Founder and president of Oklevueha Native American Church of Hawaii, Inc. (“Oklevueha”), Michael Rex “Raging Bear” Mooney, filed suit in 2009 against various federal officials in the Federal District Court of Hawaii.  Mooney and Oklevueha sought to prevent the government from prosecuting them under the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq. for possession of marijuana.  They argued that possessing cannabis for religious or therapeutic use, obtaining cannabis, and cultivating or distributing cannabis consistent with state law is protected religious exercise under the Religious Freedom Restoration Act (“RFRA”), and that the federal government had substantially burdened the Church’s religious exercise by prosecuting them for possessing the drug.

Given the lack of evidence presented on the issue by the Plaintiffs, the Court was skeptical that marijuana use constituted religious exercise.  However, the Court never answered the question of whether Mooney and Oklevueha’s cannabis use is “an exercise of religion” because it found that no rational trier of fact could conclude a prohibition of cannabis use imposes a “substantial burden” on religious exercise.

Like RLUIPA, RFRA does not define a “substantial burden,” but courts, including the Ninth Circuit, look to cases decided before Employment Division v. Smith, 494 U.S. 872 (1990) for the proper judicial framework.  A substantial burden is imposed “only when individuals are . . . coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions . . . .” (citing Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir. 2008) (en banc)).

At the heart of the Court’s reasoning was that Mooney and Oklevueha did not allege that the CSA’s prohibition on cannabis “‘force[s] [them] to choose between following the tenets of their religion and receiving a governmental benefit,’ the other kind of substantial burden we have recognized under RFRA.” (citing Navajo Nation, 535 at 1070).

The Plaintiffs were not forced to make such a choice, the Court reasoned, because they “expressly told us that foregoing cannabis is not contrary to their religious beliefs.” Instead, cannabis could be used as a substitute for peyote and Mooney and Oklevueha did not plead they could not obtain peyote.  Also, other “naturally occurring substances” could be used as an adequate substitute.

Unlike the Seventh Circuit’s decision in Schlemm v. Wall (7th Cir. 2015), where the court concluded that the Supreme Court decisions in Burwell v. Hobby Lobby (2014) and Holt v. Hobbs (2014) articulated a substantial burden standard “much easier to satisfy” than the Seventh Circuit had previously applied, the Ninth Circuit quickly distinguished the SCOTUS cases.  (Post regarding Schlemm here) Unlike the Seventh Circuit, the Ninth Circuit’s interpretation of a “substantial burden” remained focused on pre-Employment Division v. Smith case law.

The Ninth Circuit’s decision in Oklevueha Native American and Church of Hawaii, Inc.; Michael Rex Mooney v. Lynch et. al., No. 14-15143 (9th Cir. 2016) is available here.

Original photo by Dave H., some rights reserved.