Armstrong et al v. Jewell et al

Filing 23

ORDER and MEMORANDUM granting Government's 11 Motion to Dismiss for Failure to State a Claim. The Complaint is dismissed. Judgment to issue in favor of Defendants. So Ordered by Senior Judge Mary M. Lisi on 12/7/2015. A copy of the attached Order was forwarded to pro se Plaintiffs via first-class mail on 12/7/15. (Feeley, Susan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
ANNE ARMSTRONG and
ALAN GORDON,
Plaintiffs,
v.

C.A. No. 15-215-ML

Honorable SALLY JEWELL,
in her capacity as United States
Secretary of the Interior,
JONATHAN B. JARVIS,
in his capacity as Director
of the United States National
Park Service, and
JENNIFER SMITH,
in her capacity as Site Manager for
ROGER WILLIAMS NATIONAL PARK,
Defendants.
ORDER AND MEMORANDUM
The plaintiffs in this pro se action seek to conduct certain
religious ceremonies — which include the “sacramental use and
distribution” of cannabis, or marijuana — on the grounds of Rhode
Island’s only federal park. Revised Application for Special Use
Permit (Dkt. No. 1-2 at Page 1 of 48). The matter before the
Court is the government’s motion to dismiss the Complaint. For
the reasons that follow, the government’s motion is GRANTED.
I.
Anne

Factual Background
Armstrong

(“Armstrong”)

and

Alan

Gordon

(“Gordon,”

together with Armstrong, the “Plaintiffs”) are members of “The
Healing

Church,”

which

they

describe
1

as

“new

and

barely

corporate.” Complaint at ¶ 5. According to the Plaintiffs, the
Healing Church is “a Cannabist Faith,” which involves the use of
marijuana during religious services. The current litigation was
initiated

by

the

Plaintiffs

to

enable

them

to

conduct

such

services at the Roger Williams National Memorial (the “National
Memorial”),

which

is

a

four-acre

site

in

the

United

States

National Park Service system and, thus, located on federal land.
On March 25, 2015, Armstrong submitted an application for a
special use permit, requesting to conduct a prayer service on May
23, 2015 at the National Memorial, to “include the sacramental
use

and

distribution

of

KNH

BSM

[Hebrew

lettering]

[cannabissativa]...” Exhibit 1 to Complaint (Dkt. No. 1-2). The
requested location for the event is only described as “Roger
Williams National Memorial,” making no mention of a particular
location within the park.1 Id. For the

question “Is this an

exercise of First Amendment Rights?” Armstrong checked “Yes.” Id.
at Page 2 of 48.
On April 22, 2015, National Memorial Site Manager Jennifer
Smith (“Smith”) advised Armstrong and Gordon that she had mailed
their permit and she requested that they review the material,
1

Although Armstrong states in her affidavit attached to the
Complaint that she applied to hold a worship service “at the site
of the Well of the Promise and the Prophesy,” Armstrong Affidavit
¶ 12 (Dkt. No. 1-1), no such specification is included in the
permit application.
2

sign the permit, and mail it back to her. Exhibit 3 to Complaint
(Dkt. No. 1-2, Page 5 of 48). Smith’s cover letter notes that
“this permit does not grant permission to undertake any activity
that

may

violate

Federal,

State,

or

municipal

laws

or

regulations,” including the “Controlled Substances Act, the laws
of the State of Rhode Island governing the possession and use of
controlled substances, and 36 C.F.R. § 2.352, which prohibits the
illegal possession or delivery of controlled substances within
the National Park System.” Exhibit 2 (Dkt. No. 1-2) at Page 32 of
48.
The permit itself states that its issuance “is subject to
the attached conditions” and that “the undersigned hereby accepts
this permit subject to the terms, covenants, obligations, and
reservations, expressed or implied herein.” Id. at Page 3 of 48.
The attached conditions specify that the permittee “shall comply

2

Pursuant to 36 C.F.R. § 2.35 (b), which relates to controlled
substances, the following are prohibited:
(1) The delivery of a controlled substance, except when
distribution is made by a practitioner in accordance with
applicable law. For the purposes of this paragraph, delivery means
the actual, attempted or constructive transfer of a controlled
substance whether or not there exists an agency relationship.
(2) The possession of a controlled substance, unless such substance
was obtained by the possessor directly, or pursuant to a valid
prescription or order, from a practitioner acting in the course of
professional practice or otherwise allowed by Federal or State law.
36 C.F.R. § 2.35 (a) and (b).
3

with all applicable Federal, State, county and municipal laws,
ordinances, regulations, codes, and the terms and conditions of
this permit.” Id. at Page 35 of 48.
On

April

23,

2015,

Armstrong

sent

an

e-mail3

to

Smith,

requesting a number of changes. Inter alia, Armstrong asked Smith
to amend the cover letter “to make it explicitly clear that no
law enacted by Congress or any other agency of the State abridges
our right

to

worship

according

to

our interpretation

of

the

scripture.” Armstrong added that “[i]t would help if you could
also make clear that your Park Police will protect our First
Amendment rights against encroachment by any other agencies.”
Id. at Page 6 of 48.
In

response,

Smith

acknowledged

receiving

Armstrong’s

requests and noted that “none of the requests noted in your email
dated April 23 would seem to require any changes to the language
of the permit.” Id. at Page 37 of 48. Armstrong signed the
special use permit on May 4, 2015. Id. at Page 3 of 48.
According

to

the

Complaint,

Armstrong

and

Gordon

began

3

The e-mail correspondence Armstrong and Gordon submitted as
exhibits attached to the Complaint appears to have been edited,
e.g., by the addition of titles and subheadings. (Dkt. No. 2-1
Pages 5-48). The attachments also include the April 22, 2015 cover
letter from Smith, the completed and signed application for the use
permit, and a portion of the use permit itself.
4

daily4 gatherings at the “Well site” of the Memorial on Saturday,
May 16, 2015. Complaint ¶ 12. Armstrong and Gordon returned the
following day and “again prayed with cannabis,” but were advised
by a park ranger and, later, two Providence police officers, that
cannabis

was

Armstrong

not

and

allowed.

Gordon

Complaint

encountered

¶

a

13.

On

federal

May
law

18,

2015,

enforcement

officer5 who asked them for identification and, according to the
Plaintiffs,
cannabis.

tried

to

Complaint ¶

write

a

warning

for

the

possession

of

14. On

Tuesday,

May

19,

2015, several

police vehicles were at the National Memorial. According to the
Complaint,

Armstrong

and

Gordon

were

“issued

a

summons

for

federal Magistrate’s Court...indicating that a fine of over $100
was due.”6 They were then instructed to leave the park. Complaint

4

The gatherings took place between 4:20 - 5:20 (apparently in
the afternoon) and were “scheduled to allow 9-5 workers to visit.”
Complaint ¶ 12 (Dkt. No. 1).
5

According to the Defendants, this was likely a member of NPS
personnel. Defs.’ Mot. Dismiss at 5 (Dkt. No. 11).
6

As explained by the Defendants, the Plaintiffs received
Central Violations Bureau notices pursuant to 36 C.F.R § 2.35,
which prohibits the “possession of a controlled substance [within
federal park areas], unless such substance was obtained by the
possessor directly, or pursuant to a valid prescription or order,
from a practitioner acting in the course of professional practice
or otherwise allowed by Federal or State law.” 36 C.F.R. §
2.35(b)(2).

5

¶ 15. The Plaintiffs, together with another individual, returned
to the National Memorial on May 20th, 2015, where they used
cannabis while being observed by police officers. No one was
arrested. Complaint ¶ 16.
II. Procedural History
On May 21, 2015, Armstrong and Gordon filed a twenty-page
pro se “Complaint and Application for Urgent Injunction” (Dkt.
No. 1), together with a motion for leave to proceed in forma
pauperis (Dkt. No. 2). The Plaintiffs sought injunctive relief to
preclude governmental interference with their planned “cannabisrelated

religious

activity”

at

the

National

Memorial,

specifically for the scheduled May 23, 2015 event. On May 22,
2015,

the

government

filed

an

objection

to

the

Plaintiffs’

application, on the ground that the Plaintiffs had failed to
demonstrate a substantial likelihood of success on the merits of
their claim under the Religious Freedom Restoration Act of 1993
(“RFRA”) (Dkt. No. 3). After the Magistrate Judge recommended
that Gordon’s IFP motion be denied, see Report and Recommendation
(Dkt. Nos. 4, 5), the required filing fee was paid.
On May 22, 2015, this Court issued a Memorandum and Order,
treating the Plaintiffs’ application for “urgent injunction” as a
motion for a temporary restraining order (“TRO”). In light of the
Plaintiffs’

pro

se

status,

the
6

Court

read

their

submitted

pleadings

liberally

(Dkt.

No.

10).

After

considering

the

Plaintiffs’ submissions and the government’s response, the Court
concluded

that

the

Plaintiffs

had

not

met

their

burden

of

demonstrating a likelihood of success on the merits. The Court
denied the motion for TRO. Id.
On July 20, 2015, the government filed a motion to dismiss
the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to
state a claim upon which relief can be granted (Dkt. No. 11).
Between July 31, 2015 and August 7, 2015, the Plaintiffs filed
(1) an amended affidavit to the Complaint (Dkt. No. 12), (2) a
response in opposition to the government’s motion (Dkt. No. 13),
(3) a motion for default judgment (Dkt. No. 14), and (4) the
affidavit of Gordon (Dkt. No.

15), together with 14 new exhibits

(Dkt. Nos. 16-1 through 17-6). In response, the government filed
an objection to Plaintiffs’ motion for default judgment (Dkt. No.
18), and a reply in support of the government’s motion to dismiss
(Dkt. No. 19). The Plaintiffs filed a motion for leave to amend
their objection to the motion to dismiss (Dkt. Nos. 20, 21), as
well as a reply to the government’s objection to the Plaintiffs’
motion for default judgment (Dkt. No. 22).
On August 18, 2015, the Court conducted a hearing on the
various motions. With the consent of the government, the motion
for leave to amend the Plaintiffs’ objection to the government’s
7

motion to dismiss was treated as an amendment to the Complaint
and, as such, the motion was granted. The Plaintiffs’ motion for
default judgment

was

denied.

After

both

sides

were

given an

opportunity to argue in support of their respective positions,
the Court took the government’s motion to dismiss the Complaint
under advisement.
III. Standard of Review
A motion to dismiss for failure to state a claim upon which
relief may be granted is governed by Fed. R. Civ. P. 12(b)(6). In
considering
construe

a

the

motion

to

complaint

dismiss
in

the

a

complaint the

light

most

Court

favorable

“must

to

the

plaintiff, taking all well-pleaded facts as true, and giving the
Plaintiff the benefit of all reasonable inferences. Arruda v.
Sears, Roebuck & Co., 310 F.3d 13 (1st Cir. 2002). In order to
withstand a motion to dismiss, a claim “must contain sufficient
factual matter ... to state a claim to relief that is plausible
on its face.” Katz v. Pershing, LLC, 672 F.3d 64, 72-73 (1st Cir.
2012. The complaining party must include “factual content that
allows the court to draw a reasonable inference” in the pleader’s
favor. Id. “If, under any theory, the allegations are sufficient
to state a cause of action in accordance with the law,” the
motion to dismiss must be denied. Vartanian v. Monsanto Co., 14
F.3d

697,

700

(1st

Cir.1994).
8

The

Court

ignores,

however,

“statements in the complaint that simply offer legal labels and
conclusions or merely rehash cause-of-action-elements.” Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.
2012).
Although

the

Court

generally

may

not

consider

documents

outside of the complaint unless it converts the motion to dismiss
into one for summary judgment, it may make an exception “for
documents

the authenticity

of

which

are

not

disputed

by

the

parties; for official public records; for documents central to
the plaintiffs’ claim; or for documents sufficiently referred to
in the complaint.7 ” Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993).
Generally, pro se plaintiffs' pleadings are held to less
stringent standards than those of lawyers, Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, the
First Circuit
specific

has

facts

“required

backing

up

even

pro se plaintiffs

their

claims

of

to plead

civil

rights

violations.” Glaros v. Perse, 628 F.2d 679, 684 (1st Cir.1980).

7

The Court notes that the Plaintiffs attached to their 20-page
Complaint (Dkt. No. 1) a 9-page affidavit of Armstrong (Dkt. No. 11) and a 48-page exhibit (Dkt. No. 1-2), which included a copy of
the Application for Special Use Permit, a portion of the Use
Permit, and various pieces of reformatted correspondence regarding
the planned event at the National Memorial. An additional 4-page
affidavit of Armstrong (Dkt. No. 21) makes reference to the well (a
dry spring) that is located on the National Memorial grounds.
9

IV.

The Parties’ Positions
The government contends that the Complaint fails to allege

that smoking marijuana at the National Memorial is a sincere
exercise of the Plaintiffs’ religion, and that it fails to assert
that the National Park Service’s prohibition of such conduct
significantly

restricts

According

the

to

the

Plaintiffs’

government,

the

religious

Plaintiffs,

at

exercise.
most,

have

alleged an inconvenience rather than a substantial burden on
their religion. However, even if the imposition of a substantial
burden

on

the

Plaintiffs’

government

asserts

that

compelling

interest

in

religion
the

were

National

prohibiting

to

be

Park

the

assumed,

Service

Plaintiffs

has
and

the
a
any

potential followers from distributing and smoking marijuana in a
small federal park located in an urban area.
At the August 18, 2015 hearing on the government’s motion to
dismiss the Complaint, the government stated that it did not
challenge

the

Plaintiffs’

general

assertion

that

smoking

marijuana was a part of their religious practice. The government
also pointed out that the Plaintiffs, by their own statements,
had been practicing their asserted religion for at least a period
of some months, without ever expressing a need to smoke marijuana
at the National Memorial. As such, the National Park Service
regulation which prohibits the possession and use of marijuana on
10

public

land,

thus

precluding

the

Plaintiffs

from

smoking

marijuana on federal property in downtown Providence, did not
constitute

a

substantial

burden

on

the

exercise

of

the

Plaintiffs’ religion.
The government also noted that, although there have been
cases in which the use of certain controlled substances by a
narrowly defined group of individuals was permitted under very
controlled circumstances, in the instant case, there was a risk
that such substances would be diverted, or distributed, to other
individuals.

The

National

Park

Service

only

granted

the

Plaintiffs permission to conduct their religious service subject
to

existing

federal

and

state

law.

Finally,

the

government

suggests that, given the urban location of the National Memorial,
which is freely accessible to the public, a prohibition against
smoking

marijuana

in

the

course

of

the

Plaintiffs’

services

conducted at the National Memorial provided the least restrictive
means possible.
The

Plaintiffs,

on

their

part,

maintain

that

their

“authentic, sincere religious exercise, or practice, has been
substantially burdened” by the government. Complaint ¶ 21. The
Plaintiffs

also

state

that

the

government

acted

without

a

compelling interest and that the government’s “intimidatory and
oppressive

tactics

are

not

the
11

least

restrictive

means

of

achieving”

the

government’s

asserted

compelling

interest.

Complaint ¶ 22-23.
At the hearing, the Plaintiffs8 stated that “we felt that in
the application process we refer to all of that site is holy to
us, but in particular there was reference to prayer at a well
that we consider sacred because of scripture and our own personal
beliefs.” Upon question by the Court, Gordon explained that the
proposed prayer service described in the application included the
use by, and distribution of marijuana to, “those people that we
know to be able to handle it.”
V.

Claims under the RFRA
With enactment of the RFRA, “Congress created a cause

of action for persons whose exercise of religion is substantially
burdened by a government action, regardless of whether the burden
results from a neutral law of general applicability.” Navajo
Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008).
The RFRA provides that the
“[g]overnment shall not substantially burden a person's
exercise of religion even if the burden results from a
rule of general applicability, except as provided in
subsection (b) of this section.” § 2000bb–1(a).
Subsection (b) provides that the
[g]overnment

may

substantially

burden

a

person's

8

The bulk of the argument was presented by Gordon and then
adopted and supplemented by Armstrong.
12

exercise of religion only if it demonstrates
application of the burden to the person—
(1) is in furtherance
interest; and

of

a

compelling

that

governmental

(2) is the least restrictive means of furthering that
compelling
governmental
interest.
42
U.S.C.
§
2000bb–1(b).

In order to state a prima facie claim under the RFRA, the
Plaintiffs must establish that the application of federal law in
this

case

would

substantially

burden

a

sincere

religious

exercise. Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed. 1017 (2006); 42
U.S.C. §2000bb-1(a). United States v. Rush, 738 F.2d 497, 512
(1st Cir. 1984)(“When a law is challenged as interfering with
religious

conduct,

the

constitutional

inquiry

involves

three

questions: (a) whether the challenged law interferes with free
exercise

of

a

religion;

(b)

whether

the

challenged

law

is

essential to accomplish an overriding governmental objective; and
(c) whether accommodating the religious practice would unduly
interfere with fulfillment of the governmental interest”) (citing
United States v. Lee, 455 U.S. 252, 256-59, 102 S.Ct. 1051,
1054-56, 71 L.Ed.2d 127 (1982)).
Only if the Plaintiffs establish that the consumption and
distribution of marijuana in a small urban park on federal land
constitutes a sincere religious exercise, does the burden shift
13

to the government to show that (1) enforcement of the federal
prohibition against using and distributing marijuana on federal
land is in furtherance of a compelling governmental interest, and
(2) the application of such laws is the least restrictive means
of advancing such interest. Id.; §2000bb-1(b).
Conduct which is claimed to be an “exercise of religion”
must be based on “a religious belief rather than a philosophy or
way of life” and the belief must be “sincerely held” by the
Plaintiffs. United States v. Meyers, 95 F.3d 1475, 1482 (10th
Cir. 1996). The RFRA defines the “exercise of religion” as “any
exercise of religion, whether or not compelled by, or central to,
a system of religious belief.” 42 U.S.C. § 2000bb-2(4); 42 U.S.C.
§ 2000cc-5(7)(A).
Although the RFRA does not contain a specific definition of
what consists a “substantial burden” on the exercise of religion,
case law indicates that a “substantial burden” is imposed only
“when individuals are forced to choose between following the
tenets of their religion and receiving a governmental benefit...
or coerced to act contrary to their religious beliefs by the
threat of civil or criminal sanctions...” Navajo Nation v. U.S.
Forest Serv., 535 F.3d at 1070 (discussing the Supreme Court’s
decision in
10

L.Ed.2d

Sherbert v. Verner, 374 U.S. at 399, 83 S.Ct. 1790,
965

(1963)(Seventh-day
14

Adventist’s

employment

was

terminated for refusing to work on Saturday, her faith’s day of
rest) and Yoder v. Wisconsin, 406 U.S. at 207–08, 92 S.Ct. 1526,
32 L.Ed.2d 15 (1972)(Members of Amish religion convicted for
violating state law requiring their children to attend school
until

age

sixteen).

Anything

less

does

not

constitute

a

“substantial burden” on religious exercise and does not require
the application of the compelling interest test set forth in
Sherbert and Yoder. Navajo Nation v. U.S. Forest Serv., 535 F.3d
at 1070.
As

to

interest”,

the
the

determination

question

First

that

of

Circuit

marijuana

the
has

in

government’s

accepted

fact

poses

the
a

“compelling

“congressional
real

threat

to

individual health and social welfare.” United States v. Rush, 738
F.2d 512 (listing cases from other jurisdictions); United States
v.

Israel,

317

F.3d

768,

771

(7th

Cir.

2003)(noting

that

“Congress' inclusion of marijuana as a Schedule I controlled
substance”

reflects

the

belief

that

marijuana

is

a

“serious

threat to the public health and safety”).
To

establish

that

the

government

employed

the

least

restrictive means in advancing a compelling government interest,
the government is required to establish that no alternative, less
restrictive, means exists. Sherbert, 374 U.S. at 407. See Burwell
v. Hobby Lobby Stores, Inc., __U.S.__, 134 S.Ct. 2751, 189 L.Ed.
15

2d 675 (2014)(requiring government to show “that it lacks other
means

of

achieving

its

desired

goal

without

imposing

a

substantial burden on the exercise of religion on the objecting
parties”).
courts

Recognizing the difficulty of proving a negative,

that

have

addressed

this

issue

have

held

that

“the

government should not be required ‘to refute every conceivable
option in order to satisfy the least restrictive means prong of
RFRA.’” United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir.
2011) (listing concurring cases from other jurisdictions); United
States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011)(rejecting
alternative restrictive means that would be “as impractical as
they are insufficient”); Olsen v. Drug Enforcement Agency, 878
F.2d 1458 (D.C.C. 1989)(rejecting proposal for restrictive use of
marijuana during religious services, which required “burdensome
and constant official supervision and management”).
VI. This Case
The government, for purposes of its motion to dismiss the
Complaint, “presume[s] the Plaintiffs’ general assertion that the
use

of

marijuana

is

an

exercise

of

their

religion.”9

The

9

The Court notes that, according to his affidavit, Gordon began
using marijuana at age 13 for non-religious reasons and did not
become a “Canon to the Healing Church” until March 2015. Gordon
Affidavit ¶¶ 1, 2 (Dkt. No. 15).
According to Armstrong’s
affidavit, she began to use cannabis in 2011 for medicinal
purposes. Armstrong explained further that “[a]s I began to use
cannabis, I became aware of a ‘quickening’ in my faith, and an
16

government asserts, however, that the Complaint fails to allege
that marijuana use and distribution at the National Memorial is a
component of the Plaintiffs’ religion. Defs.’ Mot. Dismiss at 9
(Dkt. No. 11)(emphasis added). A review of the Complaint and the
extensive

attachments

thereto

gives

no

indication

that

the

exercise of Plaintiffs’ religion is bound specifically to the
National Memorial. Although the Plaintiffs repeatedly assert that
the religious use of marijuana, or cannabis, is “deeply held,
demonstrably sincere, and exquisitely supported by the standard
Bible,” there is simply no mention of the specific location where
such religious use must occur. Rather, the Plaintiffs merely
assert

in

their

Complaint

that

the

National

Memorial,

“the

Birthplace of US Religous Freedom,” is a “place sacred to the
Plaintiffs.”

Complaint

¶

4.

They

further

assert

that

“the

relevant time and location, in which the complained of events
took place, was preordained by the ancient phrase ‘I.N.R.I’,10 in
part a result of ancient prophetic visions of the very spot and

awareness of the sacred nature of the plant that was helping me to
heal.” Armstrong Affidavit ¶ 6 (Dkt. No. 1-1)
10

In support of this particular contention, Gordon states that
the inscription “INRI” on Jesus’s cross, as seen by Pontius
Pilate’s wife in a dream, refers to “in R.I.;” that the well at the
National Memorial was donated by the “Hahn” family, whose family
name is another word for “hemp;” and that an early 17th Century
land sale deed was signed by Roger Williams and the Native mystic
Canonicus, whose name means “Hempstaff” in Latin.
Gordon
Affidavit, ¶¶ 9 L, P.
17

the very time.” Complaint ¶ 5 B.
In

sum,

based

on

the

allegations

of

the

Complaint,

The

Healing Church established by the Plaintiffs, while it involves
the religious use of marijuana, is not bound to the location at
the National Memorial. According to the Plaintiffs, their beliefs
have

“minor

variations,”

and

corporate.” Complaint ¶ 5.

the

Church

is

“new

and

barely

Even assuming that the Plaintiffs’

belief system requires the use of marijuana as part of their
religious exercise, there is no indication that such use may be
conducted only at the National Memorial. In their supporting
affidavits,

both

Plaintiffs

acknowledge

that

they

have

used

marijuana as part of their religious exercise for years — both
Armstrong and Gordon also expressly state that they have used
marijuana for other reasons and for a number of years prior to
incorporating the use of it in their religious belief systems.
Neither of them alleges, however, that their religious practices
have included religious services at the National Memorial before
May 2015 or that they are unable to engage in their religious
practices in another location.
Although

Armstrong

alleges

in

her

affidavit

that

she

“applied for a permit for a prayer and worship service to be held
at the site of the Well of the Promise and the Prophesy” located
at the National Memorial, Armstrong Affidavit ¶ 12 (Dkt. No. 118

1),

the

application

specifies

“Roger

Location.”

submitted

Williams

Permit

correspondence

she

Memorial

Application

attached

to

to

at

the

the

Park”
1

Park
as

(Dkt.

the

No.

Complaint,

Service

only

“Requested

1-2).

Smith

In

the

reminded

Armstrong and Gordon that “your event will take place, as stated
in the permit and shown on the map that was attached to the
permit, in the small grass amphitheater just south of the parking
lot.” Exhibit B to Complaint at Page 39 of 48 (Dkt. No. 1-2). On
her part, Armstrong acknowledged that “[w]e intend to bless the
spring at the well first, prior to proceeding to the grassy area
for our service and sharing, but we can conduct this preliminary
rite with just a few acolytes.” Id. at Page 40 of 48 (emphasis
added).

In

sum,

correspondence

neither

related

to

the
the

permit
planned

application,
event

nor

the

supports

the

Plaintiffs’ more recent contention that the well is central to
their religious beliefs or ceremonies.
Although the government’s motion is persuasive on that point
alone, the Court need not rely solely on a determination whether
the use and dispersion of marijuana at the National Memorial is
part of

the

Plaintiffs’ sincerely

held

beliefs. Even

if

the

Court, as it must at this stage of the litigation, indulges the
Plaintiffs’ representations and takes as true that the location
of their religious exercise is of significant importance to the
19

Plaintiffs, their claims cannot withstand the Defendants’ motion.
The

Plaintiffs

allege

in

their

Complaint

that

their

“authentic, sincere religious exercise, or practice, has been
substantially burdened,” Complaint ¶ 21 (emphasis in original);
however, they offer no further explanation or factual support for
this contention. As asserted in Armstrong’s affidavit, it was
essential to The Healing Church to conduct a prayer and worship
service on May 23, 2015, “on both Erev Shavuot and the Vigil of
Pentecost, and in a year dedicated to Mercy by the barefoot
Apostle, according to the prophets among us.” Armstrong Affidavit
¶ 12 (Dkt. No. 1-1). There is no allegation, however, that the
service on that day could not have been conducted outside of the
National Memorial, where the Plaintiffs’ use of marijuana would
not have been subject to the prohibitions of 36 C.F.R. § 2.35.
The Plaintiffs’ choice of location for the service is supported
only by the suggestion that the location “was preordained by the
ancient

phrase

National

‘I.N.R.I.’”

Memorial

religious

is

Plaintiffs’

freedom.”

“a

and

site

Complaint

pleadings

a

general

devoted
at

indicates

5
that

to
B.,

statement
the
8.

they

that

the

celebration
Nothing

would

in

have

of
the

been

precluded from conducting their service (including the use and
distribution of marijuana) at a different location; they were
simply prohibited from conducting it on the four-acre grounds of
20

Rhode Island’s only national park.11
In sum, the only encumbrance on the Plaintiffs’ exercise of
their religious practices was the unavailability of a location
which did not appear to be central to their general religious
beliefs or
services

practices.

elsewhere,

Since they

the

were free

prohibition

did

not

to

conduct their

require

them

to

abandon their religious principles.
Moreover, even if the Court were to consider the prohibition
against the Plaintiffs’ use of marijuana a substantial burden on
their religious exercise, their claims would fail at the final
prong

of

the

analysis.

In

their

permit

application,

the

Plaintiffs state that they expected up to 100 participants at
their service.

They also indicated their intent to use and

distribute marijuana to those participants. The National Memorial
is a small park in downtown Providence, which is unfenced, open
to any member of the public, and located within a short walking
distance from several university buildings, including a large
student dormitory, restaurants, and the Providence train station.
During

the

planned

event,

the

National

Memorial

would

have

remained open to the public to use or walk through the park. Upon
11

It is undisputed that the Plaintiffs were permitted to conduct
their prayer and worship service at the National Memorial, as long
as they adhered to existing federal laws, which would have
prohibited them from using and distributing marijuana during such
service.
21

question

by

the

Court,

Gordon

clarified

that

the

Plaintiffs

intended to share marijuana as part of their prayer service, with
“those

people

that

we

know

to

be

able

to

handle

it,”

a

determination that would have been made by Gordon.
The

government’s

assertion

of

a

compelling

interest

to

enforce existing laws prohibiting the distribution of a Schedule
I substance on federal land is not refuted by the Plaintiffs’
reliance on Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed. 1017 (2006). In
O

Centro

Espirita,

the

Supreme

Court

determined

that

the

government had failed to demonstrate a compelling interest in
barring a

religious

containing

hallucinogens.

circumstances

under

sect’s

which

sacramental

Both

the

it

use

nature

was

to

of
of

be

hoasca,
hoasca

consumed

a

tea

and

the

can

be

distinguished from the instant case. Unlike marijuana, which is
readily available and has a widespread use as a recreational
drug, hoasca is rare and its intended use in O Centro Espirita
was expressly limited to private religious ceremonies. Likewise,
the use of peyote for religious ceremonies by members of the
Native

American

Church,

see

Olsen

v.

Drug

Enforcement

Administration, 878 F.2d 1458 (D.C. Cir. 1989) is distinguishable
from

the

acknowledge

instant
the

case.

Both

overwhelming

O

Centro

difference
22

Espirita
between

and

Olsen

marijuana—a

Schedule 1 controlled substance which is associated with actual
abuse and wide availability—and other substances, which are used
by religious organizations in tightly circumscribed ceremonies.
As to the means the government is using to advance its
compelling interest, the circumstances of this particular case
make clear that there are no feasible, practical alternatives to
prohibiting the use and distribution of marijuana at the National
Memorial.

The

Plaintiffs

were

allowed

to

hold

their

prayer

service at the site, subject to existing laws; they were informed
accordingly

when

the

permit

was

issued;

and

by

Armstrong’s

signature on the permit she acknowledged those limitations. Given
the central location of the park in downtown Providence and its
proximity to student housing and other establishments, the open
access to the park by any member of the public, and the stated
intent by the Plaintiffs to distribute marijuana during their
service to anyone the Plaintiffs deemed “able to handle it,” the
Court

finds

conduct

that

their

the

Defendants

service

without

allowing
the

use

the
or

Plaintiffs

to

distribution

of

marijuana constituted the least restrictive means

of advancing

the government’s compelling interest.
The Plaintiffs candidly state in their Complaint that

they

believe in a “Biblical duty to break both Biblical and modern
cannabis

restriction

statutes

when
23

the

restrictions

suppress

cannabis use in good faith.” Complaint ¶ 5 A. Armstrong and
Gordon, who acknowledge that they have been using marijuana for
years for nonreligious reasons, now seek to challenge federal
laws prohibiting them to use and distribute marijuana on federal
land by asserting a right to religious freedom under the RFRA.
However, the allegations in their Complaint, together with the
attached

documentation,

do

not

establish

that

the

use

and

distribution of marijuana at the National Memorial is a part of
their asserted religious beliefs or that the limitation of the
permit (which allows them to conduct a prayer service, subject to
existing federal and state laws and regulations) constitutes a
substantial burden on their religious exercise. Accordingly, the
Plaintiffs’
withstand

assertion

the

in

their

government’s

pleadings

motion

to

are

insufficient

dismiss

the

to

Complaint.

Moreover, the government, on its part, has met its burden to
assert

a

compelling

distribution

of

interest

marijuana

at

in
the

preventing
National

the

Memorial

use
and

and
to

establish that it has used the least restrictive means to achieve
that interest.
Conclusion
For the reasons stated herein, the government’s motion to
dismiss the Complaint is GRANTED and the Complaint is DISMISSED.

24

The Clerk is directed to order judgment for the Defendants.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Senior United States District Judge
December 7, 2015

25