FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OKLEVUEHA NATIVE AMERICAN

CHURCH OF HAWAII, INC.; MICHAEL

REX MOONEY, AKA Raging Bear,

Plaintiffs-Appellants,

v.

LORETTA E. LYNCH, Attorney

General; MICHELE LEONHART, as

Acting Administrator of the U.S.

Drug Enforcement Administration;

FLORENCE T. NAKAKUNI, U.S.

Attorney for the District of Hawaii,

Defendants-Appellees.

No. 14-15143

D.C. No.

1:09-cv-00336-

SOM-BMK

OPINION

Appeal from the United States District Court

for the District of Hawaii

Susan Oki Mollway, Chief District Judge, Presiding

Argued and Submitted

October 16, 2015—Honolulu, Hawaii

Filed April 6, 2016

Before: Diarmuid F. O’Scannlain, Richard C. Tallman,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge O’Scannlain
2 OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

SUMMARY*

Religious Freedom Restoration Act 

The panel affirmed the district court’s summary judgment

in favor of federal officials, and held that the district court

properly denied the plaintiffs – Oklevueha Native American

Church of Hawaii, Inc. and its founder, Michael Rex “Raging

Bear” Mooney – an exemption from federal laws prohibiting

the possession and distribution of cannabis.

Concerning plaintiffs’ claimed violation of the Religious

Freedom Restoration Act, the panel held that even assuming

that plaintiffs’ use of cannabis constituted an “exercise of

religion,” no rational trier of fact could conclude on the

record that a prohibition of cannabis use imposed a

“substantial burden” on plaintiffs’ exercise of religion. 

Specifically, the panel held that nothing in the record

demonstrated that a prohibition on cannabis forced plaintiffs

to choose between obedience to their religion and criminal

sanction, such that they were being coerced to act contrary to

their religious beliefs; and this was fatal to their claim. The

panel also held that plaintiffs’ admission that cannabis was

merely a substitute for peyote also distinguished their case

from Holt v. Hobbs, 135 S. Ct. 853 (2015) (holding that there

was a Religious Land Use and Institutionalized Persons Act

violation where the prison’s refusal to grant a Muslim inmate

a religious exemption to grow a half-inch beard forced him to

choose between a violation of his religious beliefs or face

serious disciplinary action).

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
OKLEVUEHA NATIVE AM. CHURCH V. LYNCH 3

Concerning plaintiffs’ claimed violation of the American

Indian Religious Freedom Act, the panel held that the Act

does not create a cause of action or any judicially enforceable

individual rights.

COUNSEL

Michael Andrew Glenn, Low Cost Legal Services, Honolulu,

Hawaii, argued the cause and filed the briefs for the

plaintiffs-appellants.

Lowell V. Sturgill, Jr., United States Department of Justice,

Washington, D.C., argued the cause and filed the brief for the

defendants-appellees. With him on the brief were Stuart F.

Delery and Mark Stern, United States Department of Justice,

Washington, D.C., and Florence Nakakuni, United States

Attorneys Office, Honolulu, Hawaii.

Kristen A. Carpenter, University of Colorado Law School,

Boulder, Colorado, filed a brief on behalf of amici curiae

National Council of Native American Churches, Native

American Church of North America; Azee Bee Nahagha of

Dine Nation; Native American Church, State of Oklahoma;

and Native American Church, State of South Dakota in

support of the defendants-appellees.
4 OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

OPINION

O’SCANNLAIN, Circuit Judge:

The Religious Freedom Restoration Act mandates that the

federal government may not substantially burden a person’s

religious exercise unless it uses the least restrictive means to

further a compelling interest. We must decide whether the

district court properly denied a church and its founder an

exemption from federal laws prohibiting the possession and

distribution of cannabis.

I

Michael Rex “Raging Bear” Mooney is the founder,

president, and “Medicine Custodian” of Oklevueha Native

American Church of Hawaii, Inc. (“Oklevueha”). According

to Mooney and Oklevueha, members of the church “receive

communion through cannabis in their religious ceremonies

and daily worship.” Specifically, they assert that “Mooney

uses cannabis sacrament daily, and [Oklevueha] uses

cannabis in its ‘sweats,’ which occur approximately twice a

month during the new moon and the full moon.” They further

allege that Oklevueha’s primary purpose is “to administer

Sacramental Ceremonies,” which include a “sweat lodge

ceremony,” as well as peyote, breath, and pipe ceremonies. 

According to Mooney, these ceremonies “help people regain

their relationship with the Creator,” and give participants a

“direct connection” with the divine.

Mooney and Oklevueha describe their religion as

“peyotism.” But unlike traditional peyotism, Mooney and

Oklevueha consider “cannabis, in addition to peyote, to be

sacred or most holy.” Specifically, they state that “Peyote is
OKLEVUEHA NATIVE AM. CHURCH V. LYNCH 5

the significant sacrament” and that theyconsume cannabis “in

addition to and in the [sic] substitute for their primary

entheogenic sacrament, Peyote.” Further, Mooney and

Oklevueha explain that they “honor[] and embrace[] all

entheogenic naturally occurring substances, including

Ayahuasca, Cannabis (aka Rosa Maria and Santa Rosa),

Iboga, Kava, Psilocybin, San Pedro, Soma, Teonanacatyl,

Tsi-Ahga, and many others.” As they describe it, the purpose

of their cannabis use “is similar to the purpose of many other

intensive religious practices—to enhance spiritual awareness

or even to occasion direct experience of the divine.”

A

Mooney and Oklevueha filed their initial complaint

against various federal officials in 2009, alleging that a

member of the church had his cannabis seized and that the

threat of federal prosecution for cultivating, possessing, and

distributing cannabis was “exceedingly real.” They sought

declaratoryand injunctive relief under the Religious Freedom

Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., the

American Indian Religious Freedom Act (“AIRFA”),

42 U.S.C. § 1996, the Free Exercise Clause, and the Equal

Protection Clause. Specifically, Mooney and Oklevueha

sought to prevent the government from prosecuting them

under the Controlled Substances Act (“CSA”), 21 U.S.C.

§ 801 et seq., for possessing cannabis for religious or

therapeutic use, obtaining cannabis, and cultivating or

distributing cannabis consistent with state law.

The district court dismissed Mooney’s and Oklevueha’s

claims on ripeness grounds. Mooney and Oklevueha

appealed, and we reversed in Oklevueha Native Am. Church

of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012).
6 OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

B

Following remand, the government brought a renewed

motion to dismiss under Rule 12(b)(6) which the court

granted with respect to the AIRFA claim, the free exercise

claim and the equal protection claim, but denied with respect

to the RFRA claim. After discovery, the government brought

a motion for summary judgment on the remaining RFRA

claim, which the district court granted.

The district court observed that Mooney and Oklevueha

had produced “almost no admissible evidence regarding their

religion,” and that “[n]o reasonable juror could infer . . . that

Mooney’s religion is anything more than a strongly held

belief in the importance or benefits of marijuana.” The

district court also concluded that Mooney and Oklevueha had

not met their evidentiary burden in demonstrating that a

prohibition on cannabis constituted a “substantial burden” on

their religion. Mooney and Oklevueha timely appealed.

II

We review a district court’s grant of summary judgment

de novo. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497

(9th Cir. 2015). Thus, we must “determine, viewing the

evidence in the light most favorable to the nonmoving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant

substantive law.” SEC v. Phan, 500 F.3d 895, 901 (9th Cir.

2007) (citation omitted); see Fed. R. Civ. P. 56(a). A factual

issue is genuine if “a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).
OKLEVUEHA NATIVE AM. CHURCH V. LYNCH 7

III

Mooney and Oklevueha first argue that the district court

erred in granting summary judgment to the government on

their RFRA claim. RFRA “suspends generally applicable

federal laws that ‘substantially burden a person’s exercise of

religion’ unless the laws are ‘the least restrictive means of

furthering [a] compelling governmental interest.’” United

States v. Antoine, 318 F.3d 919, 920 (9th Cir. 2003)

(alteration in original) (quoting 42 U.S.C. § 2000bb-1(a)–(b)). 

To establish a prima facie claim under RFRA, a plaintiff must

“present evidence sufficient to allow a trier of fact rationally

to find the existence of two elements.” Navajo Nation v. U.S.

Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc). 

“First, the activities the plaintiff claims are burdened by the

government action must be an ‘exercise of religion.’” Id.

(quoting 42 U.S.C. § 2000bb-1(a)); see also United States v.

Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007) (per curiam)

(observing that a litigant “may only invoke RFRA if his

beliefs are both ‘sincerely held’ and ‘rooted in religious

belief, not in “purely secular” philosophical concerns’”

(citation omitted)). “Second, the government action must

‘substantially burden’ the plaintiff’s exercise of religion.” 

Navajo Nation, 535 F.3d at 1068 (quoting 42 U.S.C.

§ 2000bb-1(a)). Where a plaintiff has established these

elements, “the burden of persuasion shifts to the government

to prove that the challenged government action is in

furtherance of a ‘compelling governmental interest’ and is

implemented by ‘the least restrictive means.’” Id. (quoting

42 U.S.C. § 2000bb-1(b)).
8 OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

A

The parties disagree as to whether enough evidence exists

to create a genuine factual dispute about whether Mooney’s

and Oklevueha’s cannabis use amounts to an exercise of

religion. Like the district court, we are skeptical that such a

genuine issue of fact exists. Nonetheless, we need not reach

this question on appeal, because even assuming such use

constitutes an “exercise of religion,” no rational trier of fact

could conclude on this record that a prohibition of cannabis

use imposes a “substantial burden.”

B

RFRA itself provides no explicit definition of “substantial

burden.” However, we have held that the meaning of the

term can be ascertained by looking to “a body of Supreme

Court case law” decided before Employment Division v.

Smith, 494 U.S. 872 (1990), the case that was the impetus for

RFRA’s passage. Navajo Nation, 535 F.3d at 1067–68; see

also 42 U.S.C. § 2000bb(a)–(b) (explaining RFRA’s attempt

to restore pre-Smith protections for religious exercise). 

Looking to that pre-Smith case law, we have held that a

substantial burden under RFRA exists in a context such as

this one “only when individuals are . . . coerced to act

contrary to their religious beliefs by the threat of civil or

criminal sanctions . . . .” Navajo Nation, 535 F.3d at 1070.1

Nothing in the record indicates that Mooney or Oklevueha

1 Mooney and Oklevueha make no allegation that the CSA’s prohibition

on cannabis “force[s] [them] to choose between following the tenets of

their religion and receiving a governmental benefit,” the other kind of

substantial burden we have recognized under RFRA. Navajo Nation,

535 F.3d at 1070.
OKLEVUEHA NATIVE AM. CHURCH V. LYNCH 9

face such a dilemma, because they have expressly told us that

foregoing cannabis is not contrary to their religious beliefs.

Mooney and Oklevueha state in no uncertain terms that

“Peyote is the significant sacrament,” and that they consume

cannabis only “in addition to and in the [sic] substitute for

their primary entheogenic sacrament, Peyote.” Theymake no

claim that peyote is unavailable or that cannabis serves a

unique religious function. What is more, their certified

complaint states that Oklevueha “honors and embraces all

entheogenic naturally occurring substances, including

Ayahuasca, Cannabis (aka Rosa Maria and Santa Rosa),

Iboga, Kava, Psilocybin, San Pedro, Soma, Teonanacatyl,

Tsi-Ahga, and many others.” Put simply, nothing in the

record demonstrates that a prohibition on cannabis forces

Mooney and Oklevueha to choose between obedience to their

religion and criminal sanction, such that they are being

“coerced to act contrary to their religious beliefs.” Navajo

Nation, 535 F.3d at 1070. Mooney’s and Oklevueha’s failure

to demonstrate that the prohibition on cannabis puts them to

such a choice is fatal to their claim. See Ruiz-Diaz v. United

States, 703 F.3d 483, 486 (9th Cir. 2012) (explaining the

nature of the “forced choice” captured in RFRA’s substantial

burden component and finding plaintiffs’ RFRA claim nonmeritorious because “the challenged regulation does not

affect their ability to practice their religion”); Snoqualmie

Indian Tribe v. FERC, 545 F.3d 1207, 1213–15 (9th Cir.

2008) (finding no substantial burden where plaintiffs failed to

allege government action “coerce[d] them into a Catch-22

situation”).
10 OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

1

Mooney and Oklevueha cite Burwell v. Hobby Lobby

Stores, Inc., 134 S. Ct. 2751 (2014), to argue that “a court

must not decide the plausibility of a religious claim.” Such

a contention is of course correct, but it does nothing to

demonstrate that a prohibition on cannabis actually burdens

Mooney’s or Oklevueha’s religious exercise. In concluding

that Mooney and Oklevueha have created no triable issue of

fact to satisfy RFRA’s second element, we do not pass

judgment on the plausibility of their religious beliefs or “tell

the plaintiffs that their beliefs are flawed.” Hobby Lobby,

134 S. Ct. at 2778. On the contrary, we simply conclude that

the evidence is inadequate to support the finding of a

substantial burden. That conclusion is amply supported by

Hobby Lobby and other recent Supreme Court precedent.

In Hobby Lobby, the Supreme Court held that for-profit

businesses whose owners objected to providing several

contraceptives required by regulations promulgated under the

Affordable Care Act were entitled to an exemption under

RFRA. Id. at 2759. In so holding, the Court concluded that

the government had imposed a substantial burden by

demanding the businesses and their owners “engage in

conduct that seriously violates their religious beliefs” by

requiring them to provide abortifacients or face significant

financial penalties. Id. at 2775. Mooney and Oklevueha have

alleged no analogous burden. Indeed, their counsel at oral

argument admitted on multiple occasions that no religious

ceremonies engaged in by Mooney or Oklevueha actually

require the use of cannabis, and that cannabis is simply a

substitute for peyote. We fail to see how prohibiting a

substance that Mooney and Oklevueha freely admit is a

substitute would force them to act at odds with their religious
OKLEVUEHA NATIVE AM. CHURCH V. LYNCH 11

beliefs—at least when they have made no showing that their

primary sacramental substances are otherwise unavailable.

2

Likewise, Mooney’s and Oklevueha’s admission that

cannabis is merely a substitute for peyote also distinguishes

their case from Holt v. Hobbs, 135 S. Ct. 853 (2015). In Holt,

the Supreme Court found that the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§ 2000cc et seq., the “sister statute” to RFRA, required a

prison to grant a Muslim inmate a religious exemption to

grow a half-inch beard. Id. at 859. The district court had

held that the inmate’s religion was not substantially burdened

by the prison’s grooming policy because the inmate was able

to engage in “other forms of religious exercise” such as use

of a prayer rug, distribution of Islamic material, and

observation of religious holidays. Id. at 862. The Court

rejected that conclusion, reasoning that the prison’s refusal to

allow the inmate to grow a beard still forced him to choose

between “‘engag[ing] in conduct that seriously violates [his]

religious beliefs’” or “fac[ing] serious disciplinary action.” 

Id. at 862 (quoting Hobby Lobby, 134 S.Ct. at 2775). By

contrast, Mooney and Oklevueha have produced no evidence

that denying them cannabis forces them to choose between

religious obedience and government sanction, since theyhave

stated in no uncertain terms that many other substances

including peyote are capable of serving the exact same

religious function as cannabis.

IV

Mooney and Oklevueha also argue that the district court

erred in dismissing their claim under the American Indian
12 OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

Religious Freedom Act. AIRFA declares that it is “the policy

of the United States to protect and preserve for American

Indians their inherent right of freedom to . . . exercise the

traditional religions of the American Indian, Eskimo, Aleut,

and Native Hawaiians . . . .” 42 U.S.C. § 1996. Contrary to

Mooney’s and Oklevueha’s assertions, however, AIRFA

“does not create a cause of action or any judicially

enforceable individual rights.” United States v. Mitchell, 502

F.3d 931, 949 (9th Cir. 2007) (quoting Henderson v. Terhune,

379 F.3d 709, 711 (9th Cir. 2004)); see also Lyng v.

Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439,

455 (1988).

V

The district court’s grant of summary judgment was

proper.

AFFIRMED.