Cannabis Meets Religious Freedom Restoration Act

In 1986 the Oregon Supreme Court decided that Oregon’s controlled-substance statutes violated the “free exercise” clause of the U.S. Constitution in that they outlawed the use of certain drugs, including peyote, while allowing no safe harbor for their religious/sacramental use. Accordingly, that court told the Employment Division that it could not deny people unemployment benefits if they had been fired for the use of peyote in a sacramental context, as it was used by the Native American Church and its member, Alfred Smith.

The Employment Division appealed the case to the U.S. Supreme Court and in 1990 that court, in an opinion by Justice Scalia, reversed. Scalia wrote for the majority that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability … .”

But Scalia’s opinion ended with words that suggested that Congress and state legislatures could well act in this field. “[A] society that believes in the negative protection accorded to religious belief [in the first amendment] can be expected to be solicitous of that value in its legislation as well.”

Congress soon, and the state legislatures somewhat later, took Scalia up on this suggestion. The circumstance of Native Americans who wanted to use peyote as a religious rite was a sympathetic one, and it inspired the Religious Freedom Restoration Act of 1993. So uncontroversial was this for at least a brief moment that the vote in the U.S. Senate was 97 to 3 in favor.

In more recent years, though, the issues addressed through the RFRA have been quite different, and wide-ranging. They have become critical in our national debates about water recycling, mandatory health insurance, and (especially through state-level RFRAs modeled after the federal version) discrimination against homosexuals.

But RFRA has come full circle. The Indiana law in particular may end up applied in a very high-profile way to weaken the war on drugs, especially insofar as that war is still aimed not at peyote but at marijuana.


Enter Bill Levin

On March 30, 2015, Bill Levin told The Huffington Post that he “cannot relate to an antique magic book.” He is creating a non-biblical religion in which the consumption of marijuana will be a sacrament, as it already is for Rastafarians.

Levin is building his church, the First Church of Cannabis, in Indiana, and hopes to take advantage of that state’s new religious freedom law, the law that has become controversial for allegedly encouraging discrimination against homosexuals.

Indeed, Levin reportedly filed the paperwork on March 26 with Indiana’s secretary of state even as Gov. Michael Pence was signing the act.

It seems nearly certain, as nearly as such matters can be in politics, that the government in Indiana will deny the applicability of the RFRA to Levin’s sacramental use of marijuana. Furthermore, this conflict could lead to some very high-stakes litigation, since Indiana has some of the harshest criminal penalties for marijuana use in the United States.

Possession of more than 30 grams of marijuana can lead to a charge of a class D felony with a potential sentence of up to 3 years in prison and a fine of up to $10,000.


Protective Cloak or Sincere Religious Belief

Indiana might well seek to make the case that Levin’s professed religious beliefs are pretextual. In a case that arose under the federal RFRA, the Ninth Circuit Court of Appeals said, “It is not enough in order to enjoy the protections of the Religious Freedom Restoration Act to claim the name of a religion as a protective cloak. Neither the government nor the court has to accept the defendants’ mere say-so.”

There is no need for a say-so in the case of at least one high-profile religion: the Rastafari movement has been around since the 1930s, and from the start it has regarded the spiritual use of ganja as a soul-healing ceremony. That may not help Levin, though.

To those endowed with only a little bit of legal training but a normal amount of common sense, the whole idea of having governments and courts sit in judgment of the sincerity of an individual’s religious convictions seems unappealing, but that is the predicament into which the law and politics of religion has wormed itself.

All that one can definitively say of Levin’s church at this moment is that in principle he has a case. But a church with a history behind it would have a better prospect for success in the inevitable litigation than any new creation. In the absence of such a history the founder will likely find himself trying to persuade judges, or juries, that the religious content of his church is sincerely held, and not a mere “protective cloak.”

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