Is There a Right to Use Marijuana for Religious Purposes?

The current federal policy on marijuana is, to say the least, confusing. When President Obama took office, his Department of Justice said that it would not make prosecutions for the possession of marijuana a major priority, and that medical marijuana operations that are legal under state law will not be a target for federal prosecution.

Supporters of marijuana legalization or decriminalization were pretty excited, believing that, after years of federal crackdowns, a president was finally taking (in their view) a more sensible approach to marijuana.

However, over the last year or so, the federal government seems to have taken a harder line on marijuana. While there’s no question that the drug is illegal under federal law, and that federal law trumps state law (so the federal government can still prosecute people who use medical marijuana, even if they’re complying with the laws of their state), the federal government does have a good deal of discretion in deciding which cases it wants to prosecute, and under what circumstances to do so.

This controversy usually comes up in the context of medical marijuana. After all, there is mounting evidence that marijuana, while certainly not a cure-all, has a wide range of medical uses that are, at the very least, worth exploring. For example, it is one of the most powerful anti-nausea drugs known, which makes it a very effective treatment for some of the side effects of chemotherapy, greatly improving the quality of life for some cancer patients. And there is some evidence (though it’s far from conclusive) suggesting that it may even be able to prevent or treat some forms of cancer.

So, it’s not surprising that a lot of people get a little riled up when the federal government starts shutting down medical marijuana dispensaries.

However, there’s another non-recreational use of marijuana: religious rituals. Many indigenous religions treat marijuana as an entheogen (a substance that triggers what its user believes to be a religious experience), and use it ritualistically.

And as you probably know, the First Amendment enshrines the right of all Americans to freely exercise whatever religion they like.

So, a Native American group that uses marijuana for religious purposes should be exempt from laws against marijuana use, right? Not exactly. The Supreme Court has long ago held that laws of general application (i.e., laws that apply to everyone) that happen to place a burden on some religious practices are generally valid, though they do still warrant some scrutiny under the Constitution.

These generally-applicable laws are typically subject to “rational basis” review, meaning the government only needs to show that the law is related to a valid government interest. And whether you agree with them or not, most courts have held that preventing illegal drug use is definitely a valid governmental interest.

The Native American group sued the DEA in federal court after it seized a FedEx box containing marijuana, with a member of the group as its intended recipient. A federal district court dismissed the case. However, the 9^th Circuit Court of Appeals just ruled that the case can continue. The appeals court is not handing the plaintiffs a victory – it’s just saying that their lawsuit should be allowed to proceed.

The court largely relied on the Religious Freedom Restoration Act, which requires federal courts to examine laws that burden religious practices under a more stringent “strict scrutiny” standard, requiring that the government prove that any law that substantially burdens religious practices be justified by a compelling government interest, and that the law is narrowly tailored to advance that interest.

The government argued that the religious group did not have a right to bring the lawsuit, because the Department of Justice had no plans to prosecute any of its members for transporting or using marijuana. In its ruling, the appeals court disagreed, holding that the threat of prosecution is not required to give the religious group standing to sue, because the government had already seized their marijuana, raising a legitimate issue over whether or not it had a right to do so.

The lower court will now have to rule on the merits of the case, deciding whether there is a constitutional and/or statutory right to use marijuana for religious purposes, laws generally prohibiting its use notwithstanding.

This is an interesting issue. Instinctively, I’m inclined to believe that there should be an exception to marijuana laws for religious use, since many different religions have used it in their rituals for thousands of years. However, this view is largely informed by my strong belief that marijuana should be decriminalized altogether.

Obviously, when the court is making its decision, the judge’s view on whether or not marijuana should be legal generally should not enter into his or her decision-making process. Of course, not being a judge, I have the luxury of letting my views on these issues be informed by whatever factors I see fit.

But taking a more detached view, I still don’t see why the First Amendment and the Religious Freedom Restoration Act wouldn’t protect the rights of people to use marijuana, or most other drugs that are otherwise illegal, for bona fide religious purposes, provided that the drugs are used in moderation, and possibly under the supervision of people who will remain sober, to ensure that the drug use poses absolutely no threat to anyone who is not directly involved in it (to make sure that nobody drives under the influence, for example). I don’t think the overall goals of anti-drug laws would be seriously impaired by carving out a narrow exception.

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