LEGAL BRIEFING - Can I smoke marijuana if it is part of my religion?

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Dear John, I have heard that there are some religions that use drugs, such as peyote and marijuana, in the observance of their beliefs. Why are religious groups able to use these substances when others cannot.

Sincerely,

Cannabis Kent



With regard to religion, the First Amendment of the US Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These words have very powerful consequences. First, they prevent the government from creating an official state religion, such as in some Middle Eastern countries or Vatican City. Second, they give freedom to everyone to freely exercise their religious beliefs.

Originally, the courts held that the First Amendment protected religious belief but not religious conduct. This allowed the courts to uphold laws banning animal sacrifice and polygamy. However, the courts hare now taking a different approach, in light of the active meaning of "exercise."

When presented with a group's claim of free exercise, the courts must determine three things. First, there must be a sincere religious belief. Generally, this determination is easy to show because courts are reluctant to question someone about the sincerity of religious beliefs. Second, the court must determine whether the law is essential to accomplish an overriding government objective. Usually, laws designed to prevent the use and distribution of drugs are found to be essential to accomplish the overriding government objective of preventing drug abuse and the crimes that are associated with the use of drugs. Finally, the court determines whether accommodating religious conduct would unduly interfere with the fulfillment of governmental interests. Determining the answer to this question is trickier.

If anyone could claim religious use of a substance, the courts fear that every user would. If this were to happen, then the courts would be put in the position of having to look more closely at the sincerity of the religious belief. Because the courts, and nearly everyone else, don't want courts to look at religious sincerity, the courts generally find that there is no undue interference. However, the Supreme Court has made limited findings that have allowed some groups to use certain drugs as sacraments. However, it is unlikely that a group will be allowed to use marijuana as a sacrament in the near future.

Regards,

John

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have a question? Ask John at askjohn@wwub.com.

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