« Two new examinations of white-collar prosecutions and punishment schemes | Main | Ninth Circuit sorts out federal case of CJA payment delayed, then CJA representation denied »

June 30, 2014

Could part of Hobby Lobby "havoc" include new RFRA challenges to federal drug laws and their regulatory enforcement?

I am not an expert on religious freedom doctrines or on interpretations of Religious Freedom Restoration Act of 1993 (RFRA). But my cursory understanding of the basics of the Supreme Court's big ruling today in Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (S. Ct. June 30, 2014) (available here) is that SCOTUS has now given RFRA a (much?) broader reach and interpretation than the First Amendment's Free Exercise Clause and has concluded that a corporation must have its sincere religious objections to a health-care regulation better accommodated for that regulation to comply wit RFRA. Not surprisingly, the Justices in dissent express concern about this ruling, and I especially was struck by these passages from the start of Justice Ginsburg's dissent:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.”....

In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith.... Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

Legal scholars and pundits will no doubt be picking apart the Hobby Lobby ruling with a view toward its political, policy and practical impact with respect to any number of federal civil laws.  But, as the question in the title of this post suggests, I am already wondering if the Hobby Lobby ruling could end up having an impact on federal criminal laws, in particular drug laws.

Notably, in his Hobby Lobby concurrence, Justice Kennedy highlights that the "American community is today ... a rich mosaic of religious faiths," and says religious freedom must be understood to mean "the right to express [religious] beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community."  I am pretty sure there are more than a few religious groups (some well-established, other not-so-much) that sincerely claim that certain types of drug use plays a role in their members' "self-definition in the political, civic, and economic life of our larger community." In the wake of Hobby Lobby's ruling that sincere religious beliefs now thanks to RFRA justify an opt-out from general laws, I wonder if more folks might have more opportunities to press claims in federal court that their religious beliefs must allow opt outs from federal criminal drug laws.

June 30, 2014 at 11:38 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Could part of Hobby Lobby "havoc" include new RFRA challenges to federal drug laws and their regulatory enforcement?:


Like, yeah of course.

For most of us, pot is a religion first and for most - but it is also a popular HOBBY at the same time, so one way or another its bound to get protected.

Posted by: Cheech | Jun 30, 2014 12:49:46 PM

Yesterday's decision should not change anything about the RFRA's application to federal drug offenses. That application has always been lingering in the background. After all, the RFRA was passed in response to the Supreme Court's decision in a case involving drug use in a religious ceremony (specifically finding that the state could treat that drug use as cause justifying the discharge of that employee and therefore reduce unemployment benefits notwithstanding the allegedly religious nature of the drug use).

Posted by: tmm | Jul 1, 2014 9:56:44 AM

It won't apply to drug laws. The majority has wisely concluded that RFRA only allows challenges based on what they consider to be mainstream Christian beliefs, like use of certain types of birth control. The RFRA has no teeth for things like taxes (which Quakers may object to because taxes fund wars), blood transfusions (Jehovah's witnesses), or vaccines (Christian scientists), even though those religious beliefs are equally sincerely and strongly held.

Posted by: Res ipsa | Jul 1, 2014 10:21:41 AM

Criminal Defense Attorney

The decision in Hobby Lobby is not terribly remarkable in light of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418; 126 S. Ct. 1211; 163 L. Ed. 2d 1017 (2006). In that case, a religious sect with origins in the Amazon Rainforest received communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government conceded that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen. Chief Justice Roberts, writing for a unanimous Court, held that the Government had not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act to apply criminal penalties to the religious sect.

Posted by: Ann C. Short | Jul 1, 2014 2:58:49 PM

Like the headlines are saying and Scotus has implied that "Corporations are people but women aren't."

Posted by: Katie | Jul 1, 2014 5:33:35 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB