Holy smokes?

Smoking marijuana is not a protected sacrament under Indiana’s Religious Freedom and Restoration Act, according to Judge Sheryl Lynch of the Marion County Circuit Court—at least, not as practiced by the First Church of Cannabis in Indianapolis. Members of that organization filed a lawsuit in 2016 challenging the state’s marijuana use prohibition.

Sober-minded observers might consider the July 6 ruling to be common sense and the case a publicity stunt by lead plaintiff Bill Levin, a longtime marijuana legalization advocate. But the case invoked a serious legal issue. Since 1993 Congress and state legislatures have passed numerous Religious Freedom Restoration Acts, known as RFRA laws, to distinguish between sincere and insincere religious practices and prevent other laws from interfering with legitimate religious activity. Judges rely on this legal standard when determining the application of a RFRA law, said Regent University School of Law professor Brad Jacob, who advocated for passage of the federal RFRA.

Levin opposed Indiana’s 2015 RFRA law, signed by then-Gov. Mike Pence, so he legally established the First Church of Cannabis, declared smoking pot a sacrament, and then, using RFRA for legal cover, dared the government to stop his congregation from lighting up.

On cue, Indianapolis police officers showed up outside the church’s first service in March 2015, and Levin sued to “redress the substantial burden Indiana governmental entities have placed upon plaintiffs’ exercise of their religion.”

In her ruling, Lynch considered Levin’s RFRA claim, weighed it against the state’s compelling interest in maintaining tight control over illegal drug use and proliferation, and then denied his request for a religious exemption. The church’s “Grand Poohbah” said he will appeal.

The courts have dealt with this issue for decades. Prior to 1990, the courts used a “very protective test,” Jacob said, under which religious believers typically won exemptions from generally applicable laws that interfered with religious practices. Then in 1990, the U.S. Supreme Court, in Oregon Employment Division v. Smith, set a new standard that limited exemptions and was much less protective of minority rights. The court rejected the free exercise claims of two Oregon men, members of the Native American Church, who were denied state benefits because they had smoked peyote, a hallucinogen. The plaintiffs said it was part of a long-established sacrament among some tribes.

Congress responded in 1993 with the first RFRA. Jacob said RFRA laws reestablish the strict scrutiny test lost in Smith: Governments must demonstrate a compelling interest in requiring compliance without exceptions, and prove the law is the least restrictive means for accomplishing its intended purpose. Religious minorities benefit most from RFRA protections.

Others have tried to exploit RFRA protections for a religious high but “the courts are usually pretty good at ferreting out the scams,” Jacob said. For example, last year, the 9th U.S. Circuit Court of Appeals upheld the drug offense convictions of Hawaii Cannabis Ministry leaders Roger and Sherryanne Christie.

Lynch noted Levin’s lackadaisical implementation of the marijuana sacrament. “Plaintiffs left unanswered where the marijuana would come from, what form of consumption it will take, where it will be stored, what safeguards will be in place to prevent children from consuming it and criminals from obtaining it,” she said.

Citing testimony from law enforcement and health experts, Lynch said Indiana’s marijuana prohibition could not be tailored “more narrowly without undermining the entire enforcement scheme.”

But Jacob thought Levin might have improved his chances if he had been more careful: “Perhaps if the church had defined its sacrament in a much narrower way, it could have been accommodated without significantly impacting law enforcement.”

First Amendment protection for the Second

Second Amendment advocates have a new defensive weapon in their arsenal: the First Amendment. In a settlement announced July 10, the U.S. Department of State agreed with gun-rights advocate Cody Wilson that his computer code for printing a 3-D handgun is constitutionally protected speech.

The settlement sets no legal precedent but, for now, lays to rest a legal challenge to 3-D firearms printing. Wilson, owner of Defense Distributed in Austin, Texas, pioneered the technology in 2012 when he fired the first 3-D printed handgun. He then offered free downloads of the design code from his non-profit company’s website.

State Department officials warned Wilson in 2013 that his online plans for the “Liberator,” a single-shot handgun, required governmental prepublication review and violated international weapons export regulations. Wilson took down the code, but after two years of hoop-jumping, he sued the State Department, claiming his code is First Amendment–protected speech.

Free speech hawks, including gun-control advocates like the Los Angeles Times editorial board, agreed while noting that the code’s proliferation is disconcerting.

Wilson’s website goes back online Aug. 1. It offers free downloads for a variety of firearms and parts and declares—or warns, depending on your perspective—that “the age of the downloadable gun formally begins.” —B.P.

What’s love got to do with it?

Title VII of the 1964 Civil Rights Act, which covers employment discrimination, does not prohibit firing an employee because of homosexuality, according to a recent ruling in the 11th U.S. Circuit Court of Appeals. The decision puts it at odds with two other circuit courts, suggesting the case could be headed to the U.S. Supreme Court.

Gerald Bostock claims in his 2016 lawsuit against Clayton County, Ga., that supervisors fired him for being gay. A three-judge panel of the 11th Circuit upheld on May 10 a U.S. District Court ruling that Title VII did not prohibit discharge based on sexual orientation. On July 21, the appellate court declined to hear the case en banc by a 9-2 vote.

In her self-described “objective” dissent, Judge Robin Rosenbaum, joined by Judge Jill Pryor, repeatedly declared gays and lesbians face systematic employment discrimination “because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love.”

Yet in a footnote, Rosenbaum admitted she could not find “current statistics providing the percentage of only lesbian, gay, and bisexual individuals (without the inclusion of transgender individuals) who report discrimination in the workplace.”

In rulings last year, the 2nd and 7th circuits expanded the definition of “sex” in Title VII to include “sexual orientation.” In March, the 6th Circuit declared Title VII also covers “gender identity” in the case of funeral home owners who fired a male staff member who wanted to dress as a woman.

The conflicting rulings make the issue ripe for Supreme Court review. —B.P.