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!