Sacramental use of cannabis

I’m a mem­ber of a Jamaican Rasta­far­i­an church incor­po­rat­ed in Jamaica as the Ethiopi­an Zion Cop­tic Church (EZCC) in 1976, Act No. 11.  The sacra­ment of the EZCC is cannabis.

I was arrest­ed in 1978 with 100 pounds of cannabis in Mus­ca­tine Coun­ty in Iowa, and my appeal was heard by the Iowa Supreme Court in 1984.  The Iowa Supreme Court found that the EZCC is a bona fide reli­gion under the First Amend­ment to the Con­sti­tu­tion of the Unit­ed States, but found that the sacra­men­tal use of cannabis is not equal­ly pro­tect­ed with the sacra­men­tal use of pey­ote by the Native Amer­i­can Church (NAC).  The court found there were restric­tions on the sacra­men­tal use of pey­ote by the NAC that did not exist for the sacra­men­tal use of cannabis by the EZCC.

Imme­di­ate­ly after the Iowa Supreme Court rul­ing in 1984, I incor­po­rat­ed the church in Iowa, Iowa Busi­ness No. 111308.  I lat­er obtained a fed­er­al trade­mark on the name in 2016, U.S.P.T.O. Reg. No. 5,039,494 (First Use, March 30, 1984).

To under­stand what the Iowa Supreme Court was talk­ing about, both the Iowa and the fed­er­al law con­tain exemp­tions for the sacra­men­tal use of pey­ote by the NAC.  A care­ful­ly read­ing of these two exemp­tions reveals what the court was talk­ing about.

Iowa Code § 124.204 (2018)

8. Pey­ote. Noth­ing in this chap­ter shall apply to pey­ote when used in bona fide reli­gious cer­e­monies of the Native Amer­i­can Church; how­ev­er, per­sons sup­ply­ing the prod­uct to the church shall reg­is­ter, main­tain appro­pri­ate records of receipts and dis­burse­ments of pey­ote, and oth­er­wise com­ply with all applic­a­ble require­ments of this chap­ter and rules adopt­ed pur­suant there­to.

21 C.F.R. § 1307.31 (2018)

Native Amer­i­can Church.  The list­ing of pey­ote as a con­trolled sub­stance in Sched­ule I does not apply to the non­drug use of pey­ote in bona fide reli­gious cer­e­monies of the Native Amer­i­can Church, and mem­bers of the Native Amer­i­can Church so using pey­ote are exempt from reg­is­tra­tion. Any per­son who man­u­fac­tures pey­ote for or dis­trib­utes pey­ote to the Native Amer­i­can Church, how­ev­er, is required to obtain reg­is­tra­tion annu­al­ly and to com­ply with all oth­er require­ments of law.

What is imme­di­ate­ly appar­ent is that the sacra­men­tal “use” of pey­ote is exempt, but not its cul­ti­va­tion or dis­tri­b­u­tion.  I was arrest­ed for dis­tri­b­u­tion, which is not an exempt activ­i­ty under the pey­ote exemp­tion.  The sacra­men­tal exemp­tion for pey­ote did not pro­vide me with an equal pro­tec­tion argu­ment in the court’s view.

In 1984, I also applied for a fed­er­al exemp­tion like the one in 21 C.F.R. § 1307.31 (2018), which was final­ly denied by the U.S. Supreme Court in 1990, in a case called Employ­ment Divi­sion v. Smith, 494 U.S. 872 (1990).  The Smith case did not men­tion the dif­fer­ence between the pey­ote and cannabis sacra­ments.  Instead, the court said the First Amend­ment did not pro­tect the reli­gious use of pey­ote as long as Ore­gon did not allow any oth­er use of pey­ote.  In oth­er words, the court said only First Amend­ment claims based on a vio­la­tion of equal pro­tec­tion will be con­sid­ered.  The court said that if the law is neu­tral toward reli­gion and gen­er­al­ly applic­a­ble in Ore­gon, then there is no First Amend­ment right to use pey­ote for reli­gious pur­pos­es in Ore­gon.

Obvi­ous­ly, in 1990, the state of Iowa did not allow any oth­er use of cannabis and that is why the Smith case was instruc­tion­al for me.

In 2017, Iowa autho­rized the cul­ti­va­tion, dis­tri­b­u­tion and use of cannabis for med­ical pur­pos­es in Iowa.  In 2018, cul­ti­va­tion of cannabis began in Iowa and cannabis prod­ucts will soon be avail­able for dis­tri­b­u­tion this com­ing Decem­ber.  We now have the autho­rized use of cannabis in Iowa, and we have a man­u­fac­tur­er licensed to cul­ti­vate and dis­trib­ute that cannabis.

Even if Iowa law does not allow the man­u­fac­tur­er to dis­trib­ute cannabis to the EZCC, there are states where any­one can buy cannabis legal­ly and church mem­bers would be pro­tect­ed under both state laws (see 14 C.F.R. § 91.19 (2018)) and fed­er­al law for trav­el­ing in states (check each state first to make sure it’s legal in that state) and pur­chas­ing cannabis for sacra­men­tal use if there were exemp­tions, one in the Iowa Code and the oth­er in the fed­er­al reg­u­la­tions, for the sacra­men­tal use of cannabis by the EZCC. 

The nation of Jamaica legal­ized the sacra­men­tal “use” of cannabis by Rasta­far­i­ans for reli­gious pur­pos­es in 2015, and also cre­at­ed a process for licens­ing cul­ti­va­tors and dis­trib­u­tors to sup­ply Rasta­far­i­ans with our sacra­ment.

See DEA pub­li­ca­tion: Reli­gious Exemp­tion from the Con­trolled Sub­stances Act