Church's Suit Over Cannabis Use Is Burned Out

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By Bernie Pazanowski

April 13 — When a church uses peyote as its sacrament, the Religious Freedom Restoration Act won't get in the way of prosecuting its members for violating drug laws when they substitute cannabis at religious ceremonies, the U.S. Court of Appeals for the Ninth Circuit held April 6.

The prosecution isn't a substantial burden under RFRA because it doesn't coerce the members to act contrary to their religious tenets, the court said in an opinion by Judge Diarmuid F. O'Scannlain.

‘Absurd' Decision

The church's attorney, Michael A. Glenn, told Bloomberg BNA April 9 that the opinion is “absurd” and “will easily be overturned.” He explained that “RFRA was enacted to address Native American spirituality rights.”

Glenn added that the court ruled that “the complete federal prohibition of a church's traditional sacrament is not a burden at all because the church can use peyote instead.”

But, he questioned how this can be, given that other courts have found “a free exercise burden in the mere undoing of a prisoner's dreadlocks for temporary safety inspection.”

No Coercion Here

The Oklevueha Native American Church of Hawaii Inc. describes itself as a “peyotism”—it uses peyote in ceremonies to help participants create a “direct connection” with the divine. But church members also receive communion through cannabis.

When a church member was threatened with prosecution for growing his own cannabis, the church and Mooney sued, claiming a violation of RFRA. The statute suspends generally applicable federal laws that place a substantial burden on the exercise of religion.

According to the appeals court, a substantial burden exists only when individuals are coerced to act contrary to their religious beliefs by the threat of sanctions.

Nothing in the record shows that the church or its leader are being forced “to choose between obedience to their religion and criminal sanction,” the court said. The plaintiffs “have expressly told us that foregoing cannabis is not contrary to their religious beliefs,” it said. Indeed, “cannabis is simply a substitute for peyote,” it said.

Prohibiting a substance the plaintiffs “freely admit is a substitute” won't force them to act contrary to their religious beliefs, the court said.

‘Outrageous' Test Applied

While Glenn accepts the substantial burden test under RFRA, he said that the test applied in by the court here “regarding religious compulsion is outrageous.”

He said that “RFRA specifically defines the exercise of religion as any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

On the other hand, the opinion in this case “basically said because there is no requirement to use cannabis, no compulsion, then there is no burden by that sacrament being wholly prohibited.”

Aside from living in fear of arrest and seizure of their cannabis, Glenn said that church members are burdened “by the illegal status of their sacrament,” by not being able to publicize their church to obtain new members and by the possibility of civil forfeitures.

Glenn also noted, however, that the church's founder, Michael Rex “Raging Bear” Mooney, has moved to Oregon, “where every adult is free to cultivate and consume cannabis and the Feds have not arrested a soul.”

Other Churches Irked

The National Council of Native American Churches and other members of the Native American Church filed an amicus brief in the case supporting the government in which they noted that while it has over 300,000 members, neither Oklevueha nor Mooney are members.

While the brief expressed no position on Oklevueha's RFRA argument, it stressed that peyote use as a religious sacrament by American Indians is expressly protected by amendments to the American Indian Religious Freedom Ac, which doesn't apply in this case.

The brief also emphasized that “Amici organizations do not recognize, condone, or allow the religious use of marijuana, or any other substance other than peyote, in any of its religious services.”

“The Amici organizations fully reject Appellants' contention that marijuana serves a substitute for peyote in services of any Native American Church,” the brief said.

The amici added that they “are deeply concerned about Appellants' attempts to distort and manipulate the Peyote Religion for their own benefit.” They also stressed that they have “never” sought “legal protection for the religious use of marijuana,” and that “the Peyote Religion does not recognize marijuana as a religious sacrament.”

Counsel for the amici didn't respond to Bloomberg BNA's request for comment.

Judges Richard C. Tallman and Milan D. Smith Jr. joined the opinion.

Glenn, of Low Cost Legal Services, Honolulu, represented the church and Mooney. Lowell V. Sturgill of the Department of Justice, Washington, represented the government.

To contact the reporter on this story: Bernard J. Pazanowski in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at