Smith and Neutrality

[Eugene Volokh]

    I don't have easy access to the Oregon laws as of 1990, but
Oregon law today seems to have at least the following exceptions
from a "general ban on possession and use" that applies to "everyone
engaged in the forbidden behavior":

    1)  People who possess unknowingly are excepted (or do we
not call that an exception)?  ORS 475.992(4).

    2)  People who possess with a prescription are excepted.  Id.
("It is unlawful for any person knowingly or intentionally to possess
a controlled substance unless the substance was obtained directly
from, or pursuant to, a valid prescription or order of a practitioner
while acting in the course of professional practice, or except as
otherwise authorized by ORS 475.005 to 475.285 and 475.940 to
475.995.").

    3)  People who possess for research purposes may be excepted.
ORS 475.135(3) ("Practitioners must be registered to conduct research
with controlled substances in Schedules I through V if they are
authorized to conduct research under the law of this state. . . .
Persons with valid registration from the Drug Enforcement
Administration for research on controlled substances may conduct
research within this state in compliance with other state law upon
furnishing the board evidence of that federal registration, and are
exempt from state prosecution for possession and distribution of
controlled substances to the extent of the registration.").

    4)  The following classes of people are specifically exempted
under ORS 475.125(3):

    "(a) An agent or employee of any registered manufacturer,
distributor or dispenser of any controlled substance if the agent or
employee is acting in the usual course of business or employment.
    "(b) A common or contract carrier or warehouseman, or an employee
thereof, whose possession of any controlled substance is in the usual
course of business or employment.
    "(c) An ultimate user or a person in possession of any controlled
substance pursuant to a lawful order of a practitioner or in lawful
possession of a Schedule V substance, unless otherwise prohibited.
    "(d) A practitioner otherwise licensed under the laws of this
state and authorized to dispense or administer a controlled substance
by the licensing authority."

    5)  My guess is that, under some provisions, police officers
using drugs for sting operations, or who possess seized drugs, are
exempted.

I wrote:

> >     I'd also like to re-ask my question -- what statutes *would* be
> > neutral and generally applicable?  I can't think of many that aren't,
> > in some sense, "riddled with exceptions."

Rick Duncan wrote:

> Well, wasn't the prohibition of peyote upheld in Smith a general ban
> on possession and use of the drug? If so, it would be generally
> applicable. Prohibition with no exceptions would be generally
> applicable. Prohibition with an exception for, say, country clubs
> would not be generally applicable under my view. But under Gene's
> definition, the country club exception would not trigger free ex when
> the Prohibition laws are enforced against the Mass. Am I right, Gene.
> Is Prohibition with an exemption for country clubs neutral and
> generally applicable?

    Sure, though it would mean that American Indian church members
could just organize as a country club and take advantage of the
exemption.

> I think Smith makes sense as a suspension of Free Exercise protection
> when government is truly willing to apply the law across the board to
> everyone engaged in the forbidden behavior. But when favored groups
> are exempted--as they often are in the give and take of
> politics--religious claimants must be exempted too or the law's
> application to them must satisfy strict scrutiny.


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                                              Eugene Volokh
                                              UCLA Law School
                                              (310) 206-3926
                                              fax (310) 206-7010