Abstract
Beginning with state laws that criminalized marijuana’s use, and national laws that imposed taxes on transfers, the use of marijuana in the United States has long fallen under governmental control. In the 1960s and 1970s, regulation of marijuana intensified, with President Nixon going so far as to declare a “war on drugs.” Unlike peyote, which likewise experienced a lengthy history of criminalization at the local level, marijuana has been unable to find shelter from American drug laws under the First Amendment to the United States Constitution. The First Amendment broadly protects the “free exercise” of religion. This protection has been extended to Native American’s use of peyote, but courts and legislatures in the United States have steadfastly refused to extend similar protection to marijuana use—regardless of the group. Why this has happened is unclear, though the demonization of marijuana and the groups that prefer it as their sacramental drugs of choice are likely contributing factors.
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Notes
- 1.
The National government, for the most part, finds its powers in Article I of the United States Constitution. These powers include regulating commerce between the states and with foreign nations, as well as collecting taxes, creating postal roads, outfitting a navy, and raising an army. Missing is any authority to generally enact criminal law or regulate drugs. To the extent the national government has enacted criminal drug laws, it is today understood to fall under its Article I power to regulate commerce between the states (Gonzales v. Raich 2005). And under this power, the regulated drugs and criminal activities no longer have to actually cross state lines. It is enough that they, in the aggregate, somehow “affect” interstate commerce (Gonzales v. Raich 2005). The Supreme Court in Gonzales v. Raich (2005) ruled that this principle allows Congress to regulate marijuana production and consumption that is confined to a particular state.
- 2.
This is not to say that local authorities must lend helping hands. They need not. The Supreme Court has concluded that the national government cannot force local governmental officials to enforce Congress’s laws (Printz v. United States 1997). The national government’s inability to fully police the CSA throughout the United States, then, is largely a matter of limited resources. It simply does not have enough drug agents. Consequently, in a jurisdiction like California, which has relaxed its marijuana laws, users enjoy a practical right to purchase and use marijuana. This flows from California authorities’ unwillingness to enforce the CSA and the practical inability of federal agents to do so.
- 3.
United States v. Seeger (1965), and a later case, Welsh v. United States (1970), involved the statutory meaning of “religion” for purposes of conscientious objector status under the Universal Military Training and Service Act of 1948. These precedents are today accepted to mean that “religion” under the Free Exercise Clause extends beyond conventional and historical understandings of religion.
- 4.
Reynolds v. United States (1878) dealt with the Utah Territory’s prohibition of polygamy. The Supreme Court concluded that it complied with the First Amendment and did not violate the religious rights of practicing Mormons. The Court reasoned that Mormons were free to believe whatever they liked; they simply could not practice these beliefs. The Mormon Church subsequently abandoned the practice of plural marriage.
- 5.
This break was foreshadowed by Cantwell v. Connecticut (1940), which ruled that a state law barring the public distribution of religious literature without a license violated the First Amendment. Although the court’s discussion included the free exercise clause, Cantwell can be better understood today as free speech case.
- 6.
Leary was prosecuted under the Marihuana Tax Act, which was in force at the time of his arrest. The act did not completely ban marijuana importation and possession, as does the modern CSA. Rather, the Tax Act allowed the transfer and possession of marijuana so long as one complied with reporting requirements and paid applicable taxes. The Supreme Court ruled that the reporting requirements violated the Fifth Amendment’s privilege against self-incrimination (Leary v. United States 1969). (See chapter by Devin R. Lander in this volume for more information.) Reporting his transfer of marijuana to the federal government, after all, would have likely resulted in his being prosecuted under Texas law by local authorities.
- 7.
The Supreme Court’s ruling focused on whether RLIUPA violated the Establishment Clause of the First Amendment (Cutter v. Wilkinson 2005). It concluded it did not. Although the Supreme Court’s decision specifically addressed only the Establishment Clause, conventional wisdom has it that RLIUPA also survives federalism concerns, since it addresses the finite problem of religious organizations using their land (Cutter v. Wilkinson 2005).
- 8.
Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), for example, involved the criminalization in southern Florida of the Santeria practice of ritualistic animal sacrifice. The Santeria faith originated in the nineteenth century when hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba. Their traditional African religion there absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, “the way of the saints.” Although the Supreme Court of the United States overturned the ordinance, the fact that it could be passed in the first instance illustrates the antipathy many Americans show toward these “island religions.”
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Cases
Board of Education of Kiryas Joel School District v. Grumet, 512 U.S. 687 (1994).
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Carter Coal Co. v. Carter, 298 U.S. 238 (1936).
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City of Boerne v. Flores, 521 U.S. 507 (1997).
Cutter v. Wilkinson, 544 U.S. 709 (2005).
Davis v. Beason, 133 U.S. 333 (1890).
Employment Division v. Smith, 494 U.S. 872 (1990).
Gonzales v. O Centro Espírita Beneficente União do Vegetal, 564 U.S. 418 (2006).
Gonzales v. Raich, 545 U.S. 1 (2005).
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Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005).
Leary v. United States, 383 F.2d 851 (5th Cir. 1967).
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Oklevueha Native American Church, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012).
People v. Collins, 78 Cal. Rptr. 151 (App. 1969).
People v. Crawford, 328 N.Y.S.2d 747 (1973).
People v. Mitchell, 52 Cal. Rptr. 884 (App. 1966).
People v. Mullins, 123 Cal. Rptr. 201 (App. 1975).
People v. Woody, 394 P.2d 813 (Cal. 1964).
Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991).
Perez v. United States, 402 U.S. 146 (1971).
Printz v. United States, 521 U.S. 898 (1997).
Reynolds v. United States, 98 U.S. 145 (1878).
Rheuark v. State, 601 So.2d 135 (Ala. App. 1992).
Sherbert v. Verner, 374 U.S. 398 (1963).
State v. Bullard, 148 S.E.2d 565 (N.C. 1966).
State v. Big Sheep, 243 P. 1067 (Mont. 1926).
State v. Blake, 695 P.2d 336 (Haw. App. 1985).
State v. Brashear, 593 P.2d 63 (N.M. 1979).
State v. Carignan, 631 S.E.2d 892 (N.C. App. 2006).
State v. Hardesty, 214 P.3d 1004 (Ariz. 2009).
State v. Randall, 540 S.W.2d 156 (Mo. App. 1976).
State v. Whittingham, 504 P.2d 950 (Ariz. 1973).
Torcaso v. Watkins, 367 U.S. 488 (1961).
Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1979).
United States v. Ballard, 322 U.S. 78 (1944).
United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996).
United States v. Green, 889 F.2d 187 (8th Cir. 1989).
United States v. Jefferson, 175 F. Supp.2d 1123 (N.D. Ind. 2001).
United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968).
United States v. Lepp, No. 04–00317 (N.D. Cal. 2008).
United States v. Meyers, 906 F. Supp. 1494 (D. Wyo. 1995).
United States v. Middleton, 690 F.2d 820 (11th Cir. 1982).
United States v. Seeger, 380 U.S. 163 (1965).
Whitehorn v. State, 561 P.2d 539 (Okla. App. 1977).
Wisconsin v. Yoder, 406 U.S. 205 (1972).
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Brown, M.R. (2014). Marijuana and Religious Freedom in the United States. In: Labate, B., Cavnar, C. (eds) Prohibition, Religious Freedom, and Human Rights: Regulating Traditional Drug Use. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40957-8_3
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