Rastafarians have religious exemption for using marijuana under RFRA

[Toto]

A misleading story:

Religion No Defense for Drugs (http://story.news.yahoo.com/news?tmpl=story&u=/ap/20020529/ap_on_re_us/brf_marijuana_religion_1)

Religion is no defense to importing drugs, but it is a defense for using them.

Court OKs use of religious pot on federal lands: Appellate ruling applies to 9 Western states, territories (http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2002/05/29/MN161789.DTL)

...

A conservative three-judge panel said a Rastafarian -- whose Jamaica-based religion regards marijuana as a sacrament that brings believers closer to divinity -- could not be federally prosecuted for merely possessing marijuana, a decision that upheld a portion of the 1993 Religious Freedom Restoration Act.

(snip)

The ruling did not help the defendant in the Guam case, however, as the court said he could be prosecuted for importing marijuana.

"Rastafarianism does not require importation of a controlled substance, which increases (its) availability," the court said.

That distinction doesn't make sense, said Graham Boyd, the American Civil Liberties Union lawyer who argued the case and plans to seek review by a larger appellate panel.

"It's equivalent to saying wine is a necessary sacrament for some Christians but you have to grow your own grapes," he said.

The religious freedom law protects religious practices from legal interference unless the government can show a compelling need for enforcement. It was prompted by a 1990 U.S. Supreme Court ruling allowing Oregon to enforce an anti-drug law against a Native American who used peyote for religious purposes.

In 1997, the Supreme Court ruled that the federal statute was an unconstitutional interference with states' authority to enforce their own religiously neutral laws -- but that ruling applied only to state prosecutions.

On Tuesday the Ninth U.S. Circuit Court of Appeals in San Francisco said the 1993 law was a valid restriction on the federal government, reasoning that Congress had the power to create religious exemptions to laws it had originally passed.

. . .


Miss Cleo predicts a big, new, successful recruitment drive for Rasta.

[enrious]

I'm so there.

[Toto]

There are very serious legal issues here. If people claiming to be Rastafarians (and the government is not allowed to judge the sincerity or validity of religious belief) have a privilege to smoke marijuana, does that not tend to establish a religion?

[Stephen Maturin]

Originally posted by Toto:
There are very serious legal issues here. If people claiming to be Rastafarians (and the government is not allowed to judge the sincerity or validity of religious belief) have a privilege to smoke marijuana, does that not tend to establish a religion?

Serious issues indeed, and plenty of 'em! If I remember the chronology, the Supreme Court ruled back in the early 60's that any law placing a substantial burden on religious practice violates the Free Exercise Clause unless the law is narrowly tailored to achieve a "compelling state interest." Long about 1990, in a case captioned Employment Div. v. Smith, the Court dumped the compelling state interest test and held that a "neutral law of general applicability" poses no Free Exercise Clause concerns. Or was it "general law of neutral applicability"? I was never able to keep that straight (not that it actually matters :D ).

The nutburgers in Congress responded to Smith by enacting the Religious Freedom Restoration Act. RFRA purports to reinstate the old "compelling state interest" test. The Act's legislative history demonstrates quite clearly that it was intended to "overrule" Smith and restore the holding of the 1960's case.

Sometime during the late 1990's the Court ruled that RFRA was unconstitutional as applied to the states. If memory serves, the Court dodged the real issues and decided simply that RFRA, as applied to state laws, exceeds the scope of authority conferred on Congress in Section 5 of the Fourteenth Amendment.

This Rastafarian case apparently presents the question of whether RFRA can constitutionally be applied to the federal government, which in turn presents some other nasty issues. Did Congress have Article 1 authority to enact RFRA? Did Congress violate separation-of-powers principles when it tried to "overrule" the Supreme Court on an issue of constitutional law? How far can Congress go in protecting the free exercise of religion without running afoul of the Establishment Clause? Is the current version of the Court inclined to overrule Smith?

According to the article, the loser in the Rasta case plans to petition the Ninth Circuit for an en banc rehearing, so it'll be a long time before the case makes its way to Diana, Mary and Flo.

[ May 30, 2002: Message edited by: Stephen Maturin ]

[Toto]

Here's another case.

Landmark Decision in a União do Vegetal Case (http://www.cesnur.org/2002/udv.htm) (site links to court decision)

On August 12, 2002 an important decision was rendered by a U.S. Federal Court in the controversial area of the use of entheogens (mind-altering hallucinogen substances used within the context of religious ceremonies). Judge James Parker of the United States District Court for the District of New Mexico, found that although the government's actions in seizing an entheogenic substance used by a religious group did not violate the group's free exercise rights under the First Amendment, the seizure by the authorities of the church's sacrament appears to have been in violation of the Religious Freedom Restoration Act, a federal law passed by Congress in 1993 for the purpose of providing greater protection to religious free exercise (although the Act had been significantly watered-down by a 1990 United States Supreme Court decision).


União do Vegetal (http://www.csp.org/nicholas/vegetal.html)

[Kevin Dorner]

Originally posted by Toto:
There are very serious legal issues here. If people claiming to be Rastafarians (and the government is not allowed to judge the sincerity or validity of religious belief) have a privilege to smoke marijuana, does that not tend to establish a religion?

Yes, and there has already been at least one lawsuit in this regard, that native Americans are permitted the use of peyote and other naturally occurring hallucinogens in their religious rituals but that such use is denied other U.S. citizens, and that this respects an establishment of religion. I looked for the Wire link for this but couldn't find it; it was late last year IIRC.

[Toto]

I don't recall a case, but there was a thread on peyote and RFRA:

http://iidb.org/ubb/ultimatebb.php?ubb=get_topic&f=59&t=000201

[fando]

Mon, ah be rollin' ma dreds!

[Oxidizing Material]

http://www.geocities.com/unrealshock/null.txt

[Toto]

http://www.geocities.com/unrealshock/null.txt

Oxidizing - what are you giving the thumbs down to?

[Toto]

Update:

Church likely to prevail in dispute over hallucinogenic tea (http://www.firstamendmentcenter.org/news.aspx?id=11895)

DENVER — A New Mexico church was handed a small victory yesterday when a federal appeals court ruled its use of hallucinogenic tea was likely to be protected under religious-freedom laws.

The 2-1 ruling by a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, upheld a preliminary injunction against the U.S. attorney general, the Drug Enforcement Administration and other government agencies that sought to prohibit the tea's use.

[Feather]

Wait, so it's okay for religious people to possess and use some substances that non-religious people cannot legally possess?

What about two different religion's substances of choice? Would a judge rule that Christians cannot use marijuana because it isn't traditionally Christian?

And why can theists use drugs when other citizens cannot? Seems a bit off, to me.

A mess of questions and issues, indeed. Thanks for bringing this to the fora; I wouldn't have known about it otherwise.

[Gamer4Fire]

"EQUAL RIGHTS ARE NOT SPECIAL RIGHTS!!!"

Really, if theists are allowed to do it, atheists should be given the exact same consideration. It doesn't seem right that just because someone believes smoking a truckload of dope will get you closer to god is a better reason than smoking a car full of weed just to get high (I mean, it feels good, so duh).


... Maybe I should switch to christianity so that I can become a pot smoker! Genesis 1:29-30

[simian]

I hope I am not entirely off topic here. Just a personal beef about an issue.

I remember when Pat Robertson was setting up the ACLJ, with the claim it was to defend ALL religious freedom, not just Christian religious freedom. Has the ACLJ been defending the rights of these non-Christian groups?

Looking at http://www.aclj.org/about/aboutm.asp, it looks like they have decided only Christian - erm, excuse me, "Judeo-Christian" religion is to be defended.

Simian

{edited to fix URL - Toto}

[Stephen Maturin]

Originally posted by Toto
Church likely to prevail in dispute over hallucinogenic tea (http://www.firstamendmentcenter.org/news.aspx?id=11895)

The Tenth Circuit opinion upholding the injunction is available for download in PDF here (http://pacer.ca10.uscourts.gov/pdf/02-2323.pdf). The Supreme Court ruled the federal Religious Freedom Restoration Act (http://prop1.org/legal/rfra.htm) unconstitutional as applied to the states*, but RFRA will keep rearing its ugly head in federal prosecutions forever unless Congress repeals it. After all, no federal agency is likely to challenge RFRA in the courts on Establishment Clause grounds.

Justice J.P. Stevens wrote a short 'n' sweet concurring opinion in City of Boerne v. Flores (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=95-2074) noting that RFRA violates the Establishment Clause by providing the religious "with a legal weapon that no atheist or agnostic can obtain." I agree entirely, but it's hard to imagine any federal official actually making the argument. It certainly doesn't appear that Ashcroft and the DEA made any such argument in the Tenth Circuit case.

*A number of states have seen fit to enact their own versions of RFRA.

Originally posted by simian
I remember when Pat Robertson was setting up the ACLJ, with the claim it was to defend ALL religious freedom, not just Christian religious freedom. Has the ACLJ been defending the rights of these non-Christian groups?

AFAIK, $ekulow & Co. limit their efforts pretty much exclusively to defending the One True Faith, i.e., Biblical-literalist Christianity. However, the hoasca drinkers in that Tenth Circuit case are getting amicus curiae support from the Christian Legal Society, National Association of Evangelicals and the General Assembly of the Presbyterian Church (U.S.A.). I betcha D. James Kennedy is on the verge of apoplexy over the Presbyterians' involvement. :D

[Toto]

The 10th Circuit has affirmed (http://www.firstamendmentcenter.org/news.aspx?id=14374) the three judge panel.

[NearNihil Experience]

More of the bullshit. Catholics distribute alcohol to their thirteen year olds on up. Plain old illegal. The exemption is because they do it hiding behind the the same doors that they hid all the pedophelia behind. Hell, church is the only place you can give children alcohol in public, step outside the church and its contributing to the delinquency of a minor.

Double standard. Hypocracy, etc...... :huh: :rolleyes:

Seperation of church and state was never meant to say, "laws don't apply in church". :down:

[Toto]

Marci Hamilton column on Findlaw: A Federal Appeals Court Says A Religious Group Can Import Illegal Drugs: The Religious Freedom Restoration Act Shows Its True Colors (http://writ.news.findlaw.com/hamilton/20041118.html)

Hamilton is an articulate opponent of religious accomodation, and represents some governmental units who have challenged the validity of RFRA and its successor, RLUIPA. In this column, she challenges the reasoning of Judge McConnell, who is a rising star of the religious right's attempt to drill holes in the wall of separation between church and state.

The Constitution's Free Exercise Clause has long been interpreted to allow neutral laws that regulate conduct - not belief -- to be applied to religious persons and institutions, along with everyone else in society. The untenable alternative would be to apply the law regulating conduct to everyone except those who are religiously motivated. But conduct is conduct, and harm is harm.

Religious belief is sacrosanct under the Constitution. But religiously motivated conduct is not - when it violates civil law.

. . .

Judge McConnell's opinion (joined by Judge Tymkovich) is the quintessential example of the court as super-legislature. He rejected explicit Congressional findings regarding Schedule I drugs, like hoasca, because they cannot be "conclusive." He asserted, for instance, that "Congress's inclusion of DMT in Schedule I "should [not] control our assessment of the relative dangerousness of hoasca," because Congress had not considered hoasca by itself. But why not? Congress doubtless included DMT because it found it dangerous. And hoasca contains DMT.

. . .

There are important separation of powers reasons for why courts should not be carving out exemptions that are within the sole power of other bodies - including Congress. As Judge Murphy remarked, assessing the evidence to decide whether a given exemption should be granted is the function of the legislature --- not the court.

Judge McConnell response to Judge Murphy's argument was this: If the court were institutionally incompetent in the drug laws, "the same may be said for application of RFRA to virtually any field of regulation that may conflict with religious exercise."

McConnell seemed to see this consequence as an absurdity. But it is simply the truth.

RFRA is unconstitutional, under the separation of powers, precisely because an institutionally incompetent branch, the judiciary, has been assigned the duty of a competent branch, Congress -- in this case, the core duty to make the law.

[PopeInTheWoods]

More of the bullshit. Catholics distribute alcohol to their thirteen year olds on up. Plain old illegal. The exemption is because they do it hiding behind the the same doors that they hid all the pedophelia behind. Hell, church is the only place you can give children alcohol in public, step outside the church and its contributing to the delinquency of a minor.

Double standard. Hypocracy, etc...... :huh: :rolleyes:

Seperation of church and state was never meant to say, "laws don't apply in church". :down:
Even better, the use of "sacramental wine" was exempted under the Volstead Act during Prohibition.... :mad:

But thankfully that exemption probably helped save the California grape industry from extinction.

Andy

[kciredor reprah]

Mon, ah be rollin' ma dreds!


:rolling: That's funny as hell, man.

Peace

[Psychophobia]

So wait, only Rastas can smoke weed? Kick-ass I wanna be a Rastafarian. :rolling:

[Yeshi]

"You are not religious enough to take hallucinogens or smoke pot! Back away you INFIDEL!"

:notworthy

[never been there]

"Your honour, as an atheist, my metaphysical beliefs require me to disregard all interference with my consuming whatever drug I decide to."

Wish me luck.

[Goobla]

"You are not religious enough to take hallucinogens or smoke pot! Back away you INFIDEL!"

:notworthy

:rolling:

[Toto]

High Court Agrees to Block Religious Tea (http://hosted.ap.org/dynamic/stories/S/SCOTUS_RELIGIOUS_TEA?SITE=SCCOL&SECTION=HOME&TEMPLATE=DEFAULT) The government has been in a long-running legal fight with the Brazil-based O Centro Espirita Beneficiente Uniao do Vegetal over hoasca tea, brewed from plants found in the Amazon River Basin.

The church won a preliminary injunction in a lower court, and the Supreme Court was asked to intervene.

Justice Stephen Breyer, acting on behalf of the full court, granted a temporary stay to give both sides time to file more arguments with the court.

"Compliance with the injunction would force the United States to go into violation of an international treaty designed to prevent drug trafficking worldwide, which could have both short- and long-term foreign relations costs and could impair the policing of transnational drug trafficking involving the most dangerous controlled substances," acting Solicitor General Paul Clement wrote in a court filing.