UNITED STATES OF AMERICA, Plaintiff, v. DAVID MEYERS, Defendant.
No. 95-CR-58-B
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING
906 F. Supp. 1494
November 14, 1995, Decided
November 14, 1995, Filed
COUNSEL: ATTORNEY(S) for Plaintiffs Patrick J. Crank, Assistant
U.S. Attorney (WY) 111 South Wolcott, Room 138 Casper, WY 82601-2534 Ph: 307-261-5434
ATTORNEYS(S) for Defendants Thomas B. Jubin, Esq. P.O. Box 943 Cheyenne, WY 82003-0943
Ph: 307-637-4965
OPINION BY: CLARENCE A. BRIMMER
OPINION
[*1495] ORDER ON MEYERS' RELIGION DEFENSE
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. Because this issue implicates the constitutional
guarantee of religious freedom, the Court begins with an overview of the First Amendment's
"free exercise" clause.
[*1496] 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, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). This does not mean,
however, that government can regulate all religious conduct. [Footnote 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.
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. 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 [*1497] magazines.
Prince v. Massachusetts,
321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (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, 124
L. Ed. 2d 472, 113 S. Ct. 2217 (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, 32 L. Ed. 2d 15, 92 S. Ct. 1526
(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. 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, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (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, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (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. 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 (quoting Minersville School
Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-95, 84 L. Ed. 1375,
60 S. Ct. 1010 (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 [*1498]
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. at 890.
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, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990)
the Supreme Court virtually eliminated the requirement that the government justify
burdens on religious exercise imposed by laws neutral toward religion. The compelling
interest test as set forth in prior Federal court rulings is a workable test for
striking sensible balances between religious liberty and competing prior governmental
interests.
42 U.S.C. § 2000bb(4) - (5). The Religious Freedom Restoration Act therefore restores
"the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790
(1963) and Wisconsin v. Yoder,
406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972)," and provides a "defense
to persons whose religious exercise is substantially burdened by government."
42 U.S.C. § 2000 bb(b)(1)- (2). Under RFRA, government may substantially burden
a person's exercise of religion only if it demonstrates that the burden (i.e., the
law at issue, even if neutral and general): (1) furthers a compelling governmental
interest; and (2) is the least restrictive means of furthering that interest. 42
U.S.C. § 2000bb-1(b)(1) - (2).
Though there are questions about RFRA's constitutionality, compare Sasnett v. Department
of Corrections, 891 F. Supp. 1305, 1320 (W.D. Wis. 1995) (RFRA is constitutional)
with Flores v. City of Boerne, 877 F. Supp. 355, 358 (W.D. Tx. 1995) (RFRA
is unconstitutional), that issue is not before the Court. Moreover, the Tenth Circuit
recently discussed and relied on RFRA without raising any questions about its constitutionality.
Werner v. McCotter,
49 F.3d 1476, 1479 (10th Cir. 1995), cert. denied, 115 S. Ct. 2625, 132
L. Ed. 2d 866 (1995). Until the Tenth Circuit or Supreme Court decides otherwise,
this Court will presume that RFRA is constitutional.
This is, therefore, the free exercise landscape which underlies Meyers' assertion
that he cannot be prosecuted under federal drug laws because those laws substantially
burden his RFRA-based right to possess and distribute marijuana for religious purposes.
II. The Definition of "Religion" under RFRA
Meyers cannot simply raise a RFRA defense by asserting that his possession and use
of marijuana is a central tenet of his religion. As is the case with defenses raised
under the First Amendment's "free exercise" clause, Meyers must show --
as a threshold matter -- that his beliefs constitute a "religion." In
other words, Meyers can trigger RFRA's protections only if he demonstrates that
"The Church of Marijuana" is a bona fide religion for RFRA purposes.
As is true of the First Amendment, RFRA could easily become the first refuge of
scoundrels if defendants could justify illegal conduct simply by crying "religion."
To assert a free exercise defense, a defendant first must show that his "religion"
is bona fide. Yoder, 406 U.S.
at 215-16. On this issue, the Fifth Circuit has aptly observed:
While it is difficult for the courts to establish precise standards by which the
bona fides of a religion may be judged,[*] such difficulties have proved to be no
hindrance to denials of First Amendment protection to so-called religions which
tend to mock established institutions and are obviously shams and absurdities and
whose members are patently devoid of religious sincerity.
Theriault v. Carlson,
495 F.2d 390, 395 (5th Cir. 1974). [Footnote 2] Before delving into the bona
[*1499] fides of Meyers' marijuana-based "religion," the
Court must decide a threshold issue that arises under RFRA and which no other courts
have addressed: Whether Congress defined "religion" under RFRA in the
same way that federal courts have defined "religion" for First Amendment
purposes.
Perhaps realizing that defining "religion" would require it to "ponder
the imponderable and define the indefinable," Jacques v. Hilton, 569
F. Supp. 730, 731 (D.N.J. 1983), Congress did not attempt to define "religion"
in RFRA's definition section. Although RFRA does not define "religion,"
its language suggests that courts should rely on First Amendment case law to define
that which is left undefined. This suggestion arises from the obvious fact that
RFRA is based on, and responds to, First Amendment jurisprudence. See 42 U.S.C.
§ 2000bb(a). Congress expressly stated that the purpose of RFRA is "to restore
the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790
(1963) and Wisconsin v. Yoder,
406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972)." 42 U.S.C. § 2000bb(b).
The compelling interest test is, of course, a constitutional test. Because RFRA
uses pre-Smith
constitutional standards to establish statutory rights, this Court concludes that
RFRA defines "religion" in the same way that federal courts have defined
"religion" for First Amendment purposes.
Having decided that "religion" under RFRA is the same as "religion"
under the First Amendment, the Court turns to the patchwork of cases that, considered
together, provide a workable definition of "religion." The Court examines
these cases with two prudential propositions in mind. The first is that one man's
religion will always be another man's hearsay. The Court will not, therefore, find
that a particular set of beliefs is not religious because it disagrees with the
beliefs. See Kuch,
288 F. Supp. at 443 (court must not use own moral and ethical standards to determine
whether beliefs are "religious"). Nor will the Court find that a particular
set of beliefs is not religious because the beliefs are, from either the Court's
or society's perspective, idiosyncratic, strange, solipsistic, fantastic, or peculiar.
[Footnote 3] See
Africa v. Commonwealth, 662 F.2d 1025, 1030 (3d Cir. 1981) (judges
are not "oracles of theological verity"); Stevens v. Berger,
428 F. Supp. 896, 899 (E.D.N.Y. 1977) (apparently preposterous beliefs can be religious
and merit constitutional protection). The second proposition is that if there is
any doubt about whether a particular set of beliefs constitutes a religion, the
Court will err on the side of freedom and find that the beliefs are a religion.
In a country whose founders were animated in large part by a desire for religious
liberty, to do otherwise would ignore a venerable (albeit checkered) history of
freedom and tolerance.
As a number of courts have observed, the Supreme Court's forays into the metaphysical
realm "religion" have not resulted in any sort of comprehensive definition
of the term.
Africa, 662 F.2d at 1031;
Kuch, 288 F. Supp. at 443. [Footnote 4] The Court's first foray
miscarried badly when it held that "the term 'religion' has reference to one's
views of his relations to his Creator, and to the obligations they [*1500]
impose of reverence for his being and character, and of obedience to his will."
Davis v. Beason, 133
U.S. 333, 342, 33 L. Ed. 637, 10 S. Ct. 299 (1890). Though Cotton Mather probably
would have agreed with this monotheistic statement, later incarnations of the Court
did not. In Torcaso v. Watkins,
367 U.S. 488, 495 n.11, 6 L. Ed. 2d 982, 81 S. Ct. 1680 (1961), the Supreme Court
moved away from a theistically narrow definition of religion when it observed that
the First Amendment does not allow states to enact laws which discriminate between
theistic and non-theistic religions. The Court moved even further away from the
traditional theistic view of religion in the conscientious objector cases.
United States v. Seeger, 380 U.S. 163, 13 L. Ed. 2d 733, 85 S.
Ct. 850 (1965); Welsh v. United
States, 398 U.S. 333, 26 L. Ed. 2d 308, 90 S. Ct. 1792 (1970). In these cases, both
of which addressed the meaning of the phrase "religious training and belief"
as used in the draft act, the Court dispensed with the theistic/non-theistic approach
and adopted a "parallel belief" approach:
The test [for a "religious training and belief" exemption] might be stated
in these words: A sincere and meaningful belief which occupies in the life of its
possessor a place parallel to that filled by the God of those admittedly qualifying
for the exemption . . . .
Seeger, 380
U.S. at 176; Welsh, 398
U.S. at 344 (conscientious objector section exempts those opposed to war because
of "deeply held moral, ethical, or religious beliefs"). [Footnote 5] If
there was any hope that the parallel belief test -- which is a functional test that
" define[s] 'religion' in terms of the role a belief plays in the individual's
or group's life" [Footnote 6] -- might be carried over to the Religion Clauses,
the Court dashed the hope in
Yoder:
If the Amish asserted their [free exercise] claims because of their subjective evaluation
and rejection of the contemporary secular values accepted by the majority, much
as Thoreau rejected the social values of his time and isolated himself at Walden
Pond, their claims would not rest on a religious basis.
406 U.S. at 216. Those familiar with Thoreau's transcendental philosophy know that
if anyone held "sincere and meaningful beliefs" occupying a place in his
life "parallel to that filled by the God" of others, it was Thoreau. It
seems, therefore, that the functional definition of "religion" adumbrated
in Seeger and
Welsh is,
at least for First Amendment purposes, dead.
Although the Supreme Court has done little to identify positively what "religion"
is for First Amendment purposes, it has done a slightly better job of providing
guidelines that courts should follow when attempting to determine whether a set
of beliefs is "religious." First, courts may not consider whether the
party's purportedly religious beliefs are true or false.
United States v. Ballard, 322 U.S. 78, 92, 88 L. Ed. 1148, 64 S.
Ct. 882 (1944). Speaking strongly in defense of religious freedom, the
Ballard Court stated: "Heresy trials are foreign to our Constitution.
Men may believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs."
Id. at 86. Second, courts cannot rely on their perhaps biased and
traditional ideas about what constitutes a religion. As the Supreme Court put it
in Thomas v. Review Board,
450 U.S. 707, 714, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981), "religious beliefs
need not be acceptable, logical, consistent, or comprehensible to others in order
to merit First Amendment protection."
Taking heed of these proclamations, nearly every lower court to tackle the "religion"
issue begins its analysis with cautionary statements. See
Africa, 662 F.2d at 1031 (judges are ill-equipped to examine breadth
and content of avowed religion and must avoid predisposition toward conventional
religions); Remmers v. Brewer, 361 F. Supp. 537, 540 [*1501]
(S.D. Iowa 1973) (court must give "religion" wide latitude to ensure that
state approval never becomes prerequisite to practice of faith);
Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir. 1985) (court must
cautiously approach "extremely delicate task" of determining whether belief
is religious); Stevens, 428 F. Supp. at 899 (court faces severe limitations
when undertaking this "difficult and sensitive factfinding task"). Though
the sensitivity of this task has caused courts to tread lightly on the waters of
religion, they have not feared to tread there: "when an individual invokes
the first amendment to shield himself or herself from otherwise legitimate state
regulation, we are required to make such uneasy differentiations."
Africa, 662 F.2d at 1031. As Judge Skelly-Wright put it:
Not every enterprise cloaking itself in the name of religion can claim the constitutional
protection conferred by that status. . . . When otherwise proscribed substances
are permitted to be used for purposes of worship, worship must be defined.
Founding Church of Scientology v. United States, 133 U.S. App.
D.C. 229, 409 F.2d 1146 (D.C. Cir. 1969); Stevens, 428 F. Supp. at 900
(requirements of ordered society mandate inquiry into bona fides of religion).
In their often admirable efforts to define "religion," the lower courts
have raised issues, proferred ideas, quoted rules, and formulated principles. No
one court, however, has articulated what appears to be the penultimate test for
"religion." Indeed, some courts have observed that there can be no such
test. Judge Augustus Hand was of the opinion that "the content of the term
["religion"] is found in the history of the human race and is incapable
of compression into a few words." United States v. Kauten, 133 F.2d
703, 708 (2d Cir. 1943). Another court has opined that a "succinct and comprehensive"
definition of religion "would appear to be a judicial impossibility."
Remmers, 361 F. Supp. at 540; accord Sherr, 672 F. Supp. at 92
(defining religion may be "virtually impossible").
It may be that given the ethereal and evolving nature of religion, there never should
be such a test. Fixing a definition carries risks. If -- in the laudable interest
of protecting every conceivable form of religion, present and future -- the definition
is exceptionally broad, the term "religion" might well be stretched beyond
recognition. The danger here lies in the fact that the definition would encompass
all manner of outlooks, philosophies, beliefs, and lifestyles. Adherents to these
outlooks, philosophies, beliefs, and lifestyles would then be able to claim First
Amendment or RFRA protection for their "religious" acts, whether legal
or not. On the other hand, not fixing a definition carries risks as well. If --
in the laudable interest of retaining the jurisprudential flexibility to include
new religions and to exclude social philosophies -- the definition is left vague,
the "term" religion might acquire different meanings depending on the
predilections of a particular court. The danger here lies in the fact that a court
with particular leanings might manipulate the definition to include beliefs with
which it agrees, while a court with different leanings later might manipulate the
definition to exclude beliefs with which it disagrees. In other words, the trees
of religious freedom would bend with the political breeze.
In an attempt to avoid these dangers, this Court has canvassed the cases on religion
and catalogued the many factors that the courts have used to determine whether a
set of beliefs is "religious" for First Amendment purposes. These factors,
as listed below, impose some structure on the word "religion." The structure
necessarily is calico, composed -- as it is -- of language, history, theology, philosophy,
psychology, and law. It is, nonetheless, structure. The Court will use this structure
to include, not exclude. By this, the Court means that it will examine Meyers' beliefs
to determine if they fit the factors. To the extent they do, it indicates to the
Court that his beliefs are religious. The threshold for inclusion -- i.e., that
Meyers' beliefs are religious -- is low. This minimal threshold, uncertain though
it may be, ensures that the Court errs where it should, on the side of religious
freedom. The Court will not, on the other hand, examine Meyers' beliefs and conclude
that they are not religious because they do not fit the factors. [*1502]
Bluntly stated, there is no absolute causal link between the fact that Meyers' beliefs
do not fit the criteria and the conclusion that his beliefs are not religious.
With this in mind, the Court will consider the following factors to determine whether
Meyers' beliefs are "religious" for RFRA purposes:
1. Ultimate Ideas: Religious beliefs often address fundamental questions about life,
purpose, and death. As one court has put it, "a religion addresses fundamental
and ultimate questions having to do with deep and imponderable matters."
Africa, 662 F.2d at 1032. These matters may include existential
matters, such as man's perception of life; ontological matters, such as man's sense
of being; teleological matters, such as man's purpose in life; and cosmological
matters, such as man's place in the universe.
2. Metaphysical Beliefs: Religious beliefs often are "metaphysical," that
is, they address a reality which transcends the physical and immediately apparent
world. Adherents to many religions believe that there is another dimension, place,
mode, or temporality, and they often believe that these places are inhabited by
spirits, souls, forces, deities, and other sorts of inchoate or intangible entities.
3. Moral or Ethical System: Religious beliefs often prescribe a particular manner
of acting, or way of life, that is "moral" or "ethical." In
other words, these beliefs often describe certain acts in normative terms, such
as "right and wrong," "good and evil," or "just and unjust."
The beliefs then proscribe those acts that are "wrong," "evil,"
or "unjust." A moral or ethical belief structure also may create duties
-- duties often imposed by some higher power, force, or spirit -- that require the
believer to abnegate elemental self-interest. [Footnote 7]
4. Comprehensiveness of Beliefs: Another hallmark of "religious" ideas
is that they are comprehensive. More often than not, such beliefs provide a telos,
an overarching array of beliefs that coalesce to provide the believer with answers
to many, if not most, of the problems and concerns that confront humans. In other
words, religious beliefs generally are not confined to one question or a single
teaching.
Africa, 662 F.2d at 1035.
5. Accoutrements of Religion: By analogy to many of the established or recognized
religions, the presence of the following external signs may indicate that a particular
set of beliefs is "religious" [Footnote 8]:
a. Founder, Prophet, or Teacher: Many religions have been wholly founded or significantly
influenced by a deity, teacher, seer, or prophet who is considered to be divine,
enlightened, gifted, or blessed.
b. Important Writings: Most religions embrace seminal, elemental, fundamental, or
sacred writings. These writings often include creeds, tenets, precepts, parables,
commandments, prayers, scriptures, catechisms, chants, rites, or mantras.
c. Gathering Places: Many religions designate particular structures or places as
sacred, holy, or significant. These sites often serve as gathering places for believers.
They include physical structures, such as churches, mosques, temples, pyramids,
synagogues, or shrines; and natural places, such as springs, rivers, forests, plains,
or mountains.
d. Keepers of Knowledge: Most religions have clergy, ministers, priests, reverends,
monks, shamans, teachers, or [*1503] sages. By virtue of their
enlightenment, experience, education, or training, these people are keepers and
purveyors of religious knowledge.
e. Ceremonies and Rituals: Most religions include some form of ceremony, ritual,
liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed
by the religion and are imbued with transcendent significance.
f. Structure or Organization: Many religions have a congregation or group of believers
who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages,
priests, etc.
g. Holidays: As is etymologically evident, many religions celebrate, observe, or
mark "holy," sacred, or important days, weeks, or months.
h. Diet or Fasting: Religions often prescribe or prohibit the eating of certain
foods and the drinking of certain liquids on particular days or during particular
times.
i. Appearance and Clothing: Some religions prescribe the manner in which believers
should maintain their physical appearance, and other religions prescribe the type
of clothing that believers should wear.
j. Propagation: Most religious groups, thinking that they have something worthwhile
or essential to offer non-believers, attempt to propagate their views and persuade
others of their correctness. This is sometimes called "mission work,"
"witnessing," "converting," or proselytizing. [Footnote 9]
As is apparent, the Court has compiled many of these factors by looking to other
religions as models. [Footnote 10] E.g.,
Malnak v. Yogi, 592 F.2d 197, 207 (3d Cir. 1979). Despite this
fact, the Court recognizes that it cannot rely solely on established or recognized
religions to guide it in determining whether a new and unique set of beliefs warrants
inclusion. Thus, the Court again emphasizes that no one of these factors is dispositive,
and that the factors should be seen as criteria that, if minimally satisfied, counsel
the inclusion of beliefs within the term "religion." [Footnote 11] See
Malnak, 592 F.2d at 210 (three indicia of religion are "helpful"
but not a final test for religion).
Under this low-threshold "inclusion test," the Court presumes that the
following sets of beliefs are "religious": Judaism, Christianity, Islam,
Hinduism, Buddhism, Shintoism, Confucianism, and Taoism. Undoubtedly, the test also
would lead to the conclusion that the beliefs of the following groups are "religious":
Hare Krishnas, Bantus, Mormons, Seventh Day Adventists, Christian Scientists, Scientologists,
Branch Davidians, Unification Church Members, and Native American Church Members
(whether Shamanists or Ghost Dancers). More likely than not, the test also includes
obscure beliefs such as Paganism, Zoroastrianism, Pantheism, Animism, Wicca, Druidism,
Satanism, and Santeria. [*1504] And, casting a backward glance
over history, the test assuredly would have included what we now call "mythology":
Greek religion, Norse religion, and Roman religion.
All of this probable inclusion leads to an obvious question: Is anything excluded?
Purely personal, political, ideological, or secular beliefs probably would not satisfy
enough criteria for inclusion. See
Africa, 662 F.2d at 1036 (holding that beliefs are secular, not
religious); Berman, 156 F.2d at 380-81 (holding that beliefs are moral
and social, not religious); Jacques, 569 F. Supp. at 736 (holding that
beliefs are personal, not religious); Church of the Chosen People, 548
F. Supp. at 1253 (holding that beliefs are sexual and secular, not religious). Examples
of such beliefs are: nihilism, anarchism, pacifism, utopianism, socialism, libertarianism,
Marxism, vegetism, and humanism. However, rather than answering the exclusion question
solely in the abstract, the Court will answer it concretely by examining Meyers'
beliefs concerning the "Church of Marijuana."
III. THE NATURE OF MEYERS' BELIEFS
During a hearing conducted outside the presence of the jury, Meyers attempted to
prove the bona fides of his alleged religion. Meyers testified that he has smoked
marijuana since the age of 16, and that he smoked marijuana because it cured him
of manic depression. When he has access to marijuana, Meyers smokes between 10 and
12 joints per day. Although Meyers lived in Ethiopia for a while, he apparently
did not join the Ethiopian Zion Coptic Church, which is a Christian sect that uses
marijuana as a sacrament. See
Olsen v. DEA, 878 F.2d 1458, 279 U.S. App. D.C. 1 (D.C. Cir. 1989).
Meyers stated that he began worshipping marijuana because it brought peace into
his life.
Meyers founded the "Church of Marijuana" in 1973. The church allegedly
has 800 members and one designated meeting spot. The church's "religion"
is to grow, possess, and distribute marijuana. The church's "bible" is
a ponderously titled book: Hemp & the Marijuana Conspiracy: The Emperor Wears
No Clothes -- The Authoritative Historical Record of the Cannabis Plant, Marijuana
Prohibition, & How Hemp Can Still Save the World ("Hemp"). The church
does not have a formal clergy, but does have approximately 20 "teachers."
Meyers did not explain what the teachers do. Although there are teachers, the church
has no hierarchy or governing body. The church does not attempt to propagate its
beliefs in any way, and does not assert that everyone should smoke marijuana. Nonetheless,
part of the "religion" is to work towards the legalization of marijuana.
Meyers testified that he (and presumably other church members) pray to the marijuana
plant. The church's only ceremony revolves around one act: the smoking and passing
of joints. Joint smoking apparently results in a sort of "peaceful awareness."
Meyers did not assert that this "peaceful awareness" is a religious state.
While "peacefully aware" (vulgarly known as being "high"), church
members "talk to one another." Meyers did not divulge the nature of their
discussions. There are no formal church services.
As Meyers sees things, marijuana has great social value. With impressive alliteration,
he called marijuana "the persecuted plant of peace." Meyers commented
that marijuana plays a role in social bonding, and -- most importantly -- it keeps
people off more harmful drugs such as heroin, methamphetamine, cocaine, and alcohol.
The "Church of Marijuana" uses the sacred weed to wean addicts from these
more harmful drugs.
In response to a question from the Court concerning the church's moral code, Meyers
said that it was "to give a hand up, but not a hand out." Apparently,
this is a reference to the church's efforts to help addicts kick their alcohol and
hard drug habits. In this respect and others, marijuana is a "miracle medicine."
Meyers referred to marijuana as a medicine many times during the hearing.
In response to questioning from the Court about the church's teachings, if any,
on "ultimate ideas" such as life, death, and purpose, Meyers essentially
stated that his views on these issues are Christian. In fact, he observed, he is
a Christian. Although (an apparently [*1505] Christian) God is
at the top of the religion, "the marijuana plant is the center of attention."
Meyers said that all church members are Christians, but did not assert that the
church was a Christian sect or denomination.
IV. MEYERS' BELIEFS ARE NOT "RELIGIOUS" UNDER RFRA
A. Ultimate Ideas
During his discursive testimony about his ostensible religion, Meyers never mentioned
any beliefs that dealt with "ultimate concerns" such as life, purpose,
and death. The "Church of Marijuana" apparently has nothing to say about
profound and sublime issues such as man's sense of self, purpose in life, role in
the world, existence in time, and being in space. Meyers neither mentioned nor discussed
any beliefs that respond to the sorts of concerns that most other religions address:
a fear of the unknown, the pain of loss, a sense of alienation, feelings of purposelessness,
the inexplicability of the world, and the prospects of eternity. The Court simply
was unable to discern anything ultimate, profound, or imponderable about Meyers'
beliefs.
B. Metaphysical Beliefs
There is nothing metaphysical about Meyers' beliefs. Indeed, everything about his
beliefs is physical. He smokes the dried leaves of a plant, and the resulting psycho-pharmacological
effects leave him in a state of "peaceful awareness." Though the Court
does not doubt that certain physical states of being can engender or induce different
mental states of being, this does not mean that deliberately altered physical states
of being are themselves "religious." The Court also recognizes that certain
religions use mind-altering substances, or engage in mind-altering physical activities
(such as fasting or sitting in sweat lodges), as a means to a spiritual end. The
end usually is movement toward, or the perception of, a different reality or dimension.
Here, there is no such end.
Meyers did not say that smoking 10 to 12 joints a day propelled him into a perpetual
state of religious awareness, or that smoking 10 to 12 joints a day was a means
to a religious end. For Meyers, the end appears to be smoking marijuana. Meyers
never equated marijuana smoking with a spiritual dimension, mystical plane, or transcendent
reality. Although Meyers thinks that smoking marijuana has great therapeutic value,
he did not assert that smoking marijuana lofts him into the realm of the religious.
Thus, there does not appear to be anything metaphysical about Meyers' beliefs.
C. Moral or Ethical System
The Church of Marijuana apparently has only one ethical or moral precept: "Give
a hand up, not a hand out." Meyers mentioned this motto only after the Court
asked him whether his religion had any moral or ethical beliefs. Meyers went on
to explain that his church gives others "a hand" by helping drug addicts
and alcoholics kick their habits. The church does so by using marijuana as a substitute
for other drugs or alcohol.
Although helping others kick detrimental habits certainly is a laudable goal, it
hardly supplies church members with the pervasive guidance that ethics or morals
provide. A single precept that encourages church members to help drug addicts or
alcoholics kick their habits does not answer questions such as: How should I live
my life? How should I treat others? What is forbidden? What is allowed? A single
injunction to help others may itself be moral or ethical under the standard of most
religions (or under the standard of secular ethics and morals), but that does not
transform the injunction into an ethics or morality.
This aside, Meyers did not discuss any beliefs or commands that require believers
to abandon base or elemental self-interest. Nothing about Meyers' "religion"
restrains members from doing that which they should not do, or binds them to do
that which they should do. It is apparent, therefore, that Meyers' alleged religion
has neither produced nor adopted an ethical code or moral system.
[*1506] D. Comprehensiveness of Beliefs
There is nothing comprehensive about Meyers' beliefs. He worships a single plant;
as he put it, the marijuana plant is "the center of attention." Though
marijuana is at the center, Meyers did not explain what consequences ensue. Meyers
did not intimate that things stay together because this center holds. It does not
seem to the Court that the growth, use, possession, and distribution of marijuana
is any sort of telos or all encompassing goal that informs the lives of church members.
Indeed, as the Court sees it, it would be difficult to conceive of a more monofaceted
"religion." Meyers' purported religion is confined to the alleged beneficence
of one plant. Meyers did not assert that the plant has spoken to him, that it counsels
him, that it guides him, or that it teaches him. In his "religion," the
plant essentially is passive.
Though the Court is wary of comparing Meyers' beliefs to those of established religions,
it may be appropriate to do so here. In other religions, such as Native American
religions, ancient Mexican religions, and primitive tribal religions, mind-altering
plants are sacred. The plants are not, however, the focus of these religions. Rather,
they are a means to an end, the end being to attain a state of religious, spiritual,
or revelatory awareness. When believers achieve this state, they are privy to all
manner of visions and revelations concerning the past, present, and future. After
experiencing these states -- which are intense and transitory -- they rely on their
visions and revelations to guide their actions.
Based on his testimony, it is clear that Meyers' experience with marijuana is much
different. The focus of his religion is to experience continuously the state of
mind that results from smoking marijuana. Though this apparently results in a "peaceful
awareness" for Meyers, he does not associate this state of mind with any sort
of religious epiphany, spiritual revelation, or transcendental awareness. Moreover,
this awareness apparently does not lead to enlightened percipience concerning the
past, present, or the future.
As the court in
Malnak saliently commented, "[a] religion is not generally
confined to one question or one moral teaching; it has a broader scope." 592
F.2d at 209. Here, Meyers' purported religion is confined to one plant. Though the
plant apparently has cured Meyers' manic depression and keeps him calm, this therapeutic
effect is not religious. The marijuana plant does not provide Meyers with the comprehensive
inspiration or guidance that the godheads of other religions provide to their followers.
E. Accoutrements of Religion
The Church of Marijuana possesses few of the "externalities" that help
to identify a set of beliefs as "religious."
1. Founder, Prophet, or Teacher: Although Meyers founded the church
in 1973, he does not claim that he alone possessed the kind of spiritual wisdom,
ethereal knowledge, or divine insight that often leads to the founding of a religion.
Meyers calls himself a "Reverend" of the church, but does not assert that
he alone is fit for that role, and does not contend that he is divine, enlightened,
or gifted. The Church of Marijuana apparently has no founder or teacher similar
to an Abraham, Jesus, Mohammed, Buddha, Confucius, Krishna, Smith, or Black Elk.
2. Important Writings: Meyers testified that the church's "bible"
is Hemp, which was written by Jack Herer. The editors of Hemp are Chris Conrad,
Lynn Osborne, Judy Osborne, Ellen Komp, and Jeremy Stout. Meyers did not claim that
either Herer or any of the editors are members of the Church of Marijuana, or that
they are even aware of its existence.
In the introduction to Hemp, Herer -- who is the "Director and Founder"
of "Help End Marijuana Prohibition (HEMP)" -- discusses Hemp's secular
purpose: "The purpose of this book is to revive the authoritative historical,
social and economic perspective needed to ensure comprehensive legal reforms, abolish
cannabis hemp/marijuana prohibition laws, and save the Earth's life systems."
Although the last purpose -- saving the earth's life systems -- apparently has religious
potential, Herer later makes it clear that "saving the earth's life systems"
is an environmental issue.
[*1507] Except for 4 pages of the book that discuss the historical
and contemporary use of marijuana by various religions and sects, the remaining
200 and some odd pages cover the following secular topics: the history of hemp,
the uses of hemp, the cash value of hemp, the legalization of hemp, the prohibition
of hemp, medicinal uses of hemp, therapeutic uses of hemp, the food value of hemp,
the sociology of hemp, the environment and hemp, and energy and hemp. Hemp contains
little original writing; it is filled primarily with reprints from newspapers, magazines,
books, newsletters, studies, and cartoons. These reprints, of course, are about
marijuana. The last 30 pages of Hemp contain helpful advertisements and order forms
for those who want to participate in marijuana reform efforts, for those who want
t-shirts sporting marijuana designs and slogans, and for those who want to buy marijuana-based
products such as hemp oil, hemp clothes, hemp jewelry, hemp ropes, hemp paper, and
hemp food. There are also advertisements for marijuana movies, marijuana cookbooks,
marijuana groups, and marijuana museums.
Hemp does not purport to be a sacred or seminal book containing tenets, precepts,
rites, creeds, or parables. While it is an interesting book full of information,
statistics, studies, data, reprints, history, arguments, and advertising, it does
not touch upon the lofty or fundamental issues associated with religious works.
Hemp bears absolutely no resemblance to recognized religious texts such as the Talmud,
Bible, Gnostic Gospels, Koran, Veda, Bhagavad-Gita, or Book of Mormon. Hemp's profane
concerns are so topical, political, and commercial, that it could not even be called
a work of philosophy. More importantly, Meyers did not claim that the Church of
Marijuana uses or relies on Hemp in any way, and he did not claim that the book
provides him with any sort of inspiration or guidance. He simply asserted, unconvincingly,
that Hemp was his "bible."
3. Gathering Places: Although the Church of Marijuana apparently
has a building of some sort at which members gather to smoke marijuana, Meyers did
not assert that the building was in any way holy, sacred, or significant. The building
in which church members gather apparently has no larger significance to them, as
might a synagogue, mosque, temple, or shrine.
4. Keepers of Knowledge: Meyers asserts that he is a "Reverend"
of the "Church of Marijuana." How he attained this revered position remains
a mystery. Meyers did not mention any special training, experience, or education
that qualified him for this position. Apparently, he is the only "clergy"
member of the church. Because Meyers did not testify about any special duties he
had, teachings he provided, or guidance he gave, the Court can only guess that (based
on his descriptions of church "services") it is his sacerdotal duty to
obtain marijuana, grow it, prepare it, smoke it, and share it.
5. Ceremonies or Rituals: The Church of Marijuana has only one
ceremony or ritual: to smoke and pass joints. The church has no services, no prayers,
no liturgy, no sacrament, and no blessings (such as baptism or marriage).
6. Structure or Organization: The Church of Marijuana has approximately
800 members, 20 of whom are "teachers." Meyers did not explain what teachers
did. To give Meyers the benefit of the doubt, the Court will assume (because Meyers
did not state) that as "Reverend," Meyers is the foremost church member,
and that the teachers are immediately below him either in terms of learning, prestige,
knowledge, seniority, or authority.
7. Holidays: Meyers did not mention any church holidays, special
days, or holy days.
8. Diet or Fasting: Meyers did not testify about any special diet
or days of fasting that church members are required or asked to observe.
9. Appearance and Clothing: Meyers did not mention any beliefs
concerning a church member's appearance or clothing.
10. Propagation: Meyers testified that the Church of Marijuana
does not engage in any type of mission work or witnessing in an effort to convert
non-believers or non-smokers.
[*1508] Although Meyers' beliefs satisfy few of the criteria that
are the hallmarks of other religions, the Court does not on this basis alone conclude
that his beliefs are not statutorily "religious." The Court also considers
the fact that Meyers' beliefs are more aptly characterized as medical, therapeutic,
and social. Over and again, Meyers observed that marijuana was a medicine that had
cured him of manic depression and that had cured others of their illnesses. He asserted
that marijuana is a medicine that can be used to cure others of their addictions.
Meyers also testified (in so many words) that marijuana had great therapeutic value
for him and others. Marijuana smoking calms Meyers and brings him peace; apparently,
it has done so for others as well. Finally, Meyers testified, this time explicitly,
that marijuana smoking resulted in "social" bonding and brought him closer
to others.
Marijuana's medical, therapeutic, and social effects are secular, not religious.
The Court recognizes that secular and religious beliefs can overlap. Indeed, to
the extent that religious beliefs are sincere, they probably will spill over into
the secular. This overlap led the court in
Callahan v. Woods, 658 F.2d 679, 684 (9th Cir. 1981), to comment
that "a coincidence of religious and secular [beliefs] in no way extinguishes
the weight appropriately accorded the religious [beliefs]." Accord
Wiggins, 753 F.2d at 666. Here, the Court cannot give Meyers' "religious"
beliefs much weight because those beliefs appear to be derived entirely from his
secular beliefs. In other words, Meyers' secular and religious beliefs overlap only
in the sense that Meyers holds secular beliefs which he believes in so deeply that
he has transformed them into a "religion."
While Meyers may sincerely believe that his beliefs are religious, this Court cannot
rely on his sincerity to conclude that his beliefs rise to the level of a "religion"
and therefore trigger RFRA's protections. Meyers is, of course, absolutely free
to think or believe what he wants. If he thinks that his beliefs are a religion,
then so be it. No one can restrict his beliefs, and no one should begrudge him those
beliefs. None of this, however, changes the fact that his beliefs do not constitute
a "religion" as that term is uneasily defined by law. Were the Court to
recognize Meyers' beliefs as religious, it might soon find itself on a slippery
slope where anyone who was cured of an ailment by a "medicine" that had
pleasant side-effects could claim that they had founded a constitutionally or statutorily
protected religion based on the beneficial "medicine." The Court declines
Meyers' invitation to step onto that slope.
The Court must, however, step onto a slope of a different sort to assess Meyers'
belated assertion that he and the other members of the Church of Marijuana are Christians.
At first blush, this complicates things considerably. Had Meyers asserted that the
Church of Marijuana was a Christian sect, and that his beliefs were related to Christianity,
this Court probably would have been compelled to conclude that his beliefs were
religious. Under these hypothetical circumstances, Meyers would have been able to
fit his beliefs into a tradition that is indisputably religious. If Meyers had linked
his beliefs to Christianity, the Court could not have inquired into the orthodoxy
or propriety of his beliefs, no matter how foreign they might be to the Christian
tradition. Ballard, 322
U.S. at 87 (courts cannot assess validity of beliefs);
Teterud v. Burns, 522 F.2d 357, 360 (8th Cir. 1975) (courts cannot
determine religious orthodoxy). Had Meyers sincerely made such a connection, he
would have been able to purchase "religious" status for his beliefs by
coattailing on Christianity. Unfortunately for Meyers, he made no such connection.
Instead, Meyers presented the Church of Marijuana as a "stand alone" religion.
He did not testify that it was a Christian church or sect. Meyers had nearly finished
testifying about his beliefs and "religion" when, under questioning from
the Court about his ultimate beliefs, he mentioned that he was a Christian. After
asserting that other church members also were Christians and that they believed
in God, Meyers never mentioned Christianity again. He did not claim that any of
his beliefs were based on Christianity, or that any of his beliefs were related
to Christianity. Meyers did not assert, as did [*1509] the defendant
in United States v. Sams, 980 F.2d 740 (9th Cir. 1992) (unpublished disposition),
that the Christian God condoned and encouraged man to grow and use marijuana, or
"herb" as it is referred to in Genesis 1:29 and 1 Corinthians 10:1. Meyers
did not cite any Christian texts, refer to any Christian doctrines, or discuss any
Christian teachings in support of his beliefs. The Court cannot, therefore, conclude
that his marijuana smoking is rooted, let alone "deeply rooted," in Christian
religious belief.
Teterud, 522 F.2d at 360.
CONCLUSION
In finding that Meyers' beliefs do not rise to the level of a statutorily protected
religion, the Court has to a certain extent relied on factors that are the common
denominators of every religion discussed in case law and most religions known to
the Court. The risk of such an approach is that it might be too restrictive and
not sensitive to new and developing forms of religions. The Court is aware of this
risk, and the possibility that a new religion may be sui generis: so different from
all known forms of extinct and existing religions that it fits none of the criteria
the Court has listed above. This is a risk, however, inherent to the First Amendment
and RFRA. The fact remains that both the amendment and the statute contain the word
"religion." If the First Amendment and RFRA are to have any meaning --
including some beliefs and excluding others -- the courts must shape and form the
term "religion." That is what the Court has attempted here, to shape and
form.
In doing so, the Court appropriately has been cautious. The Court has given Meyers
the benefit of the doubt by not scrutinizing the sincerity of his beliefs. The Court
has done so even though it suspects Meyers is astute enough to know that by calling
his beliefs "religious," the First Amendment or RFRA might immunize him
from prosecution. The Court notes that Meyers' professed beliefs have an ad hoc
quality that neatly justify his desire to smoke marijuana. The Court in fact commented
on this when it ruled from the bench that Meyers' beliefs do not constitute a "religion"
under RFRA. Nonetheless, the Court does not rest its holding today on a finding
that Meyers has concocted a sham religion in order to avoid prosecution. See, e.g.,
Kuch,
288 F. Supp. at 445 ("religion" that encourages use of marijuana and LSD
adopted attributes of religion for tactical purpose of obtaining constitutional
protection).
The Court's holding today rests primarily on the fact that Meyers' beliefs meet
almost none of the criteria that are the hallmarks of religious belief, and on the
fact that his beliefs are secular (i.e., medical, therapeutic, and social). The
Court emphasizes that its holding is narrow, limited to Meyers' beliefs as he presented
them to this Court and as they now apparently exist. Though his undeveloped and
nascent beliefs may contain within them the seed of a new religion, the seed has
not yet germinated.
The Court therefore finds that Meyers' beliefs do not constitute a religion for
RFRA purposes, and ORDERS that his motion to raise a RFRA defense is denied. This
order incorporates and supersedes the Court's oral bench order on October 2, 1995.
/s/ Clarence A. Brimmer, UNITED STATES DISTRICT JUDGE
ATTACHMENT
Enclosed for your use is a copy of an ORDER ON MEYERS' RELIGION DEFENSE in the above
captioned case. This order was signed by me on November 14, 1995 and entered in
the court files under date of November 14, 1995. Also enclosed is a listing of the
attorneys who participated in the hearing, together with their mailing addresses
and telephone numbers.
Yours truly,
/s/ CLARENCE A. BRIMMER, United States District Judge