Still No Right to Holy Smoke

[grace]

Still No Right to Holy Smoke

Jacob Sullum

August 11, 2008, 4:32pm

reason ... free minds and free markets

http://reason.com/blog/show/128038.html

 

Church of Cognizance founders Dan and Mary Quaintance, whose case I discussed in my June 2007 reason story about religious use of drugs, are scheduled to be tried in Albuquerque this month on federal marijuana charges. The Quaintances, who were caught near Lordsburg, New Mexico, in 2006 with 172 pounds of marijuana, tried to get the charges against them dismissed by arguing that prosecuting them for possessing cannabis, their church's sacrament, violates the federal Religious Freedom Restoration Act (RFRA).

 

A federal judge rejected that claim, concluding that the Quaintances' belief system—unlike, say, that of the peyote-consuming Native American Church or the ayahuasca-drinking Uniao do Vegetal—does not qualify as a bona fide religion, an outcome that illustrates the peril of inviting the government to assess people's religious convictions. It now seems inevitable that the Quaintances will be convicted, in which case they will each face a mandatory minimum sentence of five years.

 

Another member of the church, Daniel Hardesty, also has been unsuccessful in pressing a religious freedom defense. Arrested in 2005, Hardesty challenged his conviction for possessing marijuana and drug paraphernalia, citing an Arizona law similar to RFRA. On July 31 the Arizona Court of Appeals rejected his argument. Unlike the federal judge who heard the Quaintances' case, who questioned whether they really believed what they claimed to believe, the state court conceded Hardesty's sincerity. But it said he had failed to show that the burden on his religious freedom was not justified by a compelling government interest:

 

This statute [banning marijuana] 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."...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.

 

The court was troubled that marijuana use by Church of Cognizance members is not restricted to particular times and locations, concluding that "an accommodation of Defendant's unlimited use of marijuana would severely hinder the State's ability to enforce the law." At the same time, the court left the door open to future challenges:

 

Our holding...does not mean that a defendant can never pursue a religious freedom defense against marijuana-type possession laws. Even in circumstances in which the case law and legislative history demonstrate the existence of a well-established compelling governmental interest and that the government has chosen the least restrictive means to achieve its interest, a defendant may successfully assert a religious freedom defense if he can present independent evidence that negates existing authority. Also, in areas in which case law and legislative history are not so well developed, the State must introduce evidence to support a restriction of a religious practice. Here, however, precedent is overwhelming, and Defendant has failed to proffer any evidence to counter that precedent establishing the dangers of marijuana.