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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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
II ee ee ea eee ee eee 1
IN ova rns <6 en ds Seen WES ee oe ee 1
NN cy cr Gaye vse aw ale a ae oa oa ee Re 1
MEE, Sons eh o's Wk ay nae eee ek Ree Oe aes Fone ee 7
Ee ee ee ET eS ie an rare PE ne | 13
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0901%3A2. Public record. Not legal advice.