Friday, December 24, 2010

Boo Hoo for the rest of us

By Mike Dorf

Because I teach a one-semester constitutional law course, I don't spend much time on the Free Exercise or Establishment Clauses of the First Amendment (just one class on each).  One of the things I barely mention in that short time is the question of how to identify genuine religious beliefs.  Over-simplifying the doctrine in this area, I usually tell my students that the courts generally credit testimony that someone sincerely holds a set of religious belief.

To be sure, there are rare instances of a judge finding--as an issue of fact--that someone does not in fact hold the religious views she professes to hold or that a system of ritual and belief that has the form of a religion is not in fact a religion.  My favorite example is the 1968 case of United States v. Kuch, in which a Georgetown woman claiming to be the "Primate of the Potomac" in the "Neo-American Church," and thus responsible for supervising the "Boo Hoos" in her region, offered the sacramental nature of drug use in the church as a defense against marijuana and LSD possession, sale, and distribution charges.  Under the then-operative doctrine, District Judge Gerhard Gesell undertook to decide whether the church, and thus Kuch's affiliation with it, were genuine.  In the course of doing so, he listed some of the church's characteristics.  He wrote, quoting the church's literature:

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.’
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.’

After discussing the historical role of hallucinogens in various religions, the court concluded:
While there may well be and probably are some members of the Neo-American Church who have had mystical and even religious experiences from the use of psychedelic drugs, there is little evidence in this record to support the view that the Church and its members as a body are motivated by or associated because of any common religious concern. The fact that the use of drugs is found in some ancient and some modern recognized religions is an obvious point that misses the mark. What is lacking in the proofs received as to the Neo-American Church is any solid evidence of a belief in a supreme being, a religious discipline, a ritual, or tenets to guide one's daily existence. It is clear that the desire to use drugs and to enjoy drugs for their own sake, regardless of religious experience, is the coagulant of this organization and the reason for its existence.
That was probably true in 1968 and sadly, the Neo-American Church is now defunct.  But all religions probably have odd origins.  The ones that began in relatively recent times are simply at a disadvantage because people remember those origins.  Think of the cargo cult of John Frum in Vanuatu or note that the official Scientology website does not hide--indeed proudly trumpets the fact--that its founder, L. Ron Hubbard, was a pulp fiction writer.

And then there's Festivus.  Begun as a joke, it was recently invoked successfully by an inmate seeking a religious ground for getting better-tasting food than the standard prison fare.  A Festivus miracle, you say?  Perhaps, but consider that according to a relative of mine who is an amateur historian and a rabbi, were it not for the requirement that adult male converts become circumcised, Judaism, and not Christianity, would have become the official religion of Rome when the luster of Jupiter, Apollo, et al began to fade.

Happy holidays!


Sam Rickless said...

Thanks for the pointer to this wonderful case, Michael. I particularly enjoyed the Neo-American Church Motto: "Victory Over Horseshit!"

It has a certain ring to it.

What counts as a religion is an important philosophical question, but why is it that I am not surprised that Judge Gesell did not think to engage it? Instead, he waved his hands and said that there is no "solid evidence of a belief in a supreme being, a religious discipline, a ritual, or tenets to guide one's daily existence."

But Buddhists do not subscribe to belief in a supreme being (yet Buddhism is surely a religion), the concept of a religious discipline as even partially defining a religion is circular (unless we are given independent criteria for what counts as a religious discipline), the Neo-American Church clearly incorporates rituals (namely, the ingestion of LSD as a sacrament), and if "victory over horseshit!" is not a tenet to guide one's daily existence, I don't know what is. (It is arguable that it guides almost everything I do.)

Judge Gesell seemed much taken by the fact that the Church symbol is a three-eyed toad, that the Church key is a bottle opener, and that the official songs are "puff the magic dragon" and "row, row, row your boat". He concluded that the Church catechism was "full of goofy nonsense, contradictions, and irreverent expressions". But,

1. I can't help thinking that the only thing that keeps such ideas as bodily resurrection, immortality, and talking burning bushes from being "goofy nonsense" is the fact that so many people take them seriously. But then if sufficiently many people took the Neo-American Church symbolism and catechism seriously, there wouldn't be anything goofily nonsensical about them.

2. If contradictions in a church catechism conduce to its non-religiosity, then what are we to make of the Trinity or the Incarnation?

3. And if Luther's theses weren't even the slightest bit irreverent, why did they create such a stir?

"Victory Over Horseshit!" is a motto that deserves to be practised, in addition to being preached.

egarber said...

First off:

"The tradition of Festivus begins with the Airing of Grievances. I got a lot of problems with you people!"


It seems to me that those types of cases reflect why Employment vs Smith is good law. If generally applicable laws are properly established, courts can avoid entangling themselves in something so core: the very definition of what constitutes valid religious belief. When Madison wrote that "religion is beyond the cognizance" of government, at a minimum I think he was saying the state can't formally find that my belief system is less valid than yours.

Joe said...

A typo or two there.

Anyway, I realize the line drawing problems that led to Oregon v. Smith, but the Free Exercise Clause always seemed to me to require some degree of freedom to practice acts.

Things like not taking oaths or some exemption to military service are not trivial matters, or wasn't back in the day. Seems to me that a limited application of the clause often favors Christianity as the lawyer in Smith noted: blocking Native Americans from using peyote while allowing them to use sacramental wine [more so under the more stringent test that the case ended up with] is a tad bit ironic.

Joe said...

My first post is missing, but I will summarize.

First, as to the second comment, discrimination against religions and accommodations (such as Sherbert v. Verner type cases) still requires some line drawing here.

Second, use of drugs in the '60s often had a religious component, honest attempts to alter consciousness to obtain a higher state of being. Mixed in was other stuff and bad actors, but the same can be said for mainstream religions, sometimes involving serious consequences.

A compelling interest test would have been best there though an honest application would have allowed marijuana, if not perhaps LSD, heroin and other harder drugs. The line is messy, but the current line isn't totally w/o problems either.

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