I’ve seen some negative reactions recently in regard to the Iowa Religious Freedom Restoration Act (RFRA), Senate File 2095, signed by Governor Kim Reynolds on April 2, 2024.
To put the Iowa RFRA into context, last year the Iowa Supreme Court held that there is no implicit right to sue the state under the Iowa constitution. The legislature must explicitly authorize the remedies. Burnett v. Smith, 990 N.W.2d 289, 295 (Iowa 2023).
The Iowa RFRA does exactly that, it explicitly authorizes a remedy under a single phrase in Article 1, Section 3, of the Iowa Constitution (“free exercise” of religion).
This piecemeal approach to explicitly authorizing individuals to sue the government likely appears out of balance. On the other hand, religious beliefs are often misunderstood. Perhaps a right that is not as well understood as the others deserves elevated attention? It remains to be seen whether the legislature has struck the right balance. I have a RFRA claim, so I’m going to use it.
My personal journey with religious freedom began in 1971 when I joined a religious organization which later incorporated in Jamaica in 1976 as the Ethiopian Zion Coptic Church. Like most Rastafarian churches in Jamaica, the Ethiopian Zion Coptic Church is a Christian church that uses cannabis (ganja) as its sacrament.
1970 marks the year the current federal drug laws were created, and 1971 marks the year the current Iowa drug laws were created. At that time, the government insisted on putting marijuana into the most restrictive classification, falsely promising it was only temporary. A commission was established to make recommendations. In 1972, that commission recommended that personal, private use be legal and only commercial use be prohibited. It made the same recommendation for both state and federal law.
p. 152
RECOMMENDATIONS FOR FEDERAL LAW
The Commission recommends only the following changes in federal law:
Possession of marihuana for personal use would no longer be an offense, but marihuana possessed in public would remain contraband subject to summary seizure and forfeiture.
Casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration not involving profit would no longer be an offense.
p. 154
RECOMMENDATIONS FOR STATE LAW
Private Activities
Possession in private of marihuana for personal use would no longer be an offense.
Distribution in private of small amounts of marihuana for no remuneration or insignificant remuneration not involving a profit would no longer be an offense.
I got arrested several times as did other members of my church. The evidence was always the same, marijuana, cash, no guns, no violence, no victims. The defense was always the same, cannabis is our sacrament and is protected by the First Amendment of the U.S. Constitution.
In my particular situation, both state and federal law had recognized a religious exemption for the sacramental use of peyote by the Native American Church. I always included an equal protection argument in my defense in addition to the First Amendment. The courts agreed I had a sincere religious belief protected by the First Amendment, but then went on to determine whether my use of cannabis was equal to the religious use of peyote. My use of cannabis was boundless and cannabis was widely used. The use of peyote was not popular outside the religious context. The court found that to be an easy excuse for discrimination.
One of my judges on the U.S. Court of Appeals, Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), found popularity to be inadequate justification for denying me equal protection, but the majority held I was not worthy.
Then something unexpected happened. While my case was pending, the U.S. Supreme Court had a peyote case from Oregon on the docket, Employment Division v. Smith, 494 U.S. 872 (1990). Smith was a member of the Native American Church and had been fired from his job as a drug counselor for participating in religious ceremonies. The Oregon Unemployment Division found that Smith was not entitled to unemployment insurance benefits.
Oregon’s drug laws were neutral toward religion, because Oregon did not have any religious exemptions. Oregon’s drug laws were generally applicable because Oregon did not have any secular exceptions. The U.S. Supreme Court held there was no First Amendment protection for a religious practice where the state law is both neutral toward religion and generally applicable.
Congress wasn’t happy about that ruling (federal law had a religious exemption for peyote) and tried to overturn Smith by enacting the RFRA. The federal RFRA simply says the First Amendment applies in “all” cases where religious freedom is burdened by government. Courts must employ a balancing test known as the “compelling interest test” to see if the government’s interest is compelling or whether some means of accommodating the religious practice can be found if the government’s interest is compelling.
The U.S. Supreme Court had the final say on the RFRA and held that Congress has no power to dictate the use of the federal “compelling interest test” in cases where a state law is both neutral and generally applicable, City of Boerne v. Archbishop Flores, 521 U.S. 507 (1997). In response, states began enacting RFRA laws soon thereafter. 28 states now have them. And now Iowa has one.
The RFRA only dictates the “compelling interest test” in cases where it might not otherwise be applied without the RFRA. Some cases like mine have always received the “compelling interest test”. Unlike Oregon, Iowa’s drug laws have never been neutral toward religion or generally applicable. I lost my case on the merits of the equal protection claim. The Iowa Supreme court acknowledged I had a valid First Amendment claim. The RFRA does not change that analysis. The RFRA only dictates the “compelling interest test”, it does not dictate the outcome of that test. Not everyone will pass that test, and I didn’t.
Since I lost my case in 1990, forty-seven (47) states have authorized the use of cannabis, starting with California in 1996. Iowa is one of them. A business must agree to violate federal drug law to obtain an Iowa license. People with severe medical conditions are forced to violate federal drug law if they want to receive treatment. Congress is aware of this mess and has suspended criminal enforcement each year in the annual appropriations for the U.S. Department of Justice.
But civil penalties still apply. There is an enormous tax penalty the businesses passed on to the patients. Patients are denied services from any institution that receives federal funding. Iowa enacted its program under the pretense it would make life easier for suffering Iowans, but there are hidden traps not easily apparent when a patient signs up for the program.
Getting back to the reason for this post, until now Iowa has not provided individuals with the right to sue the state for denying religious freedom. The state has authorized federal criminal organizations to sell my sacrament to desperate Iowans without seeking a federal exemption to bring the program into compliance with federal law and protect the patients from discrimination.
I filed an administration action last fall asking the state to create administrative rules for accepting requests for religious exemptions. That case is currently pending in Polk County Iowa District Court. Carl Olsen v. Iowa Department of Inspections, Appeals, and Licensing, Case No. 05771 CVCV066477. I did not know Iowa would enact a RFRA law when I filed this case. Since the RFRA says it applies to all state laws and regulations enacted before or after the RFRA was enacted, I’ve introduced it as supplemental authority for my claim.