In the US, sacred cannabis users have similar tribulations. Although they are guaranteed freedom of religion under federal law, there are still some hitches.
Reverend Tom Brown of Our Church has spent five long years, from 1994 to 1999, in a US prison for growing sacramental cannabis in a church he founded on his 40-acre farm in Fayetteville, Arkansas after being arrested in August of 1994 with 435 sacramental marijuana plants and a few peyote cacti (CC#33, Busted up dates). While doing time, he devoted himself to learning the law regarding religious use, which he explained in detail during an interview with Cannabis Culture.
According to Brown, the oppression of cannabis churches began when Timothy Leary was busted with two roaches while trying to cross the border at El Paso in 1967. Leary told the Fifth Circuit Court that marijuana was his sacrament, and pointed to a 1963 case, Sherbert v. Verner, which required that the government prove a “compelling interest” for denying religious freedoms, and that they use the least restrictive means for doing so. Since the prosecution could prove neither of these in its case against Leary, the court relied on a dirty trick to sabotage Leary’s argument.
“The court found that the very existence of drug laws alone proved that there was a compelling interest,” said Brown. Drug laws were special, unassailable, stronger than the Bill of Rights, and “neutral on their face.” Over the next 30 years, Leary’s Fifth Circuit case was established as a precedent in other circuits across the country.
The case of Al Smith was the joint that broke the camel’s back. In 1990, Al Smith, a sacramental peyote user, used the compelling interest clause to win a religious freedoms case in Oregon State Supreme Court. But when Smith got to the Supreme Court level, the finding was reversed. Jewish, Catholic and various Christian churches protested vehemently. “Not because they were for drugs,” said Brown, “But because they were afraid of what these laws meant for other religious freedoms.” Because of heavy church pressure, the government passed the Religious Freedoms Restoration Act in 1993.
“The Religious Freedom Restoration Act (RFRA) reversed this trend,” said Brown, “making it imperative for the court to provide proof of compelling interest and least restrictive means? specifically mentioning the case of Al Smith.” But since the RFRA was passed, judges around the country have ignored its implications.
In Tom Brown’s Eighth Circuit case, the judge ignored the RFRA and ruled that Brown was guilty based on Leary’s precedent. In fall of 2000, Reverend Alder of the Religion of Jesus Church was found guilty in a Hawaii state court, even though he had a state license to provide marijuana to his congregation (CC#29, Med-pot ministries).
“What we have is a bunch of corrupt judges that refuse to acknowledge that these laws have changed,” said Brown. “But when the politics change, they will have to acknowledge it. It is like when they used to hang black men for looking at a white woman after the civil war. The laws had changed, but the judges refused to acknowledge it.”
There have been some turns for the better, too, especially in the Ninth Circuit. In 1996, the Ninth Circuit reversed a lower court decision finding a Rastafarian guilty of possession in the case of USA v. Bauer.
Another promising case, USA v. Guerrero, continues to work its way through the courts. Guerrero (aka Iyah Ben Makahna) is also a Rastafarian. He first began arguing his case in 1990, and has the help of lawyers from the American Civil Liberties Union. In 2000, the highest court of Guam (a US federal territory) found him innocent, citing RFRA and Guam’s own free exercise of religion protection, and finding that the government had not proven compelling interest and least restrictive means.
The case has now been appealed to the Ninth Circuit court, which heard Guerrero’s arguments on November 5, 2001, and should soon provide a ruling.
? Religion of Jesus Church: PO Box 828, Kaawaloa Hawaii, 96704; tel 808-328-9794; web www.hialoha.com/konagold/church; email [email protected]
? Reverend Tom Brown: tel 501-582-4138; email [email protected]