Religious Freedom and DNA Gathering:

By Eugene Volokh on February 26, 2007 5:41 pm

An interesting decision (U.S. v. Holmes, 2007 WL 529830 (E.D. Cal. Feb. 20)), though, if the court’s analysis is correct, not one that will materially affect law enforcement. I quote it at some length, partly because it helps illustrate how religious exemption analysis under the Religious Freedom Restoration Act and similarly exemption regimes works:

The United States alleges that defendant Elden Leroy Holmes violated the terms of supervised release by refusing to provide a blood sample for the purpose of DNA testing. Holmes states that he is prepared to provide a DNA sample by other means, in particular by buccal swab, which requires the light scraping of the inside of the cheek….

The court finds that Holmes’ religious exercise would be substantially burdened by forcing him to provide a blood sample and that the government has failed to demonstrate a compelling interest in collecting DNA through a blood sample rather than by an equally reliable buccal swab DNA sample to be obtained by the State of California at no cost or burden to the federal government. The court GRANTS the motion to dismiss, contingent upon the successful entry of Holmes’ DNA profile into the Combined Offender DNA Index System (CODIS), via the California DNA databank.

Under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §§ 13701, et seq., the FBI established CODIS, an index of DNA samples from convicted offenders, crime scenes, and unidentified human remains. Section 14135a(d)(1) requires probation officers to collect a DNA sample from individuals on federal supervised release. Failure to cooperate with probation officers exposes individuals on release to misdemeanor charges and the revocation of release. Id. § 14135a(a)(5)….

Holmes … argues that under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb, et seq., the government’s requirement that he submit his DNA through a blood sample imposes a substantial burden upon his free exercise of religion. Holmes does not consider himself a member of an organized religion. In his individual belief system, however, Holmes describes blood as “the most evocative symbol of life we have” and giving blood as a matter “between me and God, period.” He states that his blood “contains my soul” and that giving blood “would result in a sacrifice of my soul.”

According to Holmes, his blood contains his “contract” with God; the removal of blood from his body breaches this contract. Thus, if he were to give a blood sample, it would create “a deep spiritual wound.” Holmes analogizes the injury to disrespectful acts targeted at central symbols of organized religions. He states that his beliefs are long-held as a matter of conscience. Other than having blood drawn during service in the Navy and giving blood to help a particular person, the government presents no specific instances in which Holmes has violated his professed beliefs….

(Read the rest of the excerpts from the opinion.)

“Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’ ” Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). RFRA recognizes an exception, however, if “that application of the burden to the person–(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)….

A. Substantial Burden Upon Free Exercise

Legal protection for free exercise of religion is not limited only to those practicing an organized religion. Rather, it extends to an individual’s personal relationship with a creator or higher power. The court does not enquire into the objective truth of such beliefs. [Footnote: For this reason, the court does not delve into the accuracy of Holmes’ belief that blood cells are alive while cheek cells captured by buccal swabs are dead.] Under RFRA, “[t]he term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4). A substantial burden is placed upon religious exercise when the government places “pressure on an adherent to modify his behavior and to violate his beliefs.” A burden may still exist even if, on occasion, the plaintiff has acted against a stated religious belief….

[B]ased upon Holmes’ declaration and testimony, the court finds his professed beliefs to be sincere.

B. Compelling Interest

“RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’–the particular claimant whose sincere exercise of religion is being substantially burdened.” … Holmes does not dispute that the government has a compelling interest in entering his DNA profile into CODIS. He frames his argument more narrowly, arguing that the government has failed to demonstrate a compelling interest in obtaining his DNA profile through a blood sample as opposed to a buccal-swab sample collected by an authorized State laboratory.

Although the FBI laboratory is not equipped to handle a buccal swab sample, California laboratories authorized under the FBI’s quality assurance standards are capable of processing the sample and uploading the resulting DNA profile into CODIS. As stated by Dr. Brian Harmon at the hearing, the DNA profile uploaded into CODIS does not differ depending upon whether it was drawn from a blood cell or a cheek cell. By making the court’s waiver of Holmes’ supervised release condition contingent upon the successful uploading of his DNA profile into CODIS, the court addresses the government’s concerns regarding the reliability of buccal swabs. The court, therefore, holds that the government has failed to demonstrate a compelling interest in forcing Holmes to submit to FBI-administered blood-based DNA testing rather than the California buccal swab test.

C. Least Restrictive Means

Even if the court found the government’s interest compelling, the government has not demonstrated that it is employing the least restrictive means to achieve that interest…. [Holmes represented] that he has made arrangements with a California parole officer to submit to a buccal swab test and have his DNA profile uploaded into CODIS through the California system…. Since the court’s order is contingent upon the successful uploading of Holmes’ California sample, the court retains the ability to revise its findings if Holmes’ California test alternative does not work out. The court, therefore, holds that forcing Holmes to submit to a blood-based DNA test is not the least restrictive means of achieving the government’s compelling interest in obtaining his DNA profile….

(Hide the rest of the excerpts.)

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