RFRA: A Case Law Survey

These RFRA cases show the recurring doctrinal questions courts ask: substantial burden, exhaustion, factual specificity, and whether courts—not agencies alone—may recognize exceptions.

Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012, 1016–17 (9th Cir. 2016) (“RFRA itself provides no explicit definition of ‘substantial burden.’ However, we have held that the meaning of the term can be ascertained by looking to ‘a body of Supreme Court case law’ decided before Employment Division v. Smith, 494 U.S. 872 (1990) . . . . Looking to that pre-Smith case law, we have held that a substantial burden under RFRA exists in a context such as this one ‘only when individuals are . . . coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions . . . .’”).

Footnote 1: Id. at 1017 n.1 (“Mooney and Oklevueha make no allegation that the CSA’s prohibition on cannabis ‘force[s] [them] to choose between following the tenets of their religion and receiving a governmental benefit,’ the other kind of substantial burden we have recognized under RFRA.”).

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Van Kush v. DEA, (D.D.C., June 6, 2022)

Missing from both the original complaint and the proposed amended complaint are factual allegations describing the religious practice at issue, identifying which controlled substance is essential to the religious practice, stating how the substance is used in his religious practice, and explaining how the CSA substantially burdens that practice.

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Arizona Yage Assembly v. Garland, 595 F. Supp. 3d 869 (D. Ariz. 2022).

Though there is a valid regulation, 21 C.F.R. § 1307.03, requiring persons seeking exemptions to file a written request with the DEA Office of Diversion Control, the Ninth Circuit has held that persons seeking a RFRA exemption from the DEA are not required to exhaust the administrative remedy under § 1307.03. See Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012) (“We decline . . . to read an exhaustion requirement into RFRA where the statute contains no such condition and the Supreme Court has not imposed one.”). 

[Footnote 7] Judge Orrick of the Northern District of California noted that even a new substantive agency rule might not be able to impose a binding administrative exhaustion requirement under Oklevueha I. (Doc. 57 at 14) (“[I]t is possible that regardless of any new regulations [DEA may promulgate], the plaintiffs will not have to seek an exemption from the DEA prior to seeking judicial redress.”). 

To raise a claim under the APA, however, plaintiffs are required to petition for an exemption or for new rulemaking. See 5 U.S.C. §§ 702, 704, 706. Then, if the DEA denied the petition or refused to respond to it, plaintiffs could argue they were harmed because the DEA failed to comply with the APA. See 5 U.S.C. § 706(1), (2).  

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Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012).

Likewise, we are unpersuaded by the Government’s assertion that Plaintiffs’ request for prospective relief is unripe because Plaintiffs did not request an exception to the CSA from the DEA. See 21 C.F.R. § 1307.03 (“Any person may apply for an exception to the application of any provision of this chapter by filing a written request with the Office of Diversion Control, Drug Enforcement Administration, stating the reasons for such exception.”). The Government argued that Plaintiffs should be required to exhaust this administrative remedy because doing so would allow the DEA to apply its expertise to Plaintiffs’ claim, possibly moot the case if the claim were granted, and help build a record for judicial review. 

We decline, however, to read an exhaustion requirement into RFRA where the statute contains no such condition, see 42 U.S.C. §§ 2000bb to 2000bb-4, and the Supreme Court has not imposed one. Indeed, the Supreme Court reviewed a RFRA-based challenge to the CSA without requiring that the plaintiffs first seek a religious-use exemption from the DEA. See Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006). In doing so, it recognized that RFRA “plainly contemplates that courts would recognize exceptions [to the CSA] — that is how the law works.” Id. at 434.  

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Church of the Holy Light of the Queen v. Mukasey, 615 F. Supp. 2d 1210, 1211–12 (D. Or. 2009).

Guided by the unanimous decision of the United States Supreme Court in a very similar case, Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), I conclude that the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4, requires that plaintiffs be allowed to import and drink Daime tea for their religious ceremonies, subject to reasonable restrictions. 

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Church of Gaia, Memorandum of Agreement, May 5, 2025

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The RFRA was later held unconstitutional as applied to the States in City of Boerne v. Archbishop Flores, 521 U.S. 507, 534 (1997) (“considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens”).  One of the Justices went so far as to speculate the RFRA itself violates the Establishment Clause.  Id. at 536 (Justice Stevens, concurring). 

 

 Boerne v. Flores, 521 U.S. 507, 516 (1997):

The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the “powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”  Marbury v. Madison, 1 Cranch 137, 176 (1803).

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