Ruling: No religious right to marijuana
PHOENIX — There is no religious right in Arizona to possess marijuana, the state Court of Appeals ruled Thursday, saying freedom of religion is not the same as freedom of action.
The judges rejected arguments that the First Amendment protections of free exercise of religion entitle an Arizona resident, Daniel Hardesty, to use marijuana as a “sacrament” of his church.
They said the state has the power to totally ban possession of the drug because of its known harmful nature.
But the judges left the door open to considering future arguments about the religious freedom to use marijuana.
They said, however, a defendant would have to prove that the drug is not as dangerous as the government suggests, something that did not occur here.
An appeal to the state Supreme Court is likely.
Hardesty was arrested in 2005 after being stopped by police while driving in Yavapai County. At trial, Hardesty testified he had been a practicing member of the Church of Cognizance since 1993. A church official said the religion, founded in 1991, is based on “neo-Zoroastrian tenets” and marijuana provides a connection to the divine mind and spiritual enlightenment.
Prosecutors never challenged the status of the church but persuaded the trial judge to exclude the religious-freedom claim. Hardesty was convicted and placed on probation for 18 months.
But Yavapai County Superior Court Judge Thomas Lindberg said then that Hardesty’s claim of religious use of marijuana was not made “in bad faith,” and that it was something Hardesty was “sincerely professing at the time.”
Appellate Judge Sheldon Weisberg said the First Amendment encompasses two protections: the right to believe and the right to perform or abstain from certain acts for religious reasons. But the judge said though the first is absolute, the second is not.
In particular, Weisberg said, the state is free to enact certain restrictions on conduct so long as they are “neutral laws of general applicability.” The state’s ban on marijuana, he said, fits that definition.
The appellate court also brushed aside Hardesty’s claim that his actions are separately protected by provisions in Arizona law. Those say government can “substantially burden” an individual’s exercise of religion only if it is both in furtherance of “a compelling governmental interest” and is done by the “least restrictive means.”
Here, Weisberg said, the Legislature expressed its interests by banning outright the possession and use of marijuana.
“This statute does not provide any religious exemptions nor does it contemplate an exemption for the use of marijuana that would be consistent with public health and safety,” the judge wrote for the unanimous court. “By imposing a total ban, the Legislature has deemed that the use and possession of marijuana always pose a risk to public health and welfare.”
And Weisberg said the courts are not in a position to second-guess that decision.
But attorney Daniel DeRienzo, who represents Hardesty, criticized the position of prosecutors that allowing church members to use marijuana would result in serious harm.
He called that “the Reefer Madness argument,” referring to a 1936 propaganda film that claimed high schoolers lured into marijuana use engaged in manslaughter, suicide and rape, and descended into madness.
Weisberg acknowledged that Arizona courts have allowed the possession of peyote for religious use by the Native American Church.
But he said prosecutors in that case never showed that peyote was addictive or being used in quantities harmful to the health of the participants.
Anyway, the judge added, the long and continuous use of peyote by a “discrete and well- defined group” makes it different from drug-use claims by other religions.
In this case in particular, the judges said the tenets of this church make its potential use more widespread than just at discrete religious services.
They noted the church is organized into individual “monasteries” with no dedicated house of worship, and each monastery is free to establish its own worship times.
Aug. 1, 2008