People v. Rubin on Religious Freedom to Sell Marijuana

A new “marijuana church” has been created in the wake of the Supreme Court’s February ruling in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal (126 S.Ct. 1211, the pdf is here). In O Centro, the Court unanimously held that the Religious Freedom Restoration Act (and, underlying that, the First Amendment) should provide an exception to the Controlled Substances Act for members of a religious organization that used a drug called ayahuasca (the O Centroopinion refers to it as hoasca. see this Erowid page for background on the substance) as part of their traditional practice.

The members of the newly minted “Temple 420” describe their beliefs on their website as follows:

We know that Jesus smokes weed. So, it is the goal of our ministry to reach beyond the borders of America and create a world wide ministry that preaches the Holy Bible to humanity. We are not in any way trying to create a new religion. There is only one true God and we feel that humans, both gentile and Jew, should love Him with all their heart, with all their soul and with their mind. . . . We feel that God created all plants on earth with His Word according to the Bible in the Book of Genesis. This includes the cannabis plants with its many uses. Also, as a Jewish and Christian congregation we look to the book of Revelation Chapter 22 when it speaks of a plant for the healing of all nations. No other plant on earth more closely resembles the description in this book than the cannabis plant.

Other organizations have described themselves as marijuana-oriented churches before, but their analysis of the legal issues has been weak at best. What’s different about this marijuana church is that it is explicitly invoking O Centro as legal justification for its actions and it intends to follow the model of cannabis clubs that have been established in states that have decriminalized the medical use of marijuana: the group will seek a “specific donation” to join the “temple” (it looks like they’re asking for $100) and then issue membership cards identifying members.

Membership cards will work like medical marijuana cards in CA, if a member is ever pulled over with cannabis, anywhere in the nation, they can present their card and show the authorities that they are lawfully in possession of religious marijuana. If they are ticketed for possessing this spiritual cannabis our organization will defend them.

It’s safe to say that a church of this sort would go beyond the facts in O Centro, but on the other hand our society seems to have fairly liberal laws about what types of organizations can be considered “religions.” So this definitely tees up a challenging legal question.

One thing that immediately looks problematic for the church: in O Centro, the government conceded that banning the use of ayahuasca would “substantially burden a sincere exercise of religion” (see the second sentence of the opinion) by a small group of people. The only question, therefore, was whether the application of this burden constituted a violation of the Religious Freedom and Restoration Act by failing to use the least restrictive means to address the governmental interest. In this case, it seems very unlikely that the government would make a similar concession with regard to “sincere exercise,” and even if a court were to find that the exercise was sincere, the governmental interest in regulating marijuana might very likely be more weighty than its interest in regulating a relatively obscure hallucinogenic tea. In O Centro, after all, the church members emphasized “the thinness of any market for [ayahuasca], the relatively small amounts of the substance imported by the church, and the absence of any diversion problem in the past.” 126 S.Ct. at 1218. The same could not be said with regard to marijuana — and all the other drugs that could presumably be legalized by turning their use into a religion if courts were to buy the Temple 420 argument.

But suppose a rastafarian group with long traditions of using marijuana as a spiritual practice wanted to make the same argument. What then?