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By Christopher L. Grasso,  Associate Attorney

Careful and logical analysis of the robust rights so zealously protected and spoken of by figures like Jefferson and Madison unveils an inextricable connection between each of the rights specified by the First Amendment. That is, although each right is specifically enumerated within the Amendment, the Founders were clear that these core rights were inseparable and interlocking. For example, within the First Amendment we find three major protections, (1) freedom of religion or conscience, (2) freedom of speech, and (3) freedom of assembly. Looking first to freedom of assembly, it is highly unlikely that the freedom to assemble with others was protected on the bare basis that people should be able to get together and enjoy each other’s company. Instead, freedom of assembly goes to protect the ability to get together with groups and say something, to pursue a collective ideology, way of life, or conscience. In turn this protection then implies and requires freedom of speech. But protections of freedom of speech do not rest on the simple ability to verbalize whatever one wishes. To be sure, freedom of speech is about the freedom to speak and express those things that come from conscience.

Conscience deals with a core part of human cognition, which has been described as the “voice within” or “inner light”.It is often linked with a moral sense, whereas secular and scientific views on the conscience are linked with tradition, culture and genetics. Indeed, Christians traditionally regard following one’s conscience as sometimes more important than obeying human authority. Thus conscience points to something each of us are bound to, a deep-seated feature of consciousness that comes from our inherent nature, our culture, and our worldview. Freedom of conscience then, would signify that instead to being bound to a path of self-discovery that the government, theocracy, or a majority would deem as proper, we are free to follow our own path to moral truth and decipher our own meaning to what is reality and what is sacred. Taken in tandem, the protections of the First amendment dig deeper than verbiage, being a member of a certain club, or being able to go to whichever church one wishes. The First Amendment demands that over the mind the individual is sovereign, and if freedom is to mean anything significant, it must preserve and ensure the security over our creative power of consciousness and our ability as causal agents of freedom to pursue a greater truth.

Free Exercise Cases

In a seminal Free Exercise Clause case based on the equivalent provision of a state constitution, People v. Phillips, New York Court of General Sessions (June 14, 1813), the Court reconciled the interests of the public in obtaining information that could lead to a criminal arrest, with the pleading of a Roman catholic priest who refused to divulge such information because it was obtained through sacrament. The Honorable DeWitt Clinton begins his argument by citing the authors of the Constitution, remarking that such men wished to combat “oppression and tyranny over the conscience of men” by recognizing the “indispensable necessity of applying a preventative, that would forever exclude the introduction of calamities” related to the proscription of conscience. Going on to evoke the aims of the Enlightenment era, the Court explains that the wisdom of the religion clauses “ought to receive the most liberal construction,” and that “it is essential to the free exercise of religion… that its ceremonies as well as its essentials should be protected.”

In pointing out that the exercise of one’s conscience must be afforded wide latitude should we attempt to honor the spirit of the religious freedom birthed from the Constitution, the Court makes sure to emphasize “the sacraments of a religion are its most important elements.” This recognition is especially important as the sacraments of a religion help tie the mind to a religious or spiritually-aimed consciousness.

One of the strongest arguments against affording the protection to the priest is that protecting such information could be considered in contradiction to the peace and safety of the state. With great wisdom and sensibility, the Court responds to this issue with a response in line with civic republicanism, stating that the sacrament at hand here is itself consistent with the peace and safety of the state. That is, religious sacrament brings value to society on its own accord:

The question is not, whether penance may sometimes communicate the existence of an offence to a priest, which he is bound by his religion to conceal, and the concealment of which, may be a public injury, but whether the natural tendency of it is to produce practices inconsistent with public safety or tranquility. There is in fact, no secret known the priest, which would be communicated otherwise, than by confession— and no evil results from this communication — on the contrary, it may be made the instrument of great good. The sinner may be admonished and converted from the evil of his ways: Whereas if his offence was locked up in his own bosom, there would be no friendly voice to recall him from his sins, and no paternal hand to point out to him the road to virtue.

The Court wishes to make clear that the types of religious intrusions upon the peace and safety of the state that would require overturning religious freedom would have to be “actually, not negatively injurious.” Without such a distinction, it becomes possible that the meddling hands of a future state could trample religious freedom, all in the name of protecting against some attenuated, nonactual harm. Such a loose protection on religious freedom would do little else than “render the liberty of conscience a mere illusion.” Id. The spiritual sense thus has a place in civil society, and to intrude unjustifiably upon this religious sphere is to encroach upon the progress of human conscience that was handed down to us by the Constitution.

In his concurrence within Sherbert v. Verner, 374 U.S. 398 (1963), Justice Stewart states with great insight that “no liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause explicit in the First Amendment and imbedded in the Fourteenth.” Through a focus on how the First Amendment effectuates freedom itself, Justice Stewart urges the Court to reconcile the conflict between the Court’s definition of the Establishment Clause and the Free Exercise Clause. Deeming the contemporary construct “mechanistic,” he states:

I think the process of constitutional decision in the area of the relationships between government and religion demands considerably more than the invocation of broad-brushed rhetoric of the kind I have quoted. And I think the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom-not only for a minority, however small-not only for the majority, however large-but for each of us. Id at 416.

Resting his opinion on the essential nature of religious liberty, Justice Stewart is urging the Court to look beyond mechanistic application of concepts and instead anchor the inquiry concerning balancing religious freedom and government interest on the freedom of conscience. It is this approach which enables “the continued vitality of a free society.”

Seen from this lens, the clash between the Free Exercise and Establishment Clauses becomes less about the application of rigid rules divorced from the central protections of the First Amendment and instead produces a flexible, plastic standard that allows for liberation from honoring separate, exclusive clauses. Under such scrutiny, the confrontation between government operation and freedom of conscience is to primarily honor the cornerstone of American freedom before yielding to the demands of whatever majority may be seeking stability and “normalcy” at the time. It is also more easily accepted that imbalances between the clauses will occur at different levels of society, and that what is important is that the spirit of the protections of the First Amendment — freedom-enabling conscience — is upheld. No level of interdenominational fairness could justify the overlooking of the important freedom to be protected if freedom is to endure —- the conscience of “We the People.”

The Court continued to respect the essential need for free conscience in Wisconsin v. Yoder, 406 U.S. 205 (1972). In Yoder, the right of Amish parents to refuse to send their children to public or private school was upheld on the grounds of religious freedom. The Court recognized that although a state has the important interest in universal education, this interest does not escape facing “a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment… .” Moreover, in recognition of the subjugation of state interests to the freedom of conscience, the Court states, referencing Sherbert: “A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion.” The Court advises that the danger of running afoul of the Establishment Clause should not bar proper religious exceptions respecting the free exercise of conscience. As such, the driving force beyond “We the People” remains in vanguard position, while the operations of the government that are born of such citizenry take a backseat where the free flow conscience is to be unjustifiably impinged upon.

On the other hand, Yoder displays a miring effect, shared with the abovementioned jurisprudence, of getting tangled in the “belief”” and “conduct” distinction. Nonetheless, the Court evidences wisdom beyond this faux-distinction in stating:

Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State’s control, but it argues that “actions,” even though religiously grounded, are outside the protection of the First Amendment… It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the First Amendment and thus beyond the power of the state to control, even under regulations of general applicability. This case, therefore, does not become easier because respondents were convicted for their “actions” in refusing to send their children to the public highschool; in this context belief and action cannot be neatly confined in logic-tight compartments.

The Court urged that regulation against this religious freedom at hand would strike at the very way of life of the Amish. In other words, this would be intruding upon their conscience — their guiding compass, based on the moral sense that effectuated their thought, behavior, and thus way of life. Important to note is the fact that this religious restriction not only devalues conscience in the individual, but also devalues the authority of the American freedom scheme itself —- one form of conscience is removed from being able to influence the marketplace of ideas, which enables government itself. Action and belief then, belong as referenced to the larger and encompassing distinction of the freedom of the conscience of the citizenry.

Pushing Conscience Aside

Progress towards honoring the conscience-based engine of democracy and self-representative government would lapse into future ignorance in Employment Division v. Smith, 494 U.S. 872 (1990). In Smith, the Court upheld denial of unemployment compensation to two men who were fired from their job due to their use of a “controlled substance,” a traditional plant of sacrament utilized by the Native American Church.

The opinion begins by demonstrating a now classic lack of focus on issues of conscience in favor of diving into the belief versus conduct distinction that continues to erode awareness of the essential protection of the First Amendment. Justice Scalia’s understanding of such protection, stated as “the government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side controversies over the religious authority,” fails to recognize the importance of the root of belief that effectuates action, the conscience. This process of conscience — creation, expression, and maintenance — is not dependent on and is indeed separate from belief, dogma or doctrine.

The opinion receives the action element of expression of conscience with similar muster. Justice Scalia’s opinion prefers the dominant position of government regulation to religious freedom and freedom of conscience. Quoting Reynolds, a case from over 100 years before that utilizes antiquated thinking deriving from a less pluralistic, less religiously free society, the Court makes a slippery-slope argument against granting Free Exercise exemptions. Reciting the recycled rhetoric that “to make the professed doctrines of religious belief superior to the law of the land,” was “to permit every citizen to become a law unto himself,” the Court clearly emphasizes the need to respect State and Federal interests over the freedom of the conscience of their citizenry. This view becomes most impactful in the Court’s decree that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” In other words, heading in the opposite direction of Sherbert and Yoder, government is to come first, the People and their conscience second.

However, Justice Scalia seems to evidence a need to look beyond solely the action involved in Free Exercise issues. This new distinction, a hybrid-scheme of protection, involves application of First Amendment when certain fundamental rights can be aggregated. Keep conscience, the root of the First Amendment protections, in mind when considering Justice Scalia’s hybrid approach:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.

Surely, in a case that involved multiple offenses to freedom of speech, press, and religion, the imposition on conscience would be more readily discernible. Seen in the context of enabling the scheme of American freedom itself, it becomes clear

that affronts to the First Amendment should be filtered through the inquiry of whether or not there is an encroachment upon the free flow of conscience. Justice Scalia continues: “The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.” The concern for infringing upon “communicative right” suggests a recognition of the necessity of the protection of individualized expression contained in the First Amendment. However, where the lack of focus on free conscience is married to an ignorance of how the religious sacraments of the Native American Church go directly to the formation and expression of such conscience, the Court inevitably concludes that Free Exercise would not protect this particular expression of conscience.

Freedom in the Twenty-First Century

            Sixteen years after the Smith decision, the Court decided Gonzales v. O Centro Espirita Beneficiente Unaio de Vegetal, 546 U.S. 418 (2006), where the court upheld the free exercise right of a New Mexican branch of a Brazilian church seeking to utilize plant-psychoactives for religious use. The Court rested the opinion Gonzales on the Religious Freedom Restoration Act (“RFRA”), which largely entails the response of Congress to the freedom-siphoning Smith decision.

The Religious Freedom Restoration Act

The RFRA, codified at 42 U.S.C. § 2000bb, in effect reinstated the Sherbert-Yoder type test involving affronts to free exercise, where a compelling government interest, tailored to the least restrictive means, is to be balanced against the personal right of religious freedom of the individual. At the time of the enactment of the RFRA, the Act was supported by one of the broadest coalitions in recent political history, with coalition members coming from all sides of the political and religious spectrum of America in order to repair the damage to religious liberty caused by Smith.

Although the RFRA has since been deemed inapplicable to the states, many states have passed statutes that mirror the purpose of the RFRA in re-asserting the compelling interest test. With the conscience once again finding favor against a wide range of government interests, the stage was set for the decision in Gonzales. Thus in 2006, American religious freedom honored the use of hoasca, a sacramental tea containing a Schedule I substance under the Controlled Substances Act.

The Conscience of UDV vs. The Government

On February 21, 2006, the Supreme Court held that the government had failed to provide a compelling governmental interest for the seizure of religious sacrament of the União do Vegetal (“UDV”) Religion. This sacrament contained DMT, a plant-derived hallucinogen traditionally utilized for spiritual purpose by the peoples of the Amazon. Importantly, the Government quickly conceded that UDV was pursuing a sincere exercise of religion. However, the Court disagreed with the government’s central argument, namely that the uniform application of the Controlled Substances Act (CSA) does not allow for exceptions, pointing to the exceptions already made on behalf of Native Americans. In doing so, the Court was casting doubt upon the inflexible and rigid nature of the CSA.

Specifically the Court stated:

Everything the Government says about the DMT in hoasca-that, as a Schedule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medical use,” and has “a lack of accepted safety for use … under medical supervision,” 21 U.S.C. § 812(b)(1)-applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in § 812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs.

This language turns the reasoning Smith on its head. That is, where Smith subjugated expression of personalized conscience through free exercise to the generally-applicable, neutral laws of the state, the Gonzales Court makes clear that religious freedom is to prevail over general state function where application of laws would have the effect of stifling conscience without a compelling government interest tailored to the least restrictive means.

Still, the Court validated the use of this archaic method of illuminating and shaping conscience for only the limited purposes of a single religious organization, under confined settings, and within the definition of sacramental use. Considering such narrow use, the Court was able to pierce the veil of the strained arguments from the Government without invalidating more of the nature of the Controlled Substances Act. However, the Court makes clear that:

There may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.

Thus, with the door already opened to Native Americans who desire connection with the sacred through plant-hallucinogens that remain Schedule I, it was difficult for the Court to view the Controlled Substances Act as the impenetrable barrier, even to religious freedom, that the Government had argued it was. In support of the absolutist argument, the Government cited the scheduling of DMT, indicating the general Schedule I terminology of “a high potential for abuse,” and “no currently accepted medical use in treatment in the United States,” and that “[t]here is a lack of accepted safety for use of [DMT] under medical supervision.” The Court respond by stating that “Congress’ determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its burden under RFRA.”[34] Religious freedom in the United States is to be given more weight than “a mere invocation of the general characteristics of Schedule I substances.”

Pointing to a provision of the Controlled Substances Act that allows for waiver when in accord with public health and safety, the Gonzales Court makes an argument reminiscent of the Honorable Dewitt Clinton in 1813. In Philips, the Court made clear that reliance on non-actual or attenuated harm as justification for intrusion upon religious freedom has the effect of rendering “liberty of conscience a mere illusion.” Philips spoke of the importance and centrality of religious sacraments, justifying the silence of a Roman Catholic priest against revelation of criminal behavior. The Phillips Court did this on the basis that protection of the sacrament as such was consistent with public health and safety. This civic republican justification reminds us that in order to effectuate a Constitutional society we must respect religious freedom where intrusion upon such freedom would otherwise have the effect of stifling conscience.

The sacrament of the UDV, although limited in scope, would nonetheless benefit conscience in similar fashion to the sacrament involved in Philips. That is, just as the confession allowed a spiritual avenue of penance to help reform and revitalize conscience, so did the plant brew involved in Gonzales. We should not allow our society’s relatively lacking knowledge of the ancient (and still persisting) human pursuit of the sacred through trance and hallucination blind us from tolerance of, and indeed praise of, another avenue for conscience to flow into the ever-evolving concept of American freedom.

The Door Swings Open

With Gonzales in place, the stage was again set for the further emergence of religious freedom. Three years after Gonzales, the Arizona Supreme Court would also hear a case based on religious right to shape conscience through psychoactive plants. With reliance on Arizona’s Free Exercise of Religion Act (“FERA”), which demands the same protection of religious freedom as the RFRA, the Arizona Supreme Court knocked open the door between American freedom-enabling conscience and the ancient pursuit of the sacred.

In State v. Hardesty, 222 Ariz. 363, 214 P.3d 1004 (2009), Hardesty was arrested while driving with marijuana in his vehicle. Before his trial, Hardesty argued that due to his membership in the Church of Cognizance, which utilizes marijuana as a religious sacrament, he was protected from the charges both under FERA and through his right to free exercise of his conscience. At evidentiary hearing Hardesty explained that ingestion of the plant was the main religious sacrament of his Church, with the Court later qualifying his testimony in the following manner: “Hardesty’s mode was to smoke and eat marijuana without limit as to time or place.”

Reviewing only his FERA claim, the Court cited to Yoder and Sherbert in asserting the compelling interest test. The State had conceded Hardesty was engaged in religious exercise, agreeing that he “held a sincere belief in a true religion and that the law prohibiting possession of marijuana substantially burdened his exercise of religion.” Hardesty had conceded that the State had a compelling interest, “although he did not clearly articulate which interest he conceded to be compelling.” As such, the Court turned to “whether the State met its burden of proving that the statutory prohibition on the possession of marijuana is the least restrictive means of furthering the government’s compelling interest.”

It should be noted here that Hardesty’s concession of the compelling interest allowed for a lack of attention to the issue of whether the purported compelling interest could be challenged. Accordingly, the Court states the rehearsed rhetoric that courts have consistently found the government’s interest in regulating marijuana to be a compelling interest. In the light of the recent events of legalization of “recreational” marijuana in four states and one foreign nation, as well as the millions of Americans benefiting from the effects of medical marijuana, with none of mass hysteria, crime, health or safety concerns apparent, the time is ripe to take another look at the compelling nature of the scheduling of the Controlled Substances Act. This is especially true when considered in light of intrusions upon conscience in the religious freedom context.

Nevertheless, Hardesty’s claim was dismissed on the grounds that against the “compelling” interests involved, Hardesty had claimed “the broad right to use marijuana at all times, including the right to ingest while driving and, presumably, the right to drive while impaired by marijuana.” Seen under this light, the State argued that only a complete ban will prevent such use. As such the Court concludes the following: “Hardesty claims an unlimited religious right to use marijuana when and where he chooses, and in whatever amounts he sees fit. In the context of this case, no means less restrictive than a ban will achieve the State’s conceded interests.” Thus the Court leaves the door open for religious claims that would not exert the same unrestrained right.

Although Hardesty argued to the trial court that he is entitled to assert a religious use defense identical to that afforded peyote users, there is an obvious difference between the two situations. Members of the Native American Church assert only the religious right to use peyote in limited sacramental rites; Hardesty asserts the right to use marijuana whenever he pleases, including while driving.

In other words, although there was a valid religious pursuit of conscience here that would otherwise be protected in the name of religious freedom, this particular claimant’s use presented as too unconstrained to be afforded the protection of the Constitution. Consequently, protection is to be afforded to those who are inclined to exercise conscience in similar fashion, granted the scope of behavior to be protected does not reach the level in Hardesty. It becomes clear that these type of claimants, who wish to cultivate conscience in accordance with a long-running human practice, should not have their contributions to American freedom extirpated absent a clear and definite showing of harm which justifies government dictation of such conscience.


Thomas Jefferson recognized in 1778 the power of the free conscience of the citizenry against the inevitable tyranny of government:

Whereas it appeareth that however certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights, and are at the same time themselves better guarded against degeneracy, yet experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts, which history exhibiteth, that, possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes…

Stating that every generation needs a new revolution, Thomas Jefferson spoke from a time where conscience did not flow with the same ease and flexibility it does today. Historically, when the conscience of disparate peoples interacted without fluidity or permeability, the usual result was violence, tyranny, and oppression. Today, solidified notions of American freedom along with a technological revolution fueling never-before-seen global connectivity have produced a people who have been the product of many collective cognitive imperatives. This exposure allows for the type of turnover in guiding principles that could only before come in the form of coup d’état, violent overthrow, and bloody revolution, to occur at exponential rate and through a new form of revolution — a cognitive revolution.

In an America where conscience flows with unbroken continuity, the People pursue truth and freedom at maximum capacity. The myriad forms of American conscience should not be narrowed down to majority views or subjugated necessarily to government function. We should leave no valid pursuit of consciousness behind, whether it be through man’s most ancient means or those that have spawned in the modern period. The evolution of conscience through time, place, and culture should no longer be slighted by mentally-coercive and freedom-suffocating tyranny. The collective conscience of the citizenry must reign free if we are to continue the profound project of freedom envisioned by the Constitution.

If you or a loved one use controlled substances for religious purposes and are charged with a crime, contact the Law Offices of Gabriel L. Grasso. We can provide cutting edge representation in relation to narcotics offenses presently offered by no other Las Vegas criminal defense attorney.