The fight for recognition of Rastafarians to use cannabis for religious purposes is a struggle that has been going on for some time.  Here in the U.S., Tom Dean fought and won the first federal case acknowledging that right.

Federal Case:

On July 30, a federal trial court dismissed importation of cannabis charges against Rastafarian Ras Iyah Ben Makahna when he argued that the cannabis was for religious use and consistent with his Rastafarian beliefs. The case arose from Benny Toves Guerrero’s criminal prosecution in Guam for the alleged importation of five ounces of cannabis and ten grams of cannabis seeds.
The Guam government subsequently appealed the matter to the Guam Supreme Court.  Tom Dean was asked by the defendant to file an amicus curia brief which was joined by the ACLU.   In the amicus brief, Tom argued that the federal Religious Freedom Restoration Act (RFRA) applies to Guam as a federal territory, although the act was declared unconstitutional by the U.S. Supreme Court as it applies to the states. Under RFRA the government must go beyond the requirements of the 2nd Amendment (Free Exercise clause) and demonstrate a compelling interest to overcome a person’s right to the free exercise of his or her religion. Click here for information about the case Tom was involved in Guam involving sacramental use by a Rastafarian Priest.

The Guam Supreme Court agreed with Tom Dean that RFRA protected a Rastafarian’s right to use cannabis for religious purposes.   The government appealed to the U.S. Court of Appeals (9th Circuit).  Tom Dean decided to hand the case off to the ACLU to handle that part of the case alone.  The ACLU was a close copy of the brief Tom Dean filed in the Quam Supreme Court.  After hearing arguments, a three-judge panel for the Ninth Circuit Court of Appeals ruled to limit federal prosecutions of Rastafarians who use cannabis for sacramental purposes on federal property or in U.S. territories. The judges determined that protections granted by a 1993 RFRA law permits the personal use and possession of cannabis – but not the sale or importation of cannabis – for religious purposes. The court specifically found that the federal territory’s controlled substance statute substantially burdened Guerrero’s right to freely exercise his religion.

Because of this case, Rastafarians may smoke cannabis for religious purposes on any federally owned lands, including federal forests, national parks, land held by the Bureau of Land Management.  This may also include and designated smoking in a federal building.  Outside of the 9th Circuit, it is arguably legal anywhere in the District of Columbia.  While this case involved a Rastafarian, the same arguments are available to any religious organization that uses cannabis as sacrament.  After Tom won before the Guam Supreme Court, the government appealed and he decided to hand the case over to the ACLU, which made the Tom’s same argument before the Ninth Circuit Court of Appeals and got the Guam decision affirmed.

Arizona Case:

Arizona, however, has not done very well with regard to its recognition of marijuana use for religious purposes.  In 2008 the Arizona Court of Appeals officially rejected any right to use marijuana as a sacrament.  In August of 2008, the Court ruled that the First Amendment protections of free exercise of religion did not entitle Arizona resident Daniel Hardesty to use marijuana as a “sacrament” of his church.

Hardesty was arrested in 2005 after being pulled over in Yavapai County, Arizona by a police officer in 2005 and subsequently charged with possession of marijuana and drug paraphernalia after the officer first smelled smoked marijuana in the vehicle, then found a joint Hardesty admitted tossing from his window.  At trial, Hardesty testified he had been a practicing member of the Church of Cognizance since 1993 and should be exempt from prosecution under both Arizona and federal law. The trial court disagreed.   Prosecutors never challenged the status of the church but persuaded the trial judge to exclude the religious-freedom claim. Hardesty was convicted and placed on probation for 18 months.

At the appellate level, Appellate Judge Sheldon Weisberg said the First Amendment encompasses two protections: the right to believe and the right to perform or abstain from certain acts for religious reasons. But the judge said though the first is absolute, the second is not.   In particular, Weisberg said, the state is free to enact certain restrictions on conduct so long as they are “neutral laws of general applicability.” The state’s ban on marijuana, he said, fits that definition.

The appellate court also brushed aside Hardesty’s claim that his actions are separately protected by provisions in Arizona law. Those provisions provide that the government can “substantially burden” an individual’s exercise of religion only if it is both in furtherance of “a compelling governmental interest” and is done by the “least restrictive means.”   That law is a counterpart to the federal Religious Freedom Restoration Act (RFRA).  Appellate Judge Weisberg ruled that the Legislature expressed its compelling interests by banning outright the possession and use of marijuana.  “This statute does not provide any religious exemptions nor does it contemplate an exemption for the use of marijuana that would be consistent with public health and safety,” the judge wrote for the unanimous court. “By imposing a total ban, the Legislature has deemed that the use and possession of marijuana always pose a risk to public health and welfare.”   Judge Weisberg said the courts are not in a position to second-guess that decision.

Weisberg acknowledged that Arizona courts have allowed the possession of peyote for religious use by the Native American Church.   But he said prosecutors in that case never showed that peyote was addictive or being used in quantities harmful to the health of the participants.   Anyway, the judge added, the long and continuous use of peyote by a “discrete and well- defined group” makes it different from drug-use claims by other religions.   In this case in particular, the judges said the tenets of this church make its potential use more widespread than just at discrete religious services.   They noted the church is organized into individual “monasteries” with no dedicated house of worship, and each monastery is free to establish its own worship times.

On the other hand, while the court said the state has the power to totally ban possession of the drug because of its known harmful nature it left the door open to considering future arguments about the religious freedom to use marijuana where a defendant could prove that marijuana is not as dangerous as the government claims.

Furthermore, the decision was only an appellate court decision.  The Arizona Supreme Court did not consider the issue.  Thus, it is still possible to argue religious use of marijuana by taking the case up past the Appellate Court directly to the Arizona Supreme Court.  Therefore, the religious right to use marijuana in Arizona is still up for grabs.  Tom Dean is ready and waiting to take up the right case all the way to the Supreme Court, if they let him.

There is yet another way to be heard on this issue.  Certain Arizona counties have been sympathetic to the religious use of marijuana, despite the Appellate Court decision described above.  For example, in December of 2008, the La Paz County Attorney voluntarily dismissed a case against Shashon Jenkins, an ordained minister in the Universal Life Ministry in California.  Unfortunately, there was no specific reason stated for the dismissal.  The Motion to Dismissed only stated that “the State is exercising its discretion”.

Various briefs in support of the religious use of cannabis can be found on NORML’s Brief Bank.