Arizona Supreme Court: Drug laws trump religious use of marijuana
Tuesday, September 8th, 2009 at 4:16 pm | By: Radical Russ
(Arizona Daily Star) PHOENIX — The state’s interest in banning marijuana outweighs the religious beliefs of an individual that he is entitled to use the drug anywhere, the Arizona Supreme Court ruled today.
In a unanimous opinion, the justices said state law permits the government to “burden the exercise of religion” only if it shows a compelling interest and that the restrictions are the “least restrictive means of furthering that interest.” And Daniel Hardesty conceded to the court that there is some governmental interest in the regulation of marijuana.
But Chief Justice Rebecca White Berch said that, given the claim by Hardesty that his membership in the Church of Cognizance allows him to use marijuana anywhere and anytime — including driving — it is clear that the “least restrictive means” of the government to further its interests in protecting the public is an outright ban.
Today’s ruling, however, does not foreclose the possibility that the state’s high court might not conclude that some other religious use of marijuana is acceptable.
Berch pointed out that courts have allowed users of peyote to use federal laws to shield them from prosecution against state drug laws. She said, though, there is “an obvious difference” between the situations.
“Members of the Native American Church assert only the religious right to use peyote in limited sacramental rights,” the chief justice wrote. “Hardesty asserts the right to use marijuana whenever he pleases, including while driving.”
Today’s ruling is the second defeat in two years for members of the Church of Cognizance.
Last year a Graham County couple that claims to have founded the religion in the early 1990s were found guilty of possession and conspiracy with intent to distribute marijuana after being stopped with 172 pounds of marijuana in their vehicle near Las Cruces, N.M. A federal judge in New Mexico rejected their religious freedom arguments.
Dan Quaintance was sentenced to five years in prison; his wife, Mary, was sentenced to two to three years.
A friend of mine is an amazing trial lawyer here in town and he and I discussed these religious use arguments. He thinks that a federal religious use case for marijuana can be made and won under the Religious Freedom Restoration Act, but to date, the people attempting to use a religious defense haven’t had a leg to stand on in court. “It can’t just be somebody from The Church of I Like To Smoke Pot All The Time, or The Church of I Like to Sell Pot, or The Church of I Just Got Caught With A Hundred Pounds of Pot in My Trunk,” he tells me. “I need a seriously devout, older, black Rastafarian (sorry, white kid with dreads won’t cut it, don’t mean to be racist, but appearances matter in court), with a verifiable record of practicing his faith over the long haul, busted on federal land (like, say, a national forest), caught by a forest ranger for holding less than an ounce of ganja , who’ll be enough of a dick to arrest and prosecute this older black Rastafarian for an amount that’s decriminalized under state law on federal charges and not just make him dump it. Oh, and who has enough money to finance the appeals all the way to the Supreme Court.”
“No problem,” I answered, “I’ll put the call out to all the devout and rich black Rastafarian hikers I know.”
You know how I feel; I think all adults should be allowed to use pot whenever and whyever they feel like it, so long as they do not infringe on the rights of others. But the problem with framing the religious use argument is that you’re forced to engage on a rhetorical battlefield where historical precedent does not bode well for the marijuana smoker.
For example, many religious users refer to ganja as a “sacrament”. That term, then, puts ganja on the same playing field as the Catholic use of communion wine. When people think of communion, they think of a ceremony and a ritual and the ingestion of a tiny amount of wine as a symbolic gesture*. They don’t think of all wine everywhere drank anytime as something sacred. So when people hear of the guy who wants to smoke pot all the time and call it “religious use” or the guy caught with 172 pounds of pot for “religious use”, the “sacrament” frame turns that kind of pot use into an abuse akin to an alcoholic with a barrel of MD 20/20 in the trunk of his car.
“Sacrament” derives from “sacred” and refers to something that confers a higher connection with the spiritual realm. So it is difficult for folks that think of sacraments as a once-a-week ritualistic practice to think of multiple daily smoking of ganja right out of the blue with no ceremonies or rituals as “sacred”. It’s like that line from Lake Woebegone, where all the children are above average.
Mind you, I’m just telling you how it looks to the average citizen on a jury or a judge. Personally, I totally understand the sacredness of the herb and even as an irreligious person I believe the bond between humans and cannabis is as special as that between humans and dogs or horses.
*I’m told that to Catholics, transubstantiation is far from merely “symbolic”. Forgive me.
Topics: Arizona, Church of Cognizance, Daniel Hardesty, RFRA
[...] religious testimony, if wouldn’t work and hasn’t worked for plenty who have tried. I wonder how much of Swallick’s and others’ $250 donations to the ministry will come [...]
And the Pagans, well, some of us ol’ timers keep some secrets… including some in which we don’t teach until a student is, in our opinion, mature enough to handle responsibly.
For instance, the use of a certain hallucinogenic herb, which grows all over Europe, North and Central America… more powerful (and dangerous)than any you’ve mentioned (at least in my experience).
We also use marijuana, but I like it for other than ritualistic purposes also(what can I say… me likes being stoned).
That other herb I will only use ritually, even though it is still legal.
Didn’t you get the memo?
The first amendment now only applies to Christians.
heh.
Russ,
You know I could post at length about this one. But I’ve already done that, and made videos about it upon videos..
First. Take a look at the movement NJWeedMan has spearheaded in New Jersey. He uses the RFR Act to smoke herb at federal court in New Jersey all the time. (not now, that he lives in LA though)
http://tr.im/yeGx
As for marijuana being a spiritual practice? This is most definitely a spiritual practice dating back to the old testament.
Here is a video that I made about cannabis and Christian history:
http://tr.im/yeHc
Here is another video with some of the religious history of cannabis, including Hinduism, Christianity, Judaism, and Islam.
http://www.youtube.com/watch?v=4xvf42scU2U
Roger Christie of the THC Ministry, and Chris Bennett who is a theologian and a cannabis advocate are good resources for this information too.
However. It only takes reading Genesis 1:29 to see that Cannabis is not just meant for religious ceremonies. It is “used for good” of man. Period.
I completely agree. All I’m saying is that the courts do not. Courts see “sacrament”, as it pertains to Schedule I controlled substances, as a ceremonial activity performed only occasionally. Getting the courts to recognize using cannabis all the time any time for any reason as a religious sacrament is going to be a tough row to hoe. The courts have that two-prong test: the state’s compelling interest in banning the use of a drug vs. the least restrictive means of repressing a religious rite (or right). Native Americans and Brazilians get to use ayahuasca and peyote because they use it infrequently and ceremonially, their religion is venerated and sincere, and there are so few of them that allowing them to trip out and seek God doesn’t substantially burden the state from keeping ayahuasca and peyote out of the hands of the general public.
But allowing every Tom, Dick, and Harry who joins the less-than-a-generation-old Church of We Like Weed, a religion indistinguishable from garden-variety Christianity except for the recognition of “kaneh bosm”, to consume cannabis anytime anywhere anyhow, substantially burdens the government’s task of keeping cannabis out of the hands of the general public.
With the Native Americans and Brazilians, the religion is substantially different and with rare exceptions the adherents are easily identifiable by their race and ethnicity. So the chances of Billy Average insincerely following the religion in order to get some peyote and ayahuasca are slim, and even if he does, the ceremony and ritual act as controls against him getting it too often.
But with the Church of I Like Pot, Billy Average and all his friends can join, head down to the “temple” in the strip mall, make a “donation” or “tithe” and puff weed to their hearts’ content. That’s the government’s issue with that form of sacrament.
Again, I completely support any adult’s right to use cannabis for whatever purpose, spiritual or otherwise. But the religious use strategy is just not going to fly unless our courts become far more liberal and begin to take a more expansive view of religion. I think you’re absolutely spot on with the religious history of cannabis in all the major world religions, but that has been so whitewashed over time that it means nothing to the courts. Billions of Christians, Jews, Muslims, and Hindi are following a cannabis-free version of their ancient practices and have been for the last millennium. A few dozen people forming brand-new religions claiming to be the true interpretation of these ancient practices don’t hold much sway over the courts.
It ain’t right, it ain’t fair, but that’s the way courts rule on religion and drugs. The truly cannabis-religion devout (as I believe you and many of these people are) dedicating resources to carving out an exception for themselves with religion would be better served by explaining the Judeo-Christian history and uses of cannabis to the general public as a means of building support for ending cannabis prohibition for all people (even us non-believers).
By the way, I’ve gone a few rounds in cyberspace with NJ Weedman. He considers me to be racist and doesn’t like me very much. Roger Christie, if I’m not mistaken, is the gentleman in Hawaii who will sell you a $250 Get Out Of Jail Free card to prove you’re a religious user of pot, a card that the police and courts will get a good chuckle over and you can use as a bookmark for your Bible while you read it in your cell.
Russ,
I think we are on the same page in a lot of ways, and I appreciate you being candid about this. It infuriates me, and sometimes I just need to face the facts head on. For me, the fact is that the government doesn’t truly respect religious freedom. The first Amendment, the entire bill of rights. The whole concept of our republic and our constitution is rubbish unless it is practiced as it is written.
But for all intensive purposes, under our bill of rights, and under this Religious Freedom Restoration Act, all of the people in all of the major religions have the right to use cannabis.
We can start amending, and screwing with the constitution, and we can impose a non-constitutional policy. But that is just as dangerous if not more so than cannabis prohibition in sight of life, liberty and the pursuit of happiness.
NJWeedMan, is a nice dude, means well, is a little eccentric. But he has been through HELL! Seriously. This guy lost rights to his kids, and when through prison sentences, and all of the BS that comes after getting out, which includes trying to find a job as a felon.
I don’t think you are racist. But to a person that has been roughed up in our racist BS court/prison system I can empathize with him. I’ve been through the court/correction system in our country too. What a disgusting, racist, lowly and painful environment.
We all know how much you two have in common. If you and NJWeedman sat down together for a peaceful ganja session, any conflict would melt away. Thats just how it is with stoners, ya know.
As for Roger Christie. I think the whole “religious kit in a box” thing for $250 is a little extreme, and the claims are pretty eccentric too. However, I have witnessed a lot of conversation on his blog, and on youtube about people who have benefited from his spiritual guidance.
I give my guidance, info, assistance, away for the most part, because I can afford to do some community service pro-bono. However, I have been in a place in life, and I know others who are trying to be as effective as possible as civil rights activists don’t have the ability to dedicate much time to volunteer, or donate time to a cause they are passionate about. So they ask for donations, and in return as a thank you, they give books, certificates, prayers, sacramental items, etc.
I consider it very similar to what Rick Steves does on PBS, when he does pledge drives.
Someone donates a tax deductible sum of cash to an organization, and said organization (in this case PBS) gives them a Rick Steves hemp backpack or something.
They mean well, they both have good hearts, IMHO. As do you Russ. You have our blessing and we wish what you are doing the best! Thanks Russ, for all you do!
Thank you. And I’ll share a bowl with NJ Weedman, Todd McCormick, Patrick Duff, and anyone else with whom I’ve had a cyber-tete-a-tete. After 13 years of online arguments, I’ve learned that the person in type is rarely the actual person.
[...] Arizona Supreme Court: Drug laws trump religious use of marijuana [...]
Religions are protected, in your church and heart.
In traffic the responsible religious can delay inhaling until at home, or in church. The original law included Genesis, chapter one, verse eleven.
Layers of liar-lawyers ought to get broader minds and less blind justice. Stay out of the midday sun and for God’s sake free Marc Emery too!