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 India search for spiritual oneness with Shiva, and smoking charas (marijuana).
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 Caribbean, and these immigrants brought the cannabis sativa plant with them.
The Rastafarian term for hemp, ganja, is a Hindu word for the compressed
buds of the hemp plant, and the small clay pipes used to smoke it are known as chillums
(another Hindu term). Rastafarians smoke hemp communally and talk about God as
a central ritual practice.
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 United States of America, since the prohibition on the religious use of hemp clearly
violates the Free Exercise Clause of the First Amendment (the second part of
the sentence “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.”)
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
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 United States on other charges, such as importation of a controlled substance,
and in general terms the position is still upheld that the state has a
compelling interest in denying religious freedom where the use of hemp as a
sacrament is concerned.
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 United States, an exemption was granted in the case of communion wine. Christians
have never had to deal with their own sacrament being a restricted substance,
but have remained a key voice in blocking other religions from exercising their
freedoms in this regard.
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
2006, four Nevada clergymen publicly endorsed a measure that would allow for adult
Nevadans to possess small amounts of marijuana. Their motivation had nothing to
do with religious freedoms, however, but rather the admission that prohibition
against marijuana is an ineffective way of dealing with the issue. The Rev.
Paul Hansen, senior pastor from the Holy Spirit Lutheran Church in Las Vegas, said in
this regard: “On its face, our current marijuana laws appear to be moral, but
it is a cosmetic morality. Our current laws are causing virtually unfettered
access to marijuana. Marijuana is far easier to access than alcohol because
drug dealers don't card.” In effect, the clergyman were arguing that decriminalising was the best way to protect children from substance abuse.
The decriminalisation of marijuana in the Netherlands demonstrates the benefits in ceasing to prosecute the possession of
hemp (and indeed other substances) – saving the cost of enforcing prohibition
laws, and bringing practices that otherwise take place out-of-sight into public
scrutiny. Studies have shown that decriminalisation did not increase the number
of marijuana smokers in the Netherlands, and furthermore than 90% of people who had tried smoking hemp had
since quit. This is not to say that one cannot become addicted to marijuana, but the risk in this case is not significantly greater that that of becoming addicted to sugar, videogames, sex or even television shows.
Legal scholar Douglas Laycock, writing in 1989 about the peyote test cases in the US,
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.