6th Circuit Rejects Free Exercise Defense To Marijuana Charges

In United States v. Barnes, (6th Cir., Jan. 26, 2017), the U.S. 6th Circuit Court of Appeals refused to dismiss an indictment of a member of the Oklevueha Native American Church who was charged with growing large quantities of marijuana.  Defendant claimed that the 1st Amendment and RFRA allowed him to grow the plants to donate to the church. The court disagreed saying in part:

Barnes did not make an adequate showing that the CSA substantially burdened his practice of religion. Barnes admitted that growing marijuana and donating it to the church is not required by his religion.... [W]hile marijuana is considered a medicine of the church, it is not an essential sacrament of the faith.... Peyote, by contrast, is the only “sacrament” of the church. Barnes did not provide any historical evidence that the manufacturing of marijuana is central to the ONAC religion specifically, or to Native American religion in general.

... [M]anufacturing marijuana and intending to donate it to the Toledo church was a "personal belief" and a choice that he made, not one that was critical to practicing the ONAC faith. While Barnes is correct that it is not the place of the court to decide the "centrality of . . . beliefs to canonical texts," that does not prevent this court from determining whether a particular practice is required by a religion as a part of the substantial-burden analysis.... 

9th Circuit Rejects RFRA Defense Raised By Hawaii Cannabis Ministers

In United States v. Christie, (9th Cir., June 14, 2016), the U.S. 9th Circuit Court of Appeals upheld the convictions of the founder of the Hawaii Cannabis Ministry and his wife on charges of conspiracy to manufacture and distribute marijuana.  The court rejected defendants' claim that their convictions violate their rights under the Religious Freedom Restoration Act.  The court held that the government had a compelling interest in mitigating the risk that cannabis from the Ministry would be diverted to recreational users, and that the government achieved that compelling interest in the least restrictive manner. The court said in part:

there is specific evidence that the Ministry’s distribution methods created a realistic possibility that cannabis intended for members of the Ministry would be distributed instead to outsiders who were merely feigning membership in the Ministry and adherence to its religious tenets. Additionally, the government’s interest in this case is all the more compelling given the Ministry’s well-publicized willingness to extend membership in the Ministry (with all that that entails) to minors.

Courthouse News Service reports on the decision.

Rastafarian Minister Loses Fight To Solicit Ballot Signatures At Revenue Office

In Brown v. Arkansas Department of Finance & Administration, (WD AR, April 8, 2016), an Arkansas federal district court dismissed an action by Rev. Tom Brown, a Rastafarian minister, challenging a recent no-solicitation policy imposed by the state at certain Revenue Offices. For over a year Brown had stationed himself at a table on the lawn of the Fayetteville Revenue Office seeking signatures for a ballot initiative on the Arkansas Medical Cannabis Act.  A number of patrons had filed police reports complaining of Brown's behavior. The court held that the solicitation ban is a reasonable restriction on speech in a non-public forum, saying in part:

As the ban is reasonably designed to promote the normal business activities of the State’s revenue offices and is viewpoint-neutral, the Court finds that the ban does not violate Rev. Brown’s constitutional rights. The ban does not prevent Rev. Brown from canvassing in other public forums, such as on city sidewalks, in plazas, or in parks. Similarly, Rev. Brown is still free to express to others his ideas about marijuana use, his religious faith, and the benefits of signing the ballot initiative he supports. 

9th Circuit: Denial of Exemption For Use of Cannabis Does Not Impose Substantial Burden On Religious Exercise

In Oklevueha Native American Church of Hawaii v. Lynch, (9th Cir., April 6, 2016), the U.S. 9th Circuit Court of Appeals held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. Under RFRA, denial of an exemption does not impose a "substantial burden" on plaintiffs' exercise of religion because the primary sacrament of the church is peyote.  Plaintiffs consume cannabis only as a substitute. They do not claim that peyote is unavailable or that cannabis serves a unique religious function.

Church of Cannabis Leader Sues Former Police Chief For Defamation

According to a report yesterday from WKYC News, in Indianapolis, Indiana, the founder of the First Church of Cannabis has filed a defamation against the city's former police chief Rick Hite.  At a police news conference shortly before the church's inaugural service, the police chief warned that anyone smoking marijuana at the church would be prosecuted.  Referring to the Church's leader Bill Levin, the police chief said: "As Jim Jones once did within our state, he led a group of people into a place of no return. We don't want that to happen again in this state."

Suit Seeks To Bring Marijuana Under American Indian Religious Freedom Act

Courthouse News Service reported this week that Oklevueha Native American Church leaders James "Flaming Eagle" Mooney and Joy Graves filed suit in an Oregon federal district court on January 15 against the federal government and the U.S. Postal Service.  The suit claims that federal authorities illegally seized 5 ounces of sacramental marijuana mailed to a church member in Ohio last December. Plaintiffs claim that their use of marijuana is protected by the American Indian Religious Freedom Act.  National leaders of the Native American Church do not recognize the Oklevueha branch, nor do they agree with its claims that marijuana (as opposed to peyote) has sacramental use.  In 2013, a Hawaii federal district court rejected a claim under RFRA by Mooney. (See prior posting.) That decision is on appeal.

Court Rejects Free Exercise Defense In Marijuana Case

MLive reports that Branden James Barnes, who claims to be a medicine man for the Oklevueha Native American Church (ONAC), pleaded guilty on Tuesday in a Michigan federal district court to charges of manufacturing more than 50 marijuana plants.  The plea came after the court rejected arguments by Barnes' attorney that his marijuana production is protected by the 1st Amendment and RFRA. It was contended that in the ONAC, ritual use of marijuana provides a spiritual experience and healing.  Barnes attorney had argued that the changing attitudes toward marijuana, and its legalization in some states, undercuts prior holdings that the state has a compelling interest in regulating the drug. According to the government, ONAC is a scam-- providing a membership card for $200 which it represents allows the holder to freely possess and use controlled substances. The court also rejected Barnes' attempt to file his own appeal separate from the pleadings filed by his attorney. He argued that his attorney had failed to educate herself about ONAC.

Marijuana Possession Conviction of Rastafarian Does Not Violate Free Exercise Clause

In State of New Jersey v. Forchion, (NJ App., Aug. 7, 2015), the New Jersey Superior Court Appellate Division in an appeal of a conviction for possessing marijuana rejected a claim by a Rastafarian that his First Amendment free exercise rights are infringed by criminalizing the possession of cannabis which is a sacrament used in his faith.  The court held that the statute is neutral and generally applicable, and "the fact that marijuana may be medically prescribed for some New Jersey citizens does not create a secular exemption that triggers strict scrutiny analysis."

Cannabis Church Sues Under Indiana's New RFRA

In a move foreshadowed two months ago (see prior posting), in Indiana the First Church of Cannabis has filed suit invoking the state's recently-enacted RFRA in an attempt to shield the Church, its founder and two of its members from prosecution for possession of marijuana.  The complaint (full text) in First Church of Cannabis, Inc. v. State of Indiana, (IN Cir. Ct., filed 7/8/2015), alleges that cannabis is the sacrament of the Church, and laws punishing possession of marijuana and visiting a place where marijuana is used substantially burden plaintiffs' exercise of religion. The Indianapolis Star reports that more than 100 people attended the Church's second service yesterday evening, but because of prosecution threats it is not using cannabis at its services until it is successful in its lawsuit. According to WTHR News, Marion County Prosecutor Terry Curry complained:

Our office and police agencies have serious public safety issues we have to address every single day. I am beyond frustrated that we are having to devote valuable time and resources to this matter solely because of an ill-advised and unnecessary law enacted by our legislature, The act serves no purpose, no purpose whatsoever, other than political posturing.

Cannabis Advocate Will Be First To Test Indiana's RFRA

Indiana's controversial Religious Freedom Restoration Act goes into effect on July 1.  Bill Levin, a life-long advocate of legalizing marijuana, says he will be the first to test the law by holding the initial service of his newly created First Church of Cannabis that day.  WTHR News reported yesterday that Levin is looking for space to rent for holding the service, which he expects will attract 1000 people. Levin says: "We'll say a short prayer and go 'poof',"

Free Exercise Challenge To Marijuana Seizure Rejected

In Jenkins v. Micks, (ND CA, Feb. 5, 2014), a California federal magistrate judge dismissed a civil rights action alleging that plaintiff's free exercise rights were infringed when Del Norte, California sheriff's officers seized marijuana allegedly authorized for medical use.  The court said:

Plaintiff provides a discussion of the use of cannabis by different cultures and religions, including the Native American Church. He states that he believes that for him, "Cannabis enhances the truth of the universe," that this plant is a "beneficial and life sustaining herb," and that "by consuming Cannabis [he] is communing with nature."... He also expresses his views regarding the regulation of Cannabis by governmental entities, and some of his political and religious beliefs. No where, however, does Plaintiff allege that he has a central religious belief or practice that is burdened by the criminalization of marijuana. The court finds, therefore, that Plaintiff has failed to state a free exercise of religion claim under the First Amendment.