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Superrealist

Met a Rasta (real, Jamaican Rasta) in N. Cal a few years back, who said he'd successfully beaten a posession charge by arguing religious freedom. He said it was "burnt offerings."

Anybody heard of this kind of dubious (or friggin' brilliant) defense? If it's true, maybe we should open a church!

 

Cassius

Actually, there already are churches (plural, although not many) that have marijuana as a sacrament. Yes, it CAN work as a legal argument -- notice the word "can". It all depends on what judge you get, frankly. Regardless of which judge, though, you're much more likely to successfully use that defense if you have proof or evidence of some kind to show the judge that you are in fact in a religion that uses it as a sacrament. On the other hand, there are judges out there that don't buy stuff like that, and it is within their power to deny your defense, freedom of religion or no freedom of religion. You could then appeal it, of course, and if you REALLY were a practicing member of such a religion and had documentation to prove it, eventually one of your appeals would be successful -- however that is FURTHER legal costs, and the appeal process can get VERY expensive VERY quickly. You are pretty likely to fail with that defense if you don't have legal counsel (a lawyer). And I don't mean a public defender (lawyer appointed by the court) -- you need a real lawyer.

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Buzzby

I don't think a religious defense is gonna fly. I've never heard of it happening in the US.

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law420

This is no defense unless your jurisdiction has drug law that allow the sacramental use of canabis. In Employment Division v. Smith, two Native Americans who were fired from their job as rehab counselors tried to argue that peyote was part of their religious ceremonies as members of the Native American Church. They asserted that the Oregon law that probitted sacramental use of illegal drugs violated the free exercise clause. The case went all the way up to the supreme court and the court held that the Free exercise clause cannot be used to challenge a neutral law of general applicability.

Toking Jedi

Theoretically it could work, if you belonged to a religious sect that treated marijuana as religious sacrament. And I bet that could be marijuana's saviour: A minister who proposed the idea of marijuana being a religious sacrament, for contemplation and relaxation in the face of God.

I bet liberal Quakers might agree with that argument, if it were framed correctly... You would have to emphasis that by smoking Cannabis you are communing with nature, because you are integrating combusted plant matter into yourself.

Hey, it makes sense to me; that's not even the most articulate way of saying it. I was thinking in terms of communing with nature. If anyone else gets what I'm saying, maybe you could try and work with that argument. Ah, I was high when I thought of it so it's probably idiosyncratic, anway. Whatever.

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Buzzby

It's been tried. It didn't work. Rastas have always had marijuana as a religious sacrament. They can't use it legally. There's an outfit called The Hawai'i Cannabis Ministry (THC Ministry) that uses cannabis as a sacrament. They can't use it legally either.


Wow! That would get 0.02% of the population firmly behind it!

We need to face prohibition squarely and shoot it down, not come up with a scam to get around it. Claiming that marijuana is "harmless", that it's "not a drug", or that it's a "sacrament" will not be taken seriously by anyone with half a brain. All those things accomplish is to ruin the anti-prohibitionist's credibility. Once people catch you BSing them they're going to write off everything else you say, the same way we tend to disbelieve any statement coming out of the prohibitionist camp.

Cassius

I agree with most of that. But I disagree that it being a sacrament would automatically be dismissed by anyone with half a brain. Religions have been known to use other, sometimes legal, substances as sacrament (not just weed). The legal precedent may be to deny such a claim (I wasn't aware of that but I don't doubt you), however that doesn't mean that there isn't a legitimate use of it as a sacrament, and it is unjust for the courts to make the precedent they did. It may still stand as rule of law at the moment, but I don't think that's reason to say that "anyone with half a brain" would automatically dismiss the argument itself, or else they would have to dismiss any other sacramental use of a substance (not just marijuana) by religions and thus not allow religious exceptions for them... but they do allow those exceptions on certain things. I know that certain religions are allowed to give their children alcohol (wine) in a religious ceremony, despite the legal drinking age being 21, for instance. To not allow religious reasons to override the state's rules would also mean they'd have to get rid of the conscientious objector status for "avoiding" a draft.

I also think that, while "marijuana is harmless" is a ridiculous statement, "marijuana is relatively harmless" is not. I do agree with you on the "it's not a drug" being ridiculous, though.

law420

Your examples do not as you say "override the state's rules." If you look at the law closely you will see that allowing children to drink wine at mass does not violate any state laws; in fact, you can give your chld a glass of wine at dinner as well. The conscientious objector status for the Amish or similiarly situated groups is protected by law.

The issue is whether a state law that bars drug use associated wth a religious ceremony violates the Free Exercise Clause (and not the other 1st amendment religious clause the establishment clause) of the US constitution.
The problem with the religious ceremonies is that the state such as in the Oregon case I alluded to earlier has a state drug law that prohibits the drug use for religious purposes. The problem is that these laws are neutral and do not discrimiante against these religions on their face. If the law said Methodists could smoke weed and Presbyterians couldn't then the law would get struck by the highly restrictive strict scrutiny because it favored one religion over another.

Since there is a supreme court case on point this is settled law and it is unlikely that the supreme court will revisit the issue anytime soon. The court held that the free exercise clause cannot be used to challenge a neutral law of general applicability. Thats the rule of law and its not going to change anytime soon.

Cassius

I already said I agreed with you on that point, that if your state (or jurisdiction) has laws prohibiting that sacramental use of a substance (by any religion, not just yours), that you are pretty much SOL.

But I wasn't arguing about that. I was saying that not all jurisidictions prohibit that, and that anyone "with half a brain" wouldn't "automatically" dismiss the sacramental use argument as if it had no logic behind it at all. My point was there may be some people who aren't trying to "beat the system", people who really DO use cannabis sacramentally (or other substances). It's not something that should be given up on necessarily, it sure isn't the right approach to attack such a prohibition by challenging its constitutionality under the free exercise clause (even I knew that something like that wouldn't fly), but that's no reason to give up on it.

I know people HAVE gotten away with that argument in the past. Like I said, sometimes the judge you get matters more than what "the Supreme Court legal precedent is". Probably shouldn't be that way, but it is. Likewise, the Supreme Court legal precedent might be in your favor, and sometimes you get a judge that doesn't buy your argument and sends you to jail anyway. That's why we have an appeal process, because judges make their own decisions, and it's not always the right one or in accordance with legal precedent, even though they try.

Also, just out of curiosity, why do you say it is legal to give your children alcohol? I haven't heard that one before.

no_problems

In my state (PA) you'd get a $1000 fine for giving one child a glass of wine at dinner, and $2500 for each additional child, even if you're the parent. THAT IS VERY ILLEGAL HERE, but you CAN give a child communion legally, but only if your religion has a long-standing practice of giving alcohol to children sacramentally. That's a Federal court precedent at work, overriding the state's zero-tolerance law.

Perhaps before making blanket statements like that, you should research the laws of all 50 states. What you said is very untrue of PA, and probably at least some other states as well. (I can quote statements from the PA Liquor Control Board to show this is true, or at least, that the state government says that this is true -- and the state laws do NOT have any exceptions for parents giving alcohol to children here, and I can post quotes from them if you wish).