Indiana Governor Mike Pence recently has come under fire for signing his state’s Religious Freedom Restoration Act (RFRA), legislation critics argue will protect private businesses who use their religious beliefs to discriminate against gay people.
Seeing an opportunity, the First Church of Cannabis, Inc., was granted approval last week by the Indiana secretary of state to organize as a religious corporation. In its certificate of incorporation, it lists cannabis as a sacrament.
The Church’s founder, Bill Levin, said in a statement: “You see, if I would argue that under [Indiana’s] RFRA, as long as you can show that reefer is part of your religious practices, you got a pretty good shot of getting off scott-free.”
So, did Indiana really inadvertently authorize an end-around the federal Controlled Substances Act through its RFRA. Unfortunately, probably not, though Levin’s attempt here is a classic case of karma/blowback.
Levin is likely relying on a 2006 Supreme Court precedent, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (UDV), a case involving a Brazilian church caught importing its sacrament, ayahuasca, a tea that contains the powerful psychedelic drug DMT. Like marijuana, DMT is also a Schedule I controlled substance.
UDV successfully argued that that the government failed to show its application of the CSA could not survive strict scrutiny under RFRA, which requires the government show that application of the challenged law substantially burdens the sincere exercise of religion.
The UDV case seems to be an anomaly, and courts have almost universally rejected defenses to marijuana possession under RFRA. The only exception seems to be for Rastafarians, who have been successful in raising the free exercise defense in very limited circumstances and only after the defendant can show the marijuana possession was actually connected to the exercise of his or her religion. Rastafarians cannot, for instance, claim that RFRA protects their ability to smoke marijuana in public. People who convert to Rastafarianism after their marijuana arrest cannot use the RFRA defense either. Starting a religion as a pretense for illegal drug use will not be of much help when the feds show up at your door with a search warrant.
The First Church of Cannabis will almost certainly be unable to make the legal case that Indiana’s RFRA permits circumvention of federal drug law, but why should it have to make that case at all.
People should have the freedom to use marijuana regardless of whether they derive any religious or spiritual value from them. Author and philosopher Sam Harris said it best—“I can think of no right more fundamental than the right to peacefully steward the contents of one’s own consciousness.” Co-opting a bill that sanctions legal bigotry and discrimination to protect pot smokers just underscores how absurd marijuana prohibition is to begin with.
What do you think? Would you join the First Church of Cannabis?