The Volokh Conspiracy - Not a Winning Legal Argument:

An Ohio television station's site reports:

A suburban Cleveland man accused of sexually assaulting nine disabled boys told a judge Wednesday that his apartment was a religious sanctuary where smoking marijuana and having sex with children are sacred rituals protected by civil rights laws....

[Phillip] Distasio, a self-professed pagan friar, is representing himself .... He said he's the leader of a church called Arcadian Fields Ministries, and that some of his congregants are among the victims in his case....

Cuyahoga County Bill Mason said Distasio was arrested after he wanted to write a blog for the Lakewood Library. Officials noticed something was wrong and notified Rocky River police.

Distasio was arrested on charges he molested two disabled boys he was tutoring at his home. He's also accused of raping seven other autistic children at a Cleveland school for special-needs students, The Plain Dealer reported. All but one of the boys was under 13, which carries a mandatory life-in-prison sentence if he is convicted, the paper reported....

This is a good illustration of two principles related to religious exemptions:

1. Though the Court has read the U.S. Constitution's Free Exercise Clause as not requiring the government to provide religious exemptions from generally applicable laws (i.e., laws that apply to conduct without regard to its religiosity), about half of U.S. jurisdictions do presumptively require such exemptions either under the state constitution's religious freedom clause or under the jurisdiction's religious freedom statute. The Ohio courts, for instance, have interpreted the Ohio Constitution this way.

2. But this is only a presumption, and generally not a strong presumption. (The cases and statutes tend to use the language of "strict scrutiny," requiring that denial of the exemption be "narrowly tailored to a compelling government interest," but while this test has been applied in a very demanding way as to content-based speech restrictions and as to most racial classifications, it has been applied in a much more pro-government way in religious freedom cases.) If there's a strong enough reason -- in the court's judgment -- for applying the law uniformly even to religious objectors, the law can be applied.

I'm positive that Ohio courts will find such a strong reason in the state's statutory rape laws (the Ohio age of consent, I believe, is 16). Some courts have suggested that such religious freedom regimes do mandate an exemption from bans on marijuana, but that's a minority view, and in any case wouldn't apply if any of the charges involved distribution of marijuana to minors.

Thanks to reader John Hackathorn for the pointer.

	[Eugene Volokh, August 3, 2006 at 12:55pm] Trackbacks Not a Winning Legal Argument: An Ohio television station's site reports: A suburban Cleveland man accused of sexually assaulting nine disabled boys told a judge Wednesday that his apartment was a religious sanctuary where smoking marijuana and having sex with children are sacred rituals protected by civil rights laws.... [Phillip] Distasio, a self-professed pagan friar, is representing himself .... He said he's the leader of a church called Arcadian Fields Ministries, and that some of his congregants are among the victims in his case.... Cuyahoga County Bill Mason said Distasio was arrested after he wanted to write a blog for the Lakewood Library. Officials noticed something was wrong and notified Rocky River police. Distasio was arrested on charges he molested two disabled boys he was tutoring at his home. He's also accused of raping seven other autistic children at a Cleveland school for special-needs students, The Plain Dealer reported. All but one of the boys was under 13, which carries a mandatory life-in-prison sentence if he is convicted, the paper reported.... This is a good illustration of two principles related to religious exemptions: 1. Though the Court has read the U.S. Constitution's Free Exercise Clause as not requiring the government to provide religious exemptions from generally applicable laws (i.e., laws that apply to conduct without regard to its religiosity), about half of U.S. jurisdictions do presumptively require such exemptions either under the state constitution's religious freedom clause or under the jurisdiction's religious freedom statute. The Ohio courts, for instance, have interpreted the Ohio Constitution this way. 2. But this is only a presumption, and generally not a strong presumption. (The cases and statutes tend to use the language of "strict scrutiny," requiring that denial of the exemption be "narrowly tailored to a compelling government interest," but while this test has been applied in a very demanding way as to content-based speech restrictions and as to most racial classifications, it has been applied in a much more pro-government way in religious freedom cases.) If there's a strong enough reason -- in the court's judgment -- for applying the law uniformly even to religious objectors, the law can be applied. I'm positive that Ohio courts will find such a strong reason in the state's statutory rape laws (the Ohio age of consent, I believe, is 16). Some courts have suggested that such religious freedom regimes do mandate an exemption from bans on marijuana, but that's a minority view, and in any case wouldn't apply if any of the charges involved distribution of marijuana to minors. Thanks to reader John Hackathorn for the pointer.