MN NORML Message Board › Legal Research on Religious Use of Cannabis Argument

Legal Research on Religious Use of Cannabis Argument

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Kurtis W. H.
KurtisWHanna
Minneapolis, MN
Rastafarians, Gnostics, and Other Religious Users of Cannabis Unite! We are going to be meeting tomorrow at 11AM to talk about our plan to send to the Minnesota Board of Pharmacy a rule making petition regarding the religious use of Cannabis in Minnesota. Even if you aren't a religious user, you are free to come and offer advice on how to proceed. I included a bunch of legal research to help explain what exactly we are doing. I ran this information through a computer and it said that the odds of success were 87.932%, so I think that we should probably get on this soon.

We are meeting at:
Diamond's Cafe
1618 Central Ave NE
Minneapolis, MN 55413
(612) 789-5282
http://meetu.ps/4s7j...­

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"Minnesota Bill of Rights Sec. 16. FREEDOM OF CONSCIENCE; NO PREFERENCE TO BE GIVEN TO ANY RELIGIOUS ESTABLISHMENT OR MODE OF WORSHIP. The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries."

http://www.house.leg....­

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The DEA has a form that you can fill out to apply for religious exemption from the Federal Controlled Substances Act. http://www.deadiversi...­ At the bottom, they say that you must apply for religious exemption from the State CSA separately. We are going to ask the Minnesota Board of Pharmacy how to do that in Minnesota.

If you read the Federal Controlled Substance Act, you'll find that it explicitly says that State Laws trump Federal Laws, so the Minnesota BOP should be the FIRST people to be asked about this matter, not the DEA. The buck stops at the MN Board of Pharmacy!

"In enacting the CSA, Congress made it clear it did *not* intend to preempt the states on the' issue of drug regulation. Indeed, "[t]he CSA explicitly contemplates a role for the States in regulating controlled substances...." Gonzales v. Oregon
http://scholar.google...­
"Title 21 USC - Controlled Substance Act
Section 903. Application of State law

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."

http://www.deadiversi...­
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All signs point towards the Minnesota Board of Pharmacy as being the ones that should be in charge of handling religious exemptions to the CSA in the state of MN. The Oregon BOP seemed to think that they had the authority to do such a thing (look at the letters below).

In short, if the Minnesota Board of Pharmacy responds to our petition asking for religious exemption from the State CSA by saying that they won't allow Rastafarians to use Cannabis for their sacrament, we are going to sue the state and make a state equal protections claim based on the Minnesota Constitution. The Government can't give an exemption to one religion that it doesn't give to another. If the American Indian Church can use Peyote, which is a Schedule I drug as their sacrament, then the Twin Cities Cannabis Church, which is Rastafarian, should be able to use Cannabis as their sacrament, which is a Schedule I drug in the same way. When I asked the Executive Director of the Board of Pharmacy what the restrictions were for members of the American Indian Church in their use of Peyote, he said that there were no restrictions. So, we too ask that there be ZERO restrictions on us as well.

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152.02 SCHEDULES OF CONTROLLED SUBSTANCES; ADMINISTRATION OF CHAPTER.
Subd. 2. Schedule I.

The following items are listed in Schedule I:
....(4) Peyote, providing the listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the American Indian Church, and members of the American Indian Church are exempt from registration. Any person who manufactures peyote for or distributes peyote to the American Indian Church, however, is required to obtain federal registration annually and to comply with all other requirements of law.

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When Minnesota Constitution Article I, section 16 is claimed in court, the court has to balance these four prongs:

“1. Whether the objector’s belief is sincerely held;
2. Whether the state regulation burdens the exercise of religious beliefs;
3. Whether the state interest in the regulation is overriding or compelling; and
4. Whether the state regulation uses the least restrictive means.”

http://www.wmitchell....­ (<-------- Great resource for how the Bill of Rights plays out in Minnesota case law.)

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On the first prong, someone has already tried this whole argument out in Minnesota and lost the case because she failed the sincerity test.

"As the Meyers court noted: "[t]hough the [marijuana] plant apparently has cured Meyers' manic depression and keeps him calm, this therapeutic effect is not religious. The marijuana plant does not provide Meyers with the comprehensive inspiration or guidance that the godheads of other religions provide to their followers." Meyers, 906 F.Supp. at 1506. The same is true for appellant here. In like fashion, the marijuana plant provides appellant with significant relief from her illness, but this therapeutic effect is not religious. Thus, we conclude that appellant's medicinal use of marijuana is not a sincerely held religious belief." State v. Pedersen, 679 NW 2d 368 - Minn: Court of Appeals 2004

There is more of this case quoted below. A judge has already declared that a Rastafarian in Minnesota has a sincerely held belief system and that cannabis is an integral part of that belief system.

http://scholar.google...­

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On the second prong, it'd be easy to prove that a Rasta's belief system is infringed upon by the CSA. Here's how one person did it in the past...

"The joint stipulation provides that Rastifarians emphasize the use of marijuana as a means of bringing the believer closer to the divinity and enhancing unity among the believers. Marijuana thus acts as a sacrament for the Rastafarians.

In Bauer, the Ninth Circuit impliedly found that prohibition of this sacrament was a substantial burden when it held that the prosecution of a Rastifarian for the personal possession and use of marijuana gives rise to a valid, religious-exercise defense under the RFRA. Bauer, 84 F.3d at 1559.

The terms of Mr. Vairey's supervised release, which require him to refrain from using marijuana, places substantial pressure on him to modify his 'behavior in violation of his beliefs as a Rastafarian. Thus, a substantial burdening of Mr. Vairey's free exercise of Rastafarianism has occurred."

http://www.ethiopianz...­

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On the third prong, the state must show that it has a compelling state interesting in preventing Rastas from using cannabis. I like this because it puts the burden of proof on the state. In a recent case involving a Rasta in Minnesota, the prosecution didn't bring forth any state interest at all, so the Judge allowed the individual to possess and use cannabis, even while on probation! Let's get the Board to recognize the case and solidify the Judge's findings in our Statutes!

"To excuse an imposition on religious freedom under the Minnesota Constitution, the government's interest must be one of peace or safety or an interest against an act of licentiousness." Murphy v. Murphy, 574 N.W.2d 77, 81 (Minn.App.1998).

"Only religious practices that are licentious or inconsistent with peace or safety are denied an exemption." Id. (citing State by Cooper v. French, 460 N.W.2d 2, 9 (Minn.1990)).

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On the fourth prong—when burdening sincerely held religious beliefs is found to be the least restrictive way to satisfy the government interest—the court of appeals encourages government to at least try some other step before undertaking the potentially infringing activity.

This means that even if the court finds that the state has a burden of proof in preventing people from smoking cannabis as their sacrament, they must try to find the "least restrictive" way of infringing on those rights!!

Check out this quote from US v. Valrey
http://www.firstchurc...­

"Consequently, the government has the burden to prove that restricting
defendant's use of marijuana during supervised release (1) furthers a
compelling government interest and (2) 'is the least restrictive means of
furthering that interest. 42 U.S.C. § 2000bb-1(b). The government argues
that because of the correlation between drug use and criminal behavior, the
Court is required by 18 U.S.C. § 3583 to order prohibition of any drug use
as a condition of supervised release. See *United States v. Blackston*, 940
F.2d 877, 886 n. 12 (3rd Cir. 199 1). However, 18 U.S.C. § 3583 is a law of
general applicability and was not intended to discriminate against or
inhibit a religious practice. See 42 U.S.C § 2000bb-1(a); *Bauer*, 84 F.3d
at 1557-59. The government also argues that this requirement, combined with
the ultimate goal of rehabilitating Mr. Valrey, demonstrates a compelling
interest in burdening Mr. Vairey's free exercise of his religion by
prohibiting him from using controlled substances. However, the government
has offered no proof that Mr. Vairey himself is in danger of recidivism as a
result of his marijuana use. A contrary argument can even be made' that the
devout practice of his religion in conjunction with the other terms of
supervised release may help ensure Mr. Vairey's rehabilitation. Therefore,
the government has not met its statutorily required burden of evidence and
persuasion regarding the "compelling interest" prong of the test.

The government has offered no arguments regarding the "least restrictive
means" prong of the test. In contrast, Mr. Vairey argues that five factors
will accomplish a less restrictive means of furthering the government's
interest. These five factors are: (1) continued self-reporting of marijuana
use, (2) regular urine-testing for other controlled substances, (3) monthly
reporting, (4) periodic criminal history checks, and (5) compliance with all
of the other incidents of supervision. Mr. Vairey argues that these factors
are fully adequate to ensure that he is not using any other controlled
substances and is achieving the goals of the supervised release. Because the
government bears the burden as to this issue but 'declined to address this
second prong, the Court finds that Mr. Valrey's suggested factors will
accomplish a less restrictive means of furthering the government's
rehabilitative interest without burdening Mr. Valrey's exercise of his
religion."

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In State v. Pedersen, (679 NW 2d 368 - Minn: Court of Appeals 2004) it was decided that Pedersen failed the first prong of the test, so the other prongs didn't have to be looked at. The court seems to say that if she had a sincere belief, she would have been able to smoke the ganja in some way.

http://scholar.google...­

"Because we conclude that appellant did not have a sincerely held religious belief in the medicinal use of marijuana, we need not reach respondent's argument that the government has a compelling public safety interest sufficient to defeat appellant's claim. We take this opportunity to note, however, that the state's sole reliance on the legislature's enactment of statutes prohibiting the possession of marijuana to defeat a claim under article I, section 16, is plainly inadequate under Hershberger. Although the state obviously has a compelling public safety interest in enforcing the controlled substance laws, the state failed to provide any evidence that its compelling interest in public safety could not be achieved by less restrictive means."

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"In short, we interpret the Minnesota Constitution as requiring a more stringent burden on the state; it grants far more protection of religious freedom than the broad language of the United States Constitution." - Minnesota Supreme Court in State By Cooper v. French

http://scholar.google...­

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(These are letters sent from the OR Board of Pharmacy to the leaders of the Santo Daime church in response to their request that the Board recognize their rights to use a tea that contains DMT as their sacrament. Not only did the Oregon Board allow them to use the tea, but they even said that they had no authority over the church on how much they import, possess, or use.)

November 8, 2000

Dear Mr. Haber,

The Oregon Board of Pharmacy has received the information provided to supplement your appearance before the Board at its November 8,2000 meeting in Portland.

After review and discussion of this material, and having heard your presentation on November 8, it seems apparent to the Board that the sacramental use of the Santo Daime tea in the context of a bona fide religious ceremony by practitioners of the Santo Daime religion as described does not constitute abuse of a controlled substance.

Sincerely,
Garv A. Schnabel, RPh, RN Executive Director



November 22, 2000

Dear Mr. Haber,

This is in response to your letter of November 22,2000 to the Oregon Board of Pharmacy indicating your clients' desire and willingness to register with the Board and to comply with any regulatory requirements to which they may be subject While the Board does not possess authority to state whether any church can practice its religion in Oregon, the Board did state in its November 8,2000 letter to you that it does not consider sacramental use of the Santo Daime Tea in the Churches religious ceremonies to constitute abuse of a controlled substance.

Board staff and counsel have discussed the issues raised in your letter regarding the registration of the Church and compliance with regulatory requirements. The Board is involved in the regulation of the sale and distribution of drugs in Oregon and the investigation of allegations of drug abuse. Since the Church is neither a drug outlet nor, as indicated by the opinion of the Board, involved in the abuse of a controlled substance, the Board has no authority to require registration or compliance with any Oregon pharmacy regulations.

In summary, I would say you can inform your clients that the Oregon Board of Pharmacy neither possesses nor plans to exercise regulatory authority with regard to the religious practices of the Santo Daime Church in Oregon.

Sincerely,
Garv A. Schnabel, RPh, RN Executive Director

http://www.bialabate....­ (page 63, 64) <--- This document contains a report that lays out the whole situation with the Oregon Board. Good read.
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