Olsen v. IDPH
In October, I filed a Petition for Declaratory Judgment asking to participate in the state Medical Cannabidiol Act for religious reasons. My sacrament has been cannabis since the 1970s and I have never been allowed to use it. I filed the case based on the free exercise of religion clauses of First Amendment to the U.S. Constitution and Article 1, Section 3, of the Iowa Constitution.
The state attorney has filed a Motion to Dismiss the case, saying I cannot sue the state for violating the state and federal constitutions because of sovereign immunity. I accept that as an accurate statement.
The state attorney mentions the Iowa Administrative Procedures Act, which is something I had thought about. The Medical Cannabidiol Program explains the process to apply for a medical cannabidiol card. I decided I should file in court rather than apply for a card. However, I decided to apply for the card last week after reading the motion to dismiss.
The problem with the application is that the Medical Cannabidiol Act does not mention religious use as one of the qualifying conditions. I am fairly certain an administrative agency cannot address this omission. Courts can resolve issues involving the constitutionality of a statute, but administrative agencies just do what it says in the statute.
See for example, National Law Review, Ready, Fire, Aim – Picking the Correct Vehicle for Constitutional Challenges to Administrative Agency Decisions, Wednesday, September 30, 2020.
The application for the card had a place to upload a certificate of a qualifying medical condition, which I do not have. I uploaded a declaration of my religious use in place of the qualifying medical condition.
Now that I have filed an application with the Iowa Department of Public Health (IDPH) for a card, I can see I need to amend my petition to include the IDPH as a defendant. I asked the court to give me a declaratory order allowing me to do the same thing as a card holder. But now that I have applied for a card, I might as well just ask the court to order the department to issue me the card. I will file a motion to amend my petition with the court.
The declaration I submitted with my application for the card is set out below.
Declaration of Carl Olsen – November 24, 2021
In the Beginning
I began using psychedelic substances in the late 1960s. Because these substances were prohibited, it was difficult to know whether they were cut with depressants or stimulants (also prohibited for anything other than pharmaceutical use). Everything was for sale on the illicit market. I ended up addicted to methamphetamine and barbiturates.
I lost weight. I could not string a sentence together. Some of my more health conscious friends were shifting toward cannabis. When I got desperate, with help from these friends, I tried replacing methamphetamine and barbiturates with cannabis. Cannabis gave me a high and helped me sleep. I can’t prove cannabis saved my life, but it certainly helped.
These friends went to Jamaica in the late 1960s and used cannabis with the Rastafarians. They came back saying Christ had resurrected as a black man by the name of George Baker Ivy.
Christ resurrecting as a person was difficult to follow, but sacramental use of cannabis made sense. Something else made sense, the comparison of blacks in Jamaica (the result of the slave trade) to Israelites in the Bible.
‘Black Moses’ Lives On: How Marcus Garvey’s Vision Still Resonates
Desmond Dekker & The Aces – “Israelites”
In 1970, Brother Ivy died mysteriously.
Walter Wells wrote, “It was Brother Ivy who fully opened the doors of Salvation to the white inhabitants of the world within this dispensation; and taught black and white to unite together for one common cause …”
John 10:11 (“I am the good shepherd: the good shepherd giveth his life for the sheep”); Matthew 26:31 (“I will smite the shepherd, and the sheep of the flock shall be scattered abroad”); Mark 14:27 (“I will smite the shepherd, and the sheep shall be scattered”).
Christ in the Bible
The Bible describes Christ as a collective body, not just a single individual. See I Corinthians 12:27 (“Now ye are the body of Christ, and members in particular.”). A single individual would have physical blood circulating through their body. So the blood of Christ (as a collective body of individuals) must be something constantly flowing through the members of that body. See I Corinthians 11:25 (“After the same manner also he took the cup, when he had supped, saying, This cup is the new testament in my blood: this do ye, as oft as ye drink it, in remembrance of me”). Cannabis is exactly that to me.
Many Jamaicans believe the Emperor of Ethiopia (Ras Tafari) is the resurrected Christ. Again, the Bible describes God as more than one person. Genesis 1:26 (“And God said, Let us make man in our image, after our likeness: …”), again describing a collective body, people, not a person.
https://en.wikipedia.org/wiki/Rastafari
https://en.wikipedia.org/wiki/Haile_Selassie
Stevie Wonder – “Superstitious”
Niah Keith
After Brother Ivy died, leadership passed to Keith Gordon. Gordon and others incorporated the Ethiopian Zion Coptic Church in 1976.
https://www.ethiopianzioncopticchurch.org/pdfs/jamaica_1976.pdf
Responding to media reports comparing the church to a mass suicide cult in Jonestown, Guyana, Walter Wells wrote about the history of the Ethiopian Zion Coptic Church in the church’s publication, The Coptic Time.
https://www.ethiopianzioncopticchurch.org/history/
October 28, 1979, CBS Sixty Minutes reported, “Law enforcement agencies say that with his new-found American friends, Keith Gordon’s marijuana business took off like a turpentined cat.”
https://www.ethiopianzioncopticchurch.org/pdfs/Sixty_Minutes_1979_10_28.pdf
November 1, 1979, The Florida Supreme Court wrote, “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.” Town v. State ex rel. Reno, 377 So.2d 648, 649 (Fla. 1979).
https://www.ethiopianzioncopticchurch.org/cases/town/
July 18, 1984, The Iowa Supreme Court wrote, “Testimony at his trial revealed the bona fide nature of this religious organization and the sacramental use of marijuana within it.” State v. Olsen, No. 171-69079.
https://www.ethiopianzioncopticchurch.org/cases/olsen1986/
In 1984, Gordon and Wells authorized me as the registered agent in Florida for the Ethiopian Zion Coptic Church in Jamaica. I witnessed for the church in federal tax and civil court cases.
https://www.ethiopianzioncopticchurch.org/pdfs/1986_Florida_Secretary_of_State.pdf
https://www.ethiopianzioncopticchurch.org/cases/king/
https://www.ethiopianzioncopticchurch.org/pdfs/1984_Pre_Trial_Conference.pdf
https://www.ethiopianzioncopticchurch.org/cases/olsen1989/
Before going to prison, I incorporated the church in Iowa.
https://www.ethiopianzioncopticchurch.org/pdfs/1984_Iowa_Secretary_of_State.pdf
Prison
I went to prison in 1985, passing through several state and federal institutions: (1) Classification Center in Oakdale, IA; (2) Correctional Facility in Mt. Pleasant, IA; (3) State Penitentiary in Ft. Madison, IA; (4); Federal Penitentiary in Ft. Leavenworth, KS; (5) Federal Penitentiary in Terra Haute, IN; (6) Federal Correctional Institution in Talladega, AL; and (7) Federal Correctional Institution in Tallahassee, FL.
Soon after being released in 1987, I enrolled in a two year Legal Assistant Associate Degree program (sometimes referred to as a paralegal) at the Des Moines Area Community College and began working as a clerical for the Iowa Department of Transportation.
Appeals
The U.S. Court of Appeals rejected my petition for religious exemption in 1989. By that time, several state and federal courts had rejected similar claims, “each has rejected the argument that accommodation to sacramental use of the drug is feasible and therefore required.” Olsen v. DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989).
I based my argument on state and federal religious exemptions for another church, the Native American Church, and another Schedule I controlled substance, peyote. 21 C.F.R. § 1307.31 Native American Church; Iowa Code § 124.204(8) Native American Church.
The dissenting opinion in Employment Division v. Smith, 494 U.S. 872, 918 (1990) (Blackmun, J., with whom Brennan, J., and Marshall, J., joined, dissenting), summed it up [Some religions, for example, might not restrict drug use to a limited ceremonial context, as does the Native American Church. See, e.g., Olsen, 878 F.2d, at 1464 (“[T]he Ethiopian Zion Coptic Church . . . teaches that marijuana is properly smoked ‘continually all day’”).]
Smith
Many people, including myself, were not expecting the Supreme Court to find religious use of peyote unprotected by the First Amendment. In 1973, a new federal law was enacted to overturn Smith, the Religious Freedom Restoration Act (RFRA), Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993).
Only a few years later, the Supreme Court found Congress violated separation of powers by trying to legislate how the court should interpret the Constitution. See City of Boerne v. Archbishop Flores, 521 U.S. 507 (1997). The judicial and legislative branches are co-equal. While Congress has the sole authority to make laws, the Supreme Court has the sole authority to interpret the Constitution. So, the Smith decision still stands.
Peyote
The federal peyote exemption was created in 1966. Congressional Record – House, July 8, 1965, Vol. 111, pp. 15977-15978; Federal Register, March 19, 1966, Vol. 31, pp. 4679-4680; Code of Federal Regulations, 21 C.F.R. § 166.3(c)(3) (1968); U.S. House Hearings, February 3, 1970, 1970 Serial No. 91-45, pp. 117-118.
The federal peyote exemption was originally going to be included in a statute, because many people assumed it was constitutionally required by the First Amendment. However, it was decided to create it by regulation. Congress removed it from proposed legislation because Congress wanted a federal administrative agency to have complete authority over the substances being placed under the agency’s control. The difference here is key. If the peyote exemption had been included in a federal statute, the federal administrative agency would have no control over it. By including it in a regulation, it became a privilege rather than a right.
The Smith decision makes sense if you look at it from this historical perspective. No federal right to use peyote had ever been created.
In 1988, the Supreme Court of Oregon found religious use of peyote was protected by the First Amendment. The U.S. Supreme Court overturned the Oregon Supreme Court’s opinion in Smith.
Oregon did not have any religious exemptions for controlled substances. Oregon’s law was “neutral toward religion” and “generally applicable”. As long as these two requirements were met, the Supreme Court ruled, a religious act prohibited by state law is not protected by the First Amendment.
The Smith decision upheld states’ rights, as long as state law is both neutral toward religion and generally applicable to everyone.
Further federal legislation was enacted in 1994 to make sacramental use of peyote a federally protected right, the American Indian Religious Freedom Act Amendments (AIRFAA), Pub. L. No. 103-344, 108 Stat. 3125 (October 6, 1994). See 42 U.S.C. § 1996a.
Unlike Oregon, Iowa enacted a statutory exemption for the religious use of peyote in 1967, immediately following the creation of the federal exemption in 1966. House File 285, Chapter 189 (July 5, 1967) (creating a statutory exemption for the religious use of peyote). House File 69, Chapter 52 (March 27, 1925) (prohibiting the use of peyote).
My Response
I stopped using cannabis in 1990. I could see it was no longer possible to argue the religious use of cannabis was protected by the First Amendment, at least not under those conditions. The federal government was supplying cannabis to patients under FDA Compassionate Use protocol, but that was considered research not accepted medical use. Patients participating in the Compassionate Use protocol received 300 cigarettes per month with a prescription to smoke 10 per day. That seemed unusual for something classified as dangerous as heroin.
I waited for cannabis to gain greater acceptance. Eventually, the law prohibiting cannabis would no longer be generally applicable.
Iowans for Medical Marijuana
In 1990, I joined with two Iowa patients in the Compassionate Use protocol who were receiving medical cannabis from the federal government (George McMahon and Barbara Douglass). The three of us formed an organization by the name of Iowans for Medical Marijuana.
Cannabis did gain greater acceptance. The federal government stopped accepting new applications for the Compassionate Use program in 1992, but California voters legalized personal cultivation of cannabis for medical use in 1996. The Clinton Administration tried to stop California from implementing the new law, but failed. See Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), and see the personal statements from George McMahon and Barbara Douglass attached.
U.S. Supreme Court (2006)
In 2006, the U.S. Supreme Court affirmed that the exemption for the religious use of peyote is not based on race or religion. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 434 (2006) (“Nothing about the unique political status of the Tribes makes their members immune from the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion”).
Iowa Board of Pharmacy
In 2006, the three of us incorporated Iowans for Medical Marijuana to petition the Iowa Board of Pharmacy to reclassify cannabis as medicine in Iowa. We were successful. In 2010, the Iowa Board of Pharmacy recommended the legislature reclassify marijuana as medicine in Iowa.
Iowa Board of Pharmacy, February 17, 2010
Iowa Supreme Court, May 14, 2010
Iowa Code Chapter 124D (2014)
The law prohibiting cannabis was generally applicable in Iowa until 2014. In 2014, the legislature enacted Senate File 2360, Chapter 1125 (May 30, 2014), the Medical Cannabidiol Act. The act allowed certified individuals to bring “a nonpsychoactive cannabinoid found in the plant” with “a tetrahydrocannabinol level of no more than three percent” from out of state into the state of Iowa. Id., § 124D.2(1).
Jamaica (2015)
In 2015, Jamaica recognized religious use of cannabis. The Dangerous Drugs Act as Amended by 2015 Act No. 5. This aligns with the findings in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1174 (2003) (“Brazil, in which there are about 8,000 Uniao do Vegetal members, recognizes Uniao do Vegetal as a religion and exempts sacramental use of hoasca from its prohibited controlled substances.”).
Iowa Code Chapter 124E (2017)
In 2017, the legislature enacted House File 524, Chapter 162 (May 12, 2017), the Medical Cannabidiol Act. The act allowed certified businesses to set up large scale cultivation operations and distribution centers, and continued to allow certified individual to bring “any pharmaceutical grade cannabinoid found in the plant” with “a tetrahydrocannabinol level of no more than three percent and that is delivered in a form recommended by the medical cannabidiol board, approved by the board of medicine, and adopted by the department pursuant to rule” from out of state into the state of Iowa. Id, § 124E.2(6).
Iowa Medical Cannabidiol Board
In 2019, I petitioned the Iowa Medical Cannabidiol Board to recommend petitioning the DEA for a federal exemption, like the one for peyote, for the state medical cannabidiol program. The board agreed and voted unanimously to make the recommendation on August 2, 2019.
Amendments to Chapter 124E (2020)
In 2020, the legislature enacted House File 2589, Chapter 1116, removing the three percent cap on tetrahydrocannabinol in product formulations and replacing it with a limit of “a combined total of four and one-half grams of total tetrahydrocannabinol to a patient and the patient’s primary caregiver in a ninety-day period” (which can be waived by the patient’s healthcare provider). Id., §§ 124E.2(6), 124E.9(14), 124E.9(15).
HF 2589 also required the department to seek federal funding guarantees for facilities openly facilitating violation of federal drug law. Chapter 1116, § 31.
Iowa Department of Public Health
On September 4, 2020, the Iowa Department of Public Health determined that the only way to guarantee federal funding for facilities that facilitate violation of federal drug law is to obtain a federal exemption like the one for peyote. Medical Cannabidiol Program Update.
Religious Exemption
Iowa has authorized cultivation, distribution, and use of cannabis, but I haven’t been able to use my sacrament since 1990. Iowa law is not neutral toward religion because Iowa has recognized a statutory right to use a Schedule I controlled substance, peyote, for religious use since 1967. Iowa law is not generally applicable because Iowa allows 2 licenses to grow cannabis, 5 licenses to distribute cannabis extracts, and unlimited licenses to use cannabis extracts, while denying me that same right for long established religious use.