Religious Claim for Cannabidiol Moves Forward

1970

I began to realize that cannabis is the sacrament in the late 1960s.  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.

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.

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.

Board Moves to Dismiss Religious Claim for Cannabidiol

On Thursday, September 20, the Iowa Board of Pharmacy moved to dismiss my petition for the Religious use of medical cannabidiol, in Olsen v. Board of Pharmacy, No. CVCV056841 (Iowa District Court, Polk County).  The Board says the petition should have been filed with the Iowa Legislature instead of the Board.

The problem with the Board’s position is that the Iowa Legislature has given the Board the duty of recommending changes in the schedules of controlled substances and medical cannabidiol is a controlled substance in Iowa.  There is also an existing exemption for the religious use of peyote, a Schedule 1 controlled substance.  Iowa Code § 124.204(8) (2018).

RELIGIOUS USE OF PEYOTE – Iowa Code 124.204(8) (2018)

The Board says the exemption for the religious use of peyote was a response to the federal exemption for the religious of peyote.  However, Iowa created its exemption for the religious use of peyote in 1967.  1967 Iowa Acts ch. 189, § 2.  The federal exemption for the religious use of peyote was not created until 1970.  See Peyote Exemption for Native American Church.  And, see Peyote Exemption for Native American Church.

The Board says it was never involved in creating the exemption for the religious use of peyote in Iowa, but that’s true of most of the substances in the various schedules.  In 1971, the Iowa Legislature moved the exemption for the religious use of peyote from a separate code section into the newly created schedules and gave the Board the duty of recommending changes to the schedules.  Iowa Code Chapter 204A (1971) was repealed and the peyote exemption was moved into the newly created schedules in Iowa Code Chapter 204 (1973).

THE BOARD’S DUTY TO RECOMMEND CHANGES – Iowa Code 124.201(1) (2018)

The Board says a request for a religious exemption to the schedules of controlled substances should go to the Iowa Legislature, but the Iowa Supreme Court has made it clear that the Board has to act first.  In State v. Bonjour, 694 N.W.2d 511 (Iowa 2005), the court wrote:

What [the legislature] has done, however, is to clearly and deliberately decide what the procedure shall be for making that determination.  That procedure is to defer to the Board of Pharmacy Examiners, which is far better equipped than this court — and the legislature, for that matter — to make critical decisions regarding the medical effectiveness of marijuana use and the conditions, if any, it may be used to treat.  The board has not done so, and we, by legislative directive, must wait until it does.

Bonjour, at 514.

Although the Board claims it has no authority to recommend religious exemptions, the exemption being sought is identical to the use of medical cannabidiol created by the Iowa Legislature in 2017.  See, Iowa Medical Cannabidiol Act, 2017 Iowa Acts ch. 162.  The Board would have to accept that the decision of the Iowa Legislature to allow the medical use of cannabidiol proves beyond any doubt that no compelling interest exists in denying that same use for religious reasons.

And, because any decision of the Board goes to Iowa District Court for judicial review, there’s really no good reason why someone seeking a religious exemption would bypass the Board in light of the duty the Iowa Legislature has given the Board to recommend such changes.

THE FEDERAL AND UNIFORM ACTS

Under both the federal and uniform state acts, the scheduling of controlled substances is by administrative rule.  A petition for an administrative rule is a formal rule making process filed with an administrative agency.  The federal exemption for the religious use of peyote is a federal regulation.  See 21 C.F.R. § 1307.31 (2018).

Iowa claims to have adopted the Uniform Controlled Substances Act.  See, Iowa Code § 124.601 (2018).  But Iowa omitted the administrative rule making process for scheduling.  This would also tend to lead to the conclusion that a petition for a religious exemption would begin with the Board.  The Board says it needs to follow the federal process, but both federal and uniform controlled substances acts make scheduling an administrative process due to the technical expertise of the agency making the decision.  Indeed, the federal administrative agency has guidelines for making requests for religious exemptions.

What is the Religious Freedom Restoration Act?

The Religious Freedom Restoration Act (RFRA) was enacted in 1993 to reverse the U.S. Supreme Court ruling in Employment Division v. Smith, 494 U.S. 872 (1990).  In the Smith case, the court ruled that religious freedom alone was not guaranteed by the U.S. Constitution without an additional constitutional claim, such as equal protection.  The court found that although there was a federal regulation allowing the religious use of the schedule 1 controlled substance peyote, the state of Oregon did not allow any use of peyote and could constitutionally deny the religious use of peyote in Oregon.  The ruling in Smith was that laws neutral on their face toward religion and generally applicable to everyone do not violate the First Amendment if they burden religious exercise.  In response Congress passed RFRA to reverse that ruling.  See, The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993).

Reacting to RFRA, the U.S. Supreme Court ruling in City of Boerne v. Flores, 521 U.S. 507 (1997), held RFRA unconstitutional as applied to the states, basically upholding its decision in the Smith case and invalidating its application to the states while leaving RFRA intact as far as the federal government is concerned.  So, this is the first reason that the Drug Enforcement Administration (DEA) has issued guidelines for religious exemptions to the federal Controlled Substances Act under RFRA.

Following the decision in Flores, the court’s first decision on the religious use of schedule 1 controlled substances was in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006).  In O Centro, the court found there was no compelling interest in federal interference with the shipment of a schedule 1 controlled substance from South America to the state of New Mexico.  So, this is the second reason that the Drug Enforcement Administration (DEA) has issued guidelines for religious exemptions to the federal Controlled Substances Act under RFRA.

What was unique about the O Centro case, unlike the Smith case, was that there was no interference with the religious practice of O Centro by the state of New Mexico.

To draw an analogy to my own situation, the Iowa Supreme Court has specifically denied religious protection for the religious use of cannabis in State v. Olsen (1984).  RFRA does not apply to state actions, so the Smith case determines the outcome.  Beginning in 2018, the state of Iowa plans to produce and distribute cannabis extracts in the state of Iowa, which means the Iowa law is no longer neutral toward religion or generally applicable to everyone.

Finally, because O Centro was actively practicing the religion without any interference from the state of New Mexico, O Centro had an injury that could be redressed by the federal courts.  In comparison. the injury in State v. Olsen would first have to be redressed favorably by the Iowa Supreme Court before a federal claim could be made under the Smith ruling.  We’ll see what happens next:

Olsen v. Iowa Board of Pharmacy, No. CVCV056841 (Iowa District Court, Polk County)