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The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3062

___________

Carl Eric Olsen, *

*

Appellant, *

*

v. *

*

Michael Mukasey, Attorney General of * Appeal from the United States

the United States; Thomas Miller, * District Court for the

Attorney General of Iowa; John * Southern District of Iowa. 

Sarcone, Attorney of Polk County, *

Iowa; Dennis Anderson, Sheriff of Polk *

County, Iowa; Karen Tandy, *

Administrator of the United States Drug *

Enforcement Administration, *

* 

Appellees. *

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Submitted: April 18, 2008

Filed: September 8, 2008

___________

Before GRUENDER, BRIGHT, and BENTON, Circuit Judges.

___________

BENTON, Circuit Judge.

Carl Eric Olsen appeals the district court’s1

 order dismissing his complaint for

declaratory and injunctive relief from the federal and Iowa Controlled Substances Acts
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(CSAs) for his sacramental use of marijuana. Having jurisdiction under 28 U.S.C. §

1291, this court affirms. 

I. 

Olsen asserts that he adheres to the teachings of the Ethiopian Zion Coptic

Church (EZCC), which advocates the use of marijuana. In State v. Olsen, 315 N.W.2d

1 (Iowa 1982), Olsen appealed from a conviction for possession of marijuana with

intent to deliver. The court considered and rejected his free-exercise-of-religion

defense. In United States v. Rush, 738 F.2d 497 (1st Cir. 1984), Olsen was one of

fifteen defendants convicted for taking part in an operation to distribute marijuana.

Again, his free exercise defense was rejected. In Olsen v. DEA, 878 F.2d 1458 (D.C.

Cir. 1989), the court affirmed the Drug Enforcement Administration’s denial of

Olsen’s request for a religious-use exemption from the federal laws proscribing

marijuana. 

After Olsen, Rush, and DEA, the Supreme Court changed the standard of review

for neutral laws of general applicability that burden religion, in Employment Division

v. Smith, 494 U.S. 872 (1990). In response, Congress passed the Religious Freedom

Restoration Act of 1993 (RFRA), restoring the pre-Smith compelling interest test in

all cases where free exercise of religion is substantially burdened. 42 U.S.C. §

2000bb. 

Olsen filed this complaint in district court seeking a declaration that for his

religious use, marijuana is not a controlled substance under the CSAs, and an order

enjoining federal, state and local officials from enforcing the CSAs against him for the

sacramental use of marijuana. The court dismissed Olsen’s claims under Rule

12(b)(6) for failure to state a claim. This dismissal is a question of law subject to de

novo appellate review. Harris v. Epoch Group, 357 F.3d 822, 824-25 (8th Cir. 2004).
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 II.

Olsen argues that the court erred in dismissing his statutory claims under RFRA

and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

A. State RFRA Claim

Olsen contends that the court’s dismissal of his RFRA claim against the state

officials was improper since RFRA should apply to the same governments as RLUIPA

(which does apply to state governments). Olsen also maintains that the Iowa CSA

“functions as an appendage of federal drug law” since it adopts federal designations

of controlled substances and Iowa’s drug law enforcement receives funding from the

federal government. 

Application of RFRA to the states is unconstitutional. City of Boerne v. Flores,

521 U.S. 507, 511 (1997); In re Young, 141 F.3d 854, 856 (8th Cir. 1998). The

RFRA definition of “government” has been amended to no longer include state

governments. Pub. L. No. 106-274, § 7(a)(1), 114 Stat. 806 (2000) (codified at 42

U.S.C. § 2000bb-2). The Iowa CSA is state law, not subject to RFRA. 

B. Federal RFRA Claim 

The district court rejected Olsen’s federal RFRA claim based on collateral

estoppel. Collateral estoppel or issue preclusion has five basic elements: (1) the party

sought to be precluded in the second suit must have been a party, or in privity with a

party, to the original lawsuit; (2) the issue sought to be precluded must be the same

as the issue involved in the prior action; (3) the issue sought to be precluded must

have been actually litigated in the prior action; (4) the issue sought to be precluded

must have been determined by a valid and final judgment; and (5) the determination

in the prior action must have been essential to the prior judgment. Robinette v. Jones,
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476 F.3d 585, 589 (8th Cir. 2007), citing Anderson v. Genuine Parts Co, Inc., 128

F.3d 1267, 1273 (8th Cir. 1997). 

Collateral estoppel does not apply if controlling facts or legal principles have

changed significantly since Olsen’s prior judgments. See Montana v. United States,

440 U.S. 147, 155 (1979). Collateral estoppel “is designed to prevent repetitious

lawsuits over matters which have once been decided and which have remained

substantially static, factually and legally.” Commissioner v. Sunnen, 333 U.S. 591,

599 (1948). 

According to Olsen, his claim is not barred by collateral estoppel because

RFRA, as interpreted in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal,

546 U.S. 418 (2006), changed the method for determining whether the government

has a compelling interest in prohibiting his sacramental use of marijuana. To the

contrary, an explicit purpose of RFRA was to “restore 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) and to guarantee its application in all cases where free exercise of religion

is substantially burdened . . . .” 42 U.S.C. § 2000bb-1. Olsen claims O Centro

requires that the compelling interest of a challenged law must be evaluated with

respect to the particular claimant whose religious exercise is substantially burdened,

and that this requirement did not exist pre-Smith. In fact, O Centro says that Sherbert

and Yoder “looked beyond broadly formulated interests justifying the general

applicability of government mandates and scrutinized the asserted harm of granting

specific exemptions to particular religious claimants.” O Centro, 546 U.S. at 431.

The pre-Smith standard required a particularized evaluation. See, e.g., Quaring v.

Peterson, 728 F.2d 1121, 1126-27 (8th Cir. 1984) (applying Sherbert and Yoder by

evaluating whether a government interest in requiring driver’s license photographs is

compelling as applied to a particular free-exercise claimant), aff’d by an equally

divided court, 472 U.S. 478 (1985). The pre-Smith standard applicable in Olsen,

Rush, and DEA is the same standard applicable to Olsen’s current claim. There is no
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difference in the controlling law. Olsen’s federal RFRA claim is barred by collateral

estoppel. 

C. RLUIPA

RLUIPA protects religious land use and the religious exercise of

institutionalized persons. RLUIPA applies only to land use regulations and persons

in an institution. 42 U.S.C. § 2000cc et seq. A “[l]and use regulation” is “a zoning

or landmarking law, or the application of such a law, that limits or restricts a

claimant’s use or development of land . . . .” 42 U.S.C. § 2000cc-5. The CSAs are

not land use regulations under RLUIPA. 

Olsen also claims RLUIPA protection as a person in an institution. According

to RLUIPA: 

(1) The term “institution” means any facility or institution--

(A) which is owned, operated, or managed by, or provides

 services on behalf of any State or political subdivision of a

 State; and

(B) which is--

(i) for persons who are mentally ill, disabled, or retarded, or 

 chronically ill or handicapped;

 (ii) a jail, prison, or other correctional facility;

 (iii) a pretrial detention facility;

 (iv) for juveniles . . .

 (v) providing skilled nursing, intermediate or long-term care, 

 or custodial or residential care.

42 U.S.C. § 1997. Olsen does not allege any facts indicating that he is an

institutionalized person for purposes of RLUIPA. 
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 III.

Olsen argues that the district court erred in dismissing his free exercise and

equal protection claims. He contends that the CSAs are not neutral laws of general

applicability and therefore, their application must be supported by a compelling

government interest. He alternatively asserts that his claims involve “hybrid rights,”

requiring the compelling interest test. 

Under Smith, if a law that is not “neutral and generally applicable” burdens a

religious practice, it must be narrowly tailored to achieve a compelling government

interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

531 (1993). A law is not neutral if its object is “to infringe upon or restrict practices

because of their religious motivation.” Id. at 533. Absent evidence of an “intent to

regulate religious worship,” a law is a neutral law of general applicability.

Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991).

Olsen does not allege that the object of the CSAs is to restrict the religious use

of marijuana or target the EZCC. Rather, he contends that the CSAs are not generally

applicable because they exempt the use of alcohol and tobacco, certain research and

medical uses of marijuana, and the sacramental use of peyote. General applicability

does not mean absolute universality. Exceptions do not negate that the CSAs are

generally applicable. See O Centro, 546 U.S. at 436; United States v. Milk, 281 F.3d

762, 768 (8th Cir. 2002); United States v. Meyers, 95 F.3d 1475, 1481 (10th Cir.

1996). 

In addition to his free exercise claim, Olsen alleges an equal protection

violation, invoking the Smith “hybrid rights” doctrine: “The only decisions in which

we have held that the First Amendment bars application of a neutral, generally

applicable law to religiously motivated action have involved not the Free Exercise

Clause alone, but the Free Exercise Clause in conjunction with other constitutional
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protections . . . .” Smith, 494 U.S. at 881. Olsen contends that since he is alleging

a violation of hybrid rights, the compelling interest test applies. 

Olsen’s free exercise claim was previously considered in Olsen, Rush, and

DEA. Strict scrutiny was the appropriate analysis then just as it is under the “hybrid

rights” doctrine. As discussed, there has not been a change in controlling law since

these prior cases. Therefore, Olsen’s free exercise claim – alone or hybrid – is barred

by collateral estoppel. 

Olsen has also already litigated his equal protection claim. See Rush, 738 F.2d

at 513; DEA, 878 F.2d at 1463; Olsen v. State of Iowa, 808 F.2d 652, 653 (8th Cir.

1986) (per curiam). He asserts O Centro is an intervening change in law, but O

Centro does not address equal protection. This court agrees with the district court

that Olsen’s equal protection claim is barred by collateral estoppel. 

IV.

The judgment of the district court is affirmed.

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