E-FILED 2021 NOV 23 3:55 PM POLK - CLERK OF DISTRICT COURT
Setting aside the State’s immunity from suit, the Petition should still be dismissed for failure to state a claim. Dismissal at this stage is appropriate because the Court can accept the facts set forth in the Petition as true and still legally conclude that Olsen’s claims must fail. The Court can assume at this stage that Olsen’s religion is protected by the Free Exercise Clause and that his religious beliefs are sincere and the use of marijuana sacrament central to his religion.
The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868, 1876 (2021). The Free Exercise Clause, however, “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the
law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S.252, 263 (1982) (Stevens, J., concurring)). The analysis of a free exercise claim begins with a determination of whether or not analysis of a free exercise claim begins with a determination of whether or not the challenged law is a neutral law of general applicability governed Smith.
The Iowa Supreme Court has followed a three step framework for analyzing whether a law is a neutral law of general applicability. See Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1, 9-11 (Iowa 2012). First, a court considers whether the law is facially neutral. Id. at 9. If a law is facially neutral, a court next considers whether the law is operationally neutral. Id. at 10. If a law is operationally neutral, a court finally considers whether the law is generally applicable. Id. at 11.
History: The First Amendment contains an establishment of religion clause and a free exercise clause. Olsen v. DEA, 878 F.2d 1458, 1463 (D.C. Cir., 1989) (“Olsen asserts an establishment clause-equal protection challenge . . . a religious exemption from the marijuana laws on the same terms as the peyote exemption . . .”). The equal protection component of a free exercise challenge is the “hybrid rights” doctrine described in Smith, at 881.
Facial Neutrality: Iowa’s version of the Uniform Controlled Substances Act is not facially neutral toward religion because it contains a religious exemption for peyote. See Iowa Code § 124.204(8) (peyote). Because there is no process to apply for another religious exemption, the law is not operationally neutral toward religion. In contrast, the federal Controlled Substances Act accommodates applications for religious use. See DEA Guidance for Religious Exemption.
Establishment Clause: The Establishment Clause component is closely related to facial neutrality. See Olsen, at 1461 (“A statutory exemption authorized for one church alone, and for which no other church may qualify, presents a ‘denominational preference’ not easily reconciled with the establishment clause.”)
Equal Protection: An exception for marijuana triggers the “general applicability” component of the Smith analysis. See Iowa Code Chapter 124E. In Olsen, at 1463., the court found that use of peyote did not create a high risk of diversion or a high risk of abuse. The court held the religious use of peyote and the religious use of marijuana were not equally situated for Equal Protection analysis. In contrast to the unrestricted use of marijuana rejected in Olsen, Iowa Code Chapter 124E limits both diversion and use.
Collateral Estoppel: Olsen v. Mukasey, at 831 (“Collateral estoppel does not apply if controlling facts or legal principles have changed significantly since Olsen’s prior judgments. See Montana v. United States, 440 U.S. 147, 155 (1979). Collateral estoppel ‘is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.’ Comm'r v. Sunnen, 333 U.S. 591, 599 (1948)”).See Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir., 2008) (“Olsen’s free exercise claim was previously considered . . . Strict scrutiny was the appropriate analysis . . . Olsen has also already litigated his equal protection claim”).
Strict Scrutiny: Olsen previously sought an unlimited religious exemption for a religious organization in the absence of any state program allowing access to marijuana. The legal analysis applied to that claim was “strict scrutiny”. In contrast, Olsen currently seeks access for his own religious use to a restrictive state program that currently allows over 10,000 Iowans to use marijuana extracts. The legal analysis applied to this claim should be “strict scrutiny” as it was in all of Olsen’s previous cases prior to Smith.
If a court finds the challenged law satisfies all three of these tests, then Smith governs and the free exercise claim must fail. Id. at 8-9. If a court finds the challenged law fails any of these three tests, then the court must analyze whether the challenged law can pass constitutional muster under a strict scrutiny analysis. Id. A law can survive strict scrutiny if it advances interests of the highest order and is narrowly tailored to achieve those interests. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).
As set forth below, Olsen fails to state a claim because the pertinent laws are neutral laws of general applicability. The Free Exercise Clause does not prohibit a state from enforcing a regulatory law that is both neutral and generally applicable. Mitchell Cnty., 810 N.W.2d at 8.
A threshold question is which law should be analyzed using the tests set forth above. The law that prohibits Olsen from engaging in the sacramental
use of marijuana is Iowa Code section 124.204(4)(m), which places marijuana in Schedule I of the Iowa Controlled Substances Act. Iowa Code section 124.401 establishes criminal penalties for the unlawful possession of marijuana.
Pursuant to Iowa Code chapter 124E, the legislature has authorized Iowans with specific debilitating medical conditions to legally access medical cannabidiol. Medical cannabidiol falls under the definition of marijuana in Iowa Code section 124.101(20), and is therefore a Schedule I controlled substance. A patient must be issued a medical cannabidiol registration card by the Iowa Department of Public Health to be eligible to purchase medical cannabidiol. Iowa Code § 124E.4. Medical cannabidiol can only purchased from a medical cannabidiol dispensary licensed by the Department. Iowa Code § 124E.9. To be eligible for a medical cannabidiol card, a patient must have one of the debilitating medical conditions listed in statute and a licensed health care practitioner who has a relationship with the patient must provide written certification identifying the patient’s debilitating medical condition. Iowa Code §§ 124E.2, 124E.3. With a valid medical cannabidiol registration card, a patient is authorized to purchase a limited quantity of medical cannabidiol from a licensed dispensary. Iowa Code § 124E.9(14). A patient may only exceed the quantity limits set forth in Iowa Code section 124E.9(14) if the patient’s health care practitioner certifies that the patient is terminally ill or that the maximum amount of medical cannabidiol authorized by law is insufficient to treat the patient’s debilitating medication condition. Iowa Code § 124E.9(15).
deprivation of religious liberty is the equivalent of debilitating medical condition and certification of sincerity is the equivalent of written certification of a debilitating medical condition.
Because medical cannabidiol remains a Schedule I controlled substance, Iowa Code section 124E.12 provides an affirmative defense to criminal prosecution for the charge of unlawful possession of marijuana to a patient in possession of medical cannabidiol with a valid medical cannabidiol registration card. In addition, Iowa Code section 124.401(5) provides that “[a] person may
knowingly or intentionally recommend, possess, use, dispense, deliver, transport, or administer cannabidiol if the recommendation, possession, use, dispensing, delivery, transporting, or administering is in accordance with the provisions of chapter 124E.”
The laws cited herein are the pertinent laws for the Court to analyze in evaluating neutrality and general applicability.
“The most basic requirement of neutrality is ’that a law not discriminate on its face.’” Mitchell Cnty., 810 N.W.2d at 9 (quoting Lukumi, 508 U.S. at 533)). “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Id. The laws governing marijuana in Iowa are indisputably facially neutral they do not reference religion in any way.
To determine operational neutrality, a court must “look beyond the language” to determine whether there is a religious practice being targeted for discriminatory treatment. Id. at 10. In all of Olsen’s prior cases, there has never been an allegation that laws placing marijuana in Schedule I were passed to target the religious practices of the members of the Ethiopian Zion Coptic Church. This stands in sharp contrast to the ordinances at issue in Lukumi, wherein the City of Hialeah passed ordinances to prohibit religious animal sacrifice by members of the Santeria church. 508 U.S. at 527-28. Although the ordinances themselves did not explicitly reference religion or the Santeria church, the record overwhelming established that the city council members passed the ordinances specifically to prevent religious animal sacrifice by church members. The Supreme Court held that a facially neutral
law is not neutral if the objective of the law is to infringe on certain practices due to religious motivation. Id. at 533.
Given that Iowa — along with the federal government and the remaining 49 states — enacted laws classifying marijuana as a Schedule I controlled substance to prevent drug abuse and promote the public health — and not to hinder the religious practices of the Ethiopian Zion Coptic Church — there can be no dispute that the laws are operationally neutral.
A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated.
Mitchell Cnty. at 13 (quoting Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3rd Cir. 2004)). “[F]ederal courts have generally found laws to be neutral and generally applicable when the exceptions, even if multiple, are consistent with the law’s asserted general purpose.” Id. at 13.
The purpose of classifying marijuana as a Schedule I controlled substance was to prevent drug abuse and protect the public health. See Iowa Code § 124.201 (setting forth the factors to consider in making scheduling recommendations); State v. Olsen, 315 N.W.2d at 8-9. This purpose applies universally to the numerous controlled substances listed in the five schedules set forth in chapter 124.
Olsen is specifically requesting a lawful right to purchase, possess, and use medical cannabidiol for religious purposes in accordance with Iowa Code chapter 124E. Admittedly, Iowa Code chapter 124E does provide an exception to the general law that marijuana is illegal. But it doesn’t follow that the laws making marijuana illegal are not generally applicable. Iowa’s Medical
Cannabidiol Act provides for controlled access to a controlled substance for the purpose of medical treatment. The highly regulated access to medical cannabidiol is akin to the familiar concept of authorized prescriptions for controlled substances substances.
State v. Middlekauff, No. 21-0664 (Iowa, May 27, 2022).
“The registry card provides neither the specific name, strength, and quantity of the marijuana nor directions for use of the marijuana. Id. at 13. “Another hurdle to a claim that the registry card or written certification is a medication order is that medication orders have similar labeling requirements to a prescription (drug name, strength, and dosage, as well as directions for use). (citations omitted). As described above, the registry card and written certification both fail to meet these requirements.” Id. at 17. “[n]either Iowa, Arizona, nor federal law allow prescriptions for schedule I drugs because schedule I drugs, for purposes of the CSA’s, have no legitimate medical use by statutory classification.” Id. at 21-22.
[“Whereas some other drugs can be dispensed and prescribed for medical use the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has ‘no currently accepted medical use’ at all.” United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (citation omitted); see Gonzales v. Oregon, 546 U.S. 243, 269 (2006) (“Congress’ express determination that marijuana had no accepted medical use foreclosed any argument about statutory coverage of drugs available by a doctor’s prescription.”); see also Bonjour, 694 N.W.2d at 514.]
Id. at 22. “Although some states have passed legislation to avoid certain provisions of the Federal CSA and their own CSA’s, the legal consequences for prescribing or ordering a schedule I drug, such as marijuana, continue to exist.” Id. at 25.
As previously stated, Iowa’s Controlled Substances Act establishes criminal penalties for the possession of a controlled substance. Iowa Code § 124.401. But chapter 124 also makes it lawful for an individual to possess a controlled substance if prescribed or furnished by a licensed health care professional for a legitimate medical purpose. Iowa Code § 124.401(5). For example, the possession of hydrocodone, a Schedule II controlled substance, is illegal for someone who does not have a prescription for it, while the possession of hydrocodone is legal for someone who has a valid prescription. Why? Because a licensed health care professional has determined that a patient under their care has a medical need for hydrocodone. The prescribing of controlled substances occurs in a highly regulated environment, with regulation by the federal Drug Enforcement Administration, the Iowa Board of Pharmacy, and the various licensing boards established under Iowa Code chapter 147 that license health care practitioners with prescriptive authority.
Iowa’s Medical Cannabidiol Act Act — the “exception” at play in this case case — is analogous to the allowance in chapter 124 for access to controlled substances via prescription for a medical reason. Neither chapter 124 nor chapter 124E establish a system of government assessment of individual exemptions. Rather, they establish the allowance for medical use of controlled substances as authorized by a patient’s health care provider. This medical allowance allowance — or “favored secular conduct” — is categorically unique. It allows health care providers to authorize treatment of medical conditions using controlled substances. Chapter 124E does not authorize use of marijuana outside of a
medical context. Use of a controlled substance for medical treatment does not undermine the goals of the Controlled Substances Act to prevent drug abuse and protect the public health. Society has recognized that tightly controlled access to controlled substances is a cornerstone of medical care. Because of the nature of this excepted category of use, the laws prohibiting the use of marijuana outside of the medical context remain generally applicable and the State can refuse to extend access to medical cannabidiol to individuals with a religious hardship. A contrary finding would allow a person to seek access to a controlled substance of their choosing, such as hydrocodone, for religious use.
Because the laws making marijuana generally illegal, except for medical purposes as set forth in chapter 124E, are neutral and of general applicability, they “need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Lukumi, 508 U.S. at 531. The Free Exercise Clause does not relieve someone of obligation to comply with a valid and neutral law of general applicability. Smith at 879-80. Olsen must thus comply with the provisions of chapter 124 that prohibit him from possessing any controlled substance unless he is authorized to for medical reasons by a treating health care provider and does so in accordance with the provisions regulating medical use that are set forth in chapter 124 for controlled substances in Schedules II-V, and in chapter 124E for medical cannabidiol, respectively.
Whatever medical cannabidiol is, it is not medical. It is some kind of compassionate use outside the context of medical use. It is not approved by the FDA. There are no instructions on how to use it and no direct medical supervision. There is no guarantee of safety or efficacy for any of the listed conditions. Participation is completely use at your own risk. The board that regulates the program complains that it is not a cannabidiol program at all and should be called a cannabis program.
The board’s 2019 annual report, at page 8, recommendation 10, recommended renaming the program to medical cannabis instead of medical cannabidiol to avoid any confusion caused by calling the products cannabidiol.
The board’s 2021 annual report, at page 7, recommendation 1, again recommended renaming the program to medical cannabis “to reflect scientific reality.”
Medical cannabidiol is an option for patients that have tried dangerous prescription drugs do not want to use them. The state is obviously not taking my religious claim seriously. That is why religious freedom appears in the amendments to the state and federal constitutions. Medical use of dangerous prescription drugs does not receive that heightened protection. The state has authorizing the use of cannabis without a prescription, which says a lot about cannabis’ safety profile.