COATS, Chief Judge.
Michael L. Lineker and his wife Maria L. Lineker were arrested after the police discovered fifty marijuana plants on their property. The State charged the Linekers with several offenses arising out of their possession of marijuana. The Linekers moved to dismiss the indictment. They claimed that their possession of marijuana was protected under the state and federal rights to privacy and free exercise of religion. The superior court denied the motion. The Linekers entered a Cooksey plea, preserving their right to challenge the trial court's denial of their motion. We remand the case to the superior court to determine whether the Linekers' possession of marijuana was protected under the free exercise clause of the Alaska Constitution.
Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Factual background
Police discovered fifty marijuana plants having an aggregate weight of approximately 3.8 pounds in the home of Maria and Michael Lineker. During this search, the police did not find any paraphernalia indicative of smoking, ingesting, or selling marijuana. The State charged the Linekers with three counts of misconduct involving a controlled substance in the fourth degree. The Linekers filed a joint motion to dismiss the indictment, claiming that their possession of the marijuana was protected by their state and federal constitutional rights to privacy and free exercise of religion. In conjunction with this motion, the Linekers filed a motion for an evidentiary hearing.
AS 11.71.040(a)(3)(F); AS 11.71.040(a)(3)(G); AS 11.71.040(a)(5).
The Linekers claimed to be members and ordained ministers in the Universal Life Church and the Hawaiian THC Ministry Church, and asserted that oil derived from the cannabis plant was an essential aspect of their religion. The Linekers claimed that the cannabis plant is used in a sacramental ceremony in which marijuana plants are pressed to obtain an oil that is used to anoint the church members. To properly perform the ceremony, approximately one gallon of oil is needed. This requires pressing approximately nine pounds of marijuana. The Linekers claimed that the marijuana is not smoked or ingested in any manner. In support of their claims, the Linekers attached as an exhibit to their motion a "Theological Discussion," complete with a list of references, detailing their beliefs and the parameters of their religion. Superior Court Judge Larry R. Weeks rejected the Linekers' state and federal constitutional claims without an evidentiary hearing. In particular, Judge Weeks rejected the Linekers' claims under the free exercise clause of Article I, Section 4, of the Alaska Constitution. The Linekers appeal this decision.
Analysis
Although the Linekers raise other issues, it is clear to us that the Linekers' case rests on Article I, Section 4 of the Alaska Constitution. That section states: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." As Judge Weeks recognized, where a law of general application incidentally burdens a religious practice, the application of the law must be evaluated under the test set out by the Alaska Supreme Court in Frank v. State. The first part of the Frank test requires a person who claims a religious exemption to a facially neutral law to establish that there is a religion involved, that the conduct in question is religiously based, and that the claimant is sincere in his or her religious beliefs. Once the claimant establishes that protected religious conduct is involved, the State has "[t]he burden of demonstrating a compelling state interest which justifies curtailing a religiously based practice. . . ." The religious conduct may be forbidden only "where [it poses] some substantial threat to public safety, peace or order or where there are competing governmental interests of the highest order" that are not otherwise served. It is not sufficient for a court to conclude that there is a compelling state interest in enforcing the law in question. "The question is whether that interest, or any other, will suffer if an exemption is granted to accommodate the religious practice at issue."
Alaska Const. art. I, § 4.
604 P.2d 1068, 1071-74 (Alaska 1979).
Id. at 1074.
Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 281-82 (Alaska 1994) (quoting Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1301 n. 33 (Alaska 1982) (quoting Frank, 604 P.2d at 1070)) (internal quotations omitted).
Frank, 604 P.2d at 1073.
In rejecting the Linekers' claim, Judge Weeks applied the Frank test. In his decision, Judge Weeks assumed "for the sake of argument that [the Linekers] have and hold a sincere religious belief." But he found that the State had a compelling interest in the enforcement of the laws that prohibited possession of marijuana. Judge Weeks relied on the fact that every state had "long-established prohibitions against the production, sale, and consumption of drugs." He concluded that this state interest was "significant enough to outweigh the [Linekers'] free exercise rights."
We conclude that Judge Weeks's general reliance on the State's interest in enforcing its drug laws was insufficient to demonstrate that the State's interest was compelling enough to override the Linekers' rights under the free exercise clause. Assuming the Linekers established a sincere, religiously based course of conduct, it is not sufficient for the government to establish that it generally has a strong interest in enforcing its laws. For instance, in Frank the question before the court was whether the defendant was entitled to harvest a moose out of season to provide for a funeral potlatch. After finding that Frank had established that he was engaged in protected religious conduct, the court evaluated the State's interest. The court found that there was "a very strong state interest underlying hunting restrictions." But the court stated:
Id.
Id.
It is not enough, however, simply to conclude that there is a compelling state interest in maintaining a healthy moose population. The question is whether that interest, or any other, will suffer if an exemption is granted to accommodate the religious practice at issue.
Another instructive case is a recent United States Supreme Court decision, Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. Gonzales was decided under the free exercise clause of the United States Constitution, and the decision is not binding on the states because it was based upon the Religious Freedom Restoration Act (RFRA). (In Boerne v. Flores, the Supreme Court ruled that RFRA was beyond the scope of Congress's power under § 5 of the Fourteenth Amendment, when applied to state and local governments.) But the test that the United States Supreme Court applied in Gonzales is similar to the test that the Alaska Supreme Court applied in Frank. RFRA "prohibits the Federal Government from substantially burdening a person's exercise of religion, unless the government demonstrates that application of the burden to the person represents the least restrictive means of advancing a compelling interest." The Court set out the issue as follows:
___ U.S. ___, 126 S.Ct. 1211, 1220, 163 L.Ed.2d 1017 (2006).
521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
Id. at 536, 117 S.Ct. at 2172.
Gonzales, 126 S.Ct. at 1216 (quoting the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1(b)).
A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government concedes that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in this practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen.
The sect relied on RFRA to argue that the government was prohibited from enforcing the Controlled Substances Act. The Controlled Substances Act classified the drug in question, DMT, as a Schedule I drug. "Substances listed in Schedule I of the Act are subject to the most comprehensive restrictions, including an outright ban on all importation and use, except pursuant to strictly regulated research projects." In spite of the fact that the government classified DMT in the most serious category based upon the potential for abuse, the extent to which the drug had an accepted medical use, and the safety of the drug, the Court concluded that the government did not carry "the burden expressly placed on it by Congress in [RFRA]. . . ."
Id., 126 S.Ct. at 1217.
Id.
Id., 126 S.Ct. at 1216.
Given this authority, it seems clear that the government cannot meet its burden of demonstrating a compelling state interest by simply alleging its obvious interest in enforcing its drug laws. We accordingly conclude that Judge Weeks could not deny the Linekers' motion solely on this basis.
We conclude that we must remand these cases to the superior court so that the court can apply the test that the Alaska Supreme Court set out in Frank. On remand, the court should conduct an evidentiary hearing at which the Linekers should be given an opportunity to establish that their conduct was based on a sincere religious belief. In the event that the Linekers establish this first element of the Frank test, the government must meet the second part of the test: that the State has a compelling interest in enforcing its drug laws and that the government's compelling interests "will suffer if an exemption is granted to accommodate the religious practice at issue."
Frank, 604 P.2d at 1073.
Following the hearing, the court shall make findings of fact and conclusions of law applying the test set out in Frank within 90 days. We retain jurisdiction.
REMANDED.