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Friday, May 22, 2015

Ind. Courts - "First Church of Cannabis could test RFRA"

Vic Ryckaert of the Indianapolis Star had a long story May 21st subheaded "Courts ultimately might have to decide whether practices amount to sincere religion." Some quotes:

[Bill Levin, the founder of the newly formed First Church of Cannabis] is daring police to arrest him and his followers in what will likely be one of the first tests of the state's new RFRA protections. * * *

RFRA, designed to protect religion from being infringed upon by the government, drew unanticipated attention on the Hoosier state when it became widely viewed as a license to allow business owners to refuse service to same-sex couples.

Under intense public pressure, Indiana lawmakers amended RFRA to specify that it can't be used to undermine local human rights ordinances that protect lesbian, gay, bisexual and transgender people from discrimination in Indianapolis and 10 other cities.

Experts say the act opens a new doorway in Indiana that invites a host of legal challenges from religious practitioners throughout the state. Challenges like this one from the First Church of Cannabis.

"It's not the type of plaintiff that was expected or that probably most supporters of RFRA had in mind," said Robert A. Katz, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

ILB: But perhaps they should not be surprised. From a June 30, 2014 entry in Constitution Daily:
Here is the back story: In Employment Division v. Smith (1990), two American Indians who worked as private drug rehab counselors ingested peyote as part of religious ceremonies conducted by the Native American Church, and they were subsequently fired. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia saying that using a religious exemption in conflict of a valid law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

A near unanimous Congress passed RFRA in 1993 and President Bill Clinton signed the law. RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

More from the Star story:
Once a case gets to the courts, the state under RFRA must prove a compelling reason for government to interfere with religious practices, said Ken Falk, legal director of the American Civil Liberties Union of Indiana.

This elevated legal scrutiny makes it "very difficult for the government to win," Falk said. "That's something the court will have to wrestle with."

Falk pointed to other well-established religious traditions that are allowed. Catholics, Jews and members of other faiths drink wine at their services. Sometimes that wine is consumed by people who are under age 21.

"If you're drinking wine (and underage) in a nonreligious setting, you would be breaking the law," Falk said. "What's the justification if you smoke marijuana as part of your religion?"

Katz, the IU law professor, said the First Church of Cannabis will have to prove it's a sincere religion, not just an excuse for users to get together and smoke.

Posted by Marcia Oddi on May 22, 2015 09:29 AM
Posted to Indiana Courts