Religious Liberty Claim for Marijuana Use (Iowa)

A member of the Ethiopian Zion Coptic Church was able to continue his state religious liberty lawsuit to use marijuana according to his religious beliefs. 

Carl Olsen has been fighting this cause since the 1980s. Oregon v. Smith references multiple of his cases. The dissent argued that peyote use was different. Not only does it have a special relationship to Native Americans, but its use is limited, while marijuana is open-ended and hard to control.

Such reasoning is covered in various lower court cases that have dealt with the issue over the years. One was written by then Judge Ruth Bader Ginsburg. The dissent was not convinced. It argued that the government was selectively making an exemption for peyote users.  

Somewhat ironically, the state in Oregon v. Smith (oral argument) agreed. The attorney general argued that the line drawing between marijuana and peyote was artificial. I am somewhat sympathetic, but realistically, there is a difference. The question is whether the difference is serious enough.

A lower court provided an exaggerated expression of the "threat" involved here:

Congress has demonstrated beyond doubt that it believes marihuana is an evil in American society and a serious threat to its people. It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marihuana laws would be meaningless, and enforcement impossible. The danger is too great, especially to the youth of the nation, at a time when psychedelic experience, "turn on," is the "in" thing to so many, for this court to yield to the argument that the use of marihuana for so-called religious purposes should be permitted under the Free Exercise Clause. We will not, therefore, subscribe to the dangerous doctrine that the free exercise of religion accords an unlimited freedom to violate the laws of the land relative to marihuana.

A consistent application of free exercise may make criminalization of marijuana difficult. Marijuana is used for a variety of reasons, including medicinal use. A major use is to alter consciousness in a way easily framed as religious. It does make for a reasonable argument that marijuana should not be illegal. Putting aside other reasons, too.

(Justice Tom Clark, then retired from the Supreme Court, wrote a short article in the 1970s supporting marijuana legalization, partially because he argued personal possession was reasonably defended under the right to privacy.)

"Petitioner Olsen is a member and priest of the Ethiopian Zion Coptic Church. While the church is alleged to have several thousand members in Jamaica, it has never had more than between 100 and 200 members in the United States."

If he wins a free exercise claim, that membership might grow. Regardless, even lower courts acknowledged his sincerity. He lost on compelling governmental interests.  

The compelling governmental interest in banning marijuana is far from clear. The idea is that it is an "evil," more so. 

I am wary of an open-ended application of free exercise to strike down generally applicable laws. It has resulted in bad policy, and in practice has been arbitrarily applied. We see this is respect to abortion, which is a matter of conscience. 

OTOH, the use of mind-altering drugs as a religious experience has been present since ancient times. Certain drugs are now allowed for that purpose. Why not marijuana? 

Religious claims are strongest when they involve beliefs. They are also strong when they involve ceremonies and ceremonial use. This does not mean carte blanche. Still, it is more convincing than interference with third parties in public accommodations or vaccines that harm others.  

The "evil" of personal use of marijuana is far from clear. The rejoinder might be that this will lead to other types of drug use. Yes, we currently allow peyote and hoasca. 

The concern is that next people will say the likes of heroin should be protected. We can talk libertarian here. I am willing to argue that drug laws writ large are problematic.

But, as with the usual "slippery slopes,' we can also draw some reasonable lines. Free speech has a bunch of exceptions. The "evils" of heroin and marijuana are not the same. 

We will see how Olsen's continuing saga develops.