What do Crystal Meth and Contraception Have In Common?

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.

14 Comments

  • jmmartin@grandecom.net' JamesMMartin says:

    The irony of this is that the Wise Old Women of yore were targeted by the Church for their peddling of abortifacients. It was because of their dispensing of them that the RCC dreamed up the claim of devil worship when, in fact, they merely worshipped pagan female deities.

  • jonipinkney@yahoo.com' joni50 says:

    Crystal meth for Wicca? I’ve been Pagan for years, and that’s a new one on me. From all what I’ve seen and done, IF (and that’s a big IF) mind-altering substances are used in Circle, they’re natural substances such as wine or some of the more common naturally-occurring etheogens.

    Still, this incident raises some very relevant questions. Like the Pastafarians who insist on wearing colanders for headgear while taking ID photos, this meth-using Wiccan forces us to examine the principles of the issues, rationally rather than emotionally.

  • kjbfisher@cox.net' KJFisher says:

    “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?” What a stupid piece of nonsense! Clearly you do not know or have forgotten the “Harm none” rule of Wicca. Methamphetamine is a toxic harmful substance. It harms the people making it, those around them, those who use it, and the environment. There is nothing about methamphetamine that would encourage it’s use in Wicca. Anyone making such an argument for it is not Wiccan, they are merely a drug addict. To me this article is harmful to those who are true Wiccan’s.

  • blestou@gmail.com' blestou says:

    When the “question of fact” and the “question of law” are so different as to oppose one another, the Court faces a crisis of legitimacy.

  • truktyre@hotmail.com' Craptacular says:

    Wiccan religious freedoms are the new civil rights of our age. Wake up Wiccans!

  • SWhaption6548@gustr.com' Frank6548 says:

    It’s the same object of worship.

  • maryamueller@gmail.com' HeilMary1 says:

    Don’t you have a pedophile convention you should be attending?

  • maryamueller@gmail.com' HeilMary1 says:

    Looksist misogynist playboy faux christians looking for underage sex slaves would equate ancient feminists with devil worship, never mind the “christians'” own cult pedophilia.

  • fiona64@livejournal.com' fiona64 says:

    I was a practicing Wiccan for *years,* and in no tradition with which I am familiar was meth used in ritual. Just sayin’ …

    The case does, however, show how the Hobby Lobby decision is a violation of the 1st Amendment, by giving favor to one specific religion in one specific area.

  • fiona64@livejournal.com' fiona64 says:

    Oh, Frankie. The Devil is a Judeo-Christian construct; pagans have nothing to do with Old Scratch. He belongs to you and yours.

  • SWhaption6548@gustr.com' Frank6548 says:

    Poor Fiona never matures, never wises up.

  • fiona64@livejournal.com' fiona64 says:

    How’s that personal ad search for a teenaged beard coming, Frankie?

  • SWhaption6548@gustr.com' Frank6548 says:

    Right on cue proving my point. Way too easy lol!

  • fiona64@livejournal.com' fiona64 says:

    So, no takers then? Quelle surprise.

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