US v. Meyers

• Decision Date: 14 November 1995
• Docket Number: No. 95-CR-0058-B.,95-CR-0058-B.
• Citation: 906 F. Supp. 1494
• Parties: UNITED STATES of America, Plaintiff v. David MEYERS, Defendant.
• Court: U.S. District Court — District of Wyoming

906 F. Supp. 1494

UNITED STATES of America, Plaintiff v. David MEYERS, Defendant.

No. 95-CR-0058-B.

United States District Court, D. Wyoming.

November 14, 1995.

Patrick J. Crank, Assistant U.S. Attorney (WY), Casper, WY, for Plaintiff.

Thomas B. Jubin, Cheyenne, WY, for Defendant.

ORDER ON MEYERS' RELIGION DEFENSE

BRIMMER, District Judge.

The United States charged Meyers with two offenses stemming from marijuana possession and trafficking. Meyers asserts that the United States cannot prosecute him for these crimes because, as a "Reverend" of the "Church of Marijuana," his possession and distribution of marijuana is legally protected religious conduct.

The delicate issue before the Court is whether the "Church of Marijuana" is a bona fide religion that triggers the protections of the Religious Freedom Restoration Act ("RFRA"). 42 U.S.C. § 2000bb et seq. Because this issue implicates the constitutional guarantee of religious freedom, the Court begins with an overview of the First Amendment's "free exercise" clause.

I. THE "FREE EXERCISE" OF RELIGION

Starkly and majestically, the First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." These words, cornerstones of American liberty, seem simple enough. So simple, in fact, that they have been reduced to shibboleths that mask their complexity. Because First Amendment slogans such as "the wall between church and state" and "religious freedom" have become so ingrained in the lay and legal vernacular it is appropriate to ask: What does it mean to assert that Congress cannot prohibit the "free exercise" of religion? The Court answers this question by beginning where it should, with the language of the amendment.

Because the word "exercise" connotes action, it is reasonable to assume at step one that the First Amendment protects the right to engage in religious acts. Though this is qualifiedly true, it overlooks the precursor to such action: religious belief. To the extent that a religious act is undertaken with volition and deliberation, it is impelled or caused by thought or belief. Thus, "free exercise" of religion includes, at a minimum, freedom of religious thought or belief. One might say, therefore, that the First Amendment's "free exercise" guarantee sets a floor on religious freedom; the floor is religious belief and Congress cannot drop below the floor by enacting laws that in any way interfere with or restrict such belief. This is a concept, based on liberty and tolerance, with which most of us would agree.

In its most obvious sense, however, "exercise" implies action. Thus, if the First Amendment's "free exercise" clause were taken literally, it would mean that Congress cannot enact laws which in any way interfere with or restrict a person's religious actions. This is a concept, also based on liberty and tolerance, that might cause the thoughtful among us to pause. This pause might cause us to conclude that anarchy and chaos would reign if citizens could justify any act or undertaking in the name of religious freedom.

With this in mind, the Supreme Court has recognized that religious freedom, as manifest in religious action, cannot be absolute in a country founded on the rule of law. This recognition means, of course, that the First Amendment cannot quite mean what it literally says:

The Amendment embraces two concepts, —freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.

Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). This does not mean, however, that government can regulate all religious conduct.¹ As the Supreme Court put it in Cantwell, "in every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Id. at 304, 60 S.Ct. at 903. Not surprisingly, the contours of "undue infringement" on religious freedom have changed with the ebb of circumstance and flow of history.

In practice, government's power to regulate religious freedom usually has meant that if government enacts "neutral laws of general applicability"—i.e., laws not directed toward a particular religious practice or group—the law may incidentally impair religious action. Thus, in an easy case, laws against murder may prohibit religiously motivated killing. In another easy case, laws against assault may prohibit religiously impelled physical attacks. The cases are not, however, always so easy.

Things become more difficult when laws against polygamy regulate religious freedom by prohibiting Mormons from marrying more than one wife. Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L.Ed. 244 (1878). The case is also more difficult when child labor laws curtail religious freedom by prohibiting young Jehovah's Witnesses from selling religious magazines. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). Similar difficulties arise when child abuse laws impinge on religious freedom by forcing Christian Science parents to take their ailing children to doctors. Lundman v. McKown, 530 N.W.2d 807 (Minn.Ct.App. 1995); People v. Rippberger, 231 Cal.App.3d 1667, 283 Cal.Rptr. 111 (Cal.Ct.App.1991); see also Sherr v. Northport-East, 672 F.Supp. 81, 90 (E.D.N.Y.1987) (mandatory immunization law impairs pantheist's religious freedom). It is also a hard case when laws against animal abuse interfere with religious freedom by prohibiting religiously prescribed animal sacrifice. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

As one might expect, some of the hard cases have led to exceptions, or special dispensations, that the Court bestows upon deserving (i.e., sympathetic) religious groups and practices. Thus, the Supreme Court has not always upheld neutral laws of general applicability when they "forbid one to do that which one's religion commands," or when they "command one to do that which is forbidden by one's religion." W. Van Alstyne, First Amendment 1053 (2d ed. 1995). In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Supreme Court held that a state law requiring all children under the age of 16 to attend public or private schools impermissibly infringed on the Amish religious belief in home schooling. Some state courts, apparently taking their cue from Yoder, have held that drug laws forbidding the use of hallucinogens impermissibly infringes on the Native American Church's use of peyote during religious ceremonies. State v. Whittingham, 19 Ariz.App. 27, 504 P.2d 950 (Ariz.Ct.App.1973); Whitehorn v. State, 561 P.2d 539 (Okla.Ct.Crim. App.1977).

Though the courts rarely acknowledged it, this exception making usually amounted to an implicit evaluation of the religion's bona fides and to an explicit balancing of the law and practice at issue. See Yoder, 406 U.S. at 235-36, 92 S.Ct. at 1543-44. Thus, under the Yoder regime, a court might well grant a "free exercise" exception to an otherwise illegal religious practice if: (1) the religion was of a respectable vintage; (2) it was recognized as a legitimate faith; (3) the beliefs were sincerely held; (4) the practice which was proscribed by law did not cause others any direct harm; and (5) uniform application of the law was not essential to maintaining public order. Id. In other words, under Cantwell, Yoder, and their progeny, courts could—when confronted with hard cases involving sympathetic parties engaged in innocuous religious activities—balance religious and social interests. See also Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (applying compelling interest test to state law infringing on religious freedom).

Unwilling or unable to work with the discretion and ambiguity that such an approach requires, this specialized exception making came to an abrupt end in 1990 with the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, the Court rejected the Yoder balancing test and held, unequivocally, that neutral laws of general applicability are not subject to free exercise challenges. 494 U.S. at 885-90, 110 S.Ct. at 1603-06. Explaining its decision to dispense with "balancing" and "strict scrutiny" when confronted with a free exercise challenge to a neutral law of general applicability, the Court observed:

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

Id. at 879, 110 S.Ct. at 1600 (quoting Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-95, 60 S.Ct. 1010, 1013, 84 L.Ed. 1375 (1940)). In closing, Justice Scalia recognized that the Court's decision essentially subjected free religious exercise to the vagaries of political accommodation, and concluded that this "unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs." Id. 494 U.S. at 890, 110 S.Ct. at 1606.

Congressional reaction to the changing of the free exercise guard in Smith was relatively swift. Accepting Justice Scalia's invitation to legislate religious accommodation, Congress did so with ironic vengeance by repudiating the Smith decision and specifically reviving the balancing test:

In Employment Division v. Smith, 494 U.S. 872 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) the Supreme

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