Religious Exemption Claim by Nonprofit Providing Supervised Illegal Drug Use Can Go Forward

From U.S. v. Safehouse, decided Thursday by Third Circuit Judge David Porter, joined by Judges Thomas Hardiman and Michael Fisher:

Safehouse, a Pennsylvania nonprofit corporation, was established in 2018 to address the abuse of opioids in Philadelphia. It seeks to provide overdose prevention services, including supervised illegal drug use. According to Safehouse, what it calls “medically supervised consumption” is salutary because opioid overdoses can be mitigated if trained staff are nearby….

[A]s a provider of supervised illegal drug use, Safehouse would violate 21 U.S.C. § 856(a)(2). Safehouse argues that its Board members’ shared religious belief in the value of human life motivates it to provide “evidence-based public-health interventions” and that government intervention with those services substantially burdens its religious exercise.

The District Court rejected Safehouse’s argument. It reasoned that non-religious entities are not protected by the Religious Freedom Restoration Act (“RFRA”) and the Free Exercise Clause of the First Amendment. As we explain below, that was reversible error….

In 2019, the Department of Justice began this lawsuit against Safehouse and its then-Executive Director seeking a declaration that supervised illegal drug use violates 21 U.S.C. § 856(a)(2)…. Section 856(a) makes it unlawful to “manage or control any place … and knowingly and intentionally … make available for use … the place, for the purpose of unlawfully … using a controlled substance.” The District Court read “for the purpose of” as referring only to the purpose of whoever “manage[s] or control[s]” the “place” at issue. A divided Panel of this Court rejected that construction, read the language to refer to the purposes of third parties, and declined Safehouse’s related invitation to “harmonize” our reading of the plain text with recent federal efforts to combat the opioid epidemic.

On remand, … [t]he District Court dismissed Safehouse’s RFRA and Free Exercise counterclaims because “Safehouse is not a religious entity.” That was error because RFRA’s plain text and Free Exercise doctrine are clear that those statutory and constitutional protections extend to non-natural persons, including so-called non-religious entities.

In so holding, we express no view about whether threatened prosecution of Safehouse substantially burdens its exercise of religion. We likewise decline Safehouse’s invitation to determine in the first instance whether it has plausibly stated RFRA and Free Exercise claims. We only address the proper object of RFRA’s and the First Amendment’s protections: that object includes a non-natural entity allegedly exercising religion, even if the entity itself is not religious….

The court basically followed Burwell v. Hobby Lobby Stores, Inc. (2014) on this score:

The government in Hobby Lobby conceded that nonprofit corporations are persons under RFRA. And though the Court split 5-4 on whether for-profit corporations are “persons,” it was unanimous that nonprofit corporations are. The majority went further. It suggested that even “large, publicly traded corporations” are RFRA persons, though it would be “unlikely” for “corporate giants” to assert such claims in the first place. In such cases, the applicability of RFRA would likely hinge on sincerity….

“RFRA applies to ‘a person’s’ exercise of religion” and Safehouse is a “person” claiming to exercise religion, so it is eligible for RFRA’s protections. Just as Safehouse’s compassion did not shield it from the plain text of § 856(a)(2), concerns about its proposed services do not withdraw the protections of RFRA….

Safehouse is also protected by the Free Exercise Clause. As Hobby Lobby recognized, “free-exercise claims brought by nonprofit corporations” are nothing new. That provisions of the Bill of Rights apply to corporate entities is “well-established.” Against that backdrop, there is no “non-religious entities” carveout from the First Amendment. After all, the purpose of extending rights to corporate persons is to protect the rights of natural persons acting through the corporate form. That purpose is no less true for religious exercise than it is for other rights….

Ilana H. Eisenstein (DLA Piper) argued on behalf of defendants, and Ronda B. Goldfein and Adrian M. Lowe (AIDS Law Project of Pennsylvania), Ben C. Fabens-Lassen (DLA Piper), Peter Goldberger, and Seth F. Kreimer (University of Pennsylvania School of Law) were also on the briefs.

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