Iowa Religious Freedom Restoration Act

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.