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
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.
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.
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.
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).
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).
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.
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.
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.
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.
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.
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.