Title: Freedom of Religious Practice and the FDA: The Use of Regulated Substances and Devices as Sacraments (1995 Third Year Paper)
Author(s): Louis O'Neill
Subject & Subject keywords: Food and Drug Law "religious drug use"
Abstract:That the First Amendment to the Constitution extends fully to protect the freedom of religious belief is beyond question and a settled matter of law. This is the case even if the worshipper subscribes to a doctrine that is not a part of what is considered a "bona fide religion," if his belief is not in good faith, or even if he has no religion at all, but holds "sincere and meaningful beliefs, intensely personal" which the law will perceive as tantamount to religious belief. Wisconsin v. Yoder, 406 U.S. 205 (l972).

However, when religious beliefs move from the private, internal world to that of action (or in some cases inaction) in the name of religion in the physical world, then the Constitutional protection embodied in the Free Exercise clause becomes more complex and elusive. The freedom to act is a conditional and relative one, and thus Congress may prescribe and enforce certain conditions to control conduct in the interest of the public welfare and protection of society which may turn out contrary to a person's religious beliefs . Leary v. United States 383 F.2d 851, 859 (1967). "Thus, despite the amendment's proscription that no law is to deny the free exercise of religion, not all burdens on religion are unconstitutional." Whyte v. United States, 471 A. 2d 1018, 1019 (1984).

The opening five scenarios present examples of religious action stemming directly from religious belief. However, because of the potentially harmful nature of those actions to the participants and to society, there is inevitably a clash between the First Amendment Free Exercise Clause and the Regulatory and Police Powers of the Government to protect the "health, safety, morals and welfare" of the people.' This tension is particularly acute when the religious action undertaken requires the sacramental use of drugs which are scheduled as controlled substances, or the use of instruments that are subject to "medical device" regulation by the Federal Food and Drug Administration.

This paper will explore the current scope of religious freedom to engage in actions that would otherwise be proscribed by the State, as it acts through the Food and Drug Administration. First it will examine the use of peyote by the Native American Church of North America, paying particular attention to the landmark 1990 case of Employment Division. Oregon Department of Human Resources v. Smith' and the Religious Freedom Restoration Act of 1993 which overturned it.' Second, in light of those sources, it will compare the strength of the State's interest under the Act's balancing test in proscribing marijuana use by the Ethiopian Zion Coptic Church and those religious organizations similar to it. Third, the paper will explore the regulatory power of the Food and Drug Administration against the use of the Hubbard Electrometer by members of the Founding Church of Scientology. Finally, on the basis of all this, it will analyze the Constitutional chances of a grant of religious-action freedom to the hypothetical American Church of Freedom, a breakaway sect of the Twelve Tribes of Israel (Rastafarians) who hold as their sacrament the smoking of tobacco after its theoretical ban by Congress in l997.