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On January 16, 2007, Carl Olsen filed a lawsuit in the United States District Court
for the Southern District of Iowa demanding that the federal government stop persecuting
him for his use of marijuana as a religious sacrament.
Olsen's lawsuit follows his 1984 petition to the United States Drug Enforcement
Administration (DEA) for a sacramental exemption for the religious use of marijuana
similar to the federal exemption for the sacramental use of peyote that has existed
since the federal drug laws were created in 1970 (1).
Supreme Court says drug laws cannot be challenged
Olsen's first petition was denied in 1990 (2). At that time the United States Supreme
Court issued its landmark decision in Employment Division v. Smith (3) (1990) which
denied Alfred Smith's and Galen Black's claim for unemployment benefits after they
were fired from their jobs because of the sacramental use of peyote (4).
Congress Intervenes
In Employment Division v. Smith, the Supreme Court declined to follow previous case
law in Sherbert v. Verner (5) (1963) and Wisconsin v. Yoder (6) (1972). Those cases
require the courts to consider religious exemptions with an exhaustive search for
a threat to public health and safety called the compelling interest test. The Supreme
Court's new ruling said that courts are not required to consider religious exemptions
to state's laws that do not target religion or religious organizations, which are
neutral toward religion, and which are generally applied to everyone.
The Supreme Court's ruling in Employment Division v. Smith inspired such a negative
reaction among religious organizations that Congress unanimously passed the Religious
Freedom Act of 1993 (RFRA)(7) to overturn the decision. RFRA, as originally enacted,
guarantees the application of Sherbert v. Verner and Wisconsin v. Yoder in all cases
where state and federal laws burden the practice of religion, including state or
federal laws neutral toward religion and generally applicable to everyone.
The United States Supreme Court reviewed the RFRA in 1997. RFRA was invoked to protect
church property from a local zoning ordinance in Texas in City of Boerne v. Flores
(8) (1997). The Supreme Court ruled that RFRA exceeded Congress' authority to require
application of the compelling interest and least restrictive means test to state
laws by way of the Fourteenth Amendment (9).
Again, Congress then passed a law to overturn the effect of the Supreme Court's
ruling in City of Boerne v. Flores. This is the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA)(10).
Having failed to base religious protection on the Fourteenth Amendment, Congress
based RLUIPA on the Spending and Commerce clauses of the federal Constitution (11).
The Supreme Court upheld RLUIPA in Cutter v. Wilkinson (12)(2005) where it was applied
to state prisons in Ohio because Ohio accepts federal funding to operate its prisons.
Acceptance of federal money establishes a voluntary contract on the part of the
state to comply with federal law.
Supreme Court takes another look at the drug laws
In the landmark ruling on February 21, 2006 in Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal (13) (2006) (UDV hereafter), the Supreme Court upheld RFRA as applied
to the federal drug laws. This triggered Olsen's current lawsuit. The Supreme Court
applied the exhaustive search for threats to public health and safety defined in
Sherbert v. Verner and Wisconsin v. Yoder. The court found that the drug laws are
not neutral toward religion because they allow a sacramental exemption for the use
of peyote, that the drug laws are not generally applicable because of various exemptions
for scientific purposes, and the drug laws do not prevent the sacramental use of
drugs where no injury caused directly by use of the drugs was shown. The court also
said the harm caused by use of a drug was only one of the factors to be considered.
UDV upholds a long tradition of religious freedom in this country that says a religious
practice is absolutely protected unless someone is being injured. It would be impossible
for a victimless crime to meet this burden.
Case law prior to UDV
Prior to Olsen's 1984 petition, religious exemptions to the federal drug laws had
been routinely denied in a line of cases following the decision in Leary v. United
States (14)(1967). In Leary v United States, decided before Wisconsin v. Yoder,
the United States Court of Appeals for the Fifth Circuit refused to apply the compelling
interest test found in Sherbert v. Verner. The court said that the drug laws were
of such importance that religious exemptions could not be considered.
When the DEA denied Olsen's petition for a sacramental exemption, the DEA relied
on the line of cases following the Leary v. United States ruling and refused to
grant Olsen a hearing. In light of the ruling in UDV, a hearing would have been
required in which the government would have been required to prove that Olsen's
use of marijuana had injured someone or was so likely to injure someone that a restriction
must be applied.
Olsen's argument
The argument in Olsen's favor comes directly from the drug law itself. When the
Controlled Substances Act of 1970 (15)(CSA hereafter) was enacted, Congress placed
marijuana in Schedule I of the CSA as a temporary measure and established a federal
commission to find the actual facts about marijuana use and to recommend marijuana's
final scheduling. The commission was named the "Commission on Marihuana and Drug
Abuse" (16). In its final report, the Commission wrote, "The Commission is of the
unanimous opinion that marihuana use is not such a grave problem that individuals
who smoke marihuana, and possess it for that purpose, should be subject to criminal
procedures." (17). Can you see where this is going? Can sacramental use of marijuana
create an injury where no injury has ever been shown?
The next item of evidence is the DEA's 1986 scheduling of a specific product formulation
containing dronabinol (synthetically manufactured THC) and sesame oil encapsulated
in a soft gelatin capsule, which is sold under the brand name of Marinol, in Schedule
II. (18). [Editor's note:
see here for detailed explanation regarding Marinol, Dronabinol,
and THC.] Shortly after placing the dronabinol capsule in Schedule II, in 1988 the
DEA held hearings on the medical use of the marijuana plant. In his findings of fact and conclusions of law,
the chief administrative law judge for the DEA wrote, "Marijuana, in its natural
form, is one of the safest therapeutically active substances known to man." (19).
Can you see where this is going? Where is the threat to public health and safety
sufficient to override Olsen's religious freedom?
At pages 56–57 of the 1988 DEA decision, the court wrote:
4. Nearly all medicines have toxic, potentially lethal effects. But marijuana is
not such a substance. There is no record in the extensive medical literature describing
a proven, documented cannabis-induced fatality.
5. This is a remarkable statement. First, the record on marijuana encompasses 5,000
years of human experience. Second, marijuana is now used daily by enormous numbers
of people throughout the world. Estimates suggest that from twenty million to fifty
million Americans routinely, albeit illegally, smoke marijuana without the benefit
of direct medical supervision. Yet, despite this long history of use and the extraordinarily
high numbers of social smokers, there are simply no credible medical reports to
suggest that consuming marijuana has caused a single death.
6. By contrast aspirin, a commonly used, over-the-counter medicine, causes hundreds
of deaths each year.
In 1999, the DEA rescheduled encapsulated dronabinol (that is, Marinol containing
synthetic THC) from Schedule II to Schedule III because of its safety (20). According
to the DEA dronabinol is "the United States adopted name for the substance (-)-[Delta-9]-(trans)-tetrahydrocannabinol . . . which is thought
to be the primary psychoactive ingredient in marijuana." (21) THC is the pharmaceutically
pure principle psychoactive ingredient which is the named and scheduled drug in
marijuana.
Driving studies conducted by the federal Department of Transportation, and reported
in 1992 (DOT HS 808 065) found that marijuana did not have statistical significance
in driving related fatalities. Driving studies conducted by the federal Department
of Transportation, and reported in 1999 (DOT HS 808 939) found that marijuana did
not cause impairment in driving performance. Alcohol, alone or in combination with
other drugs, was the primary cause of poor driving performance and traffic fatalities.
Can you see where this is going? Are churches prevented from serving alcohol to
their members during church services? Are church members who use marijuana during
church services prevented from driving home after the service? Are ordinary people
just out to have a good time prohibited from drinking alcoholic beverages in bars
even though drunk drivers kill more of us than any other form of accident?
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Editor's Note: Carl Olsen is the President of Iowans for Medical Marijuana.
Notes
Olsen's Complaint:
http://www.ethiopianzioncopticchurch.org/Federal/olsen-complaint.pdf
Background info:
http://www.ethiopianzioncopticchurch.org/Federal/
(1) 21 C.F.R. § 1307.31; 42 U.S.C. § 1996a
(2) Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990)
(3) 494 U.S. 872 (1990)
(4) 21 U.S.C. § 812 Schedule I(c)(12)
(5) 374 U.S. 398 (1963)
(6) 406 U.S. 205 (1972)
(7) 42 U.S.C. §§ 2000bb et seq.
(8) 521 U.S. 507 (1997)
(9) U.S. Const. Amend. 14
(10) 42 U.S.C. §§ 2000cc et seq.
(11) U.S. Const. Art. I, Sec. 8, Clause 1 and Clause 3
(12) 544 U.S. 709 (2005)
(13) 546 U.S. 418 (2006)
(14) 383 F.2d 851 (5th Cir. 1967), rev'd on other grounds, 395 U.S. 6 (1969)
(15) Public Law 91-513 - Oct. 27, 1970 [84 STAT. 1280–1281]
(16) Public Law 91-513 - Oct. 27, 1970 [84 STAT. 1280–1281] - Part F - "Establishment
of Commission on Marihuana and Drug Abuse" Sec. 601
(17) Final Report at page 150
(18) Vol. 51, Federal Register, Page 17476, Tuesday, May 13. 1986
(19) In the Matter of Marijuana Rescheduling Petition, DEA Docket No. 86-22, Sept
6, 1988
(20) Vol. 64, Federal Register, Page 35928, Friday, July 2, 1999
(21) Donnie Marshall, Deputy Administrator DEA, Letter to Simore Monesebian, July 28,
1999.
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