From the United States Court of Appeals for the Eighth Circuit, an interesting case on the limits of religious freedom in America, particularly at a time when we are debating the scope of statutes designed to enhance protections for religious exercise. According to the court’s recent opinion in United States v. Anderson, the defendant (Timothy Anderson) was indicted for violating the Controlled Substances Act and admitted to distributing heroin. But, Anderson said, he is “‘a student of Esoteric and Mysticism studies’ who created a ‘religious non-[p]rofit’ to distribute heroin to ‘the sick, lost, blind, lame, deaf, and dead members of Gods’ [sic] Kingdom.'” Relying upon the protections of the Religious Freedom Restoration Act (RFRA), Anderson argued that his heroin distribution amounted to exercising a “sincerely held religious belief.” He also said he had no intention of stopping such distribution because to do so would compromise his religious faith.
The Eighth Circuit (correctly) rejected the claim and affirmed the conviction. That seems unremarkable. What is remarkable about the case, though, is that the court still required the Government to prove a compelling interest, and the use of the least restrictive means, under RFRA. It is important, then, to remember the difference between the constitutional standard for religious exercise and the statutory standard that RFRA established. The First Amendment standard remains governed by Employment Division v. Smith, which says that the Government need not satisfy strict scrutiny as long as it is applying a neutral and generally applicable law, even where the application of that law burdens religious exercise. Under Smith, there is no question that application of the CSA to drug traffickers would be generally permissible, as having a rational basis. RFRA, however, added a new layer to religious freedom law, increasing the Government’s burden.
Still, in Anderson, the Eighth Circuit said it had no difficulty finding a compelling interest, holding that “prosecuting Anderson under the CSA would further a compelling governmental interest in mitigating the risk that heroin will be diverted to recreational users.” The chief ground for the court’s decision, then, was that Anderson distributed the heroin to those who were not sacramental users. So note that even if Anderson has a sincere religious belief about the distribution of heroin, that belief is not enough to protect him once he distributes the drug to others for recreational use — the compelling interest relates to the end users, not Anderson himself.
Therefore, Anderson’s case is distinct from cases like Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, in which the Supreme Court affirmed a preliminary injunction granted to a Brazilian-based Christian sect that uses a sacramental tea (hoasca) during communion. One of the ingredients in the tea is dimethyltryptamine (DMT), which is a Schedule I controlled substance. Customs officials intercepted the tea on its way to New Mexico, and threatened the church with prosecution. But the Supreme Court affirmed an injunction on enforcement against the church, holding that the Government had failed to meet its burden under RFRA. Consequently, rather than distinguish O Centro based on the comparative dangers of heroin as compared to hoasca (or peyote), the Eighth Circuit in Anderson instead distinguished O Centro on the ground that the heroin was not being distributed for sacramental usage.
What if, though, the end users claimed they were using the heroin for some sacramental purpose? What if dealers, or co-conspirators in the trafficking, claimed that it was their understanding that the heroin would go only to those who would use it for sacramental purposes?
That, of course, is a very different case, but not one that is entirely unforeseeable. Indeed, the Eighth Circuit cited United States v. Christie, a Ninth Circuit case in which the operators of the “Hawaii Cannabis Ministry” distributed cannabis to its members (apparently, membership was not difficult to achieve). But in that case, the ministry did not tell members that the cannabis was only for religious use, as opposed to recreational use. What if it had? If the Government has a compelling interest in preventing the use of cannabis for recreational, as opposed to religious, purposes, then doesn’t this require a fairly searching inquiry into the nature of the use and the sincerity of the user’s beliefs? Otherwise, the Government could always simply say that there is a risk that even ostensible religious use would become recreational, and therefore carry its burden under RFRA, in light of Christie’s theory. Indeed, the Anderson court noted that the district court in St. Louis did not evaluate the sincerity of Anderson’s religious beliefs, but rather assumed the sincerity of those beliefs and applied RFRA.
Is there a meaningful risk that drug traffickers and users will often, or increasingly, employ a religious-based defense to drug prosecutions, based on RFRA? Probably not. And even in cases in which RFRA is used as a tool for drug defendants, like Anderson, the Government’s interests in combating drug abuse are likely to carry the day. Still, it is notable that statutory religious freedom law places the Government in such a defensive posture in serious drug cases.
Hat tip to IJ’s “Short Circuit” for spotting this one.