Last week a federal judge in New Mexico rejected an Arizona couple's claim that their possession, use, and distribution of marijuana is protected by the Religious Freedom Restoration Act. Dan and Mary Quaintance, who were picked up in February near Lordsburg, New Mexico, with 172 pounds of pot, are the founders of the Pima-based Church of Cognizance, which follows this credo: "With good thoughts, good words, and good deeds, we honor Marijuana…as the teacher, the provider, the protector." Last summer I predicted the Quaintances' RFRA defense would not fare well because marijuana is so popular that the idea of allowing members of their church to use it arouses plausible fears of diversion and of proliferating RFRA claims from suddenly religious pot smokers. Given that prospect, I thought, punishing the Quaintances (who face up to 40 years in prison) could easily be deemed the "least restrictive means" of serving a "compelling state interest," as RFRA requires for laws that impinge on religious freedom. But U.S. District Judge Judith Herrera did not even get that far, instead deciding that the Quaintances' neo-Zoroastrian faith is phony, a cover for smoking and selling pot. "Defendants cannot avoid prosecution for illegal conduct simply by transforming their lifestyle choices into a 'religion,'" she wrote.
Although some church members may just be in it for the pot, the Quaintances, whose trial is scheduled to begin on January 16, seem pretty sincere to me. They've been open about their religion since founding it in 1991, filing a "declaration of religious sentiment" with the Graham County Recorder's Office, maintaining a Web site, and issuing certificates to the "couriers" who distribute marijuana to the church's members. If all they wanted to do was smoke and sell pot, they've gone out of their way to call attention to themselves for no apparent reason. As for the quantities involved, 172 pounds, assuming it was a year's supply, amounts to a couple of joints per day for each member in Arizona (the Quaintances say there are about 50 in the state), which is not out of bounds for religious use, to judge by the Rastafarians.
But perhaps Judge Herrera means that even if the Quaintances are sincere, what they call a religion is not really a religion. (I have not been able to get a copy of her opinion yet, so I can't say for sure.) In a widely cited 1996 case, the U.S. Court of Appeals for the 10th Circuit, which includes New Mexico, relied on the distinction between true religions and mere "lifestyles" to reject a RFRA claim by a Church of Marijuana minister whose sincerity it did not question. The 10th Circuit endorsed the district court's reliance on the "indicia" that characterize real religions, including "metaphysical beliefs," "important writings," prophets, rituals, holidays, and special clothing. (It also repeated the lower court's caveat that "no one of these factors is dispositive.") This sort of official inquisition into people's deeply held beliefs hardly seems consistent with the ostensible goal of protecting religious freedom, especially when the penalty for having the wrong beliefs is a 40-year prison sentence.