Does the prohibition of marijuana in the United States violate the First Amendment, which guarantees the free exercise of religion? For the many religions that believe that hemp is a sacred plant the answer is an unequivocal yes, but does their case bear up to scrutiny?
A great variety of religions make use of a
sacrament, that is, a substance with sacred and spiritual significance. Perhaps
most famously, Christians eat bread and drink wine as part of Holy Communion,
in which the sacraments represent respectively the body and blood of Jesus
Christ. Rituals involving sacraments, such as the Christian Eucharist, are
central practices in those religions that make use of sacramental substances.
Many religions hold hemp (that is, the cannabis
sativa plant) to be sacred. In the Japanese religion of Shinto, hemp is
used to drive out evil spirits, hemp seeds are part of the marriage ceremony,
priest’s clothes and bell ropes are made from hemp rope, and many shrines burn taima
(marijuana) five times a year as part of their ceremonies. Many Hindu’s also
consider the hemp plant (or bhang) as holy, and devotees to Shiva
sometimes meditate by imbibing a blend of hemp leaves and milk also known as bhang.
Such sadhus walk around
Although it is not widely known,
Rastafarians inherited the tradition of smoking hemp as a sacrament from Hindu
culture. After abolishing slavery, the British shipped many Indian labourers to
their sugar plantations in the
Despite the long tradition of using hemp as
a sacrament throughout the world, it remains illegal in most countries. This is
especially troubling in the
The issue of intoxicants and religious
ceremonies under US law first came to a head because of the use of the
psychotropic cactus peyote in Native American religion; rather than deeming
that this use was allowable under the Free Exercise Clause, a special law was
enacted (the Native American Religious Freedom Act of 1994 and 1996) that in
principle protects the religious use of peyote by Native Americans.
In 1989, the case of Olsen versus the Drug
Enforcement Agency tested the waters on the legality of sacramental hemp.
Rev. Carl Olsen is a priest of the Ethiopian Coptic Church of Zion, a
Rastafarian sect whose central rituals draw from the Christian Eucharist, but
replace wine with ganja, which they believe is the true Christian sacrament. Olsen
petitioned for the right to use hemp in a religious context in 1989, claiming
the protection of the Free Exercise Clause and further asserting that if the US
government granted an exception for Native American use of peyote but not for
use of hemp in the Ethiopian Zion Coptic Church’s rituals, this constituted
violation of the Establishment Clause of the First Amendment – since it meant
the US was favouring one religion over another, which was precisely what the
first half of the sentence quoted earlier was meant to prevent. The DEA refused
to grant Olsen an exception, and the courts upheld this decision, citing “the
immensity of the marijuana control problem in the United States” as a factor –
in other words, because many people smoked help illegally, but few people take peyote
illegally, there was a compelling reason to deny religious freedoms in this
The situation changed somewhat with the enacting of the Religious Freedoms Restoration Act of 1993, which reinstated what is termed “the Sherbert test” (named after Adeil Sherbert, a Seventh Day Adventist who had been involved in an employment dispute over her religious right to refuse to work on a Saturday). This test first asks courts to determine whether the individual has a claim involving a sincere religious belief, and whether government action places a substantial burden upon that person’s ability to act upon that belief. If this can be established, the government must then prove that it is acting in furtherance of a “compelling state interest” and that its actions were the least restrictive, or least burdensome, steps that could be taken.
In 1996, the US Court of Appeals for the
Ninth Circuit ruled that Rastafarian defendants should be permitted to
demonstrate that their use of hemp was for bona fide religious reasons in
defence against charges of possession of marijuana. Despite this ruling,
Rastafarians are frequently prosecuted in the
Behind this legal quagmire is a cultural bias
against the use of hemp which originates in Christian tradition, and thus
arguably represents a violation of the Establishment Clause. Alcohol in the
form of wine forms a sacrament for almost all Christian sects, and this in turn
has lead to a bias in favour of this substance over alternatives (even when
alcohol is used in a secular context as an intoxicant). In fact, during the
prohibition of the 1920s and early 1930s in the
Repeated studies demonstrate that alcohol is a more dangerous substance than marijuana; while both substances have health risks associated with them, the health risks associated with marijuana are approximately equivalent to those associated with tobacco, while alcohol is considered to be responsible for 3-4% of deaths worldwide – five times more than illegal drugs taken as a whole. A report from the World Health Organisation in 1998 originally concluded that marijuana was not only less addictive than alcohol and tobacco, it was less of a threat to public health. However, this content was cut under pressure from US organisations who claimed this would play into the hands of people campaigning to legalize marijuana. Apparently scientific data is less important than upholding prior prejudices in approaching this issue.
There is some small hope of change. In
The decriminalisation of marijuana in the
Legal scholar Douglas Laycock, writing in 1989 about the peyote test cases in the
In an important sense it is a greater violation of religious liberty to ban a ritual that is at the theological heart of a faith than to ban a peripheral celebration. But either act limits religious liberty. We should be uncomfortable with governmental bans on minor religious festivals, or with judges deciding which festivals are important enough to deserve full constitutional protection and which are not. A court that starts down that path might eventually convince itself that wine is not central to the sabbath or to the celebration of Passover, or that the use of wine is not central to communion. The government could acquire a de facto power to review theology and liturgy.
The denial of the right of religious minorities to use hemp in their religious rituals in the United States violates the free exercise clause of the First Amendment, and is thus unconstitutional. Those for whom hemp is a religious sacrament – including Rastafarians, certain Hindus and some Discordians (who cite Genesis 1:29 as evidence that God expressly permits the use of “every herb bearing seed”) are victims of unjust laws, and may have a duty of non-compliance with statutes which restrict their religious freedoms in this regard. Whatever one believes about the personal use of marijuana, no-one should be party to a legal system which persecutes religious minorities for consensual sacred rituals.