The case involves the Oklevueha Native American Church of Hawaii, founded by Michael Rex "Raging Bear" Mooney, who is also described as the "Medicine Custodian" of the church. The church draws on an eclectic range of Native American traditions. Its sacraments include sweat lodge ceremonies that take place at the full moon and the new moon. Church members use drugs including cannabis in what they describe as a "communion," seeking to achieve mystical union with the divine.
In a manifestation of its openness to the full range of Native American tradition, the church says it "honors and embraces all entheogenic naturally occurring substances, including Ayahuasca, Cannabis (aka Rosa Maria and Santa Rosa), Iboga, Kava, Psilocybin, San Pedro, Soma, Teonanacatyl, Tsi-Ahga, and many others."
The U.S. Court of Appeals for the Ninth Circuit said on Wednesday that it was "skeptical" that the church's cannabis use amounts to an exercise of religion. Although the court chose not to decide that issue, its expression of skepticism signaled a bad result to come.
One of the great dangers of the Religious Freedom Restoration Act, passed in 1993, is that courts will treat the claims of popular religions as automatically plausible while denigrating those of statistically peripheral faiths. So doubting Oklevueha’s religious nature was bad enough. But the appeals court's main point was even worse.
In a decision by Judge Diarmuid O’Scannlain, the court said that the church hadn't shown that it suffered a substantial burden on its religious exercises, as the religious-freedom law requires.
Its reasoning was that a substantial burden exists only if someone "is coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions." The court said that Oklevueha’s members weren't coerced by a marijuana prohibition "because they have expressly told us that foregoing cannabis is not contrary to their religious beliefs." Rather, the church treats cannabis as a substitute for peyote when that rare drug is unavailable.
This cannot be the law. Most religions include many desirable practices that can be foregone under some circumstances, and allow for substitutes when some act or substance is beyond reach.
Consider, for example, a faith that teaches that you can reach God through a variety of means – say meditation, prayer, or Bible reading – and that you may choose among them. According to the Ninth Circuit logic, the government could prohibit prayer on the ground that meditation and Bible reading are still available. The religion would be unable to say that foregoing prayer is “contrary to their religious beliefs,” because its members aren't obligated to pray.
Or consider the rule in Jewish law that one should sanctify the Sabbath with wine, but may use grape juice if no wine is available. It cannot be that the state may ban wine because alternatives are allowed in a pinch.
The perverse effect of this logic is that the only religions that will get protection are those so rigid or rule-bound that they consider every religious act to be an obligation.
In fact, the religious-freedom law contains no principle that a substantial burden exists only when acting or refraining from action would be contrary to religious belief. A substantial burden exists whenever the government interferes with the performance of a religiously meaningful act. It doesn't matter that Oklevueha members can try to experience the divine through many different chemical means.
One seriously doubts that O’Scannlain would have held that the Catholic Church could be banned from administering the sacrament of marriage because marriage is not an obligation of all Catholics. Foregoing the sacrament of marriage isn’t "contrary to" the religious beliefs of Catholics, because they can choose to be celibate, as priests and nuns are.
And that's what's especially worrisome. Religions outside the mainstream are easy to target and treat as less deserving of protection. Justice John Paul Stevens, now retired, often expressed worry that protecting religious liberty for some groups might lead to discrimination against others. When he reads the Ninth Circuit’s opinion, he’ll see his worries confirmed. Let’s hope his colleagues still on the bench have the same reaction, and overturn the decision.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners or the Sun Bay Paper
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."