Spiritual Highs and Legal Blows

The power and peril of religious exemptions from drug prohibition

Jacob Sullum from the June 2007 issue

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Roy Haber, an attorney for the Santo Daime church in Oregon, says the federal government seized one of the group’s tea shipments around the same time UDV’s ayahuasca was confiscated, but since then there have been no prosecutions and no further interceptions. In 2000 Haber successfully petitioned the Oregon Board of Pharmacy for an exemption from state drug laws covering Santo Daime rituals. “It seems apparent to the board,” it said, “that the sacramental use of the Santo Daime tea in the context of a bona fide religious ceremony by practitioners of the Santo Daime religion as described does not constitute abuse of a controlled substance.” This was a striking turnaround for a state that back in the 1980s still viewed the use of peyote by members of the Native American Church as a crime, a position that gave rise to the Supreme Court’s Smith decision, which in turn prompted Congress to pass RFRA. Haber believes RFRA protects Santo Daime as well as UDV from federal harassment, but so far that proposition has not been tested in court, and it is not a foregone conclusion. As Haber notes, “Each religion needs to stand on its own.”

By Their Suits Ye Shall Know Them
Dan and Mary Quaintance’s Church of Cognizance did not, in U.S. District Judge Judith Herrera’s view. Members of the church revere cannabis as both a sacrament and a deity, identifying it with the Zoroastrian haoma and the Vedic soma. Their credo: “With good thoughts, good words, and good deeds, we honor Marijuana as the teacher, the provider and protector.” The group is loosely organized, operating out of “monasteries” in members’ homes; it claims 130 or so members, about 50 of whom live in Arizona.

In rejecting the Quaintances’ argument that their church’s marijuana use should be protected by RFRA, Herrera applied a test established by the U.S. Court of Appeals for the 10th Circuit (which includes New Mexico) in the 1996 decision U.S. v. Meyers. That case involved David Meyers, the founder of the Church of Marijuana, who claimed RFRA protected him from prosecution on federal drug charges. Without questioning his sincerity, the district court concluded that what Meyers considered a religion—focusing on the medical, psychological, and social benefits of marijuana—was actually “a philosophy or way of life.” It drew this distinction based on five factors: “ultimate ideas,” “metaphysical beliefs,” “moral or ethical system,” “comprehensiveness of beliefs,” and “accoutrements of religion.” The last category includes Judeo-Christian hallmarks such as prophets, sacred texts, gathering places, keepers of knowledge, ceremonies and rituals, organization, holidays, dietary rules and fasts, special clothing, and proselytizing.

The court cautioned that “no one of these factors is dispositive” and that judges “cannot rely solely on established or recognized religions in determining whether a new and unique set of beliefs warrants inclusion” in RFRA’s protection. Yet these criteria, which the 10th Circuit accepted when it upheld the lower court’s ruling, create an unmistakable bias in favor of religions with familiar features. They allow a judge to decide that a spiritual system that seems bizarre or unsatisfying is not really a religion at all. According to Herrera, the Church of Cognizance scores a bit higher on the Meyers test than the Church of Marijuana did, but it is still not elaborate, sophisticated, or comprehensive enough to qualify as a religion.

Herrera went further, questioning whether the Quaintances truly believed what they claimed to believe. “The evidence indicates that Defendants adopted their ‘religious’ belief in cannabis as a sacrament and a deity in order to justify their lifestyle choice to use marijuana,” she wrote. “The Court concludes that Defendants do not sincerely hold a belief that marijuana is a sacrament and a deity. Defendants cannot avoid prosecution for illegal conduct simply by transforming their lifestyle choice into a ‘religion.’ ”

Herrera may be right that the Quaintances were only in it for the pot. But if so, they went out of their way to call attention to themselves for no apparent reason. After Dan Quaintance founded the church in 1991, he filed a “declaration of religious sentiment” with the Graham County Recorder’s Office, launched a website, and openly discussed his beliefs. Local authorities were aware of the Quaintances’ religious practices but never took action against them, seeing no evidence of drug trafficking. The quantities of marijuana involved in their case and in the prosecution of another church member who was arrested in Missouri a week before they were pulled over in New Mexico—172 and 338 pounds, respectively—are large for recreational smoking but not out of the question for the uses to which Church of Cognizance members put the plant. Marc Robert, a federal public defender representing Dan Quaintance, says that in addition to consuming cannabis in a ceremonial haoma beverage, church members use it in salves and anointing oil. Dan Quaintance estimated that each member requires 20 pounds a year, close to an ounce a day.

That may seem improbable, but so is the idea that the Quaintances, with their modest home, chronic car troubles, and spartan lifestyle, were professional pot dealers. And it is hard to question Dan Quaintance’s sincerity after reading his testimony about the spiritual journey, featuring the avid study of ancient texts in dead languages, that led him to found the church. In disjointed but enthusiastic detail, he describes how analyzing and comparing passages in the Bible, the Zoroastrian Avesta, and the Hindu Rig Veda convinced him cannabis is a holy plant. But all of this is beside the point if, as Herrera concluded, the Quaintances’ beliefs, no matter how sincerely held, do not constitute a religion. “She doesn’t fully understand our doctrine,” Dan Quaintance complained to the Arizona Daily Star after Herrera’s decision.

A Hindu and a Rastafarian Walk Into a Bar
In addition to ruling on what is and what is not a religion, judges in cases like these are called upon to decide which aspects of a particular religion are central and which are dispensable. Back in 1967, for instance, the psychedelic guru Timothy Leary appealed his conviction on federal marijuana charges, arguing that he had a First Amendment right to use cannabis as a member of the Brahmakrishna sect of Hinduism. (At the time the federal courts were applying the “compelling interest” test that the Supreme Court renounced in Smith and RFRA re-established.) “The Hindu sect in India of which [Leary] became a member uses marihuana for religious illumination and meditation,” the U.S. Court of Appeals for the 5th Circuit conceded. It noted testimony in which an American Hindu monk said “marihuana plays a very important part in the rituals” of the sect. But the monk “admitted that he was partially able to achieve and practice his religious beliefs in the Hindu sect without the use of marihuana.” Because marijuana was hard to get in the U.S., “he [was] forced to use other psychedelic drugs [which, unlike marijuana, were still legal in the early 1960s] in conjunction with meditation and prayer.”

Based mainly on that admission, the 5th Circuit concluded that marijuana was not essential to Leary’s religion, so he did not have a First Amendment right to smoke it. “There is no evidence in this case that the use of marihuana is a formal requisite of the practice of Hinduism,” the court said. In any event, “it would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marihuana laws would be meaningless, and enforcement impossible.”

This concern seems to be the main reason the courts have almost uniformly rejected the argument that the religious use of marijuana should be protected, whether by the First Amendment or by RFRA. Unlike peyote or ayahuasca, marijuana is widely popular, and the government does not want the burden of preventing diversion or of distinguishing between sincerely religious users and fakers.

Carl Olsen’s unsuccessful quest for official tolerance illustrates the problem. Beginning in 1983, Olsen, a priest of the Ethiopian Zion Coptic Church, repeatedly asked the Drug Enforcement Administration (DEA) for a religious freedom exemption from the Controlled Substances Act covering the sacramental use of marijuana by members of his sect. Followers of the church, which originated in Jamaica and identifies itself as Christian, consider the black nationalist Marcus Garvey a prophet, see themselves as descendants of the Israelites, and believe the Bible repeatedly refers to marijuana (ganja), which they identify with “the eucharistic spiritual body and blood of Christ.” The DEA ignored Olsen’s request for accommodation of his church’s ganja ceremonies until a federal court ordered it to respond. “In view of the immensity of the marijuana abuse problem in the United States and the magnitude of the criminal activity surrounding the production and trafficking in this substance,” said DEA Administrator John Lawn, “the interest of the Ethiopian Zion Coptic Church in the ceremonial use of marijuana is outweighed by the compelling government interest in controlling the use and illegal distribution of marijuana in the United States.”

Olsen went back to the courts, arguing that the DEA had not adequately explained its denial of his petition. When the case was remanded so the DEA could try again, he offered to observe several restrictions aimed at assuaging the agency’s concerns: Marijuana would be used only during the church’s three-hour Saturday night prayer service, and the participants, limited to adult members who had undergone the church’s confession ritual, would remain at the meeting place until eight hours after the ceremony. The DEA responded that “such restrictions could not be monitored or enforced without significant intrusion by the Government into the religious practices of the Church. The monitoring of such restrictions would be extremely burdensome on an agency which is charged with enforcement of a very comprehensive drug law.” No doubt the DEA was sincere in wanting to avoid the hassle of keeping an eye on Olsen’s church, but its concern about government interference with the group’s religious practices is hard to take seriously, since the alternative to supervision was prohibition. The U.S. Court of Appeals for the D.C. Circuit nonetheless upheld the DEA’s decision.

Because of this history, it was startling when the U.S. Court of Appeals for the 9th Circuit suggested that RFRA might protect ganja use by Rastafarians. Like the Ethiopian Zion Coptic Church, the Rastafari movement, which has some 1 million followers worldwide and perhaps 5,000 in the U.S., originated in Jamaica and follows the teachings of Marcus Garvey. Rastafarians believe the late Ethiopian Emperor Haile Selassie I (a.k.a. Ras Tafari Makonnen) was the personification of God and consider ganja a holy source of wisdom. The 9th Circuit decision, handed down in 2002, involved a Rastafarian named Benny Toves Guerrero who was arrested at the Guam International Airport with five ounces of marijuana and 10 grams of marijuana seeds. Although the Supreme Court has said RFRA is not binding on state governments, the 9th Circuit concluded that it does apply within “the federal realm,” including U.S. territories such as Guam. But the court ruled that the statute did not bar prosecution of Guerrero for bringing marijuana into Guam, since “we are satisfied that Rastafarianism does not require importation of a controlled substance.” That much was consistent with previous rulings by the 9th Circuit and other federal courts involving marijuana smuggling by Rastafarians. At the same time, the court implied that prosecution for simple possession might be a different matter.

Our Drugs Are Not Drugs
Meanwhile, the Native American Church of North America, the one group you might think would be cheering on sects seeking permission to use their sacred substances, has reacted to such cases with skepticism and fear, if not outright hostility. Earl Arkinson, who was the church’s national president during the Uniao do Vegetal litigation, says his organization (which does not include all Native American peyote churches) decided not to support UDV, partly because it worried about jeopardizing its own protected status. Among other things, UDV argued that it was wrong to suppress its rituals while tolerating the Native American Church’s. In theory, one way of resolving the inconsistency would have been to eliminate the Native American Church’s privilege rather than extending it to other religions.

“If whites make an establishment claim, the church’s fear is that [the American Indian Religious Freedom Act] would be struck down,” says Eric Sterling, president of the Criminal Justice Policy Foundation, who after the Smith ruling in 1990 helped organize the push for statutory protection of peyote rituals. “Generally, the Indians are very fearful that white people will endanger their religious freedom by their promiscuous claim that their drug use is religious and entitled to the same protection that the Native American sacramental use of peyote has been given.”