Cannabis Column - #40

Jon Gettman is a long time contributor to HIGH TIMES. A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues. On October 8, 2002, along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law. This column will track that petition's progress. Marijuana and Religion

Is the religious use of marijuana protected by the U.S. Constitution? The Ethiopian Coptic Church believes it is, and this important question is the subject of a lawsuit recently filed in Federal Court by Carl Olsen.

The Supreme Court has previously recognized the legitimate use of other drugs for religious purposes. The use of mescaline in Native American religious rituals is the most notable and well-known example of a religious exemption for otherwise illegal drug use. In 2006 the Supreme Court also recognized a legal justification for the use of the entheogen ayahuasca.

In 1993 the United States Congress passed the Religious Freedom Restoration Act (RFRA), which states that the “Government shall not substantially burden a person's exercise of religion without compelling justification.” In 2000 Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), which established a general rule that “no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.”

According to Olsen these statutory rules have great relevance to the subject of the religious use of marijuana. “Broad construction of the RLUIPA means that any deprivation of liberty by a state law enforcement agency would fit both the meaning of a pre-trial detention and an institution as described in RLUIPA. Congress has applied the RFRA to the states’ drug laws as it originally intended to do in the original language of the RFRA.” In other words, arresting people for the religious use of cannabis is a violation of these laws.

Olsen’s legal argument is much more substantial and complex. One of the complexities of legal cases involving government’s regulation of religion involves the manner in which the courts apply law and prior case precedent to a specific case. In the RFRA the Congress established that in religious freedom cases the government would have to establish a compelling interest to justify any substantial burdens placed on the exercise of religion.

In the ayahuasca case (Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal) the Supreme Court ruled that the government’s interest in uniform application of the CSA did not prevent courts from recognizing the use of the drug for religious purposes and that its status as a controlled substance was not a sufficient reason to prohibit its religious use. In prior cases involving the religious use of marijuana, which preceded the passage of RFRA and RLUIPA, the government has argued that it had an overriding interest in controlling marijuana use and distribution and that marijuana posed a real threat to public health and social welfare.

Olsen wants to revisit these issues in light of these new laws and the 2006 Supreme Court ruling on ayahuasca. Specifically, Olsen argues that applying marijuana prohibition to the religious use of cannabis is a substantial burden on a sincere religious exercise, and that this violates both federal law and protection of freedom of religion guaranteed by the Constitution.

In the past the government has argued prohibition of religious use of controlled substances serves three compelling national interests: preventing harm to users, preventing diversion to secular (non-religious) users, and maintaining compliance with international treaties. Olsen argues, in part, that the government cannot provide evidence that marijuana causes sufficient harm to users or society to justify the substantial burden prohibition places on the religious use of cannabis.

More information about Olsen’s lawsuit is available in a recent article of his published in the Bulletin of Cannabis Reform and the briefs filed in the case can be read at the website for the Ethiopian Zion Coptic Church.

People use marijuana for many different reasons, including social, medical and religious motivations. One of the most important issues Olsen brings before the federal courts is not, as some would argue, that marijuana use should be recognized by the government as a legitimate religious practice. Instead this case involves a more fundamental issue: whether or not people who use marijuana religiously should receive the same legal protections as those who use other drugs as part of sincere, legitimate religious practices.

In 1984 the Iowa Supreme Court recognized that “Olsen is a member and priest of the Ethiopian Zion Coptic Church. Testimony at his trial revealed the bona fide nature of this religious organization and the use of marijuana within it.” The issue in the current litigation is not Olsen’s sincerity but instead the government’s refusal to provide Olsen equal treatment under the laws as they have been applied to the use of mescaline and ayahuasca.

Individuals should be able to decide for themselves whether or not they want to use marijuana. The primary argument for marijuana’s legalization is that the drug is not dangerous enough to justify keeping it illegal. Individuals should not have to justify their use on medical or religious grounds. Adults should be able to justify their use of marijuana on any grounds they see fit. It is an issue of personal liberty. Nonetheless, like prohibition of medical use the prohibition on the religious use of marijuana is a violation of deeply held American values that are protected by both the Constitution and federal law.

Carl Olsen is a true patriot for challenging the federal government regarding the religious use of cannabis, and he deserves gratitude, respect and support from the reform movement for this important lawsuit.