In response to the Supreme Court’s interpretation of the Free Exercise Clause in Employment Division v. Smith,1 Congress enacted the Religious Freedom Restoration Act2 (RFRA),3 which requires judges to impose strict scrutiny on federal government action that substantially burdens the exercise of religion.4 Because the substantial burden inquiry precedes any strict scrutiny of government action, an important question in RFRA jurisprudence is what counts as a substantial burden.5 In Oklevueha Native American Church of Hawaii, Inc. v. Lynch,6 the Ninth Circuit held that the Controlled Substances Act7 (CSA) did not impose a substantial burden on Oklevueha’s use of cannabis in its religious ceremonies.8 In so holding, the court introduced two doctrinal uncertainties into the Ninth Circuit’s substantial burden inquiry. First, the court created ambiguity as to whether “substantial” refers to the weight of the potential sanction or the importance of the restricted practice, or both. Second, to the extent the court considered “substantial” to refer to the importance of the restricted practice, it used inconsistent language as to how important the restricted practice must be.
Michael Rex “Raging Bear” Mooney founded the Oklevueha Native American Church of Hawaii.9 The church’s ceremonies involve consuming peyote, cannabis, and other drugs to experience a connection with the divine.10 Oklevueha considers this drug consumption to be a sacrament.11 In June of 2009, federal agents seized $7000 worth of cannabis addressed to Oklevueha.12 To preempt any prosecution under the CSA, Oklevueha filed a complaint against federal officials, seeking declaratory and injunctive relief under RFRA and other provisions.13 Oklevueha’s complaint stipulated that regular consumption of cannabis was “an essential and necessary component” of its religion.14 The district court dismissed the complaint for lack of ripeness, as no member of the church faced any genuine threat of prosecution.15 Plaintiffs filed an amended complaint, which the court again dismissed, as it offered little additional detail to support ripeness.16
The Ninth Circuit reversed, holding that plaintiffs’ claims were ripe for judicial review,17 since the June 2009 seizure was an enforcement action.18 On remand, the district court dismissed all claims except the RFRA claim,19 finding that plaintiffs had sufficiently pleaded a substantial burden because of the threat of criminal sanctions coupled with the claim that their religion “required” use of cannabis.20 One year later, however, the court granted summary judgment in favor of defendants on the RFRA claim,21 finding that Oklevueha had not presented sufficient evidence to show either that consumption of cannabis was an “exercise of religion” or that the CSA imposed a substantial burden.22 A substantial burden was lacking because the CSA did not force plaintiffs to choose between violating their beliefs and facing criminal sanctions: peyote, not cannabis, was their primary sacrament, and they could substitute other drugs for cannabis.23
The Ninth Circuit affirmed.24 Writing for a unanimous panel, Judge O’Scannlain25 held that plaintiffs had failed to show that the CSA imposed a substantial burden,26 obviating the need to decide whether the use of cannabis was an “exercise of religion” at all.27 Noting that RFRA leaves “substantial burden” undefined, the court turned to Navajo Nation v. U.S. Forest Service,28 in which various Native American tribes contended that the use of recycled wastewater snow at the Snowbowl, a mountaintop resort, would desecrate lands they considered sacred.29 Navajo Nation defined “substantial burden” as “when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit . . . or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.”30 By this rule, the Native Americans’ “diminishment of spiritual fulfillment” did not amount to a substantial burden because they would not be “fined or penalized in any way for practicing their religion on the [mountain lands].”31 Applying Navajo Nation’s “act contrary” prong, the Oklevueha court found a substantial burden lacking because plaintiffs had “expressly told [the court] that foregoing cannabis [was] not contrary to their religious beliefs.”32 Plaintiffs had told the court that cannabis was an optional, substitute drug they used in addition to or in place of peyote, their primary sacramental drug. Moreover, they had failed to allege that “peyote [was] unavailable or that cannabis serve[d] a unique religious function.”33
The court then sought to reconcile its holding with Burwell v. Hobby Lobby Stores, Inc.,34 and Holt v. Hobbs,35 where, in both instances, the Supreme Court had found a substantial burden readily present.36 In Hobby Lobby, Christian owners of a closely held business successfully sought a RFRA exemption from the Department of Health and Human Services contraceptive mandate.37 In finding that the mandate imposed a substantial burden on the religious owners by forcing them to choose between providing abortifacients and facing significant financial penalties,38 the Court warned that the substantial burden inquiry should not become an inquiry into the plausibility of a claimant’s religious beliefs.39 The Oklevueha court insisted that it was heeding Hobby Lobby’s warning because it merely found that plaintiffs’ religious beliefs, by their own admission, held cannabis out only as a substitute drug, not as a required substance.40 In Holt, a Muslim inmate successfully sought an exemption from an Arkansas prison’s beard-grooming policy.41 The Oklevueha court found Holt distinguishable because growing a beard was a “dictate of [the inmate’s] religious faith,”42 whereas using cannabis was not a matter of “religious obedience” for Oklevueha’s members, since other substances served the same religious function.43
Despite the court’s seemingly straightforward application of Navajo Nation, Oklevueha nonetheless left in its wake two doctrinal uncertainties surrounding the Ninth Circuit’s substantial burden inquiry. First, the court arguably diverged from Navajo Nation by suggesting that “substantial” refers to the importance of the underlying religious practice, instead of (or in addition to) the weight of the potential sanction. Oklevueha also sowed confusion as to how important the restricted practice must be, since it linked the concept of substantial burden to restrictions on both obligatory practices and practices serving unique religious functions.
The first way in which Oklevueha contributed to doctrinal uncertainty was by offering an interpretation of the word “substantial” distinct from the sense in which Navajo Nation used the term, at least on the surface. Professor Chad Flanders recently illuminated the dual connotation of “substantial”:
There are at least two things that “substantial” could modify. First, it could be that the government has to put substantial or heavy pressure on you to violate your religious beliefs [such as the large fine in Hobby Lobby]. But it could also be that the government has to pressure you to violate your religious beliefs in some substantial or serious way. For example, maybe the government is asking you to violate a particularly important tenet of your religion, not just some discretionary one.44
Oklevueha interpreted “substantial” in the second way, in terms of the importance of the restricted practice. There was no question that the CSA threatened criminal penalties for anyone using cannabis, but plaintiffs explicitly admitted that cannabis use was discretionary, as opposed to a matter of “religious obedience.”45 Under this view, the government can impose whatever otherwise-valid penalties it wants, so long as these penalties do not restrict obligatory practices.46
Oklevueha’s use of “substantial” in this second sense is significant because Navajo Nation — the controlling Ninth Circuit precedent — used “substantial” in the first sense that Flanders describes, that is, in terms of the weight of the potential sanction. This usage is evident from Navajo Nation’s statement that the plaintiffs in that case did not face a substantial burden because they would not be “fined or penalized in any way for practicing their religion on the [mountain lands].”47 There was no substantial burden because “[t]he action of the government was not of the form, ‘do this, or else pay a price.’”48 Thus, Navajo Nation was focused on the lack of any potential sanction; it was not explicitly concerned, as would later be the case in Oklevueha, with whether the plaintiffs’ religious practices were obligatory. This distinction between Oklevueha and Navajo Nation finds support in Professor Noah Feldman’s critique of Oklevueha. He argues that Oklevueha’s reference to religious obligation imposed a new, heightened, and erroneous substantial burden standard.49
However, Oklevueha did not necessarily misread Navajo Nation, since, as Flanders himself recognizes, the two potential connotations of “substantial” need not be mutually exclusive.50 That is, a substantial burden could encompass “substantial pressure to substantially violate [one’s] religion — that the pressure is strong and affects a really important or vital part of [one’s] beliefs.”51 On this theory, Navajo Nation did not have to consider the relative importance of the plaintiffs’ religious practices because there was no substantial pressure at issue — the upgrade imposed no criminal or civil penalties on the plaintiffs, who were still guaranteed access to the mountain for religious purposes.52 Additionally, as Oklevueha itself suggested, the concept of religious obligation may have already been implicit in Navajo Nation’s rule that a substantial burden exists when individuals are coerced to act contrary to their religious beliefs.53 On this reading, then, Oklevueha enshrined the Ninth Circuit’s substantial burden standard as among the most demanding in the nation54 by linking Navajo Nation’s “act contrary” rule to the language of religious obligation, which previous Ninth Circuit cases had not explicitly done.55 Still, it remains to be seen whether religious obligation will now be the dispositive factor in the substantial burden analysis, or whether the weight of the potential sanction will also be a factor in cases like Navajo Nation where no criminal or civil penalties are in play.
In any event, the court used more than just the language of religious obligation, creating doctrinal confusion within the second sense of “substantial” as well. At two points in the opinion, the court stated that one defect in Oklevueha’s evidence was that it had failed to show “that peyote is unavailable or that cannabis serves a unique religious function,” as distinct from the function of peyote and other available drugs.56 By using this language of “uniqueness” in addition to the language of “religious obedience,” the court elided two distinct concepts, since a practice that serves a unique religious function is not necessarily religiously obligatory.57 For example, even if cannabis elicited a distinct type of transcendental experience, it would not follow that the Oklevueha church necessarily required members to smoke cannabis in addition to peyote during their ceremonies — peyote could still be the primary, and the only required, sacramental drug.58 Indeed, having to forgo the unique type of experience that cannabis may induce sounds very much like the sort of diminishment of spiritual fulfillment that Navajo Nation explicitly said did not amount to a substantial burden.59
Parsing the inconsistent language of Oklevueha, then, we see that a substantial burden might encompass restrictions either on religiously obligatory practices or on optional religious practices serving unique functions. Adding further complexity, Feldman argues that the underlying religious practice need not even serve a unique function, since “[a] substantial burden exists whenever the government interferes with the performance of a religiously meaningful act.”60 The variance among these concepts — obligatory as distinct from unique, unique as distinct from meaningful — points to an open doctrinal question internal to the second sense of how Flanders describes “substantial”: how “important”61 must a restricted religious practice be for there to be a “substantial” burden? By mentioning both uniqueness and obligation, and by seemingly conflating the two concepts, Oklevueha serves as a prime example of the doctrinal confusion circulating in the lower courts on this question.62
In sum, Oklevueha added uncertainty to the substantial burden inquiry, an already uneven doctrine among the circuits. What’s more, lurking behind the unresolved doctrinal questions is Oklevueha’s acknowledgement of Hobby Lobby’s warning that courts must not make the substantial burden analysis an inquisition into a plaintiff’s religious beliefs and their plausibility.63 Even before Hobby Lobby, courts had expressed concern that a high substantial burden threshold could elicit impermissible judicial inquiries into religious doctrine.64 These lingering challenges — doctrinal and otherwise — indicate that cases like Oklevueha, in which a substantial burden is not obviously present, will continue to complicate RFRA jurisprudence in the shadow of decisions like Hobby Lobby.