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.

Comments

[alice bowie]

How Suprising!

!!! Keep Dope Alive !!!

[Shannon Love]

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

I wouldn't hold my breath. The real dividing line in whether the courts tolerate a religious practice that otherwise violates the law is whether the practice is of long standing with deep cultural roots. All other considerations are just tap dancing around this fact.

Courts don't want to trample on long established religious practices but they don't want to encourage people to just make up religions on the spot to use the loophole of religion to escape laws. (People have tried this in just about every possible area from taxes, to speed limits, to abrogating other people's property rights.) To that end, they create justifications for why a religion that "was revealed to me right before the cops pulled me over," is not valid.

[BakedPenguin]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

Unless, of course, it conflicts with the policy goals of busybody douchebags. Kind of like how

Congress shall make no law ...abridging the freedom of speech, or of the press;

doesn't include speech that happens to have a sponsor of more than one person in an organization whose goal is to make a profit.

[BakedPenguin]

Shannon, I'll assume you meant to add the standard libertarian disclaimer to your statement. (e.g., of course, any religion that does not violate the rights of others...)

[peachy]

"... the right of the People to keep and bear arms, shall not be infringed."

[Anonymous]

Courts don't want to trample on long established religious practices but they don't want to encourage people to just make up religions on the spot to use the loophole of religion to escape laws.

There's a very simple way around this: don't treat religious activities special. If somebody engages in ritual sacrifice, that's still murder. If somebody's hopped up on purples seeking a spiritual piggy-back ride in the middle of the desert, or whatever you kids hop up on nowadays, it's just hopping up.

Not like that would ever happen, and not like if it did happen then people would realize laws against ingestibles shouldn't exist, but if a populace were interested in individual freedom then that's the logic it would take.

[Sage]

Is it not amazing how gov. thugs, in this case the so called Supreme Court, will go around their elbow to get to their ass to justify their hypocritical behavior about which group gets to use their drug of choice, and which does not?
Maybe they were afraid they'd be called racist if they denied the Indians the use of their Peyote.

[The Church Lady]

There's a very simple way around this: don't treat religious activities special.

Well, isn't *that* special?

[Anonymous]

It doesn't get any better than Dana Carvy and John Goodman together in drag.

[Tricky Prickears]

http://en.wikipedia.org/wiki/Rastafari_movement

[Matthew Meyer]

This doesn't quite make sense:

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."

If the issue of time and place is paramount, perhaps Hardesty should be susceptible to conviction because he was caught driving and puffing. But it does not logically follow that the government's interests can only be achieved by a total ban.

This suggests to me that what is paramount is the distinction drawn between the black markets for cannabis and those for peyote and ayahuasca. Any court can claim that the active market in marijuana will always be impacted by legal sources of the plant, as the Supreme Court did in the Raich case.

I, too, am skeptical that a religious exemption for cannabis is in the works. But we have yet to see a case, so far as I know, where the religious use claimed is more circumscribed in time and place, doesn't involve commerce, etc. Jacob is right that such a case will perhaps resolve the issue.

Nice article, thanks.

[Hacha Cha]

well if the law really is there to protect ancient religious sacraments what about Hindu sects that use cannabis and opium as sacraments? or the ancient greek cults based on Hypnos/Somnus that treated opium as a sacrament? would either of these religions qualify for protection?