The religious use of drugs defense

Jay Leiderman
By: Jay Leiderman
July 19 2016



Defendant is charged with cultivation and possession for sales of medical marijuana.  In addition to a medical marijuana defense, defendant wishes to offer a defense that the marijuana was for religious use. Marijuana is central to his religion and is a sacrament.


I.                   THE “RELIGIOUS USE” DEFENSE.

In some cases, where the use of drugs is for religious purposes, such religious use is a defense to a charges of drug crimes.


The United States Constitution contemplates such religious protection.  The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”  (U.S. Const., amdt. I.)  This “free exercise” clause is implicated by laws of general applicability that prohibit the religious use of drugs.

Congress has also weighed in on religious defenses to generally applicable laws.  In 1993, it passed the Religious Freedom Restoration Act (“RFRA”), which provides that government, “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it passes the strict scrutiny test.  (See 42 U.S.C. § 2000bb et seq.)

While RFRA still applies to Federal state action, it was ruled unconstitutional as applied to State law.  (see City of Boerne v. Flores (1997) 521 U.S. 507).  Thus, RFRA alone “does not trump California statutes prohibiting the sale or possession of marijuana for sale.”  (People v. Rubin (2008) 168 Cal.App.4th 1144, 1148.)

Some States instead apply the test set forth in Employment Division v. Smith (1990) 494 U.S. 872, where the strict scrutiny test was abandoned.  There, the Supreme Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”  (494 U.S. at p. 879 [quoting United States v. Lee (1982) 455 U.S. 252, 263, n. 3 (1982) [Stevens, J., concurring]].)  The central holding of Smith is that although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required.  Rather, an exemption is only required if the conduct is otherwise lawful.

California does not use the Smith test, nor does it use the RFRAInstead, it applies its own analysis based upon existing law prior to both Smith and the RFRA.

Smith v Employment Division,

religious use
Certain religions all around the world have always used drugs to commune with their gods. Such is the case with religions in the United States.


Aside from these federal laws, the States are left to determine the level of constitutional scrutiny, if any, to a claim of religious protection based upon their own laws.  A “religious use” defense was available to defendants charged with some offenses even before California voters passed the Compassionate Use Act (“CUA”), also known as Prop 215, in 1996.  And that defense survived.  The defense of religious use is still available, as long as a defendant provides adequate evidence to trigger its use.  (People v. Trippet (1997) 56 Cal.App.4th 1532, 1542.)

California courts have made winning such a “religious use” difficult, but have indeed found it to exist for certain groups, included in them are Native Americans.  Defendant is a Native American.  In Trippet, for example, the defendant’s mere assertion that she used marijuana “for spiritual and meditative needs” was not sufficient.  (Trippet, 56 Cal.App.4th at p. 1542.)  And in People v. Mitchell (1966), the court rejected the defendant’s claim that he growing and using marijuana pursuant to a religious belief.  Quoting the bible, the Mitchell defendant argued that marijuana use was “a divine right of natural inheritance.”  (Mitchell, 244 Cal.App.2d at p. 179.)  The court rejected this as his “personal philosophy,” not that of a religion.  (Id. at p. 182.)  Likewise, in People v. Collins (1969) 273 Cal.App.2d 486, 487 the court rejected a religious use defense to marijuana possession, finding that the “defendant does not worship or sanctify marijuana, but employs its hallucinogenic biochemical properties as an auxiliary to a desired capacity for communication.”

To prevail, a defendant must show that the use of marijuana must be an indispensable practice of one’s faith.  (Collins, 273 Cal.App.2d at pp. 486-488.)  Unless a defendant can conscientiously offer to prove through a detailed factual representation that his use of marijuana comes within the narrow margins of accepted religious use, he or she will be denied the ability to even raise the issue in front of a jury.  (People v. Werber (1971) 19 Cal.App.3d 598.)

a defendant must show that the use of marijuana must be an indispensable practice of one’s faith

This burden, while high, is not insurmountable.  Genuine membership in the Ethiopian Zion Coptic Church (“EZCC”), whose members are commonly called “Rastafarians,” would lead to the availability of the defense of religious use.  (See Guam v. Guerrero (9th Cir. 2002) 290 F.3d 1210, 1212-1213 [noting that “Rastafarianism is a legitimate religion” and “marijuana use is sacramental in the practice of that religion”].)  Rastafarians believe ganja—their term for marijuana—is the “tree of life” and translate Revelations 22:2 as “the herb is the healing of the nations.”

At least one California court has fully analyzed a Rastafarian religious use defense to marijuana charges.  In People v. Peck (1996) 52 Cal.App.4th 351, 356 the defendant was “president and a priest of the Israel Zion Coptic Church (“IZCC”)[,] . . . an offshoot of the Rastafarians.”  While living in Wisconsin, the defendant and other members of the IZCC were buying small quantities of marijuana for church use.  (Id.)  Typically, the members would use marijuana approximately three times a day.  (Id.)  But because buying small quantities was expensive, the defendant collected $30,000 from church members so he could travel to San Diego, purchase a large quantity of marijuana, and return to Wisconsin.  (Id.)

The court acknowledged that marijuana use was a sacrament for the IZCC.  (Peck, 52 Cal.App. 4th at p. 356, 359.)  However, its analysis recognized that the defendant “was prosecuted not for using marijuana but for transporting a large quantity of it and possessing it for sale.”  (Id. at p. 359.)  While the Peck court appeared ready to allow a religious defense for marijuana use, the activities of transportation and sales were “related peripherally, if at all, to the practice of defendant’s religion.”  (Id.; see also id. at p. 360 [“There was no indication that defendant’s own practice of his religion required him to obtain marijuana for distribution to others, especially those who were not even church members.”]; cf. also United States v. Bauer (9th Cir. 1996) 84 F.3d 1549 [holding that religious use defense under RFRA was relevant to simple possession charges, but not to distribution charges].)  As such, the religious use defense was not available to the charge of transportation.

The same protections have been long held to be available for Native Americans.  Indeed, this proposition goes all the way back to 1964.  See People v. Woody (1964) 61 Cal.2d 716.

“When the police entered the hogan and charged the participants with the use of peyote, one of the Indians handed the officers a gold-colored portrait frame containing a photostatic copy of the articles of incorporation of the Native American Church of the State of California. The articles declared: “That we as a people place explicit faith and hope and belief in the Almighty God and declare full, competent, and everlasting faith in our Church things which and by which we worship God. That we further pledge ourselves to work for unity with the sacramental use of peyote and its religious use.”” 717.  Over the years, marijuana has replaced peyote for some in these “sweat-lodge ceremonies.”  Defendant attends sweat lodge ceremonies and uses marijuana to alter his consciousness.  This is central to his sweat lodge participation and the sweat lodge ceremonies are central to his religion.  In other words, no marijuana, no sweat lodge, no sweat lodge, no religion.

“Although the prohibition against infringement of religious belief is absolute, the immunity afforded religious practices by the First Amendment is not so rigid.” 718 (citations omittied).  “An examination of the record as to the nature of peyote and its role in the religion practiced by defendants as members of the Native American Church of California compels the conclusion that the statutory prohibition most seriously infringes upon the observance of the religion.”  Id. at 720.  We are prepared to prove that marijuana is accepted by the Church and the shamans thereof as a substitute for Peyote.  Here is what the Woody court said with regards to the ceremony:

Rastafarians believe ganja—their term for marijuana—is the “tree of life” and translate Revelations 22:2 as “the herb is the healing of the nations.”

The meeting convenes in an enclosure and continues from sundown Saturday to sunrise Sunday. To give thanks for the past good fortune or find guidance for future conduct, a member will “sponsor” a meeting and supply to those who attend both the peyote and the next morning’s breakfast. The “sponsor,” usually but not always the “leader,” takes charge of the meeting; he decides the order of events and the amount of peyote to be consumed. Although the individual leader exercises an absolute control of the meeting, anthropologists report a striking uniformity of its ritual.

A meeting connotes a solemn and special occasion. Whole families attend together, although children and young women participate only by their presence. Adherents don their finest clothing, usually suits for men and fancy dresses for the women, but sometimes ceremonial Indian costumes. At the meeting the members pray, sing, and make ritual use of drum, fan, eagle bone, whistle, rattle and prayer cigarette, the symbolic emblems of their faith. The central event, of course, consists of the use of peyote in quantities sufficient to produce an hallucinatory state.

Religious Use
Under certain circumstances the religious use of drugs is lawful in both California and under the United States Federal Law

At an early but fixed stage in the ritual the members pass around a ceremonial bag of peyote buttons. Each adult may take four, the customary number, or take none. The participants chew the buttons, usually with some difficulty because of extreme bitterness; later, at a set time in the ceremony any member may ask for more peyote; occasionally a member may take as many as four more buttons. At sunrise on Sunday the ritual ends; after a brief outdoor prayer, the host and his family serve breakfast. Then the members depart. By morning the effects of the peyote disappear; the users suffer no aftereffects.


Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious. Members of the church regard peyote also as a “teacher” because it induces a feeling of brotherhood with other members; indeed, it enables the participant to experience the Deity. Finally, devotees treat peyote as a “protector.” Much as a Catholic carries his medallion, an Indian G.I. often wears around his neck a beautifully beaded pouch containing one large peyote button.

It is anathema to think that the State has any compelling interest, or even a rational basis to foreclose Defendant’s use of marijuana at a legitimate religious ceremony.  California has medical marijuana laws and has decriminalized the possession of small amounts of marijuana.  There is no rational basis to think that California has an interest in prohibiting a lawful substitute or pairing substance to peyote when practicing a bona-fide Native American religion.  The courts have been through this issue before.  The possession and cultivation for use during a religious ceremony are protected by the First Amendments “establishment clause” and Defendant requests a commensurate ruling that he is entitled too use the religious use defense for his cultivation of marijuana.



For the foregoing reasons, the court should allow Defendant to bring forth facts about his religion that prove that both peyote and marijuana are central to his bona-fide religion and are thus protected by the religious use of drugs carve out of the First Amendment.


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