Is meth the new peyote? A woman arrested in Oklahoma recently for possession of methamphetamine is arguing that as a Wiccan she has a religious right to possess and use the drug for her religious practice. In Smith, as you’ll remember, the plaintiffs had used peyote as part of Native American religious practices. They were out of luck under the First Amendment, but the denial of their claim led to passage of the Religious Freedom Restoration Act, after which a factually similar case involving hoasca (a.k.a. Ayahuasca) was decided in favor of the plaintiffs under RFRA’s more lenient legal standard. And now we come to Wiccans arguing for the right to use meth.
It’s a ridiculous story on one level, but it gets at a crucial fuzziness in the doctrine around these religious exemption cases: How hard judges can, and should, push on the claims of plaintiffs that a given action (or inaction) is part of their religious exercise and that the required action (or inaction) is a substantial burden on that exercise.
An opinion from the D.C. Circuit last week explored this question in a more mainstream setting. Judge Nina Pillard authored a thorough and convincing opinion in one of the cases against the contraceptive coverage requirement of the Affordable Care Act, holding that the religious non-profit organizations that object to participating in the accommodation process have no right under RFRA to refuse to comply with the relevant regulations. The opinion insightfully distinguishes between the sincerity and subjective experience of harm that a religious plaintiff might have and the legal question of when a burden is so substantial that the law should take it into account.
Thus far in these cases judges (and Supreme Court justices, for that matter) have been too willing to assume that if a religious objector’s subjective experience of suffering caused by a legal requirement is intense, it therefore follows that the requirement imposes a substantial burden. But as Judge Pillard points out, substantial burden is a question of law, not a question of fact. In other words, judges must evaluate what constitutes a substantial burden in a legal sense, not merely the factual determination of how badly the requirement makes the religious objector feel. I’m not being flippant here, I take the dignitary claims of suffering by religious objectors seriously – but emotional harm is not equivalent to legally cognizable injury in all cases.
The Wiccan right to use meth also pushes on my other favorite whipping post, the sincerity inquiry. It seems ridiculous to us that a religion could require the use of meth, but there is nothing new about the use of intoxicating substances as a means of facilitating communion with the divine. And in a religion like Wicca, without a central authority (like the Pope, for instance), how do we determine that the use of meth is not in fact central to this particular Wiccan’s religious exercise?
I’m not suggesting we can’t determine that, but I am suggesting that if we think that’s an easy question we should be more cautious about the willingness thus far of courts to throw up their hands and refuse to probe sincerity or consistency when confronted with a plaintiff with a more mainstream religious claim.
If you’re interested in hearing more about other aspects of the D.C. Circuit’s opinion, I did a segment on Bloomberg Law Radio about it that you can find here.