Smoking marijuana is not a protected sacrament under Indiana’s Religious Freedom and Restoration Act, according to Judge Sheryl Lynch of the Marion County Circuit Court—at least, not as practiced by the First Church of Cannabis in Indianapolis. Members of that organization filed a lawsuit in 2016 challenging the state’s marijuana use prohibition.
Sober-minded observers might consider the July 6 ruling to be common sense and the case a publicity stunt by lead plaintiff Bill Levin, a longtime marijuana legalization advocate. But the case invoked a serious legal issue. Since 1993 Congress and state legislatures have passed numerous Religious Freedom Restoration Acts, known as RFRA laws, to distinguish between sincere and insincere religious practices and prevent other laws from interfering with legitimate religious activity. Judges rely on this legal standard when determining the application of a RFRA law, said Regent University School of Law professor Brad Jacob, who advocated for passage of the federal RFRA.
Levin opposed Indiana’s 2015 RFRA law, signed by then-Gov. Mike Pence, so he legally established the First Church of Cannabis, declared smoking pot a sacrament, and then, using RFRA for legal cover, dared the government to stop his congregation from lighting up.
On cue, Indianapolis police officers showed up outside the church’s first service in March 2015, and Levin sued to “redress the substantial burden Indiana governmental entities have placed upon plaintiffs’ exercise of their religion.”
In her ruling, Lynch considered Levin’s RFRA claim, weighed it against the state’s compelling interest in maintaining tight control over illegal drug use and proliferation, and then denied his request for a religious exemption. The church’s “Grand Poohbah” said he will appeal.
The courts have dealt with this issue for decades. Prior to 1990, the courts used a “very protective test,” Jacob said, under which religious believers typically won exemptions from generally applicable laws that interfered with religious practices. Then in 1990, the U.S. Supreme Court, in Oregon Employment Division v. Smith, set a new standard that limited exemptions and was much less protective of minority rights. The court rejected the free exercise claims of two Oregon men, members of the Native American Church, who were denied state benefits because they had smoked peyote, a hallucinogen. The plaintiffs said it was part of a long-established sacrament among some tribes.
Congress responded in 1993 with the first RFRA. Jacob said RFRA laws reestablish the strict scrutiny test lost in Smith: Governments must demonstrate a compelling interest in requiring compliance without exceptions, and prove the law is the least restrictive means for accomplishing its intended purpose. Religious minorities benefit most from RFRA protections.
Others have tried to exploit RFRA protections for a religious high but “the courts are usually pretty good at ferreting out the scams,” Jacob said. For example, last year, the 9th U.S. Circuit Court of Appeals upheld the drug offense convictions of Hawaii Cannabis Ministry leaders Roger and Sherryanne Christie.
Lynch noted Levin’s lackadaisical implementation of the marijuana sacrament. “Plaintiffs left unanswered where the marijuana would come from, what form of consumption it will take, where it will be stored, what safeguards will be in place to prevent children from consuming it and criminals from obtaining it,” she said.
Citing testimony from law enforcement and health experts, Lynch said Indiana’s marijuana prohibition could not be tailored “more narrowly without undermining the entire enforcement scheme.”
But Jacob thought Levin might have improved his chances if he had been more careful: “Perhaps if the church had defined its sacrament in a much narrower way, it could have been accommodated without significantly impacting law enforcement.”