Foundation for Religious Exercise

While we aren’t lawyers, and this isn’t legal advice, the Temple is frequently asked about the constitutional and statutory grounds on which the Temple’s religious exercise rests. This is a summary of how we view our right to exercise our religion. Nothing in this section is intended as a substitute for legal counsel, or as a waiver of any argument or right the Temple may assert.

the temple of harm reduction is a religious organization headquartered in Colorado, with active operations in Denver, Colorado and in Oakland, California, and with members (called “Followers”) engaging in religious activity across the United States. The Temple asserts that its religious exercise is protected by the Constitution of the United States, by federal religious liberty statutes, by various state constitutions and state religious freedom statutes throughout the country, and by the civil protections available against governmental burdens on sincere religious exercise.

The First and Fourteenth Amendments

The First Amendment protects several related freedoms: the free exercise of religion, religious speech, peaceable assembly, and the right to petition the government for redress of grievances. Although the Amendment is directed at the federal government by its text, those protections also apply to state and local governments through the Fourteenth Amendment.

The Temple recognizes that, under Emp. Div. v. Smith, 494 U.S. 872 (1990), a law that is neutral toward religion and generally applicable may be enforced even if it incidentally burdens religious exercise. That principle does not apply, however, in every case. When government action is not neutral or not generally applicable, targets religion for unfavorable treatment, allows discretionary or individualized exemptions, treats religious uses worse than comparable secular uses, or burdens religious exercise together with other constitutional rights, the Free Exercise Clause may require the government to satisfy strict scrutiny. As explained in cases including Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), and Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), strict scrutiny requires the government to prove that its action serves a compelling governmental interest and is narrowly tailored to achieve that interest.

The Religious Freedom Restoration Act of 1993

The federal Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb-4, provides that the government may not substantially burden a person’s exercise of religion, even through a rule of general applicability, unless the government demonstrates that applying that burden to the particular person furthers a compelling governmental interest and is the least restrictive means of furthering that interest. RFRA further authorizes a person whose religious exercise has been unlawfully burdened to assert that violation as a claim or defense and to obtain appropriate relief against the government. See 42 U.S.C. § 2000bb-1.

RFRA defines “exercise of religion” by incorporating the definition used in the Religious Land Use and Institutionalized Persons Act. See 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A). That definition includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. Id. The Temple’s religious exercise includes worship, teaching, ceremony, care, education, harm reduction practice, and the gathering of members for religious purposes. The Temple views engaging in harm reduction practices as a sacred act of devotion, and sees the implements of harm reduction as sacramental objects.

The Temple asserts that any federal governmental action that substantially burdens its sincere religious exercise must satisfy RFRA’s claimant-specific test. In Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), the Supreme Court explained that the federal government must satisfy RFRA even when enforcing a generally applicable law against sincere religious practice, and it may not rely only on broad or categorical assertions of governmental interest. See id. at 430–32.

The Religious Land Use and Institutionalized Persons Act of 2000

The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5, protects religious exercise in two principal contexts: land use regulation and the religious exercise of institutionalized persons.

In the land use context, RLUIPA provides that no government may impose or implement a land use regulation in a manner that substantially burdens religious exercise unless the government demonstrates that imposing that burden on the particular person, assembly, or institution furthers a compelling governmental interest and is the least restrictive means of doing so. See 42 U.S.C. § 2000cc(a)(1). RLUIPA also prohibits governments from treating religious assemblies or institutions on less than equal terms with nonreligious assemblies or institutions, discriminating on the basis of religion or religious denomination, totally excluding religious assemblies from a jurisdiction, or unreasonably limiting religious assemblies, institutions, or structures within a jurisdiction. See id. § 2000cc(b). RLUIPA defines “religious exercise” broadly to include any exercise of religion, whether or not compelled by, or central to, a system of religious belief, and expressly provides that the use, building, or conversion of real property for the purpose of religious exercise is itself religious exercise. See id. § 2000cc-5(7).

Under RLUIPA and the Free Exercise Clause, the Temple treats as religious space any place where members gather for religious exercise. That includes worship spaces, retreats, conferences, ceremonies, educational gatherings, care gatherings, concerts and festivals attended by members, and private gatherings of members and invited participants, wherever those gatherings occur and regardless of who holds title to the underlying property. Governmental action that burdens the use of a place for the Temple’s religious exercise—including through land use restrictions, permitting, occupancy rules, licensing requirements, entry restrictions, or enforcement action directed at a gathering—may therefore be subject to RLUIPA’s substantial-burden, equal-terms, nondiscrimination, and unreasonable-limits provisions, as well as to the constitutional standards imposed by the First and Fourteenth Amendments.

RLUIPA also protects the religious exercise of institutionalized persons in covered settings. See 42 U.S.C. § 2000cc-1. In that context, the statute prohibits the government from imposing a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the government satisfies the statute’s compelling-interest and least-restrictive-means test, while recognizing that application of the statute may take account of legitimate security and operational considerations specific to the institutional setting.

Neutral Religious Accommodation and the Establishment Clause

The Establishment clause of the US Constitution prevents the government from establishing a state-sponsored national religion. The Temple’s assertion of religious accommodation is not a request for governmental establishment of religion. It is a request for the neutral application of religious liberty protections that already exist in federal and state law. Federal law recognizes that exemptions and accommodations for sincere religious exercise can be permissible when administered neutrally and consistently with the Establishment Clause.

State Constitutional and Statutory Protections

The Temple is a widespread religious organization, and many of its Followers live in and religious activities occur throughout the United States. State constitutions, state Religious Freedom Restoration Acts, state civil rights statutes, and state judicial doctrines may provide additional protections for religious exercise in states where the Temple’s members gather or where its religious activities occur. These protections apply alongside federal law and are evaluated under the law of the place where a governmental burden arises.

Sincerity of Belief

The Temple recognizes that legal protections for religious exercise require sincere religious belief and are not available as a pretext for otherwise illegal conduct.

The Temple, and its members, sincerely believe that:

Life is sacred.
The lives of people who use drugs are equally sacred.
Drug use can, like many behaviors, endanger Sacred Life.
Harm reduction practices are sacred, as they protect and extend Sacred Life.
Engaging in harm reduction practices evidences a Follower’s devotion to the Temple and to Sacred Life.
The implements of harm reduction, including testing materials, medical supplies, peer support, and other implements, are sacramental objects.
By using, distributing, or otherwise engaging with the Sacraments of Harm Reduction, Followers commune with the Divine by expressing their devotion to the preservation of Sacred Life.

The Divine is present in all beings, and we Followers devote ourselves to practices that extend the Divine gift of Sacred Life. In the name of the Sacred Life, the Divine, and the Temple, we pray for deliverance from the scourge of preventable death. May our Sacraments of Harm Reduction, our devotion, and this Temple honor and preserve Sacred Life. Thanks be to Life, the Followers who reach for those in harm’s way.

The beliefs articulated by the Temple are sincerely held by the Temple’s leadership and congregation. They are the product of long practice, study, and deliberation. They are reflected in the Temple’s religious teaching, its ceremonies and gatherings, its congregational life, its harm reduction commitments, its care practices, and its public testimony. They are not adopted as a pretext for any other purpose.

Limits of This Statement

This statement is not legal or other professional advice. It is not a license to violate law. It is not a substitute for counsel. It is not a claim that the Temple or its members are beyond the reach of law.

It is a claim that sincere religious exercise is protected by law, and that governmental burdens on that exercise must satisfy the constitutional and statutory standards that apply.