There is a pervasive and persistent myth that, somehow, claiming "religious use" is a valid, legal defense to the charge of operating an unlicensed marijuana dispensary. It is not.
It's frustrating to see decent people taking bad advice and getting themselves arrested. It's especially frustrating in a place like California, where marijuana is legal. California currently allows adults to cultivate and possess marijuana for recreational or medical use. If you follow some simple rules, you can even sell it. Unfortunately, some shady attorneys, charlatans and various non-attorney posers have been spreading the myth that "rules don't apply to you if you simply pretend that it's your religion." This is, of course, total nonsense. As a real attorney, I would strongly discourage anyone from relying on this argument.
Just think about it. If anyone could successfully disregard the law by simply claiming that XYZ was part of their "religion", what would stop them from founding the Church of Child Pornography? Or the Church of Bank Robbery?
Most of the confusion revolves around a pair of federal laws -- the Religious Freedom Restoration Act and the Religious Land Use and Incarcerated Persons Act. These laws prohibit the federal government from taking any action that "substantially burdens" the free exercise of religion unless authorities can show some compelling interest in doing so. The RLUIPA further prohibits local authorities from imposing land use restrictions that interfere with the free exercise of religion. Some advocates have argued that, taken together, these federal laws provide carte blanche to ignore local zoning laws regarding commercial marijuana activity as long as they call their dispensary a "church".
Courts have consistently shot these arguments down. Instead, they have affirmed the power of local zoning authorities to regulate commercial marijuana activity, regardless of whether or not litigants claim that cannabis is a "sacrament". Their reasoning has turned on a couple key points. Keep in the mind that no court has ever ruled that religion is an absolute defense to anything. The state can always "interfere with the practice of religion" if the regulation is narrowly tailored to address some compelling government interest.
In Mooney v. Lynch (2016), the 9th Circuit Court of Appeals denied a challenge from the Oklevueha Native American Church. In that case, a "church" sued the federal government, claiming that laws against marijuana interfered with the free exercise of their religion. Judges disagreed because, "nothing in the record demonstrated that a prohibition on cannabis forced the plaintiffs to choose between obedience to their religion and criminal sanction, such that they were being coerced to act contrary to their religious beliefs."
To date, nobody has ever convinced a federal judge that laws against selling marijuana actually impose a "substantial burden" on the free exercise of their religion. There have been a handful of cases in which Native American churches have won lawsuits against the federal government, but those cases turned on technical, procedural issues. The courts did not actually determine that Native American religious practices trump federal drug laws, and the rulings do not affect other litigants who were not parties to those cases.
As I mentioned above, though, there are legal ways to grow, use and sell marijuana in California -- but claiming that cannabis is a "sacrament" is not your best strategy. If you or a loved one has questions about forming a legal marijuana farm or dispensary in Southern California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
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