Right by precedent, wrong by RFRA: the "substantial burden" inquiry in Oklevueha Native American Church of Hawaii, Inc. v. Lynch.

• Author: Kane, Tiernan
• Position: Religious Freedom Restoration Act of 1993

Not long ago, the United States Supreme Court reaffirmed that the Religious Freedom Restoration Act ("RFRA") (1) is a robust protection of religious freedom. (2) Still, some federal circuits remain devoted to a more restrictive teaching. (3) Recently, in Oklevueha Native American Church of Hawaii, Inc. v. Lynch, (4) the Ninth Circuit held that a church and church founder who used peyote, cannabis, and other substances, purportedly "to enhance spiritual awareness or even to occasion direct experience of the divine," had no claim for an exemption from laws governing cannabis. (5) According to the court, because the assertedly religious (6) actors believed that equivalent alternatives to cannabis use exist, they faced no "choice between obedience to their religion and criminal sanction" and thus no substantial burden under RFRA. (7) In so holding, the Oklevueha court did right by Ninth Circuit precedent, (8) but wrong by RFRA, which presumptively shields a person from any considerable hindrance of any religious exercise. Until it recognizes as much, the Ninth Circuit will deny claimants legal protection that they deserve.

1. THE OKLEVUEHA DECISION

   The story of Oklevueha begins with Michael Rex "Raging Bear" Mooney, who founded and leads the Oklevueha Native American Church of Hawaii, Inc. (9) Mooney and Oklevueha described their religion as "peyotism" and called peyote "the significant sacrament," (10) but they "honor[ed] and embrac[ed] all entheogenic naturally occurring substances." (11) In particular, they consumed cannabis "in addition to and in the [sic] substitute for their primary entheogenic sacrament, Peyote." (12) They claimed that the purpose of this cannabis use was "similar to the purpose of many other intensive religious practices--to enhance spiritual awareness or even to occasion direct experience of the divine." (13) Mooney and Oklevueha sought "a declaration of their right to possess and distribute cannabis, and an injunction preventing the Government from prosecuting Church members for their cannabis-related activities." (14) On the plaintiffs' theory, they had a right to an exemption under RFRA, the American Indian Religious Freedom Act, the Free Exercise Clause, and the Equal Protection Clause. (15)

   After dismissing all but the RFRA claim, the district court granted summary judgment in favor of the government. (16) Under RFRA, the plaintiffs must show that their practice is religious and substantially burdened. (17) According to the court, Oklevueha and Mooney had shown neither. (18) That "[p]laintiffs call[ed] their practice religious, call[ed] themselves peyotists, ha[d] included 'Native American Church' in their name, ... [were] led by Mooney, a Native American," and "declare[d] that they [were] allowed by law to use peyote" was insufficient, in the court's view, to establish that their cannabis use was an "exercise of religion" under RFRA. (19) Moreover, because nothing in the record indicated that "cannabis [was] unique or essential to the exercise of [the plaintiffs'] alleged religion," the court held that the prohibition of use and distribution of cannabis was a mere inconvenience, not a substantial burden, on plaintiffs who might use other drugs for religious purposes instead. (20) Finding neither an exercise of religion nor a substantial burden, the district court denied the plaintiffs' RFRA claim and closed the case. (21)

   The Ninth Circuit affirmed. Writing for the panel, Judge O'Scannlain assumed that plaintiffs were engaged in an "exercise of religion" but upheld summary judgment for lack of a "substantial burden." (22) Following Ninth Circuit precedent, the court held that government "substantially burdens a person's exercise of religion" only when it forces individuals to "choose between following the tenets of their religion and receiving a governmental benefit" or when it "coerce[s] [them] to act contrary to their religious beliefs by the threat of civil or criminal sanctions." (23) Applying the second test, the court found that Mooney and Oklevueha faced no choice "between obedience to ... religion and criminal sanction" because they did not attribute any "unique religious function" to cannabis and because they did not claim to lack equivalent alternatives. (24) Absent such a dilemma, the plaintiffs were not "coerced to act contrary to their religious beliefs," and thus had no RFRA claim. (25)

   Judge O'Scannlain distinguished the case at hand from Burwell v. Hobby Lobby (26) and Holt v. Hobbs. (27) In those cases, the Oklevueha court stressed, the government had contradicted a religious requirement. In Hobby Lobby, the government had "demand[ed] that the businesses and their owners 'engage in conduct that seriously violates their religious beliefs' by requiring them to provide abortifacients or face significant financial penalties." (28) In Holt, a "prison's refusal to allow [an] inmate to grow a beard [had] forced him to choose between 'engag[ing] in conduct that seriously violates [his] religious beliefs' or 'fac[ing] serious disciplinary action.'" (29) In the present case, by contrast, the government required abstention from an activity that the plaintiffs' religion did not require. Thus, compliance with the mandate entailed no serious violation of religious belief. (30) In the Oklevueha court's judgment, that distinction is dispositive under RFRA. (31)

2. RFRA'S "SUBSTANTIAL BURDEN"

   Not for the first time, however, a past decision distorted human judgment in this case. Here, blame belonged to Navajo Nation v. U.S. Forest Service, (32) in which a Ninth Circuit en banc panel applied "substantially burden" as a term of art defined by certain Supreme Court decisions. (33) The Oklevueha Court followed Navajo Nation's interpretation of RFRA, but that interpretation was mistaken. A close reading of RFRA reveals that "substantially burden" bears its ordinary meaning there. The Supreme Court implied as much in Hobby Lobby and Holt when it distinguished RFRA from Court precedent on religious liberty and relied instead on a plain reading of the text.

   1. The Navajo Nation Interpretation

      In general, under RFRA, "Government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability." (34) According to the Oklevueha court, "the meaning of ['substantially burden'] can be ascertained by looking to 'a body of Supreme Court case law' decided before Employment Division v. Smith." (35) For this proposition, the court cited Navajo Nation, (36) in which the en banc panel held that "Sherbert [v. Verner], (37) [Wisconsin v.] Yoder, (38) and federal court rulings prior to Smith ... control the 'substantial burden' inquiry." (39) In both Navajo Nation and Oklevueha, the Ninth Circuit justified its claim by reference to RFRA's statement of findings and purposes, (40) but only in the former case did the court explain its reasoning, which follows in reconstructed form.

      In the Navajo Nation court's view, RFRA does not expressly define the meaning of "substantial burden, (41) and therefore, courts must infer that Congress meant to "incorporate" that term's "established meaning." (42) The words "substantial burden" had a meaning established "in numerous Supreme Court cases in applying the Free Exercise Clause," (43) all of which "found a substantial burden on the exercise of religion only when the burden fell within the Sherbert/Yoder framework." (44)

      Further, according to Navajo Nation, it is clear that Congress knew of this established meaning because it "expressly adopted and restored Sherbert, Yoder, and other pre-Smith cases." (45) That is, Congress made clear that the pr e-Smith compelling interest test was "a workable test for striking sensible balances between religious liberty and competing prior governmental interests." (46) Moreover, Congress stated its purpose "to restore the compelling interest test as set forth in [Sherbert] and [Yoder] and to guarantee its application in all cases where free exercise of religion is substantially burdened." (47) Importantly, Congress defined its compelling interest test by reference both to Sherbert and to Yoder. This would have been unnecessary if Congress meant only to define "the content of what constitutes a compelling interest" because the content was the same in both cases. (48) Assuming that Congress did not act "redundant[ly] and superfluously]," it must have cited Sherbert and Yoder to establish their "two separate and distinct substantial burden standards ... to determine when the compelling interest test is invoked." (49) In other words, Congress invoked Sherbert and Yoder to limit application of the compelling interest test to situations...