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, RFRARelated posts
Fresh Stash V RSS Feed
Loading ...
