Constitutional Law

One More Chance for Religious Marijuana

|

Last week the Arizona Supreme Court agreed to hear an appeal by a man who argues that his conviction on marijuana charges violated a state law protecting religious freedom. Daniel Hardesty, a member of the cannabis-centered Church of Cognizance, was arrested in 2005. His religious freedom argument was rejected at trial and by the Arizona Court of Appeal, but now he will get one more chance. Arizona's Free Exercise of Religion Act allows the state to impose a substantial burden on the exercise of religion only if it is "the least restrictive means" of furthering a "compelling government interest." The appeals court concluded that the burden imposed on Hardesty by marijuana prohibition met that test, declining to question the legislature's judgment that "the use and possession of marijuana always pose a risk to public health and welfare."

I noted Hardesty's case last August. The founders of his church, Dan and Mary Quaintance, were featured in my June 2007 Reason story about psychoactive sacraments. Unlike Hardesty, whose sincerity was conceded by the state, the Quaintances were deemed unserious by a federal judge, who concluded that their beliefs and practices did not qualify as a real religion. They pleaded guilty to possession and conspiracy charges last year, shortly before they were scheduled to go on trial. 

[via the Drug War Chronicle]

Advertisement

NEXT: Baseball Been Very, Very Bad to Me

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Hmm, it will be interesting to see if the federal laws under the RFRA could apply here.

    Though ultimately it would be nice to see the stuff legalized through less back door routes, I hope the guy wins.

  2. Can we dispense with the religiousit and healthosity bs and just make it legal in the name of freedom?

  3. religiousity, stupid fingers, religiousity

  4. is “the least restrictive means” of furthering a “compelling government interest.”

    Well, that about wraps it up for his case.

  5. I hate to agree with Guy, but I’ll make an exception just this once.

    Although the word is “religiosity”.

  6. Yea whatever tio. If you are not paying my bar tab don’t bitch about my sloppy typing. And you should have seen how I spelled sloppy before correcting it! And correcting too.

  7. I’m not sure I understand why, exactly, it should matter how serious a person is about their religion. …in order for it to be protected by the Constitution. I hope some of my Catholics are never subjected to the same scrutiny.

    …and I imagine that could happen, what with people of different faiths getting a free pass in administering all sorts of medical practices.

    Regardless, I suppose it shouldn’t be a surprise to see the Drug War take religious freedom captive, what with all it’s done to due process, unreasonable search and seizures, etc., etc.

  8. Does the “seriousness test” apply to the establishment side of religious freedom too, or is it just people’s free exercise that can get cropped by the seriousness test?

    I mean, if someone doesn’t protests the ten commandments being up in a courtroom, does the seriousness of the plaintiff’s beliefs come into play?

    What if I don’t want my kid being taught about creation in public school? Do I get to protest that even if I go to church, or are establishment protections only for serious agnostics?

  9. More religiosity, less bellicosity.

  10. I guess some equal protections are more equal than others.

  11. HaHa you atheistic dopertarians.Funny as hell if you have to join a church to enjoy your legal herb.

  12. In the specific circumstances of modern America, Religious Freedom Restoration Acts deserve the support of traditional Christians.

    (a) The true principles of liberty have been forgotten by many in power, so all sorts of bad laws get passed. Exceptions to these bad laws are useful.

    (b) Many in power regard traditional Christianity as a dangerous fringe religion. Therefore, it is necessary to beat these secularists at their own game by invoking the protection of laws aimed at the protection of fringe religions.

    Given the objective modern circumstances, if the government is allowed to harass the users of “sacramental marijuana,” they will be emboldened to harass religious employers and force them to insure their employees for birth control, to harass religious landlords and force them to rent to adulterers and fornicators, to harass religious adoption agencies and force them to place children in the custody of homosexuals, to harass churches and force them to allow their property to be used for same-sex “marriages,” etc.

    With judicial precedents in favor of the spiritual-enlightenment-through-weed crowd, it will be more difficult for the secularists to carry off their persecution of more traditional believers.

  13. “the Quaintances were deemed unserious by a federal judge…”

    What a loophole! The Constitution is often interpreted as prohibiting the government from “respecting an establishment of religion.” But it says nothing about DIS-respecting an establishment of religion! I guess those dead old white guys weren’t as clever as they thought.

  14. I guess those dead old white guys weren’t as clever as they thought.

    I’m not entirely sure they would have taken this seriously either.

  15. (b) Many in power regard traditional Christianity as a dangerous fringe religion.

    Evidence or paranoia?

  16. LMNOP,

    Please, please, please deny that government authorities in America have tried to (a) force religious employers to extend their employees’ health insurance to cover birth control, (b) force religious landlords to rent to adulterers and fornicators, (c) harass religious adoption agencies and force them to place children in the custody of homosexuals, and (d) harass churches and force them to allow their property to be used for same-sex “marriages.” Your denials will provide much-needed humor.

    Alternatively, you could admit these things, while assuring traditional religious believers that their freedom is in no danger. Of course, I’m not sure even you could keep a straight face while claiming this.

  17. Bacchus totally wouldn’t have passed this test.

  18. Mainstream Xtians are going to allow a) drugs to a b) non-Xtian religion?

    Let me explain how things are done on *this* planet. . .

    .. “ROFLMAO” Hobbit

  19. Mad Max —

    Sounds like Christians are…wait for it…living in a society along with everyone else. A society that has rules. Some rules they don’t like.

    How horrible. I understand that there is a fine tradition of civil disobedience in that religion. You might want to get cracking on that, if these things are so important.

  20. LMNOP,

    Excellent defense of libertarian principles! (Not).

    I would love to hear other H&R commenters defend these particular societal rules, aimed as they are at the regulation of private behavior which in no way involves the initiation of force or fraud.

    Some of the rules of “living in society” are expressed in the Religious Freedom Restoration Acts. How do those rules grab ya?

  21. INNURSTATE COMMURCE CLAUZE!

  22. Hobbit,

    You realize that an X is often regarded as a cross symbol, right? So you don’t necessarily take the sting out of the word “Christian” by replacing “Christ” with an “X.”

  23. It was a good try, but, to paraphrase Edina Monsoon, if smoking legal doobage were as easy as joining some bogus religion, sweetie, everyone would be doing it.

  24. Excellent defense of libertarian principles! (Not).

    Thanks. Because what I was doing there was clearly parroting the shibboleths of an ideology.

    Look, there’s a difference between annoyance and oppression. Christians by their own admission live “in the world” and have to adhere to the rules of Caesar. if something really is so terrible that they think they’ll be in jeopardy of eternal hellfire or whatever for going along, then fine. Don’t do it. If there are consequences attached, well, they can’t be worse than hellfire, can they?

    a) force religious employers to extend their employees’ health insurance to cover birth control

    Because, shock, people who aren’t Christians who are your employees would like to use a condom or BCP, which is normally covered by insurance. How is their using BCP or not any of their *employer*’s business?

    (b) force religious landlords to rent to adulterers and fornicators

    Because fornication and adultery is any of the landlord’s business…how exactly?

    (c) harass religious adoption agencies and force them to place children in the custody of homosexuals

    Linky?

    (d) harass churches and force them to allow their property to be used for same-sex “marriages.”

    Linky?

  25. Damn close tag.

  26. I wonder what they’d do with Discordianism.

    “…if smoking legal doobage were as easy as joining some bogus religion, sweetie, everyone would be doing it.”

    And the whole purpose of the rule of law is to stop people from doing what they want. …unless it’s part of a “legitimate” religion?

    I don’t think that makes sense.

  27. Mad Max,

    Not trying to “sting” anyone, just using a common shorthand.

    .. Hobbit

  28. Crazy cool thread with lmnop walking circles around Mad Max.

  29. While Mad Max is being intemperate, he is correct on at least a few points.

    If you want to take a plumb line libertarian perspective, if you force people to do certain acts they don’t want to by threatening violence against them, then you are aggressing against them.

    This includes mandating that people open their property to guests they don’t want (the public accommodation clauses of the Civil Rights Act).

    It also includes forcing them to engage in business transactions they don’t want to engage in. Mandating that they purchase health insurance policies that cover unwanted medical procedures would be an example of such an action.

    Arguing that these rules apply to all, and that somehow that makes them just is absurd. consider Massachusetts in the late 1600’s. One of my ancestors earned his living as a titheman; he made sure people attended church, and had the power to arrest people for the crime of skipping services. Now, one could argue that forcing people to attend church was not a violation of their rights simply because these were rules that everybody had to follow, and Christian principles of non-violence, love for one’s neighbor and the commandment to turn the other cheek is exercised by members of the society would lead to a paradise here on Earth as a powerful argument that they were socially beneficial.

    No matter how beneficial, these laws authorized my ancestor to violate the rights of the citizenry in his town. We look back on the notion of a state forcing people to observe the state religion on threat of imprisonment as an example of barbarism and repudiate it as being illiberal and incompatible with any notion of a free society.

    Simmilarly, forcing people to violate the edicts of their religion, especially when the edicts do not involve the violation of the rights of others (an example of a ‘religious’ edict that violates the rights of another would be one calling for adulterers to be stoned to death), is a clear violation of their rights.

    In the case of birth control coverage, a person can simply
    a) purchase birth control with their own money
    b) purchase insurance with birth control coverage
    c) quit and go somewhere else
    d) suck it up.

    Option e) demanding that a lawyer warn the employer and threaten him with having his business shut down and with the potential for jail time should he take his resistance to extreme levels is not a moral option.

  30. tarran —

    The major problem I see with the “religion” argument is that the religion of the person undertaking the act in question is *almost never at issue*. The employer is not using the birth control, so he cannot have a substantial interest in whether it is provided or not. He can care in an abstract way, and our great freedoms allow him to abstain from purchasing or using them, but he can assert no reasonable interest to make it harder for *others* to get it.

    Ditto the landlord with the compulsive fornicators. Unless they are fornicating *with him*, his religion can have little bearing on the matter, since it does not involve him having to violate his beliefs *as they pertain to him*.

    I understand the wider libertarian argument mandating, well, pretty much anything, and on some level I sympathize. But seeing how religion in particular is a protected and exalted category the practice of which is *heavily* protected, I have a hard personal time caring about things that do not directly infringe upon it but make religious people peripherally uncomfortable.

    And, hey, since religion is a lifestyle choice, I feel that a person is free to accept the advantages and disadvantages of that choice, knowing in the society they are living in what they are getting into.

  31. that should read:

    …argument against mandating…

  32. Elemonope,

    I disagree. (big shock there huh? 🙂 )

    The employer is being forced to purchase birth control devices. Unless, of course, he is making the employee bear the full costs of the health insurance, in which case, the employee is not really losing anything by abandoning the employer prefered plan and purchasing another one.

    You may feel that he does not have an interest, but obviously does. Imagine if the law said instead that employers would be prohibited from purchasing insurance covering birth control devices. If an employer were to protest this law, would you dismiss their concerns by arguing that they had not interest in whether or not their employees used birth control or not (setting aside the employee’s concerns)?

    As to the landlord, how do you know the landlord does not have an interest? Maybe he sincerely believes that fornicators are bad tenants, that they bring crime, vandalism and a spotty payment record. Maybe he believes it is a sin to facilitate immoral acts. This would be simmilar to the reluctance you might have with regards to selling guns to a member of the Aryan Nations.

    Again, I should point out that these victims you think these laws protect are always free to find other people to do business with. The fact that you feel pity for them and want to expand their choices in no way entitles you to compel other people to do business with them through threats of violence.

    Just as I have no business forcing you to change how you manage your affairs, specifically which companies you choose not to do business with because you disagree with the causes they support, you have no business forcing them to do business with fornicators or to purchase birth control devices. It’s that simple.

    As far as your argument that people who choose to follow a religion whose dictates conflict with the legal code must suck it up, I am unmoved. The law is an ass. Should the Lovings not married because the state of Virgina had a law that said they shouldn’t? How about the train companies that challenged jim Crow laws requiring that they segregate their vehicles? Should they have sucked it up too?

    Laws are either moral or immoral (and I mean this from a natural rights perspective and not from the evangelical Christian definition or morality). Moral laws, such as laws against murder and theft should be followed. Immoral laws, such as laws that forbid drug possession, prostitution, gun-running, racial discrimination, and questioning the solvency of the U.S. banking system, should not. Arguing that people have a duty to obey the law, regardless of the morality of the law will get you nowhere with me.

    Forcing people to facilitate acts they feel are immoral is a violation of their rights. So long as they are not being permitted to violate the rights of others (for example by tearing up prescription cards for drugs they refuse to dispense), any law that forces them to behave in ways that they feel is immoral should not be followed.

  33. As far as your argument that people who choose to follow a religion whose dictates conflict with the legal code must suck it up, I am unmoved. The law is an ass. Should the Lovings not married because the state of Virgina had a law that said they shouldn’t? How about the train companies that challenged Jim Crow laws requiring that they segregate their vehicles? Should they have sucked it up too?

    No. I wasn’t being facetious about the civil disobedience thing earlier. If you truly think a law is immoral, I believe it is your *duty* to break it. Enough people agree and/or sympathize with your act, and you get change, or at least a movement for one. That’s, after all, how progress happens in the place we live.

    My thing is, people like Mad Max would much rather bitch about these things than act on them, which is how I know they aren’t serious. There’s divine commandment and then there are the puny laws that man made; there should no contest…if they were serious.

  34. if Christianity were a fringe religion, it wouldn’t be nearly so dangerous. it is its very broad acceptance in combination with untenable tenets that makes it dangerous.

  35. Perhaps if the religious employer is willing to give up the tax treatment that fosters the providing of the insurance of his employees through the job (though the employee tends to pay for it), then he has a better case. tarrans choice b is currently discouraged because of these policies.

    http://www.heritage.org/research/healthcare/bg2214.cfm

  36. “…the Quaintances were deemed unserious by a federal judge, who concluded that their beliefs and practices did not qualify as a real religion.”

    Precisely what does a real religion look like? Believing in a non-existent, bad-tempered sky fairy is enough to qualify as a religion as long a you don’t take drugs? Ahhh… I see. That’s why Scientology qualifies as a real religion.

    Help me here. Does this really make sense to anybody?

  37. Precisely what does a real religion look like? Believing in a non-existent, bad-tempered sky fairy is enough to qualify as a religion as long a you don’t take drugs? Ahhh… I see. That’s why Scientology qualifies as a real religion.

    Help me here. Does this really make sense to anybody?

    I’m pretty sure it’s the difference between believing a religion that happens to have tenets that conflict with the law, and *fabricating* a religion specifically *for the purpose* of conflicting with the law.

    Not that a judge would know the difference.

  38. ‘My thing is, people like Mad Max would much rather bitch about these things than act on them, which is how I know they aren’t serious.’

    So please provide me some examples of when I rented my property to fornicators, or provided birth control to my employees.

    It is fairly convenient that, in your world, religious believers don’t get to complain about their mistreatment, but I would suggest they are as much entitled to do so as the kid with the “Bong Hits 4 Jesus” banner.

    What I specifically said was to explain why I supported the rights of religiously-motivated dope-smokers. I presume from your discussion that you think the government should send these people to prison, because after all the laws against dope are laws everyone else has to obey.

  39. And what if his ‘religion’ required human sacrifice? Should we allow that? I fail to see the difference. This is a similar situation between the rights of society vs. his religious ‘rights’, where societies right to keep people safe from dangerous drugs is supreme.

  40. Mad Max,

    It is not that the X looks like a cross, it is that Chi is the first letter in Christ in Greek. And a Chi is an X.

  41. Juanita,

    That is why we libertarians have the nonaggression principle. We can then distinguish easily between human sacrifice and pot smoking.

    Plus, you are a troll, so I dont know why I responded.

  42. That is why we libertarians have the nonaggression principle. We can then distinguish easily between human sacrifice and pot smoking.

    No, one is crime against a person, and the other is crime against society. Using drugs causes negative downstream effects on society, i.e. crime, violence, increased health care costs, decreased productivity, etc.

  43. I really don’t think children should be using drugs, and that is what would happen if they weren’t illegal. Do you really want surgeons and airline pilots to be stoned because that is what would happen without drug laws.

  44. “Many in power regard traditional Christianity as a dangerous fringe religion.”

    man, i’d hate to see what you’d feel like in a country that was actually hostile to your religious beliefs, rather than simply not putting them above everyone else’s beliefs.

  45. What I specifically said was to explain why I supported the rights of religiously-motivated dope-smokers. I presume from your discussion that you think the government should send these people to prison, because after all the laws against dope are laws everyone else has to obey.

    If they get caught, it seems that they would go to jail, just like me, a person who smokes for non-religious purposes would, if I were caught. The “but I believe in the Sky-Fairy!” exception is absurd. It says nothing about the underlying justice or injustice of the law involved, but merely the ridiculous nature of the particular attempt at exculpation.

    The underlying problem is that you are seeking to tie the trappings and *current* moral sense of a religious doctrine to the history of that religion in order to make an appeal to authority of tradition.

    The way Christ is worshiped today is almost nothing like the way he was worshiped nineteen centuries ago. Beyond that, understanding of the laws that engender the moral commandments have changed drastically. If Haredi Jews or Fundamentalist Christians went around trying to stone people because they planted two crops side by side or wore a cotton/polyester blend t-shirt, we would lock them up. The fact that you hang on to particular sexual commandments because they comfort you or reinforce your view of a degenerate humanity, more power to you, but don’t expect others to join in or allow those personal prejudices to be visited upon others.

    I find it instructive that the only person the Bible *confirms* is in heaven is a thief. Isn’t part of the point of Jesus’ ministry that the Law cannot save? Keep yourself pure out of honoring the rules, but you are in the world that follows different ones. The Jews understood this, why do the Christians not?

    And I never said you couldn’t complain. I said that if all you do is complain, I’m not going to take your complaints seriously. Because, if these things were really as important as you claim, you’d do more about them.

  46. ‘It is not that the X looks like a cross, it is that Chi is the first letter in Christ in Greek. And a Chi is an X.’

    The X can be described as a Cross of Saint Andrew, or Saltire, and it is in fact a Christian symbol.

    Turn the X on its side, and you may realize you’ve seen it before. Yes, that’r right, it’s the symbol you recognize from the Scottish flag and the national flag of Jamaica.

    dhex,

    You sound like a George W. Bush apologist during the debate over wartime rights abuses: Look, Saddam Hussein and Josef Stalin were worse than George W. Bush, and this shows that George W. Bush’s policies are OK.

    When Americans find themselves ‘defending’ the policies of their governments by saying, ‘hey, oppressive foreign countries are worse!’ then they’ve lost the debate. American policies should be held to a higher standard – the standard of freedom raised by the Founding Fathers.

    After all, George III’s stamp tax was not nearly as bad as the taxes of the Ottoman Empire. Still, the Founding Fathers thought the Stamp Tax was worth rebelling against. And this willingness to rebel against even these ‘minor’ and ‘insignificant’ oppressions is the reason why we still have freedom today (limited as it is).

  47. LMNOP,

    I was already aware you didn’t share my religious beliefs.

    ‘I find it instructive that the only person the Bible *confirms* is in heaven is a thief.’

    A repentant thief (if a thief can repent, so can a blogger!). And don’t forget 2 Kings 2:1-11.

  48. Mad Max —

    The country is 80% Christian and we now have the newfangled “Saddleback Test” for national office.

    This is why the notion of Christians getting oppressed in the United States is a poorly-told joke. Calling Christians oppressed in the US is like calling pot smokers oppressed in Holland–because they can’t smoke a joint on the sidewalk.

    What the Romans did to Christians: That was oppression. Seriously, stop watering down the term.

  49. A repentant thief (if a thief can repent, so can a blogger!). And don’t forget 2 Kings 2:1-11.

    Re: 2 Kings, I meant the normal way (dying), not the Holy Chariot Express. And the Gospels differ on whether the thief was repentant; IIRC, only Luke. The others have both thieves mocking him, or remaining silent.

  50. ‘What the Romans did to Christians: That was oppression.’

    What Saddam Hussein did to his people – *that* was oppression. Stop whining about aggressive interrogation techniques by our brave soldiers trying to defend freedom? Are you trying to equate our glorious George W. Bush with Saddam Hussein?

    And what’s with referring to Guantanamo as a ‘gulag’? Millions of people perished in Stalin’s gulags – how dare anyone compare our glorious President George W. Bush to Josef Stalin?

  51. I really think children should be using drugs, and that is what wouldn’t happen if they weren’t illegal. I really want surgeons and airline pilots to be stoned because that would not happen without drug laws.

  52. Mad Max —

    Your argument seems to be that since a thing admits to being on a sliding scale, that therefore everything remotely related fits somewhere on that scale. That’s, frankly, pretty silly.

    This is probably the wrong crowd for this, but not all restrictions are by definition oppressions. Many are, and fall somewhere on the scale, but not all.

  53. bizarro, I LOVE YOU, bizarro!

  54. Elemonope,

    I think both you and Mad Max are right about the oppression of Christians – it’s just that you are talking about two different groups of people.

    The most devout Christians (and I worked closely with a couple of them a few years ago) are pacifists who view the state with hostility, refusing to register for the draft, serve on juries and the like. These guys were members of a pretty hardcore sect – both of them had uncles who had died in prison for refusing conscription in Yugoslavia. I would argue that they were oppressed. Both of them were deeply unhappy to be paying taxes to the federal government so that it could prosecute wars in their name. One even contemplated stopping work altogether in an attempt to not owe income taxes, but decided to forego it out of concern for the wellfare of his children. The fact that the state imposed such a dilemma upon him was a serious form of oppression. For months this guy wrestled with his conscience, instead of doing the things he would otherwise be doing.

    This tension has long existed in the U.S. There were those four pacifists who were murdered by the U.S. government for refusing conscription in World War I. There was that Amish farmer who had the horses he needed for his livelihood confiscated by the federal Government as punishment for his refusal to participate in Social Security.

    At its purest form, Christianity is a religion that is incompatible with the modern nation state. That incompatibility is why Christians were persecuted in the Roman Empire. It remains a problem today for overbearing states. That pool of Christians are oppressed pretty much everywhere (although they are rarely killed for their religion in Western Europe and the U.S. anymore).

    Now, most self-identifying Christians in the U.S. are not very good Christians, seeing as they completely ignore the commandments to turn the other cheek and to love their neighbors as God loves them. They go to church, follow some standard rules that feel right, including rules that permit vengeance and violence, and proclaim themselves Christian. If some cards had fallen a different way 16 centuries ago or so, they would call themselves Mithras worshipers and would behave much the same way. These guys are not oppressed. Far from it. The people who run the state find them to be useful footsoldiers, functionaries and sources of taxes. They work hard for the state. The people running the government throw them a few bones to satisfy them, inflame their passions about a few issues that will never be resolved in a way that pleases them, and thus convince them to voluntarily place their necks in the yoke of the state. They call themselves Christians but have more in common with the Pharisees than with the disciples.

  55. tarran —

    That’s pretty much my point. There are people who would suffer and die to stand up for what they believe (Christians in the mold of Jesus, Stephen, Peter, etc.), and then there are those who would rather either ‘complain and comply’, or attempt to take over the state and remake the world into their own moral paradise (to the detriment of everyone and their own moral rectitude).

    The first is very rare, and the second is very loud. I have respect for the first and contempt for the second. The first can claim oppression, sometimes. For the second, it is a sick joke used to leverage more power or comfort.

  56. Can’t say it any better than tarran…

  57. Can’t say it any better than tarran…

    No shit. He nailed it.

  58. Again, I have been explaining why I *support* the use of Religious Freedom Restoration Acts to protect the rights of spiritual dope-smokers, who seem to be mainly non-Christians (there may be Christians of the ‘bong hits for Jesus’ variety, but I am not familiar with them – the one’s I’ve heard of are non-Christian).

    This leads to a discussion of such points as (a) I suck, (b) Christians suck, (c) if Christians advocate religious freedom (even for others), then that means they would be unwilling to undergo any persecution for their faith. This last point is sufficiently incoherent that it seems to be basically a recapitulation of (b).

    I am aware that there are Christians who want to put dope-smokers in prison. There are also those (like LMNOP) who take the truly solidaristic attitude that ‘if I’m going to risk prison for smoking dope, then I sure want those religious freaks to risk prison for it, too.’ I can certainly understand the latter attitude, although it’s not exactly generous.

    I would like to correct what seems to be LMNOP’s misconception of the various federal and state laws protecting religious freedom. He refers to these laws as furnishing a ‘”but I believe in the Sky-Fairy!” exception’ to the laws. In fact, these laws do not require belief in any sort of God in order for your beliefs to be classified as religious. For example, the Ethical Culture Society is non-theistic, but if the zoning board tried to stop the local Ethical Culture Society from putting an addition to its meeting-place, then religious-freedom analysis would come into play. Similarly with the Unitarian Universalist Association. They don’t inculcate belief in God (though they may tolerate theism among some of their members), but if the local Civil Rights Commission (say) tried to force the Unitarians to rent their church to Rick Warren, then the Unitarians could invoke their religious freedom.

    tarran,

    You mentioned pacifists. Are you aware that there are groups which defend the rights of pacifists? Here’s one such group.

  59. Keep Dope ALIVE !!!

  60. Mad Max,

    I disagree with your rebuttal of Elemenope’s sky-fairy clause. Such clauses do exist.

    Off the top of my head, I can think of one, the Social Security law. Back when Social Security was made mandatory (as opposed to being voluntary), a bunch of religious groups refused to participate, claiming that it infringed on their religious principles. The idea was that since disasters are acts of God, people who buy insurance are thwarting Gods will or something.

    This lead to the famous case of one prominent Amish refusnik having his horses confiscated that they could be auctioned off to pay his ‘debt’.

    He sued, and when the smoke cleared, there was a Federal Court ruling declaring that forcing people to participate in Social Security when it violated their religious principles was unconstitutional. However, the proto-Scalia who penned the decisions recognized the pandora’s box he had opened. Recognizing that there would be a bunch of religions founded for the express purpose of permitting people to evade Federal Laws, he went on to write that this exception only applied to religions existing at the time of the decision, which had publicized their opposition before-hand, and that furthermore, people who converted for the purpose of evading taxes still owed them.

    Despite thes circumscriptions, it is still a ‘Sky-fairy’ clause.

  61. BTW, Mad Max, no I had not heard of them. I will keep this group in mind. 🙂

  62. The Unitarian Universalist Association joined a legal brief in a case involving sacramental use of hallucinogens. Does this mean that the nontheistic UUA endorses a “Sky-Fairy Exception” to generally-applicable laws?

  63. tarran,

    That federal court you cited was much less generous than the various Religious Freedom Restoration Acts (RFRAs) – laws passed by legislative bodies, not by federal judges. These laws are not limited to religious groups existing when the laws were passed. If a religious belief is sincere, then the courts are required to apply the statutory balancing test. And there is no limitation of religious rights to theists.

    The Military Selective Service Act has a Supreme Being clause limiting conscientious-objector status to theists, but many judges have found this clause to be unconstitutional, and other judges have interpreted the clause out of existence.

    The RFRA statutes do not have Supreme Being clauses, so far as I know.

  64. Elemenope,

    I must take issue with your impatience for religious exemptions. We should embrace them! These exemptions are our chance to get a camels nose into the tent…

    Let’s say we start the Church of Tarran – which encourages pot smoking… People join the church and smoke pot (there would be some other stuff, mainly to prevent hippie infestations). If the members of the church are thriving, suffering none of the harms that the hysterical ONDCP keeps coming up with (you will get toenail cancer, you will murder your hamster in a psychotic rage etc), then you have a coutnerfactual to point to in Drug policy debates.

    At this point, the legalization advocates hold the moral high ground. The drug warriors, on the other hand point to a paucity of empirical data supporting legalization because prohibition has prevented their hypotheses from being falsified. If a religious exemption turns out to be the first step in ending this disastrous state overreach, then we should embrace it.

  65. Mad Max —

    There are also those (like LMNOP) who take the truly solidaristic attitude that ‘if I’m going to risk prison for smoking dope, then I sure want those religious freaks to risk prison for it, too.’ I can certainly understand the latter attitude, although it’s not exactly generous.

    You missed the point. It’s that when the underlying rule is unjust, exemptions for religion are cheating one’s way out of actually solving the problem. Same thing would be true for other suspect (or ought to be suspect) classes; if the sodomy statutes, instead of being overturned, has simply written in a “homosexual exception”, I would have been derisive towards that as well. Rules like this encourage a “we got ours, and fuck y’all” attitude that is particularly not helpful when the group going home is a large one.

    It’s the “special rules for special people” thingee that you and I and many other people around here complain about ad nauseam. Why do you suddenly see an exception when it comes to religion? I don’t mean *practically* (it’s in the Constitution, duh). I mean, from theory. How do you *justify* it?

  66. tarran —

    The real problem here is the belief that we need more counterfactuals than the mountain of evidence already in existence. You need not start a religion to prove that smoking reefer isn’t particularly harmful. Just ask a doctor, any doctor, not currently being paid by either side of the argument, to tell you.

    If the drug argument was about *evidence*, it would have been long over.

  67. @this thread!

    bizarro, I LOVE YOU bizarro!

    bizarro, ends justify the means, bizarro!

    bizarro, keep dope ALIVE, bizarro!

    bizarro, I LOVE YOU, bizarro!

  68. Here is the legal brief to which I referred. It was filed on behalf of the Coalition for the Free Exercise of Religion. According to Appendix A of the brief, members of the Coalition include such sky-fairy fanatics as the American Ethical Union, Friends Committee on National Legislation (these are the hippy-dippy Quakers, not the bonnet-and-buggy kind), People for the American Way, and the Unitarian Universalist Association, as well as the usual “fundamentalist” suspects. There’s also some Hindus, Sikhs, and other minority faiths.

    The brief defends the federal RFRA not only in spite of, but because of, its broad scope. From the brief:

    ‘Though the Coalition includes members who often find themselves on opposite sides of Establishment Clause and federalism issues, they speak with one voice in the conviction that accommodating religious exercise by removing government-imposed substantial burdens on religious exercise is an essential element of a democratic society. The Coalition’s members supported the enactment of the Religious Freedom Restoration Act (“RFRA”) to achieve this purpose, and now join together to defend its constitutionality.’

  69. The ‘special people’ protected by the RFRAs are those who conscientiously oppose compliance with a statute based on a ‘religious’ worldview – that is, a view on ultimate reality which may or may not be theistic.

    When the government itself has a skewed view of reality, it would be well to respect the conscientious views of those whose views of reality differ from the government’s.

  70. Mad Max —

    Not for nothing, but couldn’t *anything under the sun* be justified on that basis?

    “My view of ultimate reality allows me to rape kittens and eat baby stew. It’s religion I tell ya. Ain’t it grand?”

    When the government itself has a skewed view of reality, it would be well to respect the conscientious views of those whose views of reality differ from the government’s.

    I agree with this, believe me. My thing is why do you think your group has such a better handle on what a “non-skewed” view is than the government? Why is religion a magical trump card, over and above any feelings of conscience or principled dissent?

  71. max, using your definition of oppressed – absurdly loose it may be – all non-religious taxpayers are oppressed by the government favoritism that allows religious organizations to skate on taxes, even when they’re absurdly wealthy, profit-generating outfits. it creates an unfair burden for those of us who don’t run such organizations.

    such is the power of groups, though.

  72. “My view of ultimate reality allows me to rape kittens and eat baby stew. It’s religion I tell ya. Ain’t it grand?”

    That’s when we ge to the “compelling government interest” test. (By the way, thank you for not invoking the played-out “human sacrifice” example. Yours is more or less original). If the government has a compelling interest in punishing baby-eating and animal cruelty, and if that compelling interest cannot be promoted by any narrower means, then the conscience of your would-be baby killer and kitten-rapist can be overridden.

    ‘Why is religion a magical trump card, over and above any feelings of conscience or principled dissent?’

    If the draft-law precedents are anything to go by (and recall that these were decided in the teeth of an express Supreme Being clause), then under certain circumstances, a person’s nontheistic, ethical objections to a law can qualify as religious. The exact contours of the doctrine are not exactly set in stone, but if a young secular pacifist can escape the draft by showing that his ethical views play the role of more traditional religions, then maybe other ethical objectors can avail themselves of RFRA’s protections. At the very least, I wouldn’t rule it out.

  73. ‘such is the power of groups, though.’

    Groups, perhaps, but not *theistic* groups, since nontheistic churches (like the Unitarians, Ethical Culture, or the Buddhists if you interpret Buddhism as nontheistic) get to skate on their taxes. And while I can’t speak for all churches, many of them give back to the community through such things as soup kitchens, etc., which would otherwise end up as a line-item on a government budget.

  74. And regardless of the situation of individual ethical objectors, a conscientious objector who belongs to a nontheistic organization like the UUA would certainly be able to get the court’s attention under RFRA.

  75. dhex,

    Bear in mind that I referred to harassment, not oppression.

    Of course, people who put up with institutionalized harassment may eventually wake up to find that it has mutated to full-bore oppression. Americans traditionally aren’t disposed to wait around to see if this happens.

  76. that’s why i said groups. groups are handy things sometimes, especially when it comes to taxes.

    i guess that’s oppression against non-groups, perhaps. dunno. individuals. etc.

    lmnop’s general question is interesting, if almost unanwerable: why does religion get to be the special reset button? that’s a handy bit of magic at play, there. (presuming you’re part of the right religion, obviously)

  77. But ‘compelling interest’ is a tautological madhouse. Governments are disposed to calling anything they want to do as ‘compelling interest’. Look at drug policy but for one easy example.

    What I’m asking you to do is define how you think the contours of that policy should look such that it includes religious practices but excludes pathological behavior. I submit that the balance is arbitrary (if not impossible) and must recourse to some other appeal to authority (law, medicine, science, etc.).

  78. Here you go, Juanita, FTFY:

    And what if his ‘religion’ required human sacrifice? Should we allow that? I fail to see the difference. This is a similar situation between the rights of society vs. his religious ‘rights’, where societies right to keep people safe from dangerous drugs is supreme.

  79. as the just-ordained primate of the church of cognizance in oregon, i am pleased to announce a public service this afternoon at 4:20, during which i will sacrifice juanita to the god of cognizance, flash-sear her giblets on my altar and feed them to my holy kitty. byob.

  80. ‘What I’m asking you to do is define how you think the contours of that policy should look such that it includes religious practices but excludes pathological behavior. I submit that the balance is arbitrary (if not impossible) and must recourse to some other appeal to authority (law, medicine, science, etc.).’

    I wouldn’t mind appealing to law, medicine, and science, but, then, I’m a fundamentalist.

  81. Incidentally, check out the texts of the federal and state RFRAs.

  82. Incidentally, check out the texts of the federal and state RFRAs.

    I did my undergraduate term paper in legislative process and procedure on the RFRA of 1993. I must say, from Smith to Flores, it had an interesting litigative lifespan.

  83. People a quick to label marijuana a “drug” yet fail to do the same with alcohol. The later is far more damaging than the former.
    “A drug, broadly speaking, is any substance that, when absorbed into the body of a living organism, alters normal bodily function.[3] There is no single, precise definition, as there are different meanings in drug control law, government regulations, medicine, and colloquial usage.(4)” – taken from Wikipedia (http://en.wikipedia.org/wiki/Drug#cite_note-diccom-3 in reference to (3): World Health Organization. (1969). WHO Expert Committee on Drug Dependence. Sixteenth report. (Technical report series. No. 407).Geneva:World Health Organization. & (4): http://dictionary.reference.com/browse/drug).
    In regards to (3), this could include the numerous pharmaceuticals, and herbal remedies (for lack of a better term), used to treat, maintain, and cure various ailments and diseases; or substances believed to have no viable medical benefit, as in substances deemed illicit by U. S. Federal Law (i.e. controlled substances).
    The issue of “Freedom of Religion” is not a clear cut case within the constitutional laws of the United States of America (something I just came to learn). The Supreme Court under Chief Justice Earl Warren adopted an expansive view of the Free Exercise Clause of the First Amendment in Sherbert v. Verner (1963), requiring that states have a “compelling interest” in refusing to accommodate religiously motivated conduct (http://en.wikipedia.org/wiki/Free_Exercise_Clause_of_the_First_Amendment – yes I’m siting Wikipedia articles, but solid references to the content provided can be found at the bottom of the page, a good starting point to finding a deeper understanding to the subject at hand).
    In essence, our freedoms are decided and ruled upon by a select few. And who of us can say what is and isn’t a religion? All religions began, for the most part, as misunderstood and maligned beliefs systems.

Please to post comments

Comments are closed.