Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, September 16, 2015

Might Prez candidates Mike Huckabee and Ted Cruz come to defense of faith-driven marijuana user?

The question in the title of this post is  my cheeky reaction to this somewhat amusing (but still serious) story emerging from Minnesota.  The piece is headlined "Defendant cites membership in First Church of Cannabis for pot use: She says smoking doesn't violate her probation because of her 'sincerely held' religious beliefs," and here are the details:

A Golden Valley woman is asking the courts to allow her to smoke marijuana for religious reasons — because she belongs to the First Church of Cannabis.

Through her lawyer, 31-year-old Ashley Firnschild is arguing to the Hennepin County District Court that the weed’s illegality places an “undue burden” on her “sincerely held” religious beliefs as a member of the Indiana-based church established earlier this year.  The case is coming before the court because Firnschild is alleged to have smoked the weed in violation of a condition of her probation for a drug charge.

Firnschild’s use of marijuana is based on “guidance in the philosophies of her church” and her embrace of the church’s mission “establishes her dedication and sincerity to such ideologies,” the motion said.

Hennepin County Attorney Mike Freeman said in a statement that selling, possessing or smoking marijuana is not a First Amendment right.  “Other folks have argued this in the past, unsuccessfully,” he said. “We will continue to vigorously prosecute this case of possession of a large amount of marijuana.”

Oral arguments on Firnschild’s motion are scheduled for Oct. 1. Firnschild’s lawyer, Camille Bryant, is arguing her case under the Minnesota Constitution, which provides greater religious freedom protections than the federal Constitution.

Although Firnschild’s argument is uncommon, the legal analysis is complicated, according to one Twin Cities law professor who cited multiple state cases where individuals have been allowed to exercise their religious convictions even though they violated state laws.

In 2014, Firnschild pleaded guilty to fifth-degree drug possession and was sentenced to community service and probation.  The previous year, police had searched her home after Hennepin County Child Protection Services alerted them to a potential marijuana-growing operation in her basement.  Police found such operations in the basement and attic. Firnschild said the drug was for personal use.

Last summer, Firnschild’s probation officer alerted the court to a possible violation of her probation for smoking marijuana.  Rather than admit to a violation, Firnschild is arguing that her religious freedom is at stake.

The church’s mission statement calls cannabis “the healing plant” and a staple of sacrament.  Members are neither required nor requested to smoke the weed, but to “embrace cannabis and hemp for betterment of the world, including medical, industrial, fuel, oil and housing,” the motion said, quoting the church doctrine.  By prohibiting her from smoking marijuana, the motion said, “she cannot adhere to the principal ideologies of her church, namely the positivity cannabis provides to the world.”

Her lawyer argues the state can’t demonstrate a “compelling interest” in banning her use of marijuana. Firnschild’s use hasn’t created a danger to the “peace or safety of the public,” nor have there been complaints, the motion said.

Michael Steenson, a professor at William Mitchell College of Law in St. Paul, said the court will balance the state’s interest in controlling marijuana use with Firnschild’s individual right.

State courts have been reluctant to explore whether a religious belief is sincerely held. In a 1989 case, an Amish family was given traffic citations for refusing to use the brightly colored emblems signaling slow-moving vehicles because they weren’t willing to compromise their belief that the loud colors were worldly symbols. The state Supreme Court found that the family’s beliefs were sincerely held even though the Amish community as a whole wasn’t in agreement....

Steenson noted, as Firnschild’s memo did as well, that there is no alternative to smoking as a means to exercise her religion — either she can or can’t smoke marijuana. “You can see it isn’t all that simple,” he said.

Some prior related posts concerning the First Church of Cannabis:

https://lawprofessors.typepad.com/marijuana_law/2015/09/might-mike-huckabee-and-ted-cruz-come-to-the-defense-of-faith-driven-marijuana-user.html

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