Drug Law

NORML to Religious Pot Users: No Prohibition Good for All

| by NORML

Only one of these goals keeps me out of a jail cell.

Thank you Chris Bennett for your enlightening article rebutting NORML’s articles regarding religious use of cannabis arguments in court and the case of Roger Christie.  You bring up some aspects to the history of religious use and religious use cases that deserve serious consideration.  However, we will stand by our writing because we believe you, and others so deeply and sincerely wedded to your religious use arguments, continue to miss our points: Religious use arguments are not likely to work in court and selling a card that guarantees those arguments will work is a fraud on cannabis consumers.

No reasonable person wants to see Roger Christie being held in jail without bond pending trial on these non-violent marijuana charges.  None of us want to see him imprisoned for his religious use of marijuana.  This debate is about the current state of the law regarding the religious use of marijuana in this country and the best strategy to legalize the religious use of marijuana.  It is not a debate about the legitimacy of anyone’s religious beliefs and to make it so misses the opportunity to discuss how we all best spend our time and money bringing an end to marijuana prohibition so we may all enjoy our human rights to cannabis.

NORML always has and always will support any person’s right to use marijuana for whatever reason they see fit.  God told you to toke?  Great.  Your doctor recommended you toke?  Right on.  There’s a Pink Floyd laser light show tonight?  Fantastic.  NORML doesn’t think you need the permission of a court, king, clinician, or cleric to use cannabis.

But courts and law enforcement don’t agree with NORML. The point we’re making is that if you want to exert your religious right to use cannabis, you’re likely to be praying behind bars sometime soon.  Not that you should be arrested, not that the courts should find against you, but that they likely will and you should be prepared for that.

If you have a church with ganja, person says they believe, you give them ganja, they give church money; hey, we’re fine with all that, though in my neighborhood they used to call that “dealing”.  If you’re providing it at low cost, great, you’re a discount dealer.  We defend dealers all the time, though usually their primary motive is profit, not piety.  The reason marijuana was traded for money is irrelevant to us; we think it should be legal.

So our primary criticism – one you didn’t include in any of your voluminous cut-n-pastes – is with Christie leading people to believe that there already exists now a recognized legal religious right to use cannabis, because there does not.  You may believe there should be.  We believe there should be.  But the Supreme Court doesn’t agree.

Mr. Christie sells on his web site a $250 “Sanctuary Kit” and a $50 “Practitioner’s Kit”.  He explains that these kits demonstrate your religious sincerity and that is the key to defending yourself in court and proving your bona fide religious use.  He’s selling “Get Out Of Jail Free” cards.  Nowhere on the pages where these are sold (http://www.thc-ministry.org/?page_id=45, http://www.thc-ministry.org/?page_id=70, and http://www.thc-ministry.org/?page_id=81) does he offer a disclaimer that, yes, indeed, if you’re caught with cannabis, that $50 or $250 card is going to work as well as the Monopoly one and you’re likely going to jail and facing a long expensive court battle.

That’s not to say that some religious users haven’t had charges dismissed or not even filed at all.  But the refusal of police to press charges or the dismissal of cases at criminal court involving small amounts of marijuana isn’t any sort of precedent (which can only be set at the appellate level), it’s more a reflection of an officer’s use of discretion and an overburdened legal system that dismisses such cases whether they are religious use or not.  In some states and cities it is a reflection of NORML’s work to decriminalize or set lowest law enforcement priority that allows the courts and cops that discretion.

People have written to me that Mr. Christie has often given this kit for free, just as he has often given ganja for free.  Great, just like NORML lawyers sometimes help cannabis consumers for free.  But for $250 or for $50 or for $0, he is still misleading cannabis consumers into believing that his magical documents will protect the bearer from law enforcement and it just isn’t so.  Mr. Christie writes (http://www.thc-ministry.org/?page_id=12) (emphasis mine):

“Do you have a THC Ministry id card, yet? They work under ‘arrest conditions’ to help set people free. Zero arrest. Zero court. Zero jail. All good.”

“We have had a total of ZERO negative experiences with those who have used our kit. As far as we know we have a perfect track record and we want to keep it that way, for your benefit and ours.”

I know that number is not “ZERO” because I write these stories all the time, like:

We don’t dispute that any of these adherents sincerely believed their religion.  We don’t dispute that it is honorable to fight for one’s religious rights.  And please, true believers, stop trying to convince us about 5,000 years of religious use of cannabis because we completely agree with you – we’ve even made Genesis 1:29 and “kaneh bosm” arguments in our own writing (e.g., http://stash.norml.org/minister-of-marijuana-says-its-his-religion-to-use-pot).

Our complaint is solely with leading lambs to slaughter without making them fully aware of the risks they are facing.  Dr. Martin Luther King never told the sincere believers in the sanctity of civil rights that the march on Selma was going to provide them “ZERO negative experiences”; he fully briefed them on the fire hoses, police dogs, and riot batons they’d face in the valley of the shadow of death and urged non-violent resistance.

(For those who think I’m kicking Roger while he’s down, please note the dates on the hyperlinked stories from The Stash Blog, where I made these same points long before Roger’s indictment.)

Chris Bennett then cites my advice that only legalization for all, even healthy atheists like me, will truly protect medical and religious use without undue restrictions.  He then twists that into imagining that I’m telling the movement we never should have fought for medical use laws.

The crucial distinction this suggestion misses is that nobody ever told medical users pre-1996 they wouldn’t go to jail if they bought a $50 card from a guy based on a legal theory that medical use is currently protected by the Constitution.  Instead, NORML, MPP, DPA, ASA, and others all fought to create medical use laws, many of which do provide a legitimate card that will actually protect you from arrest and jail.

In other words, activists got government to recognize medical use rights through initiative and legislative efforts to create new laws.  Mr. Christie is fighting to get government to recognize religious use rights through litigious efforts to interpret existing case law.  This path has already been much litigated and at least in the short run it is a dead end.  We even tried the litigation path to secure medical use rights in rescheduling petitions and lawsuits against the DEA.  Every legal theory attempted to force courts to recognize a cannabis right that would supersede the Controlled Substances Act has failed and the courts keep telling us to go back to Congress and change the laws.  Now we can hope for judges more willing to extend legal protection to new and alternative religions in the future, but for now those arguments will likely continue to be rejected by the courts.

NORML has the support of some of the finest lawyers in the land.  They have explained to us a procedure the courts use in these cases called the Sherbert Test, which are the four criteria to determine if an individual’s right to religious free exercise has been violated by the government. The test is as follows:

For the individual, the court must determine

(1) Whether the person has a claim involving a sincere religious belief, and

(2) Whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements are established, then the government must prove

(3) That it is acting in furtherance of a “compelling state interest,” and

(4) That it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Unfortunately, point (3)’s “compelling state interest” is prohibiting the general public from using cannabis as laid out in the Controlled Substances Act.  The courts realize that if point (1)’s “sincere religious belief” is only “God wants me to smoke herb”, then there would suddenly be about 26 million sincere religious believers in the United States and that point (3)’s “compelling state interest” would be impossible to enforce.

This is the moment where believers bring up established precedent on use of ayahuasca and peyote by certain religions.  The differences are that a) very few people use peyote or ayahuasca non-religiously, b) the people who do use it infrequently, c) the religions that hold them sacred have traditions and ceremony and theology that don’t deal with the sacraments (i.e. their religion is more than just “let’s do hallucinogens”), d) the members of their church are easily identifiable, so e) letting the believers use hallucinogens isn’t going to substantially burden the compelling state interest of preventing hallucinogen use by non-believers.

In other words, the minute courts decide ganja churches can’t be busted for cannabis, nobody can be busted for cannabis.  Your sacrament is too popular with non-believers.

Another test used by the courts is the Lemon Test.  This test is as follows:

(1) The government’s action must have a secular legislative purpose;

(2) The government’s action must not have the primary effect of either advancing or inhibiting religion;

(3) The government’s action must not result in an “excessive government entanglement” with religion.

In the case of cannabis churches, the government’s ban passes (1) in that there is a secular purpose for banning cannabis use and passes (2) because banning cannabis does not promote or inhibit religion (Rastas can believe and preach all they like about the “Tree of Life”, they just can’t grow or use it) and passes (3) because banning cannabis isn’t an “excessive entanglement” (nothing else about the religion is being banned.)

(The “Lemon Sherbert” test, on the other hand, has nothing to do with religious cannabis use, but does make for a tasty snack on a summer day.)

Next Mr. Bennett criticizes my “full disclosure” saying that my atheism “puts [Russ] completely outside of this realm,” referring to the First Amendment.  He says it “is not supposed to be about one religion’s right over another’s – it is supposed to be about the freedom of all religions,” which is a common belief among the religious that dismisses atheism from the same protections they enjoy.  In fact, the First Amendment also provides a freedom from religion and holds that sincere personal non-theistic beliefs enjoy the same protection as religious beliefs (see United States v. Seeger, 1965).

If the conscientious objectors to the Vietnam draft in Seeger need not believe in God to invoke personal beliefs against murder as reason not to be jailed for draft dodging, then Chris Bennett should support my opinion that I need not have belief in God to invoke personal beliefs for using cannabis as reason not to be jailed for it, just as I support the opinion of the religious that their use of sacrament doesn’t deserve punishment.  But once again, our opinions don’t mean squat to the cops, the courts, and the guy with the $50-$250 Get Out Of Jail Free card who’s doing time.

(By the way, I find it interesting that Mr. Bennett attacks my atheism and ignores my Mormon background.  Many members of my ancestors’ church used the same “it’s our sincere religious belief” and “First Amendment!” and “it has 5,000 years of historical tradition in multiple religions” theories to defend the practice of polygamy.  Assuming it is polygamy consisting of multiple consenting non-coerced adults, shouldn’t that be as much a religious right as the right to cannabis sacrament?)

Chris Bennett brings up the famous Guam Rasta case, without noting that it was not the First Amendment that was cited in support of the court’s opinion, it was Guam’s Organic Act, which gives Guam greater protection for religion than the US Constitution.  It should also be noted that the prosecutor in the Guam case failed to present Guam’s compelling interest in banning cannabis and that had he done so, the court may not have been able to issue such a favorable opinion.  Mr. Bennett also brings up a Rasta winning a religious use case in Italy.  Fantastic, if you think that my statement “no court in the land is going to recognize a religion’s right to use cannabis” referred to “the planet” as “the land” and not as “the states of the United States” as was clearly the context of my argument.

Then Chris Bennett expends a whole lot of ink trying to paint our explanation of the government’s opinion and the current state of court decisions as NORML’s opinion.  Our opinion, for the 150th time it seems, is similar to Terrence McKenna’s:

If the words “life, liberty and the pursuit of happiness” don’t include the right to experiment with your own consciousness, then the Declaration of Independence isn’t worth the hemp it was written on.

We see cannabis use as a human right, not merely a religious right.  No government has the right to prevent you from using cannabis for whatever purpose and reason you choose, so long as you don’t harm others.  Our beliefs say that Roger, Chris, and I can all use cannabis because we want to.  Roger and Chris seem to believe that I should only get to use cannabis if I renounce my atheism, or at the very least, consider cannabis to be sacred.

What we’re trying to explain is how the courts have decided these cases and what some lawyers have told us they’d need to see in a case before trying to defend it as religious (the “black Rasta” quotes aren’t mine; they are me quoting a lawyer I know who defends many cannabis cases and who is certified to litigate all the way to the Supreme Court).  We’re trying to make the point that pursuit of the litigation strategy that defines cannabis use as protected sacrament is a fool’s errand not because it’s foolish to fight for your rights but because that particular strategy has already been tried every which way and has already failed.

Now, naturally, the people with sincere belief who are prosecuted have every right to try to make that argument stick and we really do hope our analysis is faulty and Roger sets a precedent that allows people to claim a religious use arguments (because we know a few lawyers who will then take that precedent and make it available to all users, even atheists).  But we at NORML do not need to be throwing our supporters’ donations at a strategy we believe is doomed to fail, especially when we have legislative strategies that, when they succeed, protect all the users of cannabis: medical, spiritual, and recreational.

Indeed, in our support of California’s Prop 19, we attempted to change the laws so that everyone’s right to personal use and cultivation of cannabis is recognized, regardless of religion.  We helped get the greatest level of support for legalization in a statewide initiative ever, with 46.1% of California voters agreeing with our belief in personal cannabis rights for all.  Maybe Mr. Bennett considers that another NORML “failure” since it didn’t pass, but we see the steadily increasing public opinion support for legalization (up to 46% from 12% in the early 1970s when we began) and the increasing percentages supporting statewide legalization measures (up from California’s 1972 Prop 19 which got 33.5%) to be success.

What Allen and I were trying to say to the religious use community is that your best path to recognition of religious rights is not through litigating the courts to jettison precedent and decide for a favorable First Amendment / RFRA decision, but through legislating personal marijuana use rights for all people, even atheists and heathens.  We’re not saying you’re wrong; we’re saying the courts say you’re wrong.  But as Mr. Bennett’s article and the various responses to it from religious users have proven, it is nigh impossible for true believers to separate an criticism of one religious user’s legal tactics and commercial advertising from an attack on religious use itself… especially when it’s an atheist behind the keyboard.