Opposition Brief — Olsen v. Holder (No. 08-777)

No. 08-777

Jn the Supreme Court of the Cited States

CARL ERIC OLSEN, PETITIONER

U.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ETAL.

ON PETITION FOR A WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

Kk LENA KAGAN

Solicitor General

Counsel of Record

MICHAEL F. HERTZ

Acting Assistant Attorney

General

MARK B. STERN

MELISSA N. PATTERSON

Attorne Ys

Depart ment of Justice

Washington 12.C. 20580-0001

) », ET P>v7

(202) O14 Fee |

QUESTIONS PRESENTED

1. Whether the court of appeals erred in relying on

principles of issue preclusion in rejecting petitioner’s

claims under the Religious Freedom Restoration Act

of 1993, 42 U.S.C. 2000bb-1 et seg. and the Equal Pro-

tection Clause of the United States Constitution.

2. Whether the court of appeals correctly rejected

petitioner’s contention that the Free Exercise Clause

of the United States Constitution entitles him to a relig-

ious use exemption from various federal and state laws

that regulate the manufacture, distribution, and use of

marijuana.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Church of the Lukumi Babalu Aye, Inc. v. City of

Pigieah, S06 US. BETO CGR) . oon ec ccna ccen 12

City of Boerne v. Flores, 521 U.S. 507 (1997) ............ 4

Employment Div. v. Smith, 494 U.S. 872 (1990) 2.0... 4,10

Gonzales v. O Centro Espirita Beneficente Uniao

Do Vegetal, 546 U.S. 418 (2006) ............ 4, 5, 6, 9, 10

Montana v. United States, 440 U.S. 147 (1979) ....... ye |

New Hampshire v. Main, 532 U.S. 742 (2001) ........... 8

Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert.

denied, 495 U.S. 906 (1990) .............. 3, 4,8, 10, 12

Olsen v. Towa:

649 F. Supp. 14 (S.D. Iowa), aff’d, 808 F.2d 652

ne ern ee ae prc wate toe lela s 2

: Us Fee rs Ch Or. TO) vo wc ch ee Peeve cues 2

Olsen v. State, Civ. No. 83-301-F, 1986 WL 4045

(S.D. lowa Mar. 19, 1986) .............. cc cee eeee 2, 42

Sherbert v. Verner, 374 U.S. 398 (1968) ................. z

State v. Olsen, 315 N.W.2d 1 (Lowa 1982) ....00..2.2-.. 1,6

Taylor v. Sturgell, 128 S. Ct. 2161 (2008) ............... 8

(III)

IV

Cases—Continued: Page

Town v. State, 377 So. 2d 648 (Fla. 1979), cert. denied,

449 U.S. 803 (1980) .......... ae ae Sk oA nel ood 4

United States v. Bauer, 84 F.3d 1549 (9th Cir.), cert.

denied, 519 U.S. 907 (1996), 519 U.S. 1131, and

eee en, i op ec v eps dee canes 11

United States v. Rush, 738 F.2d 497 (1st Cir. 1984),

cert. denied, 470 U.S. 1004 (1985) .............. 3, 8, 12

Wisconsin v. Yoder, 406 U.S. 205 (1972) ................ 2

Constitution and statutes:

U.S. Const.:

Amend. I (Free Exercise Clause) ........... 3, 4, 5, 6, 9

Amend. XIV (Equal Protection Clause) ......... 3,4, 5

Controlled Substances Act, 21 U.S.C. 801 et seg. ........ 5

Religious Freedom Restoration Act ef 1993, Pub. L.

No. 103-141, 107 Stat. 1488 (42 U.S.C. 2000bb-1

We are Cana e oS d need ee ee aes aes 4

See NOD vnc even csnveduy eve cudaaes 8

Ass I) so oe nec ccnswscses ven 4,6,9

Miscellaneous:

Restatement (Second) of Judgments (1982)... 2.2.0.2... 8

S. Rep. No. 111, 103d Cong., Ist Sess. (1998) ............ 9

Jn the Supreme Court of the Cnited States

No. 08-777

CARL ERIC OLSEN, PETITIONER

Vz.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-

A10) is reported at 541 F.3d 827. The opinion of the dis-

trict court (Pet. App. Al1-A37) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September &, 2008. The petition for a writ of certiorari

was filed on December 8, 2008. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Inthe early 1980's, petitioner was convicted in

Iowa state court of possessing marijuana with the intent

to deliver it. Pet. App. A2; State v. Olsen, 315 N.W.2d 1

(Lowa 1982) (Olsen 1). The Supreme Court of lowa re-

(1)

2

versed and remanded for a new trial after the State con-

ceded that the trial court erred in admitting certain ex-

pert testimony. /d. at 3. Because it determined that

certain issues would “doubtless recur on retrial,” the

court proceeded to address those issues as well. /d. at

2. In particular, the court specifically rejected peti-

tioner’s claim that “the State’s prohibition against the

possession of marijuana unconstitutionally infringes

upon his use of the drug for religious purposes.” /d. at

7; see 2d. at 8-9. Citing Sherbert v. Verner, 374 U.S. 398

(1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), see

Olsen I, 315 N.W.2d at 8, the Iowa court held that “{a]

compelling state interest sufficient to override [peti-

tioner’s| free exercise clause argument is demonstrated

in this case,” zd. at 9; see zd. at 8-9.

On remand, petitioner was convicted a second time

and the Supreme Court of Iowa affirmed in an unrepor-

ted opinion. See Olsen v. State, Civ. No. 83-301-E, 1986

WL 4045, at *3-*4 (S.D. Iowa Mar. 19, 1986) (Olsen 11)

(reprinting the Supreme Court of Iowa’s unreported

opinion). The Supreme Court of Iowa stated that it saw

“no reason to retreat from” its previous rejection of peti-

tioner’s free exercise claim. /d. at *4. The Lowa court

also specifically rejected an “equal protection challenge,

based on the legislative exemption granted the peyote

ceremonies of the Native American Church.” /bid.

Petitioner filed a petition for a writ of habeas corpus

in federal district court, which the court summarily dis-

missed. Olsen v. Towa, 649 F. Supp. 14 (S.D. Iowa) (Ol-

sen ITT), atf'd, 808 F.2d 652 (8th Cir. 1986) (per curiam).

The court of appeals affirmed the dismissal of peti-

tioner’s petition for a writ of habeas corpus in a brief per

curlam opinion. Olsen v. lowa, 808 F.2d 652 (sth Cir.

1986) (Olsen FV) (per curiam).

3

b. Around the same time, petitioner was also con-

victed in federal district court of possessing marijuana

with the intent to distribute it. Pet. App. A2; United

States v. Rush, 738 F.2d 497, 500, 502 n.7 (1984), cert.

denied, 470 U.S. 1004 (198°. In affirming that convic-

tion, the First Circuit specifically rejected petitioner’s

contention that the prosecution violated his rights under

the Free Exercise Clause of the United States Constitu-

tion. Jd. at 511-518. The court of appeals also specifi-

cally rejected petitioner’s argument that he was “enti-

tled as a matter of equal protection to a religious exemp-

tion from the marijuana laws on the same terms as the

peyote exception granted the Native American Church.”

Id. at 513.

ec. In 1986, petitioner filed a petition for judicial re-

view of the Drug Enforcement Agency’s denial of his

request for a religious use exemption from the federal

laws that prohibit the possession and distribution of

marijuana. Pet. App. A2; Olsen v. DEA, 878 F.2d 1458,

1459 (1989). cert. denied, 495 U.S. 906 (1990). In an

opinion by then-Judge Ginsburg, the D.C. Circuit re-

jected petitioner’s claims that the denial of such an ex-

emption violated his rights under the Free Exercise

Clause of the United States Constitution. /d. at 1461-

1462. The court of appeals determined that the govern-

ment has a “compelling interest in controlling the distri-

bution and drug-related use of marijuana,” and it de-

seribed “[t]he pivotal issue” before it as “whether mari-

juana usage by [petitioner] and other members of his

church can be accommodated without undue interfer-

ence with the government’s interest.” /d./at 1462. The

court answered that specific question “no.” Jbid. It ex-

plained that, “[bJecause the tenets of [petitioner’s]

church endorse marijuana use every day throughout the

4

day,” any “proposal for confined use would not be self-

enforcing” and it was “hardly unreasonable to forecast

a large monitoring burden.” /bid. The court also noted

that those concerns had specific evidentiary support: It

observed that, “in years past, the church’s ‘[c]hecks on

distribution of cannabis to nonbelievers in the faith

[were] minimal,’ there was ‘easy access to cannabis for

a child who had absolutely no interest in learning the

religion,’ and ‘[mJembers [partook] of cannabis any-

where, not just within the confines of a church facility.”

Tbid. (brackets in original) (quoting Town v. State, 377

So. 2d 648, 649, 651 (Fla. 1979), cert. denied, 449 U.S.

803 (1980)). DEA also specifically rejected petitioner’s

contention that the denial of a religious use exemption

to him with respect to marijuana “on the same terms as

* * * granted the Native American Church” with re-

spect to peyote violated his rights under the Equal Pro-

tection Clause of the United States Constitution. /d. at

1463; see id. at 1463-1465.

2. In 1993, Congress enacted the Religious Freedom

Restoration Act of 1993 (RFRA), Pub. L. No. 103-141,

107 Stat. 1488 (42 U.S.C. 2000bb-1 ef seqg.). As described

by Congress, the purpose of RFRA was “to restore the

compelling interest test as set forth in Sherbert v. Vern-

er, 374 U.S. 398 (1963)[,] and Wisconsin v. Yoder, 406

U.S. 205 (1972)[,] and to guarantee its application in all

cases where free exercise of religion is substantially bur-

dened.” 42 U.S.C. 2000bb(b)(1).'

' In City of Boerne v. Flores, 521 U.S. 507 (1997), this Court held that

RFRA could not constitutionally be applied to state governments.

RFRA continues to be applicable to the federal government. See

Gonzales v.O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S.

418, 423-424 & n.1 (2006).

5

3. The current litigation began in 2007, when peti-

tioner filed suit in the United States District Court for

the Southern District of lowa. Petitioner sought a de-

claratory judgment that his religious use of marijuana

would not violate the Controlled Substances Act (CSA),

21 U.S.C. 801 et seq., or comparable state laws, and an

injunction barring federal, state, and local officials from

enforcing those laws against him. As relevant here, pe-

titioner raised claims under RFRA, as well as the Free

Exercise and Equal Protection Clauses of the United

States Constitution (U.S. Const. Amends. I, XIV). Pet.

App. Al9-A31.

The district court granted respondents’ motions to

dismiss petitioner’s complaint in an unpublished opinion.

Pet. App. Al1-A37. The court concluded that principles

of issue preclusion required rejection of petitioner’s

RFRA claim against the federal defendants, as well as

his claims under the Free Exercise and Equal Protec-

tion Clauses of the United States Constitution. /d. at

A19-A31.

4. The court of appeals affirmed. Pet. App. Al-A10.

With respect to petitioner’s RFRA claim, the court ac-

knowledged that “f{eJollateral estoppel does not apply if

controlling facts or legal principles have changed signifi-

cantly since [petitioner’s] prior judgments.” /d. at Ad.

But it rejected petitioner’s contention that this Court’s

decision in Gonzales v. O Centro Espirita Beneficente

Uniao Do Vegetal, 546 U.S. 418, 428-429 (2006) (O Cen-

tro), “changed the method for determining whether the

government has a compelling interest in prohibiting his

sacramental use of marijuana.” Pet. App. A5. The court

of appeals stated that, “[t]o the contrary, an explicit pur-

pose of RFRA was to ‘restore the compelling interest

test as set forth in Sherbert * * * and * * * Yoder,

6

* * * and to guarantee its application in all cases where

free exercise of religion is substantially burdened.”

Ibid. (quoting 42 U.S.C. 2000bb(b)(1)).. The court re-

jected petitioner’s assertion that O Centro established

any additional requirements that “did not exist pre-

Smith,” noting that O Centro “says that Sherbert and

Yoder ‘looked beyond broadly formulated interests justi-

fying the general applicability of government mandates

and scrutinized the asserted harm of granting specific

exemptions to particular religious claimants.’” /d. at A6

(quoting O Centro, 546 U.S. at 431). The court of ap-

peals thus concluded that “[tlhe pre-Smith standard

applicable in [Olsen 1], Rush, and DEA is the same stan-

dard applicable to {petitioner’s] current claim,” and that

petitioner’s RFRA claim was thus “barred by collateral

estoppel.” bid.

The court of appeals also rejected petitioner’s claims

under the Free Exercise Clause. Pet. App. A8-A9. The

court noted that petitioner did not allege that the object

of the CSA was “to restrict the religious use of mari-

juana or target” adherents of his particular faith. /d. at

A&S. The court also concluded that the federal and state

drug laws that petitioner was challenging were laws of

general applicability notwithstanding the fact that “they

exempt the use of alcohol and tobacco, certain research

and medical uses of marijuana, and the sacramental use

of peyote.” Jbid. The court explained that “[g]eneral

applicability does not mean absolute universality” and

that “[e]xceptions do not negate that {such laws] are

generally applicable.” J/bz7d. The court also observed

that petitioner’s “free exercise claim was previously con-

sidered in Olsen [7], Rush, and DIVA,” and stated that it

was “barred by collateral estoppel.” 7d. at AY.

7

Finally, the court of appeals rejected both a “hybrid

rights” claim and petitioner’s freestanding equal protec-

tion claim. Pet. App. A9. The court reiterated that peti-

tioner’s free exercise claim had been previously consid-

ered and previously rejected, and it stated that any such

claim “alone or hybrid—is barred by collateral estop-

pel.” /brd. The court of appeals also stated that peti-

tioner “ha[d] also already litigated his equal protection

claim,” and it concluded that O Centro did not represent

“an intervening change in law” with respect to that

claim, because “O Centro does not address equal protec-

tion.” /bid. Accordingly, the court of appeals held that

petitioner’s equal protection claim was also “barred by

collateral estoppel.” J/b2d.

ARGUMENT

Petitioner asserts that the court of appeals erred in

relying on principles of issue preclusion in rejecting his

RFRA (Pet. 14-24) and equal protection (Pet. 30-35)

claims. Petitioner also renews (Pet. 24-30) his claims

that the federal and state drug laws that he challenges

in this litigation are neither neutral nor generally appli-

cable, as well as his assertion that, even if those laws are

neutral and generally applicable, the court of appe::.

should have applied strict scrutiny because this case

involves “hybrid rights.” The court of appeals’ decision

is correct and does not conflict with any decision of this

Court or with the decisions of another court of appeals.

Further review is not warranted.

1. The doctrines of claim preclusion and issue pre-

clusion “preclude parties from contesting matters that

they have had a full and fair opportunity to litigate.”

Montana v. United States, 440 U.S. 147, 153 (1979). “Is-

sue.preclusion * * * bars ‘successive litigation of an

&

issue of fact or law actually litigated and resolved in a

valid court determination essential to the prior judg-

ment,’ even if the issue recurs in the context of a differ-

ent claim.” Taylor v. Sturgell, 128 S. Ct. 2161, 2171

(2008) (quoting New Hampshire v. Maine, 532 U.S. 742,

748-749 (2001)); see Restatement (Second) of Judgments

§ 27 (1982) (Restatement).

a. Petitioner contends (Pet. 14-24) that the court of

appeals erred in relying on principles of issue preclusion

in rejecting his RFRA claim. That argument does not

merit further review.

The court of appeals correctly rejected petitioner's

RFRA claim. The controlling questions under RFRA

are whether there is “a compelling government interest”

in controlling the distribution and use of marijuana and

whether failing to grant petitioner a religious use ex-

emption “is the least restrictive means of furthering that

compelling government interest.” 42 U.S.C. 2000bb-

l(b). As the court of appeals correctly explained (Pet.

App. A6), three previous decisions to which petitioner

was a party—Olsen 1, Rush, and DE A—all considered

those very questions and resolved them against peti-

tioner. See DEA, 878 F.2d 1461-1463; Rush, 738 F.2d

511-513; Olsen J, 315 N.W.2d at 8-9; see also pp. 2-4,

supra. |

Petitioner asserts that issue preclusion does not ap-

ply here because this Court’s 2006 decision in O Centro

“changed the controlling legal analysis” under the com-

pelling interest test. Pet. 15; see Restatement § 2&(2)(b)

(stating that issue preclusion is not warranted where

there has been “an intervening change in the applicable

legal context”). As the court of appeals correctly ex-

plained (Pet. App. A6), that is incorrect. In O Centro,

this Court acknowledged that “RFRA expressly adopted

9

the compelling interest test ‘as set forth in Sherbert v.

Verner, 374 U.S. 398 (1963)[,] and Wisconsin v. Yoder,

406 U.S. 205 (1972).’” 546 U.S. at 481 (emphasis added)

(quoting 42 U.S.C. 2000bb(b)(1)). In addition, as the

court of appeals also observed (Pet. App. A6), O Centro

expressly relied on the fact that Sherbert and Yoder had

themselves “looked beyond broadly formulated interests

justifying the general applicability of government man-

dates and scrutinized the asserted harm of granting spe-

cific exemptions to particular religious claimants.” 546

U.S. at 431. O Centro thus makes clear that the Court

was engaged in the application, rather than the alter-

ation, of the same legal standard that it had applied un-

der the Free Exercise Clause before its decision in E’m-

ployment Division v. Smith, 494 U.S. 872 (1990); accord

S. Rep. No. 111, 103d Cong., 1st Sess. 9 (1993) (stating

that, under RFRA, “the compelling interest test gener-

ally should not be construed more stringently or more

leniently than it was prior to Smith”).

Petitioner also asserts (Pet. 22) that issue preclusion

is not appropriate here because “the ‘compelling inter-

est’ analysis actually applied in [petitioner’s] prior cases

was different than the analysis required by RFRA un-

der the O Centro Espirita decision.” Specifically, peti-

tioner contends (7b7d.) that the previous decisions failed

to make “the kind of particular and individualized evalu-

ation of {|his] Free Exercise claims” that O Centro makes

clear was required under the Sherbert/Yoder standard

and instead “used the kind of categorical approach to

controlled substances that was expressly rejected by

this Court in O Centro.”

That claim fails for two independent reasons. First,

the D.C. Circuit’s decision in DRA makes clear that that

court engaged in precisely the sort of particularized

10

analysis described in O Centro. The DEA court did not

take a “eategorical approach to controlled substances.”

Pet. 22. Instead, it analyzed both petitioner’s request

for “a broad religious exception” and his plea for a more

particularized “time- and place-specific use” exemption

that he had proposed during the course of that litigation.

DEA, 878 F.2d at 1462. Nor did the D.C. Circuit’s deci-

sion in DEA rely on the need for “the uniform applica-

tion of the Controlled Substances Act” as a basis for

rejecting petitioner’s request for a particularized ex-

emption. O Centro, 546 U.S. at 423. Instead, the Court

examined both the tenets and the past practices of peti-

tioner and his particular religious community in reach-

ing its conclusion that the granting of any such exemp-

tion to petitioner would unduly burden the enforcement

of the federal laws regarding marijuana. See DEA, 878

F.2d at 1462; pp. 3-4, supra; see also O Centro, 546 U.S.

at 435 (stating that, under the Sherbert/Yoder standard,

“the Government can demonstrate a compelling interest

in uniform application * * * by offering evidence that

granting the requested religious accommodations would

seriously compromise its ability to administer the pro-

gram”).*

' Petitioner errs in asserting (Pet. 22 n.5) that this Court's decision

in Smith “cited the [D.C. Circuit's] decision in DEA as an example of a

case where the court did not make an individualized decision on whe-

ther there was a compelling interest for denying an exemption from the

federal CSA.” The Court’s passing citation of DEA in Smith was made

in the context of noting that the constitutional rule favored by the re-

spondents in that case “would open the prospect of constitutionally re-

quired religious exemptions from civic obligations of almost every con-

ceivable kind,” including exemptions from “drug laws.” Smith, 494 U.S.

at S&8-88Y9 (emphasis added).

11

Second, even assuming arguendo that petitioner has

made a prima facie case that one or more of the previous

decisions misapplied the controlling legal analysis in

rejecting his free exercise claims, that fact would not by

itself warrant refusing to grant those decisions preclu-

sive effect in this case. The overriding purposes of pre-

clusion doctrines are to avoid “the expense and vexation

attending multiple lawsuits, |to] conserv[e] judicial re-

sources, and [to] foster{} reliance on judicial action by

minimizing the possibility of inconsistent decisions.”

Montana, 440 U.S. at 153-154. Preclusion doctrines can-

not serve that purpose if a losing party may avoid their

application simply by arguing that one or more of three

previous decisions to which he was a party was incor-

rectly decided.

Petitioner’s assertion (Pet. 22-23) that the court of

appeals’ rejection of his RF RA claim conflicts with Un-

ted States v. Bauer, 84 F.3d 1549 (9th Cir.), cert. denied,

519 U.S. 907 (1996), 519 U.S. 11381, and 519 U.S. 1132

(1997), is without merit. Bauer was a direct appeal from

a federal criminal conviction. It did not involve the pre-

clusive foree that should be accorded to any previous

decision, much less the continuing preclusive force of

Olsen 1, Rush, and DEA post-RFRA. Nor did the Ninth

Circuit's brief analysis in Bauer suggest that any previ-

ous decision—much less the specific decisions at issue in

this case--had been incorrectly decided. Instead, Baner

stated that the district court in that case had erred in

“treatling] the existence of the marijuana laws as dis-

positzve of the question whether the government had

chosen the least restrictive means of preventing the sale

and distribution of marijuana,” and it remanded for fur-

ther proceedings. 7d. at 1559 (emphasis added). As ex-

plained previously, the DEA court did not take the cate-

12

gorical approach that the Ninth Circuit rejected in

Bauer. In addition, the Bauer court expressly did “not

exclude the possibility that,” even under RFRA, “the

government may show that the least restrictive means

of preventing the sale and distribution of marijuana is

the universal enforcement of the marijuana laws.” /bid.

b. Petitioner’s assertion (Pet. 30-35) that the court

of appeals erred in relying on issue preclusion in reject-

ing his equal protection claim is likewise without merit.

As the court of appeals correctly explained (Pet. App.

AQ), petitioner “has also already litigated his equal pro-

tection claim” in Olsen I1, Rush, and DEA. See DEA,

878 F.2d at 1463; Rush, 738 F.2d at 513; Olsen IJ, 1986

WL 4045, at *4.

Petitioner does not assert that the court of appeals’

decision with respect to this point conflicts with the de-

cisions of another court of appeals. In addition, al-

though petitioner asserts (Pet. 31) that the court of ap-

peals “failfed] to take into account the decision in O Cen-

tro,” the court of appeals correctly explained (Pet. App.

AQ) that O Centro “does not address equal protection.”

2. Petitioner also renews (Pet. 24-30) his constitu-

tional claims under the Free Exercise Clause. Petition-

er does not assert that the court of appeals’ rejection of

these claims conflicts with the decisions of any other

court of appeals.

Petitioner’s free exercise claim also fails on the mer-

its. Although petitioner contends that the CSA is not a

neutral law of general applicability, Pet. 26-29, he does

not and cannot contend that the “object of [the CSA] is

to infringe upon or restrict practices because of their

religious motivation,” which is the governing standard

for measuring a law’s neutrality. Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 583

13

(1993) (emphasis added). In addition, the court of ap-

peals correctly explained that “[gJeneral applicability

does not mean absolute universality” and that the exis-

tence of certain exemptions with respect to use of other

substances or for other purposes “do[es] not negate” the

fact that the federal drug laws are “generally applica-

ble.” Pet. App. A&.

Finally, even if petitioner were able to establish that

the CSA is not a neutral law of general applicability, or

that his claim is otherwise subject to strict serutiny be-

cause it involves hybrid rights, that claim would still fail.

Olsen 1, Rush, and DEA all held that the refusal to

grant petitioner a religious use exemption satisfies strict

scrutiny. As a result, the court of appeals correctly held

that petitioner’s “free exercise claim—alone or hybrid

—is barred by collateral estoppel” as well. Pet. App.

AQ. Further review is thus unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

MICHAEL F. HERTZ

Acting Assistant Attorney

General

MARK B. STERN

MELISSA N. PATTERSON

Attorneys

MARCH 2009