No, Indiana Did Not Just Accidentally Legalize Pot

Understanding the limits of the Religious Freedom Restoration Act


My Facebook feed has lit up with posts sharing this piece from Raw Story:

Nice try. Won't work.
First Church of Cannabis

In a classic case of "unintended consequences," the recently signed Religious Freedom Restoration Act (RFRA) in Indiana may have opened the door for the establishment of the First Church of Cannabis in the Hoosier State….

Church founder Bill Levin announced on his Facebook page that the church's registration has been approved, writing, "Status: Approved by Secretary of State of Indiana—'Congratulations your registration has been approved!' Now we begin to accomplish our goals of Love, Understanding, and Good Health."…

According to Indiana attorney and political commentator Abdul-Hakim Shabazz, Indiana legislators, in their haste to protect the religious values and practices of their constituents, may have unwittingly put the state in an awkward position with those who profess to smoke pot as a religious sacrament.

Shabazz pointed out that it is still illegal to smoke pot in Indiana, but wrote, "I would argue that under RFRA, as long as you can show that reefer is part of your religious practices, you got a pretty good shot of getting off scot-free."

This is not a classic case of unintended consequences. It's a classic case of a website not bothering to look into a law's background before publishing an article about it. The original federal RFRA grew directly out of an effort to ensure that peyote could be used in Native American religious ceremonies, so the idea of using this sort of legislation as an end-run around drug laws is not exactly novel. But when people have made up their own new faith featuring the ritual use of illegal drugs, as opposed to belonging to an established religious tradition where such drugs are employed, the courts have not been sympathetic to an RFRA-based defense. Even Rastafarians, who really do have such a tradition, have had only mixed success in using RFRAs to protect their sacrament.

All this is fairly well-known legal history, if not among the general public then at least among the people who agitate for such laws. For all the talk there's been about the differences between Indiana's RFRA and the other versions on the books, none of those changes in the legal language should affect the First Church of Cannabis' prospects of succeeding where other potheads have failed. (More's the pity, as far as I'm concerned.)

I'm pretty sure the governor of Indiana did not intend to inspire a national freakout when he signed this bill. So in that sense, the law has had unintended consequences. But accidentally creating an easy legal loophole for Hoosier hemp aficionados is not one of them.

Further reading: Jacob Sullum on "Spiritual Highs and Legal Blows: The power and peril of religious exemptions from drug prohibition."

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  1. But when people have made up their own faith

    That describes all of them.

    1. Most people don’t make up their own religion, though a lot of them edit it in ways that please them.

      1. True, but at some point, someone made up that religion. The Cannabis Church is no exception. I wonder if what is really meant here is “religions made up after (some arbitrary date)”?

        1. What is actually meant is a ‘made up religion, as opposed to belonging to an established religious tradition’.

          Maybe my English is failing me.

          1. Maybe my English is failing me.

            Or maybe it’s a logic fail. What religion isn’t made up? How long does a religion need to exist before being regarded by our government masters as an “established religious tradition”?

            1. Or maybe it’s a logic fail. What religion isn’t made up?

              You’re demanding something that, by your assertion, is whimsically made up conform to logic? Let’s just go full-tilt and make Jesse *prove* that a/the religion is made up.

              I’m not defending any arbitrary definition of the state, but come on, use both halves of your brain, the sentence/article makes sense.

              1. That is the most confusing word-salad I’ve seen all day, and I even read Slate earlier this morning.

                Fortunately, Jesse understood my point and clarified for which a tip of my Pervert’s Cap.

                1. So, a religion officially created by a state-issued license, as opposed to any one of several others that have roots millenia old are indistinguishable to you until Jesse puts the word ‘new’ in?

                  I understand completely now.

                  1. OK, we’ve moved from “word salad” to “totally retarded.” Mormonism, Christian Science, Nation of Islam, Seventh Day Adventist, Jehovah’s Witness, Baha’i; are these “millenia (sic) old”?

                    1. IMO, this discussion started with you shouting “I’m retarded, please clarify!”.

                      Jesse ads the word ‘new’ as though that clarifies some line of age and/or legitimacy, that we both admit is relatively arbitrary, between Bill Levin, L. Ron Hubbard, Joseph Smith, Muhammed, Jesus Christ, and Moses.

                    2. Show me on this model of a human head where your mommy dropped you.

          2. Maybe I’ll add the word “new” before “faith,” just to clear up any confusion.

            1. (Confusion about what I mean, that is. Feel free to remain confused about the rationale.)

              1. Feel free to remain confused about the rationale.

                I will. The whole “faith” thing mystifies me.

                1. I would hope it mystifies everyone.

                  But “free exercise of religion” isn’t mystical, and it’s been in the Constitution for over two centuries.

                  1. Constitution for over two centuries.

                    Phbbbt. That *made up* thing?

          3. Someone made up those stories. Maybe it was a long time ago, but someone made them up.

    2. Surely you can tell the difference between someone adhering to a religion genuinely and someone just plain making something up on the spot to take advantage.

      1. Generally, no.

        1. While I don’t doubt there may be gray area, I tend not to believe “generally, no.”

      2. just plain making something up on the spot to take advantage

        LRH did it – and boasted about it – AND got the state to take it seriously too. Many would argue that Joseph Smith did the same.

        1. Sure. So did the guy who made up “Wicca.”

  2. I see many comments on the Interwebs about “lol this antigay bill is going to protect Rastafarians, I’m sure the teafucking ratbaggers in the legislature never thought of *that*!”

    But I’d like to see the evidence that they specifically had the subjective wish to prosecute Rastafarians.

    Even if that was their subjective wish, forseeable consequences are not unintended, and I’d like to see evidence of the evil SoCons freaking out when Rastas invoke RFRA.

    1. So does that make the people commenting then support the law? After all, there’s a nugget of a decent point in there, that these laws in conservative states are much more likely to end up protecting minority groups than the religious majority in those states. (It’s also true that conservative states are passing these because some of their coalition members are anticipating or experiencing no longer being the safe majority that doesn’t need this kind of protection.) In Indiana’s case, sexual orientation isn’t even protected at the state level, so the law doesn’t do much with that. However, wouldn’t that be a reason to support the laws?

      Indeed, I can show you particular examples of state governments, often very conservative ones, discriminating against Jehovah’s Witnesses, Seventh Day Adventists, Muslims, and others, and in the states that had RFRAs the discrimination was prevented. There is a reason why all these religious groups were in favor of the Muslim prisoner being able to keep a half-inch beard.

      The organized intellectual groups behind these laws protect the minorities in order to protect themselves. Ordinary voters and politicians not always so much. But if a good law is passed for bad reasons, do you oppose it? Would you oppose France reforming its free speech laws to be more like the US, even if it were to protect a horrible person like Dieudonne?

      1. Wait – you think I’m *against* the Indiana RFRA?

        1. No, but I think you’re saying that people you see commenting are. Sorry if I was unclear.

          1. Oh, yes, they’re against it, all right. Because it protects icky conservative Christians as well as cool multicultural Rastafarians.

            1. Rastafarians have very negative views of homosexuals and homosexuality. They’re not just peaceful dope smoking black guys. They hate homos.

              1. I look forward to the lawsuit when a Rasta pot dealer refuses to cater a gay wedding.

      2. “So does that make the people commenting then support the law?”

        I dunno, but somewhere I hope some prog is thinking…”let’s see, this Indiana law could protect Rastafarians’ rights…I support Rastafarians’ rights…[sound of mental gears grinding]…hey, I guess I *support* this Indiana law!”

    2. I’m sure you can find some individual legislators and voters freaking out in this case. It will happen. Not with the Becket Fund, they are too smart and consistent for that.

      But this sort of argument and point scoring just makes the opposition to the law seem hypocritical and dumb as well.

      I think that there’s plenty of room to argue the merits of RFRAs, but the point scoring gets silly.

    3. I see many comments on the Interwebs about “lol this antigay bill is going to protect Rastafarians, I’m sure the teafucking ratbaggers in the legislature never thought of *that*!”

      In my experience, the state is far more concerned about meth and heroin than pot anyway. Given that legalization of the former is outside willingness and/or popular capacity, and that meth and heroin are more parasitic to the ‘legitimate’ livelihood in IN, more rightfully so.

      1. Indiana has some of the harshest pot laws in country with a year in prison for a joint.

    4. Of course most of them did think of that, I don’t know why it never occurs to some people that someone could have religion and principles at the same time. The religious have scored a lot more points for liberty than anyone else has.

  3. “Finding Jamaican Rastafarian from Indianapolis, Indiana, United States has never been easier.”…..can/United States/Indiana/INDIANAPOLIS

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  5. Jesse, you missed the biggest and most obvious reason that Indiana did not just legalize anything.

    If someone attempts to use the rfra to escape prosecution for a pot conviction, the DA merely needs to say that outlawing pot is a compelling state interest and there goes the rfra defense right out the window.

    1. The DA can *say* whatever (s)he wants, but the courts will make the final decision.

      Unfortunately, before that happens there will be a lot of people pressured into guilty pleas.

  6. In all honesty, why is there a difference under the federal RFRA between a 2000 year old religion and one that was thought up in my mom’s basement yesterday? It should be completely irrelevant under the “compelling interest” standard of the law.

    1. The RFRA should be unnecessary if the whole “make no law prohibiting the free exercise of” 1st amendment was followed. It’s clear if the 1st amendment wasn’t going to be honored the RFRA was always just a speed bump that wouldn’t last.

    2. Because the courts attempt to determine that whether it’s a “sincere” belief, as in Wisconsin v. Yoder. It’s certainly easy to imagine bias in edge cases, but “thought up in my mom’s basement yesterday to justify all the things I already agreed with” wouldn’t pass.

      True, with enough money and effort, you can overcome that sort of thing like the Scientologists vs the IRS, even if there seem to be ample evidence that you’re not sincere.

    3. The objection you raise is exactly why Justice Scalia threw out the test (as mandated by the Constitution and then RFRA replaced it).

    4. As I understand it, new religious movements are entitled to the same rights as old ones.

      The difference is that a new movement has more difficulty proving that it’s a sincere religion, not a trolling effort by secularists with their huh-huh, flying spaghetti monster, huh-huh.

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