Protection from State Charges
First off, you need to know that there is no religious defense to Michigan state charges, at the moment. Currently, 21 states have passed similar versions of the federal Religious Freedom Restoration Act (RFRA), but Michigan has not done so yet. However, the Michigan House of Representatives has passed HB 5958, which is the Michigan’s version of the federal RFRA. Now it’s up to the Senate to vote on passing or denying the bill. While things could change depending on how the state senate votes, there currently is no state RFRA defense in Michigan.
How a Medical Marijuana Defense Differs from a RFRA Defense
The Michigan Medical Marihuana Act provides protections against STATE charges, so long as there is a legitimate relationship with a doctor, there is a valid medical reason for using the marijuana, and the person is fully complying with the Medical Marihuana Act. Satisfying these elements is a much simpler proposition than a RFRA defense. We have successfully defended many clients against marijuana possession charges with the medical marijuana defense. In fact, we have even successfully defended clients using medical marijuana even without a valid medical marijuana license.
Protection from Federal Charges
Although it is rare, religious organizations have been granted exceptions from federal prosecution of possession of controlled substances by successfully raising a RFRA defense. For example, The Church of The Holy Light of The Queen in Oregon was granted an exception to use daime tea, which contains a schedule I psychoactive drug. Another religious organization in New Mexico has also been granted a religious exception to use hoasca; a tea containing the schedule I drug DMT. These examples show that it is possible to gain allowances to use controlled substances for religious purposes. How about marijuana? Well, gaining religious exceptions to the Controlled Substances Act (CSA) to use marijuana has proven to be a more difficult proposition. For example, in 2016 a cannabis church in Hawaii lost their RFRA claim at trial and appealed to the Ninth-Circuit Court of Appeals where the church lost again. The nature of the plant and the specific language of the statute makes it more difficult to gain a legal exception to use cannabis.
What the Law Says
Under the Religious Freedom Restoration Act (RFRA), a person / religious entity (claimant) can raise a defense against federal charges for possession of a controlled substance, as well as gain injunctive relief to prevent future charges or governmental seizure of the substance. For a successful RFRA defense, the claimants must demonstrate that they have both a sincere religious practice and that it is being substantially burdened. If the claimant cannot satisfy these two elements, then they can receive no relief under RFRA. However, even if the claimant can satisfy these two elements, they can still be denied relief under RFRA if the government can show that the substantial burden is done in the furtherance of a compelling governmental interest AND the government is using the least restrictive means possible. If the government can satisfy its two elements, then the claimant is denied relief under RFRA.
Sincere Religious Practice
That raises the question: what is a “sincere religious practice”? According to the statute, a religious practice is any activity that is compelled by or central to a religious belief or any activity engaged in for religious reasons. Given these broad definitions, a claimant is usually able to satisfy this element through some kind of documentation of use of the substance for religious purposes. For example, there is a long history of certain Native American tribes using substances like peyote as part of spiritual ceremonies. The historical record of such practices could be attested to by both group members as well as scholarly anthropological sources. Often though, the sincerity of the religious practice is not even challenged by the government.
The Supreme Court has said that a religious practice is substantially burdened when one is forced, “under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” In cases involving the use of controlled substances, it must be argued that the use of the drug is necessary to the practice of the religion. For example, if the religious organization believes that use of the substance is required in order to connect with the deity, then the believers are in the position where it is necessary to use the controlled substance to practice their religion.
Compelling Governmental Interest
The most common governmental interest is protection of public health and safety. This can apply to protecting the health and safety of members of the church, however, preventing the substance from being diverted for use outside of the religious practice often becomes the government’s primary compelling interest. The government then argues that diversion of the controlled substance poses a significant risk to children. Often it is near impossible to refute the government’s interest in protecting public health, especially when it concerns minors.
Least Restrictive Means
The government must further its compelling interest through the least restrictive means possible. This means that if the government can further its compelling interest in some way other than enforcing full compliance with the CSA, then the claimant is granted an exception. Often, the nature of the religious organization, the substance and the organization’s practice with the controlled substance will determine if full enforcement is the least restrictive means. In the 2016 RFRA claim by the Hawaii Cannabis Ministry and their use of marijuana, the court decided full compliance with the CSA was the least restrictive means because the church’s fundamental tenets were to celebrate marijuana as a sacrament and to dispense marijuana to church members to use as a sacrament.
Another factor is the popularity of the substance. Marijuana has a high demand on the black market and that fact makes it much more difficult to win a RFRA claim. In the court’s eyes, the high demand for marijuana increases the likelihood that marijuana could be sold to non-church members or stolen from the church and diverted to the general public. The courts have said that substances like peyote, which do not have as strong of a demand on the black market, are less likely to be diverted to the public which increases the chances of a successful RFRA claim.
If the government’s compelling interest is to prevent marijuana from reaching the general public, there is often no alternative way of promoting that other than full compliance with the Controlled Substances Act.
Andrew Diamond is The Law Clerk at The Law Offices of Barton Morris. In 2016, Andrew graduated Cum Laude from Florida Atlantic University with a degree in Philosophy focusing on Ethics, Metaphysics, and Social Political Philosophy. He is currently earning his Juris Doctorate from Wayne State University Law School.