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."