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RFRA Motion - Filed April 24, 2007 PDF Print E-mail
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Written by Brenda Shoop   
Tuesday, 24 April 2007


                                                        CASE NO: 
CC 2006 002398.00




COMES NOW BRENDA SUE WILLIAMS, Defendant, by and through the undersigned counsel, and moves the court as follows: 1.       Defendant is a member of The Hawai’i Cannabis Ministry and a Reverend of that faith.

2.       Defendant asserts that in her faith, Δ9-tetrahydrocannabinol, the active ingredient in Cannabis, is the container of the Holy Spirit through which communion with God, the Prophets, Jesus Christ, the Saints, and her fellow Christian Brothers and Sisters is observed and maintained, thus the cultivation and consumption of Cannabis Sacrament is a mandatory religious practice.

3.       Defendant asserts that in her faith, Cannabis is one of the original ingredients of The Holy Anointing Oil of Moses and The Christening Oil of Jesus The Christ (see Religious Practitioner of Cannabis Affidavit, accurate copy attached), and that this Oil is manufactured and used by the Ministry in Fire Baptism, Chrismation and prayerful healing of the sick as directed by Mark 6: 12-13 and James 5: 14.

4.       Defendant asserts that she demonstrates a prima facie violation showing that the laws against cannabis as applied to her substantially burden her sincere religious practice and that she therefore qualifies for protection under the Religious Freedom Restoration Act and the Alabama Religious Freedom Amendment and the Religious Land Use and Institutionalized Persons Act.5.       Under the Religious Freedom Restoration Act, as well as the Alabama Religious Freedom Amendment, the government bears the burden of; (1) establishing a compelling interest in maintaining the drug laws, (2) that excluding Defendant from those laws is a threat to the public health and safety, and (3) that there is no less burdensome alternative.

6.       Defendant asserts that the cultivation and consumption of cannabis is mandated by her religion, that the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, the Alabama Religious Freedom Amendment and the First Amendment to the Constitution of the United States provides her protection, and that this case must be dismissed.

BRIEF IN SUPPORT OF MOTIONThe Alabama Religious Freedom Amendment was ratified Jan. 6, 1999 (Proclamation Register No. 9, p. 387) providing protection for Alabama residents in the free exercise of the religion of their choice.

Section III:The purpose of the Alabama Religious Freedom Amendment is to guarantee that the freedom of religion is not burdened by state and local law; and to provide a claim or defense to persons whose religious freedom is burdened by government. Section V, subsection (c): A person whose religious freedom has been burdened in violation of this section may assert that violation as a claim or defense in a judicial, administrative, or other proceeding and obtain appropriate relief against a government. Further, 42 U.S.C. § 2000cc(a)(1) states: “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution-- (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”  42 U.S.C. § 2000cc-2(b) states: “If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2 [42 USCS § 2000cc], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion.”

42 U.S.C. § 2000cc-3(g) states: “This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”  Furthermore, United States law regarding the protection of religious freedom has recently been amended by the ruling by the United States Supreme Court in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 163 L. Ed. 2d 1017; 2006 U.S. LEXIS 1815; 74 U.S.L.W. 4119 (February 21, 2006) (UDV hereafter), which upholds the Religious Freedom Restoration Act of 1993, 42 U.S.C.  2000(b)(b)(2004) (RFRA  hereafter) restoring the compelling interest test abandoned by the  United States Supreme Court in Employment Div., Dept of Human  Services of Oregon v. Smith, 494 U.S. 872 (1990) (Smith hereafter)  (ruling that religious believers may not obtain exemptions to religion-neutral laws of general applicability that infringe on their religious practices).In Smith, the United States Supreme Court avoided consideration of a claim for the sacramental use of peyote by declining to apply the compelling interest test to the sacramental use of peyote by members of the Native American Church as it had previously applied the compelling interest test in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).

In Smith, Justice Scalia wrote:
If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded.  Moreover, if “compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Braunfeld v. Brown, 366 U.S., at 606, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind – [... other citations omitted ...] drug laws, see, e. g., Olsen v. Drug Enforcement Administration, 279 U. S. App. D. C. 1, 878 F. 2d 1458 (1989) [... other citations omitted ...]. The First Amendment's protection of religious liberty does not require this.

In response to the ruling in Smith Congress enacted the RFRA. This law provides that government action that substantially burdens religious exercise is invalid unless it is justified by a compelling government interest and is the least restrictive way to achieve that interest.

Responding to the RFRA, in City of Boerne v. Flores, 521 U.S. 507;  117 S. Ct. 2157; 138 L. Ed. 2d 624 (1997) (hereinafter Boerne), the  Supreme Court ruled that the RFRA, as applied to state laws that  place incidental burdens on religion, exceeded Congress’ power to interpret state protection of fundamental rights.

In response to Boerne Congress then enacted the Religious Land Use and Institutionalized Persons Act of 2000 (hereinafter RLUIPA), Pub.  L. 106-274, 42 U.S.C. § 2000cc, et seq., and used federal payments to states under the Commerce Clause to force the states to protect  religious exercise to a greater extent than interpreted by the  Supreme Court under the Smith decision.

In 2005 the Supreme Court ruled that the RLUIPA is a valid exercise of congressional power, that it does apply to the states, and that federal payments to states do cause a contractual obligation on the state to perform to standards set in the Congressional / State contract in exchange for federal contributions to state managed programs.  See Cutter v. Wilkinson, 544 U.S. 709; 125 S. Ct. 2113; 161 L. Ed. 2d 1020 (2005).

In 2006 the Supreme Court ruled that the RFRA applies to the federal drug laws, invalidating them where the government cannot prove a threat to public health and safety caused by the religious exercise of a church.  See UDV.  The UDV Church imports, receives money for, transports, distributes and uses DMT, a powerful Schedule I hallucinogen. At pages 2-3 of the UDV slip opinion: Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” §2000bb-1(a). The only exception recognized by the statute requires the Government to satisfy the compelling interest test - to “demonstrat[e] that application of the burden to the person - (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that governmental interest.” §2000bb-1(b).  As to the issue of application of the RFRA to a preliminary injunction issuing:
At page 8 of the UDV slip opinion:
Here the burden is placed squarely on the Government by RFRA rather than the First Amendment, see 42 U.S.C. §§2000bb-1(b), 2000bb-2(3), but the consequences are the same. Congress’ express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the preliminary injunction stage.  As to the law itself proving compelling interest by the definition of Schedule I drug:

At pages 9-18 of the UDV slip opinion: Under the Government’s view, there is no need to assess the particulars of the UDV’s use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions. RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person” - the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U.S.C. §2000bb-1(b). RFRA expressly adopted the compelling interest test “as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. §2000bb(b)(1). In each of those cases, this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants.  At page 11 of the UDV slip opinion: Under the more focused inquiry required by RFRA and the compelling interest test, the Government’s mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled substances Act, cannot carry the day.  At page 11 of the UDV slip opinion:  But Congress’ determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its burden under RFRA. This conclusion is reinforced by the Controlled Substances Act itself. The Act contains a provision authorizing the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.” 21 U.S.C. §822(d). The fact that the Act itself contemplates that exempting certain people from its requirements would be “consistent with the public health and safety” indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them.  And in fact an exemption has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote - a Schedule I substance - by the Native American Church. See 21 CFR §1307.31 (2005). In 1994, Congress extended that exemption to all members of every recognized Indian Tribe. See 42 U.S.C. §1996a (b)(1).
Everything the Government says about the DMT in hoasca - that, as a Schedule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medical use” and has “a lack of accepted safety for use ... under medical supervision,” applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote.  At page 13 of the UDV slip opinion:
The well established peyote exception also fatally undermines the Government's broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The Government argues that the effectiveness of the Controlled Substances Act will be “necessarily ... undercut” if the Act is not uniformly applied, without regard to burdens on religious exercise.  At pages 15-16 of the UDV slip opinion: We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. See 42 U.S.C. §2000bb(a)(4). And in fact, the Government has not offered evidence demonstrating that granting the UDV an exemption would cause the kind of administrative harm recognized as a compelling interest in Lee, Hernandez, and Braunfeld. The Government failed to convince the District Court at the preliminary injunction hearing that health or diversion concerns provide a compelling interest in banning the UDV’s sacramental use of hoasca. It cannot compensate for that failure now with the bold argument that there can be no RFRA exceptions at all to the Controlled Substances Act.  At page 18 of the UDV slip opinion: The Government repeatedly invokes Congress’ findings and purposes underlying the Controlled Substances Act, but Congress had a reason for enacting RFRA too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated “the compelling interest test” as a means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. §§2000bb (a)(2), (5).  As to the compelling interest proven by the fact of international drug control treaties and the Government’s need to enforce them:

At page 16 of the UDV slip opinion: The Convention signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. The Government argues that it has a compelling interest in meeting its international obligations by complying with the Convention.  At page 17 of the UDV slip opinion: The fact that hoasca is covered by the Convention, however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV.  At page 18 of the UDV slip opinion: We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under RFRA invocation of such general interests, standing alone, is not enough.  As to the application of Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) as the standard for the Least Restrictive Means of Regulation prong of the Compelling Interest test on application for a preliminary injunction for exemption from the federal drug laws under RFRA - now referenced in the UDV case.  At pages 7-8 of the UDV slip opinion: The Government argues that, although it would bear the burden of demonstrating a compelling interest as part of its affirmative defense at trial on the merits, the UDV should have borne the burden of disproving the asserted compelling interests at the hearing on the preliminary injunction. This argument is foreclosed by our recent decision in Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004). In Ashcroft, we affirmed the grant of a preliminary injunction in a case where the Government had failed to show a likelihood of success under the compelling interest test.  As to whether or not a "general interest in uniformity" in application of the drug law substantiates a compelling interest on the part of the Government.

At page 14 of the UDV slip opinion: The Government points to some pre-Smith cases relying on a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause, but those cases strike us as quite different from the present one. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise; they instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated.  As to the application of Religious Land Use and Institutionalized Persons Act as defined in Cutter v. Wilkinson, 544 U.S. 709 (2005) which requires states accepting federal funds to guarantee a minimum judicial protection of religious establishment and exercise as defined in the Sherbert and Yoder cases mandated under Religious Freedom Restoration Act of 1993: 

At page 15 of the UDV slip opinion: We reaffirmed just last Term the feasibility of case-by-case consideration of religious exemptions to generally applicable rules. In Cutter v. Wilkinson, 544 U.S. ___, 544 U.S. 709, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005), we held that the Religious Land Use and Institutionalized Persons Act of 2000, which allows federal and state prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA, does not violate the Establishment Clause. We had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way” to specific claims for exemptions as they arose. Id., at ___, 125 S. Ct. at 2123, 161 L. Ed. 2d 1020. Nothing in our opinion suggested that courts were not up to the task.  The UDV decision refers to Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) (Ashcroft hereafter), as the standard for the Least Restrictive Means of Regulation prong of the "compelling interest test". Ashcroft rules on the least restrictive means of regulation issue on application for preliminary injunction against content-based speech prohibition law, in reference to a First Amendment right. Ashcroft states the test as being:  At pages 665-666 of Ashcroft, 542 U.S. 656: When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. Id., at 874, 138 L. Ed. 2d 874, 117 S. Ct. 2329. In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal.  As to the issue of the burden of proof on application for preliminary injunction.

At page 701 of Ashcroft, 542 U.S. 656: In deciding whether to grant a preliminary injunction stage, a district court must consider whether the plaintiffs have demonstrated that they are likely to prevail on the merits. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975).   As to the question: Do the RFRA tests for compelling interest and least restrictive means of regulation as defined in Sherbert and Yoder apply to State laws?

The Supreme Court recently ruled in Cutter v Wilkinson, 544 U.S. 709 (2005) (Cutter hereafter), that the RLUIPA is a valid act of Congress under the Spending and Commerce Clauses, that courts are perfectly capable of conducting the fact finding necessary to determine compelling interests and least restrictive means of regulations, and that all federal and state laws are subject to such RFRA protections of religious exercise in light of the RLUIPA:  At page 715 of Cutter, 544 U.S. 709: In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress' remedial powers under the Fourteenth Amendment. Id., at 532-536, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (footnote omitted).  Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce Clauses, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 U.S.C. § 2000cc; n3 § 3 relates to religious exercise by institutionalized persons, § 2000cc-1.  At pages 722-723 of Cutter, 544 U.S. 709:
We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard, see supra, at 5, “context matters” in the application of that standard. See Grutter v. Bollinger, 539 U.S. 306, 327, 156 L. Ed. 2d 304, 123 S. Ct. 2325 (2003) (footnote omitted).  At page 701 of Cutter, 544 U.S. 709: (At footnote 13) Although RLUIPA bars inquiry into whether a particular belief or practice is “central” to a prisoner’s religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity. Cf. Gillette v. United States, 401 U.S. 437, 457, 28 L. Ed. 2d 168, 91 S. Ct. 828 (1971) (”’The “truth” of a belief is not open to question’; rather, the question is whether the objector’s beliefs are ‘truly held.’” (quoting United States v. Seeger, 380 U.S. 163, 185, 13 L. Ed. 2d 733, 85 S. Ct. 850 (1965))). Since 1937, when it adopted the "Marihuana Tax Act," the government has justified the criminalization of marijuana use on the grounds that it is a dangerous drug. But this claim looks more and more ludicrous with each passing year. Every independent commission appointed to look into this claim has found that marijuana is relatively benign. For example, President Nixon's National Commission on Marihuana and Drug Abuse concluded in 1972 that, "There is little proven danger of physical or psychological harm from the experimental or intermittent use of natural preparations of cannabis," and recommended that marijuana for personal use be decriminalized. Ten years later, the National Academy of Sciences issued its finding that, "Over the past forty years, marijuana has been accused of causing an array of anti-social effects including ... provoking crime and violence ... leading to heroin addiction ... and destroying the American work ethic in young people. [These] beliefs... have not been substantiated by scientific evidence."In 1988, the DEA Administrative Law Judge ruled that the danger of consuming massive amounts of cannabis was less then the danger of eating 10 raw potatoes or taking a bottle of aspirin. Furthermore, the Federal DEA Administrative Law Judge ruled, “marijuana, in its natural form, is one of the safest therapeutically active substances known to man.  In The Matter Of Marijuana Rescheduling Petition, DEA Docket 86-22, Sept. 6, 1988, at pages 58-59.
The federal DEA admitted in 1986 when synthetic THC was first made a legal prescription drug, again in 1988 when the DEA Administrative Law Judge recommended rescheduling for medical use, and more recently when synthetic Δ9-tetrahydrocannabinol was again rescheduled to Schedule III for medical use, that cannabis has never killed or injured a single human being in 5000 years of recorded history.  The Controlled Substances Act of 1970 gives the Attorney General the power to reschedule a controlled substance if that substance does not meet the criteria for the schedule to which it has been assigned. 21 U.S.C. § 811(a). The Attorney General has delegated this authority to the Administrator of the Drug Enforcement Administration (hereinafter DEA). See 28 C.F.R. § 0.100(b).   According to the federal drug law, it is the DEA Administrative Law Judge who determines the actual danger caused by medical use of a drug The DEA ruling on threat to public health and safety reached by the DEA Administrative Law Judge on the question of threat to public health and safety is authoritative as to the religious act of growing cannabis. The findings of the federal DEA Administrative Law Judge on the matter of Rescheduling Marijuana for medical use are legally controlling.   There is little, if any actual threat to public health and safety caused by growing and using the non-toxic plant cannabis.  DEA Judge Frances Young stated that despite near universal use amongst all societies prior to US prohibition in 1937; there is no record of a single injury or death that has ever been caused by putting cannabis into a human body in over 5,000 years of recorded history.

In 2006 the Supreme Court ruled that states have the authority to set the standard for medical practice as defined by federal drug statutes. Gonzales v. Oregon, 126 S. Ct. 904; 163 L. Ed. 2d 748 (2006).

Eleven states have determined that cannabis has medical use. If medical users can use cannabis in public without any threat to public health or safety, religious use of cannabis is entitled to the same respect.

This appears to be a novel legal issue in Alabama. Defendant was not in public, but was arrested while in the sanctity of her own home, on her own private land.  This court should follow the law and dismiss this case.
Respectfully submitted this 26th day of April, 2007. OF COUNSEL:                                  ___________________________Daniel P. Mitchell 

109 West 1st Street
Minette, Alabama 36507    

251.937.5667 CERTIFICATE OF SERVICE I hereby certify that a properly addressed copy of the foregoing has been served upon the following parties by placing a copy thereof in the United States Mail, postage paid and properly addressed to them on this the ____ day of March, 2007.  Judy A. Newcomb, EsquireBaldwin County Prosecuting Attorney312 Courthouse Square

Bay Minette, Alabama 36507 ___________________________OF COUNSEL

State's Response to RFRA Motion  

Last Updated ( Friday, 18 April 2008 )
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