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Written by Don Byrd

The 9th Circuit Court of Appeals this week ruled that the Religious Freedom Restoration Act (RFRA) does not shield a Hawaii minister from charges that his “Cannabis Ministry” violated federal drug laws. Reverend Roger Christie was convicted despite his claim that the use and distribution of cannabis, a schedule I narcotic under the Controlled Substances Act, is an expression of his sincere religious beliefs protected by the federal RFRA law. The trial court allowed the RFRA defense to be presented, but ultimately ruled that the government met its burden under RFRA in establishing a compelling interest in preventing cannabis from being diverted for non-religious use. Essentially, the government maintained, the Cannabis Ministry’s distribution scheme was such that the risk of it getting into the hands of those who would use it recreationally (unlawfully) was too great to accommodate with a religious exemption under RFRA.

In their appeal, Christie and his wife, who was also convicted, claimed that they have sufficient safeguards in place protecting against diversion, and argued that because the government already provides religious accommodations for the use of substances covered by the CSA, it cannot deny such an exemption to them. The 9th Circuit disagreed.

Importantly, the Appeals Court emphasized that RFRA requires a case-by-case analysis of the compelling interest test. That an accommodation is warranted for one person accused of violating drug laws does not mean it is warranted in every such charge. Here, the court ruled, the government’s argument was convincing that the risk of drug diversion for non-religious use in this case was too great to allow an accommodation.

Here are a couple of excerpts from the opinion:

[T]here is more than enough evidence in the record to support the district court’s conclusion that the Ministry’s broad and loose distribution methods gave rise to a realistic threat of diversion, notwithstanding whatever rules were technically on the books. . . .  we see no reason the government should be required to demonstrate past incidents of diversion in order to establish a compelling interest in combating a realistic risk that diversion will occur in the future.

The Christies are right that RFRA does not allow the government to refuse an accommodation to a group which is materially indistinguishable from one already exempted, but the government has not violated that principle in this case. Indeed, the peyote and hoasca precedents say very little about whether the government has a compelling interest in preventing diversion of the Ministry’s cannabis. As courts have repeatedly emphasized, cannabis differs critically from peyote and hoasca precisely because there is a thriving market for diverted cannabis, whereas there is no comparable demand for recreational peyote and hoasca. 

The record here shows that such a market exists in and around Hilo. And again, diversion concerns are more pressing here than in other cases due to the Ministry’s welldocumented lack of diligence in overseeing its distribution methods. In short, it follows from the “focused inquiry” demanded by RFRA, O Centro, 546 U.S. at 432, that even if the government lacks a compelling interest in preventing diversion of one particular drug from one particular religious group, the government may still have a compelling interest in preventing diversion of a different drug from a different religious group. That is exactly the case here.

Time and again we hear critics of RFRA contend that it will broadly allow criminals to go free if they merely claim that their crime is motivated by their religion. Nothing could be further from the truth. In actuality, courts regularly reject criminal defenses offered under RFRA, finding that as in this case, the government has a met its burden under the law of demonstrating why its interest in enforcing the law prohibits offering a religious accommodation.

For more, see the Baptist Joint Committee’s RFRA resource page.