Board’s Motion to Dismiss Denied

On Novem­ber 13, 2018, the Iowa Dis­trict Court denied the board­’s motion to dis­miss my reli­gious claim for cannabid­i­ol.  The order, as well as an audio record­ing of the hear­ing, can be found at: https://www.iowamedicalmarijuana.org/cases/olsen-pharmacy.html

1970

I began to real­ize that cannabis is the sacra­ment in the late 1960s.  And then I began look­ing for oth­ers who were hav­ing the same expe­ri­ence.  I soon became asso­ci­at­ed with a group known as Rasta­fari who inter­pret the King James Ver­sion of the Bible, the Sankey hym­nal, the writ­ings of John Bun­yan, and the writ­ings of Mar­cus Gar­vey, in a way that makes sense to me.  I came to real­ize that Christ is just us (the mem­bers of the church — Romans 12:4–5; 1 Corinthi­ans 12:12–27; Eph­esians 4:25; Eph­esians 5:30; Colos­sians 4:11 “And Jesus, which is called Jus­tus, who are …”) and that cannabis is the blood of Christ.  My church was incor­po­rat­ed by that group in Jamaica as the Ethiopi­an Zion Cop­tic Church (EZCC) in 1976.

I was arrest­ed in 1978 and 1980 for dis­tri­b­u­tion of a Sched­ule 1 con­trolled sub­stance (cannabis), and I was incar­cer­at­ed in state and fed­er­al pris­ons between 1984 and 1986.

I incor­po­rat­ed the church in Iowa and peti­tioned the DEA for a fed­er­al reli­gious exemp­tion before going to prison in 1984.  See Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989).

I argued that the state of Iowa and the fed­er­al gov­ern­ment both have reli­gious exemp­tions for the sacra­men­tal use of a Sched­ule 1 con­trolled sub­stance (pey­ote) and that equal pro­tec­tion should give the mem­bers of my church that same right.  See, Iowa Code § 124.204(8) and 21 C.F.R. § 1307.31.

1984

Con­sis­tent with the Flori­da Supreme Court find­ing in Town v. State, 377 So.2d 648 (Fla. 1979) that “the Ethiopi­an Zion Cop­tic Church rep­re­sents a reli­gion with­in the first amend­ment to the Con­sti­tu­tion of the Unit­ed States,” that the “use of cannabis is an essen­tial por­tion of the reli­gious prac­tice,” and that “the Ethiopi­an Zion Cop­tic Church is not a new church or reli­gion but the record reflects it is cen­turies old and has reg­u­lar­ly used cannabis as its sacra­ment”, in 1984 the Iowa Supreme Court found that the EZCC is a bona fide reli­gion and that cannabis is it’s sacra­ment.

How­ev­er, the Supreme Court of Iowa decid­ed there was a dif­fer­ence between the EZCC’s use of cannabis and the sacra­men­tal use of pey­ote by the Native Amer­i­can Church (NAC) mak­ing them not equal.  The court said the EZCC’s use of cannabis was unre­strict­ed and the NAC’s use of pey­ote was restrict­ed.

Both the state of Iowa and the fed­er­al gov­ern­ment require man­u­fac­tur­ers and dis­trib­u­tors of sacra­men­tal pey­ote to reg­is­ter with the state of Iowa and the DEA.  There were no man­u­fac­tur­ers of sacra­men­tal cannabis reg­is­tered with the state of Iowa or the DEA at the time.  So, there was a restric­tion on the NAC’s sup­ply of pey­ote that did not exist for the EZCC’s sup­ply of cannabis at the time.  See, Iowa Code § 124.204(8) and 21 C.F.R. § 1307.31.

1990

Hav­ing lost the appeals from my 1978 and 1980 arrests and con­vic­tions, my fed­er­al peti­tion for reli­gious exemp­tion came before the Supreme Court of the Unit­ed States in 1990.  At that same time, the U.S. Supreme Court was con­sid­er­ing a case involv­ing the sacra­men­tal use of pey­ote in Ore­gon.  Ore­gon did not have a sacra­men­tal exemp­tion for pey­ote in it’s state law, so the ques­tion was whether the U.S. Con­sti­tu­tion required one.  To everyone’s shock and dis­may, the court said no.  As long as Ore­gon was “neu­tral toward reli­gion” and the law was “gen­er­al­ly applic­a­ble” (“did not allow ‘any’ use of pey­ote”), it could con­sti­tu­tion­al­ly deny a reli­gious exemp­tion.  This meant there was no longer any fed­er­al equal pro­tec­tion argu­ment to be made in Ore­gon, because Ore­gon did not allow the use of pey­ote for any pupose.  And, of course, my appeal then became moot.  My argu­ment was equal pro­tec­tion.  I said I had a fed­er­al right to use cannabis based on a fed­er­al right to use pey­ote, and the court said there is no fed­er­al right to use pey­ote if the state pro­hibits all use of pey­ote.  See, Employ­ment Divi­sion v. Smith, 494 U.S. 872 (1990).

One would have to won­der.  If there is a fed­er­al reg­u­la­tion cre­at­ing an exemp­tion for the sacra­men­tal use of pey­ote, is there a fed­er­al right to use pey­ote as a reli­gious sacra­ment?  The answer is, it depends.  It depends on state law.  First, does the state law allow a reli­gious exemp­tion for the sacra­men­tal use of pey­ote?  If the answer is yes, then there is a cor­re­spond­ing fed­er­al right to use pey­ote as a reli­gious sacra­ment.  If the asnwer is no, then a sec­ond ques­tion is whether the state allows the use of pey­ote for any oth­er rea­son.  If the answer to the sec­ond ques­tion is yes, then there may be a fed­er­al right to use pey­ote as a reli­gious sacra­ment under the same terms and con­di­tions as the cur­rent­ly allowed use.  If the answer to both ques­tions is no, then there is no fed­er­al right to use pey­ote as a reli­gious sacra­ment.

1993

The shock and dis­may at the Employ­ment Divi­sion v. Smith rul­ing was so uni­nan­i­mous that Con­gress tried to over­rule the U.S. Supreme Court deci­sion.  Con­gress said a reli­gious claim alone should be suf­fi­cient to force a state to show a “com­pelling inter­est” in deny­ing the claim and the “least restric­tive means” of doing so.  See, Reli­gious Free­dom Restora­tion Act, Pub. L. No. 103–141, 107 Stat. 1488 (Novem­ber 16, 1993).

1997

The Supreme Court of the Unit­ed States had the last word, rul­ing that Con­gress exceed­ed it’s con­sti­tu­tion­al sep­a­ra­tion of pow­ers by impos­ing a fed­er­al judi­cial stan­dard on the states.  See, City of Boerne v. Flo­res, 521 U.S. 507 (1997).

2018

Mov­ing ahead, Iowa has enact­ed a law autho­riz­ing the man­u­fac­ture, dis­tri­b­u­tion, and use of a Sched­ule 1 con­trolled sub­stance (cannabis extract).  Cannabis plants were plant­ed in 2018 and cannabis extract will soon be avail­able for dis­tri­b­u­tion on Decem­ber 1, 2018.  See, Iowa Med­ical Cannabid­i­ol Act, 2017 Iowa Acts Chap­ter 162.

State Exemption

Take notice how the Iowa Med­ical Cannabid­i­ol Act is writ­ten.

• Prac­ti­tion­er: Iowa Code § 124E.12(1) (2018) (“shall not be sub­ject to pros­e­cu­tion”)
• Man­u­fac­tur­er: Iowa Code § 124E.12(2) (2018) (“shall not be sub­ject to pros­e­cu­tion”)
• Dis­pen­sary: Iowa Code § 124E.12(3) (2018) (“shall not be sub­ject to pros­e­cu­tion”)
• Patient: Iowa Code § 124E.12(4)(a) (2018) (“chap­ters 124 and 453B, it is an affir­ma­tive and com­plete defense to pros­e­cu­tion”)
• Care­giv­er: Iowa Code § 124E.12(4)(b) (2018) (“chap­ters 124 and 453B, it is an affir­ma­tive and com­plete defense to pros­e­cu­tion”)

Notice how the act does not nul­li­fy the sta­tus of cannabis extract as a Sched­ule 1 con­trolled sub­stance.  It sim­ply pro­vides an exemp­tion from Sched­ule 1.  Sim­i­lar­ly, the exemp­tion of pey­ote for reli­gious use does not nul­li­fy the sta­tus of pey­ote as a Sched­ule 1 con­trolled sub­stance.

International Exemption

Take notice how the inter­na­tion­al treaties are writ­ten.

• Sin­gle Con­ven­tion on Nar­cot­ic Drugs, 1961 (As amend­ed by the 1972 Pro­to­col), Arti­cle 36(2) (“sub­ject to the con­sti­tu­tion­al lim­i­ta­tions of a Par­ty, its legal sys­tem and domes­tic law”)
• Con­ven­tion on Psy­chotrop­ic Sub­stances, 1971 Arti­cle 22(2) (“sub­ject to the con­sti­tu­tion­al lim­i­ta­tions of a Par­ty, its legal sys­tem and domes­tic law”)

Notice how the treaties do not nul­li­fy the sta­tus of cannabis extract as a Sched­ule 1 con­trolled sub­stance.  The treaties sim­ply pro­vide an exemp­tion from Sched­ule 1.

Federal Exemption

Take notice how this fed­er­al reg­u­la­tion is writ­ten.  See, 14 C.F.R. § 91.19 (2018)  Car­riage of nar­cot­ic drugs, mar­i­hua­na, and depres­sant or stim­u­lant drugs or sub­stances.

• (a) Except as pro­vid­ed in para­graph (b) of this sec­tion, no per­son may oper­ate a civ­il air­craft with­in the Unit­ed States with knowl­edge that nar­cot­ic drugs, mar­i­hua­na, and depres­sant or stim­u­lant drugs or sub­stances as defined in Fed­er­al or State statutes are car­ried in the air­craft.
• (b) Para­graph (a) of this sec­tion does not apply to any car­riage of nar­cot­ic drugs, mar­i­hua­na, and depres­sant or stim­u­lant drugs or sub­stances autho­rized by or under any Fed­er­al or State statute or by any Fed­er­al or State agency.

Notice how par­graph b does not nul­li­fy the sta­tus of cannabis as a Sched­ule 1 con­trolled sub­stance.  The reg­u­la­tion sim­ply pro­vides an exemp­tion from Sched­ule 1.  Click on this link for the orig­i­nal reg­u­la­tion from 1973.

Equal Protection

We now have man­u­fac­tur­ers and dis­trib­u­tors of cannabis extract who are reg­is­tered with the state.

End users have only two restric­tions: (1) the end user must have a con­di­tion cer­ti­fied to be on the list of approved con­di­tions; and (2) the end user must obtain cannabis extract from an Iowa dis­pen­sary if avail­able, from a neigh­bor­ing state if avail­able, or from an out-of-state source.

Conclusion

Sup­ply is no longer an issue because cannabis extract is being man­u­fac­tured and dis­trib­uted in Iowa.

Users cer­ti­fied as being exempt for reli­gious pur­pos­es will obtain cannabis extract from an Iowa dis­pen­sary if avail­able, from a neigh­bor­ing state if avail­able, or from an out-of-state source.

A court may cer­ti­fy a reli­gious user by rul­ing on a reli­gious equal pro­tec­tion claim.

The state should set up an appli­ca­tion process for reli­gious use, rather than rely­ing on indi­vual court rul­ings.