arizona Legislature passed (through both the House and the Senate) a bill that would allow businesses to have the religious freedom to choose who it conducts its business with.

The newspapers have just summed up the bill without really into the text of the language.  In fact, many traditional newspaper articles I have read about the subject don’t even mention either the House or Senate Bill number for readers to read the text for themselves.  Here is the text of Arizona SB 1062, so you can reference the actual bill from the Arizona Legislature for yourself.  Also, here is the Fact Sheet for SB 1062 compiled by the Arizona Legislature for members to have an objective guide about the bill.

Let’s walk through the bill.  Because one of the first rules of statutory construction (interpreting a statute) is to read it in its entirety.  The bill is pretty short, so let’s go through it, section by section.

A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

B. Except as provided in subsection C of this section, state action shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

The first two clauses set out the scope of the bill, or in which ways it can be applied.

Section A states religious freedom is a fundamental right.  The right of freedom of religion can be found in the First Amendment’s ‘Establishment’ and ‘Exercise’ clauses. Furthermore, the Supreme Court has noted that freedom of religion is a fundamental liberty.  Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 40 (1947).

At the end of section A an interesting phrase is used, “government actions that are facially neutral” (facially neutral is a fancy way of saying the policy applies generally). This is used to show the strength of the right of freedom of religion.  The author of the bill is saying, even if the legislature later creates a bill that seems like it does not affect religion, no holiday decorations will be allowed on commercial premises, the freedom of religion will trump any legislation that is passed by the legislature. Even though the legislation is not religious in nature, an exception will be made for religious purposes.

Section B starts to restrict what the government can do.  Unless whatever action taken by private citizens is a “substantial burden” to Arizona, the state cannot restrict a person’s right to religion even if it is applied generally.  So going back to our holiday decorations ban, unless it somehow “substantially burdens” the state, then the government cannot take any action.

C. State action may substantially burden a person’s  exercise of religion only if the government or nongovernmental person seeking the enforcement of state action demonstrates that application of the burden to the person’s exercise of religion in this particular instance is both:

1. In furtherance of a compelling governmental interest.

2. The least restrictive means of furthering that compelling governmental interest.

D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, regardless of whether the government is a party to the proceeding.

Section C creates the only exception of when a government or even a private person or company may interfere with religious freedoms.  It uses the standard of strict scrutiny which is a level of constitutional judicial scrutiny.  The United States Supreme Court created judicial scrutiny to evaluate laws that might infringe upon fundamental rights.  Holding fundamental rights to be the most important, the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.  This creates a very high hurdle for any potential exception to the legislation.

Section D allows any person, it does not have to be a business, to make a claim of religious freedom.   This claim can be made against the government or against a private citizen or company.

E. A person that asserts a violation of this section must establish all of the following:

1. That the person’s action or refusal to act is motivated by a religious belief.

2. That the person’s religious belief is sincerely held.

3. That the state action substantially burdens the exercise of the person’s religious beliefs.

F. The person asserting a claim or defense under this subsection D of this section may obtain injunctive or and declaratory relief.  A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.

Section E lays the foundation for a claim of infringement of religious freedom.  This standard would be used in court. The plaintiff has the burden of proving his/her religious freedom are infringed upon.  The problem with the three prongs that concerns me is the third prong.  In both Sections C and D language is used to indicate either the state or a nongovernmental actor can infringe upon the religious freedom.  The third prong of Section E only provides for governmental infringement.  Do not be confused.  Because even though earlier sections made a distinction between governmental and nongovernmental action, this section includes both even though “state action.”  See Section H for clarification on “state action.”

Section F provides for remedies.  Injunction relief would allow an individual to ask a court to either start or stop an action. Basically this allows the court to force change.  This is an important option because without injunctive relief the same action, either from the government or a nongovernmental actor, could continue to persist after the decision.  Declaratory relief is a resolution where the judge rules on a matter on an issue of law on undisputed or relatively undisputed facts. Thus, the statute does not provide for any monetary damages.

G. For the purposes of this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

H. For the purposes of this section, “state action” means any action, except for the requirements prescribed by section 41-1493.04, by the government or the implementation or application of any law, including state and local laws, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made by the government or nongovernmental persons.

Section G is important because it defines the term “substantially burdens.”  Earlier in Section E the term “substantially burden” is used to in what the plaintiff must prove to the judge in a claim.

Section H defines the term “state action” to include pretty much anything under the sun, including nongovernmental actors.  This helps clarify Section E.  Instead of conflicting with the earlier sections by not including non-governmental actors, the Arizona Legislature made up for this by sloppily and confusingly defining state action to include nongovernmental actors.


This bill allows individuals, corporations, partnerships, churches, religious assemblies, a way to assert their religious freedoms have been infringed and a legal avenue to correct it.

One impact of this bill is to give businesses and corporations religious freedoms.  Typically, religious freedoms have been though to a freedom for a person, not an inanimate object like a corporation or business.  This bill could help change that, at least in Arizona.  The United States Supreme Court already has ruled that businesses and corporations have the right to free speech in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).  And this term, the United States Supreme Court may touch on the concept of businesses and religious freedoms in the case in Sebelius v. Hobby Lobby Stores Inc. 13-354 (2014) http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-354.htm.

Another impact is discrimination.  This is the major critique of the bill and I agree with it.  Our freedoms found in the Bill of Rights are not absolute.  When competing interests are at odds we as a society must act in fairness.   Here both religious freedoms and equal protection are at odds.  Equal protection is in place to protect the most vulnerable members of our society who have been discriminated against and at times had their rights taken away.

There is a better way to balance both religious freedoms and equal protection interests than this bill.