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Religious Use of Marijuana

The First Amendment to the U.S. Constitution says the government cannot make laws "prohibiting the free exercise" of religion. Many people use marijuana as a religious sacrament, and forcing them not to use marijuana clearly prohibits the free exercise of their religion. In order to comply with the First Amendment, our laws should allow for the religious use of marijuana.

However, American courts have generally rejected religious use as a defense to prosecution for marijuana possession.

  • In December 2006, a federal judge in Albuquerque, New Mexico, ruled against the founders of an Arizona church who claimed that their marijuana was for religious use. Judge Judith C. Herrera's opinion stated that the defendants did not have a legitimate religious belief in marijuana, but instead had "adopted their 'religious' belief in cannabis as a sacrament and deity in order to justify their lifestyle choice to use marijuana." This ruling sends a signal that courts are not likely to extend the Supreme Court's ruling on hoasca to protect religious use of marijuana.
  • In February 2006, in the case of Gonzales v. O Centro Espírita Beneficente União do Vegetal, the U.S. Supreme Court ruled in favor of a religious group seeking protection against prosecution for their religious use of hoasca. Hoasca is a tea made of plants that contain dimethyltryptamine (DMT). Like marijuana, DMT is listed under Schedule I of the Controlled Substances Act, §812(c). Some people, such as the founders of Temple 420, believe that the Supreme Court's decision in the hoasca case means that marijuana users will also be protected from prosecution. But readers should note that the Supreme Court decision was limited to the particular facts surrounding the hoasca issue, and does not specifically support a religious defense in marijuana cases.
  • In 2002, the Ninth Circuit Court of Appeals (in Guam v. Guerrero, 290 F.3d 1210) rejected the religious use defense by a defendant charged with importing marijuana. However, the court's opinion suggested that a religious use claim would be stronger if the defendant was charged with simple possession of marijuana, rather than importation or distribution.
  • The US Supreme Court ruling in Oregon v. Smith (1990) essentially said that states can legally prohibit drug use and can punish people who violate anti-drug laws, even if they claim religious use as a defense.
  • Following the Oregon v. Smith decision, Congress passed the Religious Freedom Restoration Act which President Clinton signed into law in 1993. The new law was supposed to strenthen religious freedom, but the U.S. Supreme Court declared it invalid in 1997 in City Of Boerne v. Flores, ruling that the RFRA was unconstitutionally broad. Since then, several states have passed different versions of the RFRA, but religious use is generally not accepted in the United States as a defense in criminal cases involving marijuana.


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