When courts decide First Amendment “Free Exercise” cases, they often are confronted with the daunting task of defining what exactly is a “religion.” This article examines how judicial definitions and interpretations of religious faith have evolved over many decades, including legal recognition of Wicca (modern day witchcraft) and Hare Krishna as “religions,” as well as courts steering clear of the issue whenever possible, for example, when faced with an adherent of the “Church of Body Modification” who claims her employer’s dress code violates her religion. It also explores how courts have sought to uncover deception and fraud hiding behind disingenuous invocations of religious belief, especially regarding marijuana use. Finally, it advances a definition of “religion” in the hope of advancing judicial appreciation and understanding of this age-old human phenomenon.Hayward notes that US
courts unfortunately are too often confronted with disingenuous invocations of religious faith. All too frequently many of these “religious pretenders” grow, distribute, or use marijuana and when apprehended, invoke the Free Exercise Clause as their defense. It is to several of these more prominent cases that we now turn. ...
Without doubt the “Great Pretender” of religious pretenders is the Neo-American Church, whose head is Chief Boo Hoo, which, in 1968, found one of its “primates” (analogous to a bishop) indicted in the District of Columbia for unlawfully obtaining and transferring marihuana (sic) and for the unlawful sale, delivery and possession of LSD. In this commentator’s view, the Neo-American Church and its doctrines impugn the honesty and integrity of genuine religious institutions. So that readers may judge for themselves, the court’s description of the “church” is as follows:
The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area. There are some 300 Boo Hoos throughout the country. In order to join the church a member must subscribe to the following principles:
"(1) Everyone has the right to expand his consciousness and stimulate visionary experience by whatever means he considers desirable and proper without interference from anyone;
"(2) The psychedelic substances, such as LSD, are the true Host of the Church, not drugs. They are sacramental foods, manifestations of the Grace of God, of the infinite imagination of the Self, and therefore belong to everyone;
"(3) We do not encourage the ingestion of psychedelics by those who are unprepared."
Building on the central thesis of the group that psychedelic substances, particularly marihuana and LSD, are the true Host, the Church specifies that "it is the Religious duty of all members to partake of the sacraments on regular occasions." [emphasis in original]
A Boo Hoo is "ordained" without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a "spiritual crisis," administers drugs and interprets the Church to those interested. The Boo Hoo of the Georgetown area of Washington, D.C., testified that the Church was pantheistic and lacked a formal theology. Indeed, the church officially states in its so-called "Catechism and Handbook" that "it has never been our objective to add one more institutional substitute for individual virtue to the already crowded lists." In the same vein, this literature asserts "we have the right to practice our religion, even if we are a bunch of filthy, drunken bums." The members are instructed that anyone should be taken as a member "no matter what you suspect his motives to be."
The court then proceeds to discuss how difficult it is to define “religion” but counsels that
Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in antisocial conduct that otherwise stands condemned. In a complex society where the requirements of public safety, health and order must be recognized, those who seek immunity from these requirements on religious grounds must at the very least demonstrate adherence to ethical standards and a spiritual discipline.
Thus the court announces that it won’t be hoodwinked into sanctioning illegal conduct simply by invoking a religious declaration. It reviews the “Catechism and Handbook” which contain some insightful revelations as to the true aims of this so-called church:
Reading the so-called "Catechism and Handbook" of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a "martyrdom record" to reflect his arrests. The Church symbol is a three-eyed toad. Its bulletin is the "Divine Toad Sweat." The Church key is, of course, the bottle opener. The official songs are "Puff, the Magic Dragon" and "Row, Row, Row Your Boat." In short, the "Catechism and Handbook" is full of goofy nonsense, contradictions, and irreverent expressions.
The court mentions that this supposed church has attributes of religion but only for tactical purposes and that the overall effect of all the evidence and the catechism is “agnostic, showing no regard for a supreme being, law or civic responsibility.” It remarks that its seal is a three-eyed toad with the name of the Church at the top and across the bottom is the Church motto: "Victory over Horseshit!" The court doubts whether the Neo-American Church is a religion within the First Amendment and states that the defendant Kuch “has totally failed in her burden to establish her alleged religious beliefs.” At this point the court could rule that based on the evidence, the Church is not a “religion” for First Amendment Free Exercise purposes, but declined to do so. Instead it took the position that assuming for the sake of argument that the Church is a genuine religion, its practices must still comply with the law. While the First Amendment protects religious beliefs, actions done pursuant to religious beliefs must conform to the law. The court then provides some vivid examples:
Mormons were not permitted to practice polygamy. Nor would the Constitution protect the practice of religions requiring infanticide, the killing of widows [suttee], or temple prostitution, as some religions have done in the past.
After rejecting defendant’s arguments that since peyote is allowed in religious activities, to deny her use of marijuana would violate Equal Protection, the court held that “the Neo-American Church is not an establishment of religion and the defendant did not sustain her burden of demonstrating that her religious beliefs require her to ingest psychedelic drugs.” Furthermore, the court held that the “statutes under which she stands indicted are in aid of a substantial government interest and have a rational and constitutional basis. These laws, enacted to preserve public safety, health and order, will be enforced.” Thus rightly ended the Neo-American Church’s pretense that it was a religious establishment exempt from compliance with anti-drug laws.