Hemp: The Illegal Sacrament

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 case. 

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 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, observed:

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.

Comments

[Trevel]

"Apparently scientific data is less important than upholding prior prejudices in approaching this issue"

Well, duh. Science is overridden by Everybody Knows all the time, sometimes with good reasons and sometimes without.

Then people wonder how groups can completely ignore scientific findings -- well, gee, how can we tell the scientific findings from the "scientifically supported" prejudices?

[zenBen]

"how can we tell the scientific findings from the "scientifically supported" prejudices?"

We can take the time to educate ourselves on the matter.

I will say this - the Netherlands is a singular country, with a majority population of entrenched middle class conservatives and a much more visible liberal minority centred around its port cities. It has been this way for hundreds of years, its a very stable society.
I don't want to draw grand conclusions (like maybe that negative effects of decriminalisation are held in check by strong opposing social forces extant outside the major ports) - but I will say Holland is not a model for the rest of the world.

One minor problem with decriminalisation of marijuana in the political arena - voter apathy :D

[Chris]

Trevel: you're absolutely right, of course. And, for that matter, scientific evidence still requires interpretation, so I really shouldn't behave as if it will stand alone.

zenBen: while you are doubtless correct that other nations would not follow the pattern of the Netherlands, not one of the countries that I know of with legal or decriminalised hemp has any serious problems relating to this. Compare the US, where a vast number of (mostly black) people are in jail at taxpayer expense for trading in something which isn't quite as dangerous as the legal drugs. It beggars the mind.

Thanks for the comments!

[TT]

Can't back you on this one Chris. The "religious freedom" argument is a slippery slope if ever there was one. There are simply too many wackos out there who will do too many insane things in the name of religion to start enacting new laws or overturning long standing ones based on the idea that it inhibits traditional religious practice. Stoning women for adultery, female circumcision, polygamy, all time-tested religious practices that are detrimental to society and dangerous to too large a segment of the population to allow, even if it comes at the cost of religious freedom. Where does one draw the line? Granted, many of these practices have developed as a result of the religion's melding with even older societal mores and not necessarily inherent in the religion itself. Nonetheless, it is all but impossible to keep from tossing the baby out with the bath water in cases of separating positive religious ideals with the perversions of the society's interpretation of those ideals.

All that being said, I don't have a problem with the legalization of marijuana as a general rule. As we have discussed, I find many other substances (some of them quite legal) to be much scarier. However, religious freedom is not the route I would choose for defending it. All of the other arguments (taxing it, regulating it, etc.) are more solid and make for a less dangerous precedent.

[Chris]

TT: "There are simply too many wackos out there who will do too many insane things in the name of religion to start enacting new laws or overturning long standing ones based on the idea that it inhibits traditional religious practice."

Indeed. Which is why you should just stick to the rather excellent law the US already has in the form of the Free Exercise Clause. I'm not asking for a new law - I'm just observing that the prohibition on the use of marijuana in consensual religious ritual is unconstitutional, a finding that has already been upheld in the US courts.

As for your specific side issues:

> Stoning women for adultery

Not consensual, nor a religious ritual. This is a legal practice, albeit an abhorrent one. The Free Exercise Clause does not and could not permit this.

I also want to note that although stoning for adultery was at one time or another practised by both Jews and Muslims, neither the Jewish Bible nor the Quran specify stoning as a punishment (Mohammed calls it "shameful" but that's as far as his criticism goes in the Quran). The former culture has moved away from it, and the latter is gradually moving away from it, but it takes time for cultures to develop and it's difficult if not impossible to rush it.

> female circumcision

The West's view of female circumcision is extremely skewed. Africans have a right to their own cultural practices, and it is not our place to judge them by our standards (although, to be fair, I do judge the US harshly for enforcing medical male circumcision which I consider to be a despicable practice outside of its legitimate religious context). I'd encourage you to look into this issue further, although it is an ethical minefield.

>polygamy

Not a sacred ritual, per se, but consensual. I think this is fair game under the Free Exercise Clause, as with any form of polyamory, and I'm quite shocked that you have a problem with it. Do you have something against Mormons? ;)

You believe all three of these practices are "detrimental to society" - well, I'm not going to defend the hideous practice of stoning adulterers, but the other two seem like perfectly fair game to me. I know people in polyamorous relationships, and it works for them. What business does the government have telling them otherwise?

"All of the other arguments (taxing it, regulating it, etc.) are more solid and make for a less dangerous precedent."

But you see, the precedent has already been set - marijuana is a protected sacrament under the Free Exercise clause; the courts have already ruled on this.

Plus, I do not necessarily favour legalisation and taxation of marijuana. This would almost inevitably put the money from this trade into the pockets of corporations - I don't want to see this. I want to see marijuana farming and distribution decriminalised, but I'm not keen to open the door for corporate control of marijuana.

The only legalisation I might support would be one that gave exclusive distribution rights to Black communities (in a manner similar to the rights of Native Americans to run casinos), but I still prefer decriminalisation in general.

And I don't see it as a "dangerous precedent" to protect free exercise of religion under the First Amendment - I feel it's absolutely vital.

Thanks for sharing your views here! And I apologise for your problems posting this comment - I don't know why the spam filters wouldn't take it, but I managed to get it posted for you all the same.

Best wishes!

[Post script: I couldn't post this reply either! I'll complain to TypePad].

[TT]

>Stoning - Not consensual, nor a religious ritual.

I have a feeling that your view of it as not a religious ritual and the feelings of those carrying out the event might differ. One of those instances of having a difficult time separating the culture from the religion, especially for the practitioners.

> female circumcision - The West's view of female circumcision is extremely skewed. Africans have a right to their own cultural practices.

In addition to being icky, cruel, and highly discriminatory, breaks your rule of being consensual. No way a pre-teen girl can consent to this. Even if she does, why is she, but for the weight of hundreds of years of oppression? So, from what I can tell of what you suggest, it is bad to kill a woman due to the nature of her sexuality, but mutilation is okay?

>polygamy - Not a sacred ritual, per se, but consensual.

I think we both know that polygamy and polyamory are not necessarily the same animal. The practice of polygamy as a religious ritual is inherently prejudicial against women. Why? Because it is the men who are calling all of the shots. 12 year old girls, according to most state laws, cannot consent to marriage and certainly not to sex. If they give their assent, it is, again, in the face of overwhelming cultural pressure from a sexist institution. As for Mormons, all of the ones I know are delightful, but I'm happy they locked up the yahoo who was telling kids to have sex with grandpas or they would go to hell.

Yes, I believe that anything that serves to deny women an equal place in the world is detrimental to society. I cannot accept that we should smile and say, "Those wacky Saudis, don't you just love they way they express their culture," when they have just sentenced a woman to years in jail for daring to speak in public. It's wrong, and we should say it's wrong. As for the legalization of mary jane issue, I stand by my belief that it is a "dangerous precedent" to legalize a practice that is not broadly accepted as benign (regardless of whether or not it is actually harmless) in the name of religion. It opens too many doors that the minorities and oppressed of the US have been working too hard to keep shut. Again, I'm not saying that legalizing marijuana is a bad idea. Just think that using religion to do it is both unnecessary and risky.
TT

[Chris]

TT: Thanks for the discussion on this issue! I'll try to reign in the tangents...

"Stoning - Not consensual, nor a religious ritual. I have a feeling that your view of it as not a religious ritual and the
feelings of those carrying out the event might differ."

I should have used "sacred" instead of "religious" in that sentence. Honour killings of any kind are not sacred rites, and I don't believe that anyone would confuse them as such - Muslims can tell the difference between Sharia law and ibadah (worship), even though both are religiously motivated. Or to put it another way, religiously motivated violence is not a sacred ritual in the sense we were talking about (sacraments).

"In addition to being icky, cruel, and highly discriminatory, breaks your rule of being consensual. No way a pre-teen girl can consent to this."

It's not my rule, per se, merely a word I chose to use in the final sentence to emphasise the barbarism of this particular persecution in that the behaviour it prohibits is both consensual and sacred.

What's your defence of the circumcision of boys in the US, by the way? You say female circumcision is discriminatory, but why not male circumcision? It appals me, but I accept that this is part of US culture and I have no right to enforce my values on an alien culture. (And to anyone who wants to claim "health benefits" - I accept the US believes this, but parents are capable of teaching children to clean under their foreskins; I assure you the rest of the world has no problem with this).

I am not an expert of African culture, but from what I have read most female circumcision is consensual; it's a rite of passage for the tribe. There are many kinds of "mutilation" used by tribes as rites of passage; it would be discriminatory to take action to prevent tribes from pursuing their own tribal rites as far as I'm concerned. How it seems to us through our value system is completely irrelevant, especially through the eyes of the law which tests such matters relative to the local cultural standards.

"The practice of polygamy as a religious ritual is inherently prejudicial against women. Why? Because it is the men who are calling all of the shots."

This doesn't seem to be an argument against polygamy, but against patriarchy. I can't see the line of dots you've joined here.

It's possible you are taking aim at some specific practice of polygamy, and not polygamy in general; whatever the issue, we've not successfully communicated on this point.

"Yes, I believe that anything that serves to deny women an equal place in the world is detrimental to society."

While I share your liberal value of gender equality, that does not give us the right to enforce this value on the rest of the world, and especially not by force of arms. If the West wants to improve the status of women in Muslim nations (and we do) we must begin by respecting the Muslim nations as nations. Muslim states were not included in the process of drawing up the Universal Declaration of Human Rights, which they criticise as being essentially Christian in nature. (Not surprising given that all but one of the people who drew it up were Christian). We should probably begin negotiating for new human rights declarations as soon as is possible, including all cultures in the discussion this time.

The Muslim nations will not change their culture if we come at them with a stick. It's going to take carrots. Turkey is probably key here, as the most progressive Muslim nation, and a nation seeking entrance to the EU and thus able to be influenced by liberal values more readily than others. It will take Muslims to influence Muslims - the more Christians try to force demands upon Muslims, the more it will inflame tensions between these two religions.

"As for the legalization of mary jane issue, I stand by my belief that it is a "dangerous precedent" to legalize a practice that is not broadly accepted as benign (regardless of whether or not it is actually harmless) in the name of religion."

And I say again: I'm not advocating legalisation of marijuana - simply reporting that it is unconstitutional to deny Rastafarians et al the right to use marijuana as a sacrament in their own religious rituals because this violates the Free Exercise clause of the First Amendment.

If I wanted to advocate legalisation, I would, but that's not my concern here; it is freedom of belief (as ever). This is effectively Christians persecuting religious minorities, and I find that appalling.

You support the US' original claim (since overturned) that it has a compelling interest in restricting marijuana that overrides the right to free exercise of religion involved. That's your choice, of course, but it is rather *you* that needs to advocate a law to make the current situation constitutional, not I who needs to advocate anything. The law is already where I want it in this regard. :) I just want the enforcement of that law to match both its spirit and its letter, as everyone should have reasonable expectation.

Thanks for discussing the issues with me - although I fear by roping in issues that are even more inflammatory we may have obfuscated the matter. :)

Best wishes!

[F.P.S.K.]

Good post, but hemp ≠ marijuana.

Sativa, indica and rhuderalis are all in the same family, but have vastly different chemical compositions.

You might reference Booth's "Canabis: A History".

Namaste.

[Chris]

Thanks for the comment FPSK! While there are historically three different strains of cannabis plant, they can all be informally referred to in English as "Hemp" (or Indian Hemp), which may also be used as a catch-all name for its derivatives, be it rope, bud or resin. Horticulturalists may frown on such use, but it's fair game as far as the dictionaries are concerned. Isn't language fun. ;)

Namaste to you too!

[Neil]

Wow, I had no idea male circumcision was so widespread in the USA. What are the reasons? Surely not health benefits... What health benefits? Does being "cut" stop you getting infections? I don't see this listed as a reason anymore - I see it listed as reason it was given in the past (before anyone bothered to check).

Too many doctors? After all doctors get paid for the procedure. And it appears to mainly occur within 48 hours of birth.

Fashion? No-one wanting their son to be different from the herd? What choice does the child get...? None if circumcised before he can think/speak...

Not even a religious reason. And I think that forced female circumcision is barbaric. I haven't looked into it at all, but if asked I would sign a petition to stop it.

I would more readily say yes to enforced castration as this would have a positive effect that is demonstrable. We need fewer new people in the world.

Oh, and people should be able to take a sacrament in any form if it isn't just something made up the week before for a laugh. I guess blood or sacrifices are hard to bear when I say "anything" - ok it's harder to draw that line than I originally thought, but marijuana should be fine.

[Chris]

Neil: I suspect but cannot prove that the reason for the near-mandatory male circumcision in the US is religious in origin. A great many US Christians practice some strange blend of ancient Jewish custom blended with the teachings of Paul (with Jesus' teachings strangely squeezed out of the middle). I suspect this is the origin of the widespread circumcision.

If anyone has a contrary explanation, I'd be interested in hearing it!

[chillums]

For me, it really violates the human rights and the free will of each human bein.

[Chris]

Chillums: certainly in the case of religious use of marijuana. In the matter of personal use, it's trickier. Excessive use of marijuana does mess up seratonin levels in the brain (although moderate use actually *helps* seratonin levels) so there is a line to be drawn. I don't think all drug use can be made permissible under human rights justifications; there is still a widespread belief in the State's right to intervene on important health issues, although I personally don't trust the mechanisms of national States in this regard. ;)

Thanks for your comment!

[Peter Crowther]

Somewhat off-topic, but... do you trust the mechanisms of national States in any

[Chris]

Well, they're very good at raising tax money. ;)

Seriously, it various radically from nation to nation, doesn't it... France has an excellent public transport system, and a superb health care system, for instance. The UK has a decaying version of each, while the US has almost no public transport system, and while it has the most amazing medical techniques at its disposal, it has one of the worst health care records of any nation.

I believe the state should be able to provide the public goods - infrastructure, transportation, health care, a welfare 'safety net', defense (against natural disaster if nothing else), a justice system, and stewardship of natural resources. While no nation is perfect, they each seem to achieve varying degrees of success on each count, and I don't see many of these things coming about without a state mechanism to provide them.

Best wishes!

[tyrone]

The legalization of marijuana is soon coming.

[Neil]

Not in the UK it isn't. They are reclassifying it back to a B Class. Whereabouts are you referring to?

[Chris]

Tyrone is probably talking of the US. But I think he's being optimistic. Although it is certainly more likely to be considered under the Obama administration than Bush, I very much doubt this is something Obama wants to move on.

If it does happen in the US, it is likely to be on a State by State basis... In California, it is practically decriminalised as it is, since it is so readily available under the auspices of medicine.

Although that said, the Economist recently ran a front cover story on how the "War on Drugs" had failed, and how legalisation/decriminalisation had to be seriously considered. The common logic on this has shifted considerably over the years.

Nonetheless, most US voters in the heartland would not support this kind of move, which makes it too politically volatile to have much of a chance of being passed any time soon.

[Pumraa]

Big step yesterday in the US, we had legislation put on the table to decriminalize federally. Then it just becomes a state issue and like 25 states are cool with medical marijuana so far.

[theblazerschoice]

Awesome read! We love cannabis and all its benefits. important to remember hemp and marijuana are different. marijuana produces thc while hemp does not. great post.

[Chris]

Hi Blazers Choice,
You're right about the distinction between hemp and marijuana... this piece might not make that distinction as clear as it could be, but the plants are very close relatives. Hemp does contain THC, but in quantities too low to have any significant pharmaceutical impact.

Thanks for stopping by!

Chris.