It would likely be unconstitutional for a state to prohibit minors from consuming small amounts of alcohol for religious purposes, such as Communion in Christianity.

It is possible, although unlikely, that a person could have a detectably nonzero BAC after taking Communion, without consuming any other alcohol.

My understanding is that a person under 21 years old with a detectably nonzero BAC is considered to be "under the influence" for the purposes of Oregon DUI law. I can't find a legal source for this, but it is a widely repeated claim; I'm probably just missing the statute or ruling that created this rule. I'm interested in the constitutional issue, not the specific details of Oregon law, so for the purposes of this question, assume that it is indeed true.

Suppose that Bob is seventeen years old. He takes Communion using wine at church. This is legal, because it is for religious purposes.

Bob then drives home from church. He is pulled over, and the officer for some reason suspects that he is intoxicated. A test detects a small amount of alcohol in his bloodstream, due to the sacramental wine he consumed at church.

Bob is cited for driving under the influence. Is this a violation of his freedom of religion? His religious beliefs require him to consume wine, but they do not require that he drive after consuming said wine.

Does it matter whether or not he could have feasibily arranged alternative transportation home from church, such as having an adult, who would not be considered intoxicated due to the small amount of alcohol consumed, drive?

  • The premise is wrong. The law is paraphrased as "if your blood alcohol concentration (BAC) is . 08 or higher." It is not "delectably non-zero". Commented Nov 12, 2023 at 19:01
  • @GeorgeWhite: I think OP is looking at ORS 813.300(3): "Notwithstanding subsection (2) of this section, for purposes of the Motorist Implied Consent Law as defined in ORS 801.010, for a person who is under 21 years of age, any amount of alcohol in the blood constitutes being under the influence of intoxicating liquor." I think the reference to the Motorist Implied Consent Law means that in such a case, the driver has not committed a crime, but is still subject to having their license suspended. Commented Nov 12, 2023 at 23:32
  • @NateEldredge that is indeed what I was referring to.
    – Someone
    Commented Nov 13, 2023 at 0:38
  • @Someone: You might like to add the citation to your question. Commented Nov 13, 2023 at 0:39

2 Answers 2


Is this a violation of his freedom of religion?


Even if freedom of religion allows for sacramental consumption of alcohol, it doesn't give you a right to drive a motor vehicle after doing so.

Also, the threshold for minors is usually 0.01 or 0.02 BAC in such statutes, which is high enough that truly de minimus consumption of alcohol such as a small shot glass of wine's worth, or cold medicine, won't cause you to exceed the threshold. In Oregon the threshold is 0.01 BAC (at least for purposes of license suspension under the implied consent statute).

For a typical sized 16-20 year old person, 0.01 is equivalent to 2.5 ounces of wine (less but still somewhat more than 1 ounce for a very small person that age), which would be more than the vast majority of churches in Oregon would use for a sacramental purpose.

Also, keep in mind that your body clears about 0.01 of BAC per hour. So, unless someone drove a car immediately after consuming the alcohol, the BAC would be somewhat lower than the starting point for the amount of alcohol consumed, so 30-60 minutes of delay before driving could make the difference in a case where the person under age 21 was only, say, at 0.013 BAC initially after consuming the alcohol (which would still be a very large sacramental consumption of wine).

  • Where do you get the 0.01 figure? The phrasing in the Oregon statute is "any amount" (Sec. 813.300(3)). Is this an interpretation set by case law? Commented Nov 12, 2023 at 23:31
  • 4
    @NateEldredge This is the administratively established standard for license suspension under the implied consent statute in Oregon. oregonduii.com/what_is_the_legal_limit_bac_in_oregon.html
    – ohwilleke
    Commented Nov 12, 2023 at 23:33

A similar question can be (and was) raised about use of illegal drugs, specifically peyote, in Employment Division v. Smith, 494 U.S. 872. In that case, respondents argued that their First Amendment free exercise rights were violated, by prohibiting ceremonial use of peyote. The Oregon Supreme Court "concluded that that prohibition was invalid under the Free Exercise Clause", but the US Supreme Court disagreed, holding that "The Free Exercise Clause permits the State to prohibit sacramental peyote use".

The court observed that it would be a violation of the Free Exercise Clause if the law had specifically prohibited the religious use of peyote, but the Oregon prohibition is not aimed at prohibiting a religious practice, the law is a religion-neutral prohibition. A strict scrutiny balancing test along the lines of Sherbert v. Verner, 374 U. S. 398 is not applicable, since that case

lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief.

The court concluded that

although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required.

There is no relevant legal difference between DWI laws and drug prohibitions,

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