No Holy Smoke in Arizona


I opened my 2007 Reason article about religious drug use with the case of Dan and Mary Quaintance, the Pima, Arizona, couple who founded the marijuana-venerating Church of Cognizance. Having unsuccessfully tried to fend off federal marijuana charges by citing the Religious Freedom Restoration Act (RFRA), they are currently serving five and two to three years, respectively, in federal prison. Last year I noted that another Church of Cognizance member, Daniel Hardesty, was pursuing a religious freedom defense under Arizona law. This week, the Drug War Chronicle reports, the Arizona Supreme Court rejected his claim.

It was a bit surprising that the court agreed to hear Hardesty's appeal at all, but evidently it wanted to settle the question of whether Arizonans can claim a right to use marijuana as a sacrament, an issue it had never addressed. The details of Hardesty's case made it easy for the court to say no: He was caught with half an ounce of pot in his car, having just tossed a smoldering joint out the window. The court's decision (PDF) highlights the fact that Hardesty claimed a right to "smoke and eat marijuana without limit as to time or place," including "the right to ingest while driving and, presumably, the right to drive while impaired by marijuana."

Hardesty argued that forbidding him to possess marijuana violates Arizona's Free Exercise of Religion Act (FERA). That law, similar to the federal RFRA, allows the state to impose a burden on an individual's exercise of his religion only if it is "the least restrictive means" of furthering a "compelling governmental interest." The state cited two compelling interests in banning marijuana: "preventing the deleterious health effects associated with marijuana use and combating the danger to public safety and welfare that result from trafficking in marijuana." Because "Hardesty claims an unlimited religious right to use marijuana when and where he chooses, and in whatever amounts he sees fit," the court concluded, "in the context of this case, no means less restrictive than a ban will achieve the State's conceded interests."

The court said the Native American Church's peyote rituals, which are protected under federal and state law, differ from Hardesty's marijuana use in two important ways: They are limited to specific times and places, and they involve a drug for which the black market is tiny compared to the marijuana market. Although that second factor might mean that marijuana, unlike peyote or ayahuasca, will never be permitted as a sacrament, the court left the door open to a claim from someone whose religious use of cannabis is more circumscribed. And unlike the state appeals court, it held that FERA can be cited as a defense against drug charges, though whether such a defense will prevail is another matter.