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Overview of American Law – Fall 2019

Symbiosis Law School
Stephen G. Barnes, Penn State Law
Essay Exam “Model Answer”

Issue:

Whether a state statute criminalizing the possession of cannabis—when also used for religious
purposes—violates the free exercise clause of the First Amendment, as it is incorporated to the
states through the equal protection clause of the 14th Amendment.

Rule(s):

First Amendment (free exercise clause)

Fourteenth Amendment (equal protection clause)
Wisconsin v. Yoder, 406 U.S. 205 (1972).

Analysis:

The state of Montana’s interest to enforce state laws against the illegal possession and use of
drugs (presumably, to protect Montanans’ health) is in opposition to The Higher Church’s
practice encouraging the use of cannabis as a religious sacrament for its adherents. Therefore,
the interests of the state (Montana) and religion (The Higher Church) must be weighed, and the
state must show a compelling interest to criminalize the religion’s cannabis usage.

The fact pattern presented doesn’t indicate when The Higher Church was founded or if the
believers, e.g., Minister Frank Burns, used the religion as the primary purpose to otherwise
break the law. If there was proof of intent to use the free exercise clause as a “shield” to
protect against the usage of an illegal substance, then Frank Burns loses.

Let’s assume, though, that Burns and his followers are using cannabis in good faith, and that
cannabis is indeed essential to the practice (religious exercise) of The Higher Church. This
would then be somewhat analogous to Yoder, where the U.S. Supreme Court ruled that a state
law mandating school attendance for Amish children threatened the practices of the Amish,
violating First Amendment free exercise protections extended to the states through the 14 th
Amendment.
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The state of Montana, an apparent “hold-out” against the state-by-state trend to decriminalize
cannabis (marijuana), has the authority to regulate distribution, consumption, and possession
of food, drugs, and alcohol pursuant to its duty to protect the health and safety of Montanans.
From the fact pattern here, it doesn’t appear that the state specifically targeted The Higher
Church, but that the law is one of general applicability to all Montana residents or those who
pass through or visit the state. This general applicable law does, though, go right to the core
practices (“free exercise”) of The Higher Church.

You, Frank’s lawyer, will explain the balancing of the state’s and The Higher Church’s (religion’s)
interests. Without the benefit of Supreme Court precedent** in this area, it would seem that
despite the trend to decriminalize cannabis usage in many states, Montana will likely prevail in
any state or federal court against Burns. The U.S. Supreme Court would likely support
Montana’s statute as enforced against The Higher Church, as the Supreme Court would defer to
Montana’s assessment of the severity of “illegal drugs” in Montana’s jurisdiction, and its
policing authority to mitigate its impact on society. The state of Montana would likely argue,
that if Burns (The Higher Church) prevails, then new religions will sprout throughout Montana,
using this free exercise case as precedent to legalize cannabis usage under religious cover.

In practical terms, Burns’s best recourse would be to lobby the state legislature for a religious
exception to be incorporated into the statute; or, and not likely appealing to Burns, to move to
a state which does permit cannabis usage more generally.

Conclusion:

A state statute criminalizing the possession of cannabis—even when used for religious
purposes—does not violate the free exercise clause of the First Amendment, as it is
incorporated to the states through the equal protection clause of the 14th Amendment.

**Note:

This case is similar to a 1990 U.S. Supreme Court decision. See Employment Division,
Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). If Burns challenged
the constitutionality of the Montana statute and the Employment Division case had been
decided, then Burns loses (precedent). If Employment Division had not been decided (no
precedence), the analysis provided here (“model answer”) would likely prevail, but you
(student) could have also successfully argued in favor of Burns (The Higher Church), as this case
is a close call.