Interesting free exercise case brewing in Brooklyn

Employment Division v. Smith, one of the rare shining beacons of common sense in the Supreme Court's religion clause jurisprudence, held in 1990 that "the First Amendment’s Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct."1 Under Smith, a law must be "specifically directed at ... religious practice"2 to fall afoul of the free exercise clause. "That is, if the law says no speeding, the First Amendment does not require an exception for faith-based drag-racing; if hunting bald eagles is prohibited, there is no constitutional right to kill them and use their feathers in religious ceremonies. ... [While] the free-exercise clause does not permit governments to single out religious believers and activities for discrimination or special burdens[,] ... [or] to punish people because of their religious beliefs[,] ... when it comes to securing special exemptions from general laws, the Court has told believers to look to the political process ... and not to the Constitution."3

If the rectitude of this interpretation of the First Amendment isn't obvious at first glance, it becomes so on closer examination: "Can a man excuse his practices to the contrary [of law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."4 If the rule were otherwise, we would face "the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind - ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this."5

Such common sense rarely survives contact with electoral politics, however: "Riding a wave of popular, academic, and political criticism of this holding, Congress enacted the Religious Freedom Restoration Act,"6 (RFRA), which expressly sought to overturn Smith and restore the Sherbert test.7 "As originally enacted, RFRA applied to States as well as the Federal Government[, but i]n City of Boerne v. Flores, [the Supreme Court] held the application to States to be beyond Congress’ legislative authority under §5 of the 14th Amendment."8 "Boerne left unresolved the question of whether RFRA is constitutional as applied to the federal government — whether the statute represents an impermissible rebuff by Congress of a decision that properly belongs in the realm of the judiciary."9 That door seemingly slammed shut last term, with the unanimous court's "silent complaisance" and "shrugging acceptance of RFRA’s legislative mandate"10 in Gonzales v. O Centro Espírita Beneficente União do Vegetal, where the court rejected the government's argument that uniform application of the Controlled Substances Act was a sufficiently compelling interest under RFRA to preclude granting an exemption for sacramental use of a given controlled substance. In many eyes, "O Centro signals that the Justices no longer harbor significant concerns about the statute’s constitutionality."11 So Boerne didn't hollow out RFRA, it merely narrowed its application: "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."12 Thus, as applicable to federal actions today and as seemingly construed by the court to date, "RFRA prohibits [the federal] government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The Act's mandate applies to any branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States."13

All of which brings us to United States v. Manneh, which is the case that this story is talking about. Manneh was indicted for importing monkey meat in violation of 18 USC § 545 ("[w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law ... [s]hall be fined under this title or imprisoned not more than five years, or both") and attendant laws and regulations,14 She moves to dismiss on RFRA grounds.

[Read on]

In O Centro Espirita, according to Manneh, the Supreme Court gave RFRA a "broad[] and vigorous[]" reading which gave it "it's full textual meaning as applied to federal statutes." 15 Having made the threshold argument that this practice really is part of a legitimate religion, and (as Justice Scalia quipped recently about the Smith plaintiffs) not Timothy Leary stuff,16 Manneh attacks on both prongs of RFRA, arguing that there is no compelling interest present, and that even if there were, criminal prosecution isn't the least restrictive means of carrying it out.

While conceding that "there is obviously a societal goal in regulating trade in endagered species,"17 and "[t]here is no question that the government has a legitimate interest in stemming the spread of infectious diseases,"18, Manneh argues that "a hypothetical [health] risk cannot satisfy the strict scrutiny standard imposed under RFRA," and the concerns of "contagious disease" from imported materials are "too speculative to reach the mark set under the compelling interest test."19 Indeed, Manneh argues that to the contrary, there is no health risk. Nor is Manneh impressed with the argument that the government's interest in protecting endangered species justifies prosecutions such as the instant one (at very least when it involves "criminal prosecution for a personal-use quantity of Bushmeat"). But the motion take a funny turn (I would say comes off the rails entirely) when it argues that the government's interest in "wildlife conservation"20 is clearly "not compelling when [government] fails to regulate other activities that harm those same interests."21 Thus, argues Manneh, how can the government prosecute her for importing ape steaks when it hasn't regulated timber imports in pursuit of limiting deforestation,22, fish imports in pursuit of preserving coastal stocks,23 or carbon dioxide in pursuit of saving the entire biosphere.24 "The fact that these other ecological issues are largely unaffected by legislation," argues Manneh, "weakens the government's arguments about how compelling the interest really is."25 This argument is, to say the least, under-reasoned.

Manneh also attacks the prosecution on the second prong, seeking to "show that there are other measures, less grave and ethnocentric, that the government can take to advance the legitimate societal goals of wildlife conservation and protection of public health,"26 that is, it "might achieve its legitimate goals by means less draconian than criminal prohibition."27 Manneh suggests that "[m]any thoughtful conservationists ... propose more culturally-sensitive methods of addressing the Bushmeat problem, including sustainable Bushmeat harvesting and regulated supply. ... It seems possible that if a system of sustaininable Bushmeat harvesting could be created, there would be no reason why the tiny portion of it exported to the United States could not be subject to regulations that have worked fairly well for imported meat of all kinds subject to USDA inspection and regulation."28 "That the government can accomplish with regulation without resort to prohibition and punishment" is a point for which Manneh cites "Church of the Lukumi. There, the Supreme Court noted numerous ways in which the legitimate societal goals of public health and the prevention of cruelty to animals could be 'addressed by restrictions stopping far short of a flat prohibition of all santeria sacrificial practice.'"29

This is all still at the district court level, so we've got lots of time to theorize about how this will and should play out.

HT: The Bashmanator.

1. 1. Cutter v. Wilkinson, 544 U.S. 709, 125 S. Ct. 2113, __ (2005) (describing Smith's holding); see Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990):

   if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. ... We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.

2. 2. Smith, 494 U.S. at 878.
3. 3. Rick Garnett, An Unassuming Decision at National Review Online (2/23/06). Another example would be that if a state banned the consumption of wines, beers and spirits in all circumstances, and the law would not fall afoul of the free exercise clause for want of an exception for sacramental wine (but see Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 561 (1993) (Souter, J., concurring) ("[a] secular law, applicable to all, that prohibits consumption of alcohol, for example, will affect members of religions that require the use of wine differently from members of other religions and nonbelievers, disproportionately burdening the practice of, say, Catholicism or Judaism. Without an exemption for sacramental wine, Prohibition may fail the test of religion neutrality" (emphasis added)).
4. 4. Reynolds v. United States, 98 U.S. 145, 166-7 (1879)
5. 5. Smith, 494 U.S. at 888-9 (citations omitted).
6. 6. The Supreme Court, 2005 Term -- Leading Cases, 120 Harv. L. Rev. 341, 342. As Milton Berle supposedly observed, "You can lead a man to Congress, but you can't make him think."
7. 7. Cf. Dickerson v. United States, 530 U.S. 428, 431-2 (2000):

   In Miranda v. Arizona, 384 U.S. 436 (1966), we held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence. In the wake of that decision, Congress enacted 18 U.S.C. § 3501 which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress

8. 8. Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 126 S. Ct. 1211, __ n.1 (2006) (citation omitted).
9. 9. Leading Cases, supra, 120 Harv. L. Rev. at 373.
10. 10. Id. at 343-4.
11. 11. Id. at 347. A cautionary note: my modified thesis about the Chief Justice (and to some extent Justice Alito) in light of cases such as Hein, WRTL, Carhart and Randall is that they may be genuinely try to follow the umpiring model of judging: resolving the case at bar by saying which litigant has presented the best argument. Carhart is particularly instructive: there, as I explained in Put the Cork Back in the Champagne Bottle (or Don't Panic): What Gonzales v. Carhart Really Says, the court heard a facial challenge to the constitutionality of a federal ban on partial-birth abortion premised on the Casey-Stenberg theory that abortion regulations must have certain exceptions to be valid under a substantive due process inquiry. But no party raised the antecedent question of whether Congress had the power to pass that law in the first place, and the court declined to pass on the question. Neither Roberts nor Alito joined Justice Thomas' concurrence observing that the question of whether the statute was intra vires was not presented (just as it wasn't in O Centro Espirita) and therefore not necessary to discuss.
12. 12. O Centro Espírita, 126 S. Ct. at __ (internal quotation marks omitted) (emphasis added).
13. 13. City of Boerne v. Flores, 521 U.S. 507, 515-6 (1997) (internal quotation marks omitted).
14. 14. See 16 U.S.C. § 1538(a)(1) ("with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to ... import any such species into, or export any such species from the United States"; one thing that I'm not sure about at first glance: I'm assuming here that § 1538 applies to the meat of endangered species, not merely to live specimens); 16 U.S.C. § 1533(a)(1) ("The Secretary shall by regulation ... determine whether any species is an endangered species or a threatened species") (for which see 50 C.F.R. § 17.11).
15. 15. Motion to dismiss, at 6.
16. 16. "RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to ... the particular claimant whose sincere exercise of religion is being substantially burdened." O Centro Espirita, 126 S. Ct. at __ (emphasis added) (quoted in Garnett, supra). "Manneh's sincere belief is that Bushmeat is a dish that, when consumed after it is blessed, makes one 'closer to God," a view "she shares ... with her fellow churchgoers, who confirm that the practice of eating boiled bushmeat is most often performed on certain holy days, ... or at ritualistic events, ... and that it is blessed by clergy and eaten in connection with the offering of specific prayers to God." Motion to dismiss at 11. While "[o]nly beliefs rooted in religion are protected by the Free Exercise Clause, ... [t]he determination of what is a 'religious' belief or practice is more often than not a difficult and delicate task.... [R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 713-4 (1981) (footnote omitted).
17. 17. Motion to dismiss, at 3.
18. 18. Id. at 19.
19. 19. Id. at 19.
20. 20. Id. at 24. Note the boost in level of generality, cf. Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992).
21. 21. Ibid.
22. 22. Motion to dismiss, at 24-6.
23. 23. Id. at 26.
24. 24. Id. at 26-7. The level of generality keeps going up.
25. 25. Id. at 26.
26. 26. Id. at 3-4.
27. 27. Id. at 18.
28. 28. Id. at 27.
29. 29. Ibid. (quoting Church of the Lukumi, supra, 508 U.S. at 538).