Tuesday, February 9, 2016

The First Amendment as a Defense to Drug Charges?

If you haven't already, please check out the columns I've been contributing to thekindland.com. The entire archive is available under the "Ask a Weed Lawyer" section.

My latest post for The Kind Land is scheduled for publication on Valentine's Day (2/14/16).  In it, I discuss "freedom of religion" as a possible defense to drug charges.  This is an area that has generated a lot of popular mythology and bad information.  Many people believe that the First Amendment's protections for the "free exercise of religion" grant them total immunity against prosecution for any activity that is central to their religious beliefs.  Unfortunately, this is not true. The Supreme Court has consistently ruled that the US Constitution does not entitle individuals to disregard generally applicable criminal laws.  Sorry, Rastafarians.

The Religious Freedom Restoration Act

But there are a couple federal laws that, taken together, make this analysis more interesting.  First is the "Religious Freedom Restoration Act", which was signed into law in 1993.  That law prohibits the US government from taking any action that "substantially burdens" the free exercise of religion, unless the government can prove 2 important things: 1) that the feds have some "compelling" interest to protect, and 2) that the government's action in question is the least intrusive means for protecting that interest.

Keep a couple things in mind, though.  The RFRA is not a constitutional amendment, it is a federal law.  That means that it does not apply against the states; it only applies to actions taken by the federal government.  States and local governments are still free to "substantially burden" the exercise of your religion.  Also, the RFRA does not grant blanket immunity to do anything that you claim is part of your religion.  Instead, it establishes a balancing test.  If you claim that some federal law infringes on your religious beliefs, then the courts must weigh that infringement against the government's legitimate interest in protecting public health and safety.  If the government's interest is found to be "compelling", and its actions are "the least intrusive means" for protecting that interest, then you still lose.

The Religious Land Use and Incarcerated Persons Act

Enacted in 2000, the federal RLUIPA takes the RFRA one step further.  It prohibits cities and local governments from making any laws regarding zoning or land use that substantially burden the practice of religion.  Up until now, most of the litigation around the RLUPIA has involved eminent domain cases -- whether or not a city may seize church land to build a new housing development or airport.

What does this have to do with marijuana?  Glad you asked.

The Oklevueha Native American Church, a group that claims over 200 local branches, has recently announced plans to open several new locations in Costa Mesa, Huntington Beach, and Westminster.  Members of the church use peyote, marijuana and other hallucinogens to "commune with nature" as part of their religious beliefs.

The church will operate out of buildings that formerly housed marijuana dispensaries.  Church leaders have stated that they intend to distribute marijuana to their members, in violation of local zoning laws.  It is not clear whether or not the church intends to distribute other controlled substances and whether or not it will restrict marijuana sales to members who hold valid medical recommendations.

Spokesmen for the cities of Huntington Beach and Costa Mesa have publicly stated that they intend to enforce their existing zoning laws.  An attorney for the church has threatened to bring a federal lawsuit under the RLUIPA if the cities' land use regulations interfere with his clients' right to freely exercise their religion.

We're all excited to see how this plays out.

If you or a loved one has questions about drug charges in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Drug Lawyer