An Arizona man’s claim that he was smoking marijuana as part of his religious beliefs is heading to the Arizona Supreme Court. Danny Ray Hardesty is a member of the Church of Cognizance – a group that believes that smoking shpata is a tool to reach a state of enlightenment.
The trial court and the AZ court of appeals denied Hardesty’s claim, holding that he has complete freedom of conscience, but the First Amendment does not give one the right to break the law and claim religious reasons for doing so.
[T]he Free Exercise Clause of the First Amendment does not afford Defendant an exemption from these laws, even if they have the incidental effect of burdening his religious practices. Smith, 494 U.S. at 874, 890; see also Church of the Lukumi Babalu Aye, 508 U.S. at 531 (acknowledging “general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice”). (Op. at 12)
However, there is some precedent in Arizona, which should apply to Mr. Hardesty’s situation, although the Arizona Court of Appeals disagreed. In State v. Whittingham, 504 P.2d 950 (Ariz. Ct. App. 1973), the Arizona Court of Appeals allowed Native Americans to use peyote in their religious practices. However, in Mr. Hardesty’s case, the Court of Appeals distinguished Whittingham.
[In Whittingham] we determined that the State had not proven that peyote was addictive or that the quantities used were “sufficiently harmful to the health and welfare of the participants so as to permit a legitimate intrusion under the State’s police power.” Id. at 30, 504 P.2d at 953. We held that peyote’s use, as a part of a bona fide religious belief and “in a manner not dangerous to the public health, safety or morals,” id. at 31, 504 P.2d at 954, was a defense to prosecution that required reversal of the convictions. Id. at 32, 504 P.2d at 955. (Op. at 25)
The court also differentiated between peyote and marijuana by noting that there was a long history of Native American consumption of peyote, and Native Americans are a “discrete and well-defined group.”
Accordingly, the Ariz. Ct. of Appeals held that “the historically limited religious exception for peyote cannot be used to justify a similar exception for the use of marijuana.”
However, the Court left the door open to Mr. Hardesty or a similarly-situated defendant bringing a stronger religious challenge to the application of the state’s marijuana possession laws. The Court’s opinion relied upon what it deemed to be overwhelming precedent showing the nearly universal acceptance of the myth that marijuana is a harmful and addictive substance. However, it seemed to hint that it was bound by this long-standing precedent, but open minded to good evidence that could persuade it to set that aside.
[A] defendant may successfully assert a religious freedom defense if he can present independent evidence that negates existing authority. Also, in areas in which case law and legislative history are not so well developed, the State must introduce evidence to support a restriction of a religious practice. Here, however, precedent is overwhelming, and Defendant has failed to proffer any evidence to counter that precedent establishing the dangers of marijuana.
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January 12, 2009 at 4:06 pm |
I imagine there is less scientific data on DMT, the active ingredient in hoasca tea, used by a small group of immigrants from Brazil, but it didn’t stop SCOTUS from finding the group had a right to drink it as part of religious ceremonies. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).