Metropolitan News-Enterprise


Wednesday, June 15, 2016


Page 1


Ninth Circuit Rules:

Religious Freedom Act Does Not Protect Marijuana Use




Federal law does not protect the right to distribute marijuana for religious purposes, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed the convictions of Rev. Roger Cusick Christie and his wife, Rev. Sherryanne Christie, both of the Hawaii Cannabis Ministry. Judge Diarmuid O’Scannlain, writing for the court, rejected the Christies’ contentions that their right to provide marijuana to church members in exchange for “donations” was protected by the Religious Freedom Restoration Act of 1993.

RFRA prohibits the federal government from substantially burdening the free exercise of religion except upon a showing of a compelling governmental interest and by employing the least restrictive means necessary to serve that interest. The law was a congressional response to 1990’s Employment Division v. Smith, 494 U.S. 872, in which the court held that members of a Native American religion had no constitutionally protected right to use peyote in connection with their rituals.

Christie founded the Hawaii Cannabis Ministry in 2000 in Hilo, a city on the island of Hawaii, with the vision of it being a community where cannabis could be celebrated as a sacrament.

Advertising the ministry’s slogan — “We use cannabis religiously and you can too” — and promising that those who joined his flock would be out of the reach of federal drug laws, Christie saw the ministry gain 3,000 converts on the island, and another 62,000 worldwide, according to testimony.

Promised Freedom

The ministry’s website promised freedom from arrest and prosecution for marijuana charges as soon as members signed up, and made it clear that there was no minimum age to join and that even minors could become members, O’Scannlain noted.

The ministry, which obtained a portion of its marijuana from a black market in and around Hilo, distributed the drug to those who attended “communion” at Sunday services and also to those who went in person to the sanctuary.

By April 2009, the ministry was distributing more than half a pound of cannabis nearly every day to approximately 60 or 70 people. The federal government began investigating the ministry in 2009, which ultimately led to the indictment of the Christies on multiple drug-related offenses.

Roger Christie pled guilty to one count of conspiracy to manufacture and distribute 100 or more marijuana plants, and Sherryanne Christie to one count of conspiring to manufacture and distribute 50 or more marijuana plants. Roger Christie was sentenced to five years in prison and his wife to 27 months.

Compelling Interest

O’Scannlain agreed with U.S. District Judge Leslie Kobayashi of the District of Hawaii that the government both established a compelling interest in enforcing the Controlled Substances Act against the Christies, and that enforcing that act was the least restrictive means of vindicating that interest.

The appellate jurist questioned whether the Christies were sincere religious believers, or whether they were merely “draping religious garb over commercial activity or straightforward drug trafficking.” But it made no difference, because the government did “everything RFRA requires,” O’Scannlain wrote.

The government’s compelling interest, he said, was “in mitigating the risk that cannabis from the Ministry will be diverted to recreational users.” He added that “the facts of this case demonstrate that mandating the Christies’ full compliance with the CSA would help to advance this compelling interest to a meaningful degree,” and that there was no viable alternative to criminal prosecution if the government was to fulfill its objective.

There was more than enough evidence that the ministry’s loose distribution methods gave rise to a realistic threat of cannabis making it into the hands of recreational users, O’Scannlain said.

“The problem is not simply that the Christies hardly regulated who could join the ministry, or even that they actively marketed their church as a safe haven from the federal drug laws,” O’Scannlain wrote. “More troubling is that even the barebones membership requirement was not enforced as a meaningful check on who could receive the ministry’s cannabis. Cannabis distributed through the ministry seemed available to anyone to use anywhere; the Christies simply gave cannabis to those who showed up, took their money, and sent them on their way.”

The judge also distinguished cases involving sacramental use of other drugs:

“As courts have repeatedly emphasized, cannabis differs critically from peyote and hoasca precisely because there is a thriving market for diverted cannabis, whereas there is no comparable demand for recreational peyote and hoasca.”

As for the “less restrictive alternative” prong of RFRA, the judge said it was “simply not plausible to suppose” that the government could keep sacramental marijuana out of the hands of recreational users by allowing the Christies to distribute it, even if, as they suggested, they were to return to distributing it only during Sunday worship.

O’Scannlain also rejected a vagueness challenge to RFRA:

“RFRA cannot be unconstitutionally vague because it is not a penal statute or anything like one. It does not define the elements of an offense, fix any mandatory penalty, or threaten people with punishment if they violate its terms,” O’Scannlain said. “Rather, it supplies religious objectors like the Christies with an affirmative defense to criminal prosecution.”

Prosecution under a clear criminal law, such as the Controlled Substances Act, cannot be invalidated because the law supplying an affirmative defense is vague, the judge explained.

Judges Richard C. Tallman and Milan D. Smith Jr. joined in the opinion.

The case is United States v. Christie, 14-10233.


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