Rules are for Schmucks: The Goddess of Raisinets

Earlier this summer, on July 17, a fifty-two-year-old woman named Nancy Mullis entered a Cumberland Farms store in Stuart, Florida, picked up a $2.99 bag of Raisinets, then exited the store without paying for them. Rather than practicing any stealth, she waved and flaunted the bag at the clerk from outside the store, then proceeded on her way. She later entered a Discount Family Dollar store, where she began to knock merchandise off the shelves and flip over a newspaper stand and cigarette receptacle.

All the while, she was proclaiming at the top of her lungs that she was a god, and could do whatever she wanted. (Indeed, her activity at the Discount Family Dollar store is quite similar to that of Jesus with the merchants outside the Temple.)

Mullis was arrested on a disorderly conduct charge and taken to jail. If her lawyer is worth his salt, though, she should easily be acquitted, because her conduct should be protected by the Florida Religious Freedom Restoration Act (RFRA) of 1998.

Florida’s RFRA is modeled on the federal RFRA of 1993. The federal RFRA doesn’t apply here because disorderly conduct is a state law, and the Supreme Court has said that that the federal RFRA does not apply to states. That Supreme Court ruling, though, is what led Florida and eighteen other states to mimic it.

The purpose of Florida’s RFRA is clearly stated in its preamble: “[L]aws which are ‘neutral’ toward religion may burden the free exercise of religion.” That would appear to cover disorderly conduct laws, which are neutral toward religion on their face, but in this case prevent Mullins from exercising her religion in her chosen manner.

Florida’s RFRA language is virtually identical to that of the federal law:

“The government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person:

(a) Is in furtherance of a compelling governmental interest; and

(b) Is the least restrictive means of furthering that compelling governmental interest.”

Florida’s law defines “exercise of religion” to mean “an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.” There isn’t much doubt that Mullins was acting on her “religious belief” of her own divinity, at least not for anyone within earshot of what she was screaming while on her rampage. Nor is there any doubt that her exercise of religion is being “substantially burdened” by her arrest. (Even Jesus wasn’t arrested for his even more disorderly conduct.)

So that gets us to the exception in clauses (a) and (b). A disorderly conduct statute is likely to be found “in furtherance of a compelling government interest,” so that wouldn’t help her. But following the logic of Justice Samuel Alito in the recent Hobby Lobby case, tossing her in jail is certainly not the “least restrictive means of furthering that compelling government interest.”

Alito said that requiring religiously-objecting employers to pay for contraceptive coverage for their employees was not the “least restrictive means” of achieving the compelling government interest of providing access to that coverage for American women. A far less restrictive means, he ruled, would be for the taxpayers to provide that coverage instead. Hence, RFRA overrules the contraceptive mandate of Obamacare, at least for any employer who claims to object to it on religious grounds.

Since Mullis believes that her religion guarantees her free Raisinets, a far less restrictive means of furthering the government’s interest would be for the taxpayers to compensate the store for whatever she consumes. $2.99? Are you kidding? We’re going to trample on her religious liberty for that? Similarly, if her divine power interacts with the cosmic force of gravity, resulting in certain merchandise being deposited on the floor, Florida’s taxpayers could easily pay for someone to trail after her to put items back where they belong. Hence, since a less restrictive means of accomplishing the state’s purpose is so readily available, she should be acquitted.

“But Mullis wasn’t sincere,” you’re thinking, “she was crazy!” If RFRA were only to apply to religions that aren’t crazy, though, its scope would be narrow indeed. The virgin birth? Genital mutilation of infant boys? The death penalty for apostasy? Now those beliefs are crazy—far crazier than objecting to the payment of $2.99 for a measly bag of Raisinets. So are Christianity, Judaism, and Islam to be denied protection under RFRA because only non-crazy religions are covered?

“But, wait,” you say, “those religions have a lot of money and power, so they get what they want. Mullis is probably just a sad lady at the end of her rope, so she doesn’t.” I’d have to agree with you on that one.

All this rigorous legal analysis is making me hungry. I think I’ll go grab a bag of Raisinets. To pay, or not to pay? That is the question.